HCJ 9134/12

 

 

 

Petitioners:                1. Prof. Moshe Gavish

                                    2. Prof. Mordechai Segev

                                    3. Prof. Asa Kasher 

 

                                                            v.

 

Respondents:                        1. The Knesset

                                    2. Minister of Finance

                                    3. Attorney General

                                    4. Technion – Israel Institute of Technology

 

Applicant to Join as Additional Petitioner or Amicus Curiae: Prof. Ruth Ben-Israel

           

Applicant to Join as Amicus Curiae:  Association of Law in the Service of the Elderly

 

Attorneys for the Petitionrs and the Applicant to join as Additional Petitioner or Amicus Curiae:  Shoshana Gavish, Adv.

Attorney for Respondent 1: Gur Bligh, Adv.

Attorney for Respondent 2-3: Hani Ofek, Adv.

Attorney for Respondent 4: Gilat Vizel-Saban, Adv; Yael Hadani, Adv; Adam Fish, Adv.

Attorney for the Applicant to join as Amicus Curiae:  Carmit Shai, Adv.

 

 

 

The Supreme Court sitting as High Court of Justice

 

Opposition to order nisi.

Position of the Attorney General of February 9, 2105

Response of the Petitioners of March 22, 1025

 

25 Heshvan 5775 (November 18, 2014)

 

Before: President M. Naor, Deputy President E. Rubinstein, Justice E. Hayut, Justice Y. Danziger, Justice N. Hendel, Justice U. Vogelman, Justice D. Barak-Erez

 

President M. Naor:

 

            Section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Age Law or the Law), provides that "the age at which an employee can be required to retire because of age is 67 for a man and for a woman". The issue before the Court in this petition is whether that statutory provision is constitutional.

 

Background

 

            The Normative Stuation prior to enactment of the Retirement Age Law

 

1.         The accepted view in Israel, as in many other countries, is that a person should be permitted to retire from work and rest from daily toil in old age. That approach is expressed in the creation of retirement arrangements (HCJ 104/87 Nevo v. National Labour Court, IsrSC 44 (4) 749, 754 (1990) [English: http://versa.cardozo.yu.edu/opinions/nevo-v-national-labour-court] (hereinafter:  the Nevo case)). "Retirement age" is generally defined in the framework of those arrangements. The term "retirement age" can have several possible meanings. One meaning is pension-qualifying age, namely the age at which a person is entitled to retire voluntarily and receive the full pension that he has accumulated during his life (hereinafter: qualifying age). Another meaning is a mandatory retirement age. That is, the age at which an employee can be required to retire because of his age (hereinafter: mandatory retirement age),  which is the focus of this petition.

 

2.         The Retirement Age Law was enacted in 2004. Before its enactment, there was no statute in Israeli law that regulated the issue of retirement generally, or that of mandatory retirement age or qualifying age. At that time, mandatory retirement age was gounded in collective agreements, the by-laws of pension funds, or in the statutory provisions that governed certain groups of workers in the economy, like state employees, judges and career soldiers (sec. 18 of the Civil Service (Retirement) Law [Consolidated Version], 5730-1970 as in the version then in force (hereinafter: the Civil Service (Retirement) Law); the Civil  Service (Retirement) (Continued Employment of an Employee over the Age of 65) Regulations (hereinafter: the Civil Service (Retirement) Regulations); section 13(a)(1) of the Courts Law [Consolidated Version], 5744-1984; section 13 of the Israel Defence Forces (Permanent Service) (Retiremant) Law [Consolidated Version], 5745-1985). The employment of workers not governed by a collective agreement or a specific law came to an end at the customaary retirement age, if that was expressly or impliedly agreed between them and their employer. Similarly, such workers could resign upon reaching the customary retirement age and receive severance pay (sec. 11(e) of the Severance Pay Law, 5723-1963.(For details of the arrangements prevailing prior to the enactment of the Retirement Age Law, see: Dan Shnit, “Mandatory Retirement – A Reassessment,” 32 HaPraklit 507, 514-518 (1980) (hereinafter: Shnit).

 

3.         In order to complete the picture, it should be noted that the majority of collective agreements and legal provisions at that time prescribed that the retirement age was 65 for a man and 60 for a woman. Nevertheless, over the years itcame to be understood that requiring women to retire at an earlier age than men was discriminatory (see: Nevo, p. 770; HCJ 6845/00 Niv v. National Labour Court, IsrSC 56 (6) 663 (2002) (hereinafter: the Niv case)). That led to the enactment of the Male and Female Workers (Equal Retirement Age) Law, 5747-1987 [English: http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/6028/97936/F2079498565/ISR6028.pdf] which provided that if a collective agreement prescribed a retirement age that was lower for a woman than for a man, the woman would be entitled to retire at any age between her retirement age and that prescribed for a man (sec. 2 of the statute, later repealed by the Retirement Age Law). Since then, 65 became the normal retirement age for both men and women. (See: HCJ 6051/95 Recant v. National Labour Court, IsrSC 51 (3) 289 (1997) (hereinafter: the Recant case).

 

Recommendations of the Netanyahu Commission

 

4.         In 1997, the Minister of Labour & Welfare and the Minister of Finance appointed a public commission headed by Justice (Emeritus) Shoshana Netanyahu to examine the issue of retirement age (hereinafter: the Netanyahu Commission). The Commission was tasked with examining the issue of retirement age, including its social and economic aspects, as well aso the question of standardizing the retirement age for men and women. The Commission availed itself of the services of an external consultancy firm, as well as information from western countries, comprising statistical data, professional articles, judgments and opinions. Representatives of various professional groups in Israel and a variety of experts appeared before the Commission. The Commission also used demographic forecasts and simulations that were prepared by experts in regard to the implications of a change in the retirement age for the social security system. In addition, the public at large was invited to express its opinions on the issues on the agenda.

 

5.         The Commission submitted its recommendations in July 2000 (Report of the Public Commission for the Examination of the Retirement Age) (hereinafter: the Netanyahu Commission Report). The Commission's recommendations related to various aspects of the retirement age issue. We shall focus on the Netanyahu Commission's opinion on the matter of mandatory retirement age -- the age at which it is possible, as stated, to require an employee to retire because of age. The Commission studied the possibilities of changing the mandatory retirement age, including the possibility of abolishing it altogether. Due to various factors, including the opposition of certain organizations, the Commission decided not to go so far as other countries had in completely abolishing a mandatory retirement age, and instead, adopted a course of "gradual progression, while studying the implications of the proposed change to retirement age" (ibid., p. 6). Consequently, having regard to the data on the ageing of the population and the need to increase the participation of older people in the workforce, the Commission recommended a gradual increase in the customary retirement age (from 65 to 67). In addition, the Commission believed that the mandatory retirement age should be grounded in primary legislation and should apply to all workers. Commission member Prof. Frances Raday took the minority view that a more significant increase in the mandatory retirement age would be appropriate. However, she was also of the opinion that it should not be abolished altogether. This,  because such a step might lead to personal competence criteria for persons wishing to continue working after the normal retirement age, and such criteria might demean and infringe the dignity of those workers. In addition, Prof. Raday believed that abolishing the mandatory retirement age would make it difficult to plan manpower in the workplace.

 

6.         In March 2003, the Government adopted the recommendations of the Netanyahu Commission, making the necessary adjustments to accomodate the passage of time and the changes in the economy since the recommendations were made. Pursuant to the Government's decision, the Retirement Age Bill, 5764-2003 (S.H. 64), was submitted, proposing a comprehensive arrangement for retirement age in Israel, and the required legislative amendments. The Explanatory Notes to the Bill explained the need for legislation in this area:

 

            The ongoing increase in life expectancy, together with the increase in the ratio between the number of elderly in Israeli society and the general population, are not phenomena that are unique to the State of Israel and they exist in most countries of the developed world. These phenomena have led many developed countries, like the USA, to make changes to their prevailing retirement age arrangements in order to adapt the labor market and social security systems (both state and non-state systems) to those changes.

 

            … In July 2000, the Public Commission [the Netanyahu Commission – MN] submitted its recommendations on the said issues, among them te following:… the  mandatory retirement age, namely the age at which an employee may be required to retire because of age, should be raised from 65 to 67. The said rise should be implemented gradually, at the rate of one year every three years, so that it will extend over six years… The Commission believed that it would be appropriate to ground its recommendations in primary legislation, in view of the comprehensive and innovative character of recommended arrangement,and in order to ensure equality among all the residents of the State of Israel".

 

7.         On January 7, 2004, the Bill passed on second and third readings in the Knesset, and on January 18, 2004, the Retirement Age Law, 5764-2004 was published.

 

The Law that is the Subject of the Petition

 

8.         The Retirement Age Law regulates various aspects of retirement age. The stated purpose of the Law is to prescribe standard rules with regard to retirement age, including raising it gradually. Thus the purpose clause of the Law states:

 

Purpose	1.	The purpose of this Law is to establish standard rules with regard to retirement age, including raising it gradually, while applying the said rules both in regard to entitlement to the benefits granted to whomever has attained the said age, and in regard to entitlement to the benefits granted to whomever has not yet attained the said age, until he does attain that age.

 

9.         To achieve that purpose, the Law lays down several provisions concerning the mandatory retirement age and regarding the qualifying age. Section 3 of the Retirement Age Law provides that the age at which a person is entitled to retire voluntarily (the qualifying age) is 67 for a man and, subject to certain provisions, 62 for a woman. Section 5 of the Law provides that upon certain conditions, a person can retire voluntarily at an earlier age. Section 4 of the Law, around which this petition herein revolves, embodies the mandatory retirement age. It provides:

 

Mandatory retirement age

4.

The age at which an employee can be required to retire because of age is 67 for a man and for a woman (in this Law – mandatory retirement age).

 

This provision of the Law does not lay down a mandatory obligation to retire from work at the age of 67, but provides that an employer can reauire that an employee retire because of age. Alongside this, section 10 of the Retirement Age Law provides that an employee and employer can agree that the retirement age will be different from the mandatory retirement age. Among other things, it can be agreed that the retirement age will be higher than the mandatory retirement age:

 

Priority	10. (a)	The provisions of this Law [the Retirement Age Law - MN] shall apply notwithstanding as provided in any agreement.
	(b)	Notwithstanding the provisions of subsection (a), it may be provided by agreement –
		(1)	that the age at which an employee can be required to retire from work because of age shall be higher than mandatory retirement age;
		(2)	that the age at which an employee is entitled to receive benefits because of his retirement from work on account of his age even before he has attained retirement age shall be less than early retirement age, provided that the employer shall bear the cost deriving therefrom in full; the Minister may authorize an entity other than the employer to bear all or part of the cost provided in this paragraph instead of the employer; notice of such authority as aforesaid shall be published in the Official Gazette.
	(c)	The provisions of this Law shall apply unless otherwise provided in another Law (emphasis added – MN).

 

Developments in Case Law after Enactment of the Retirement Age Law: the  Weinberger Decision

 

10.       After the Retirement Age Law was enacted, an appeal was filed in the National Labour Court that asserted that the obligation to retire at the age of 67 was unconstitutional (LabA (National) 209/10 Weinberger - Bar Ilan University (December 6, 2012) (hereinafter: the Weinberger case)). In the alternative, it argued that the Retirement Age Law, according to its interpretation, provides that if an employee asks the employer to continue working after the age of 67, the employer is obliged to give relevant consideration to that request on an individual basis. The National Labour Court (per Judge S. Davidow Motola, President N. Arad, Judge O. Verbner and Public Representatives S. Habshush and Y. Belizovsky concurring) allowed the appeal in part. The court stated that the mandatory retirement arrangement infringed constitutional rights, and such being the case, an examination should be made as to whether the infringement complies with the conditions of the Limitation Clause. The court further held that, prima facie, mandatory retirement is intended for a proper purpose, but there are questions as regards its compliance with the requirement of proportionality. In that context, the court addressed whether it might be proper to adopt a different retirement arrangement that would, mitigate the serious infringement of elderly workers' rights to the extent possible. Nevertheless, the court held that it did not intend to rule on the constitutional issue:

 

            Let us first say that although this court has recognised in its case law, and still recognises, the problems involved in fixing a uniform compulsory retirement age by virtue of a statutory provision, we have decided to leave the ruling on the constitutional issues to the Supreme Court…

 

            Without derogating from the this court’s competence to try constitutional issues, including in the course of indirectly challenging a statute, regard should be had to the fact that jurisdiction to try a direct challenge to the Law – in a way that will apply to everyone, not merely to the direct parties to the dispute – is vested in the Supreme Court, and it is the appropriate and proper instance forexercising constitutional review of a law of such broad scope that has such overall social and economic importance" (paras. 43 and 63).

 

Prenthetically, I would remark that the court will not always deem it appropriate to award relief in the event of an indirect challenge, in circumstances where the party has refrained from presenting the alleged flaw for judicial review by a direct challenge (see and compare: CFH 1099/13 State of Israel v. Abu Pariah, paras. 8-12 (April 12, 2015); LAA 7363/09 Mishan Centre Ltd v. Tel Aviv – Jaffa Municipality, para. 8 (March 2, 2010) and the references there; on the Labour Court's competence to entertain an indirect challenge, see: section 39 of the Labour Court Law, 5729-1969, which refers, inter alia, to section 76 of the Courts Law [Consolidated Version], 5744-1984 regarding incidental jurisdiction). The Labour Court had power not to deal with the constitutional issue. The question whether the Labour Court exercised its discretion properly in those proceedings is not before us, and in any case does not need to be decided.

 

            As for the matter of the Retirement Age Law's interpretation, the Labour Court stated that section 10 of the Law makes it possible to agree to a retirement age that is higher than the mandatory retirement age. Consequently, an employee is entitled to put it to the employer that he wishes to continue working even after accepted retirement age. Alongside that, the Labour Court held that the employer, for his part, must exercise due, individual discretion in answer to the request. The Labour Court enumerated a series of factors that the employer must take into account, like the personal circumstances of the employee, his entitlement to pension and verall concerns of the workplace. The Labour Court emphasised that those factors are not a closed list, and that in any event the employer does not have to continue employing the worker after the hearing. The Labour Court stated, obiter dictum, that according to its interpretation, the mandatory retirement arrangement might permit the employer to require an employee to retire because of his age only in circumstances in which ending the employment involves "leaving on pension", namely "only in circumstances in which there is an overall pension arrangement that regulates the pension age, in the scope and by virtue, of which the employee is entitled 'to leave on pension'" (ibid., para. 71). Nevertheless, it was held that in the circumstances of the case before the Labour Court, it was unnecessary to definitively decide the issue since the appellant there was in any case ending her employment in the framework of a comprehensive pension arrangement, and as part of a collective agreement that gave her tenure. As to the crux of the matter, the Labour Court found that in the case before it, the employer had not summoned the appellant to a hearing or examined the appellant's request to continue working after retirement age. The Labour Court therefore allowed the appeal in part, in the sense that the employer was ordered to pay the appellant compensation of NIS 50,000.

 

            Further to the judgment in Weinberger, in which it was held as aforesaid that this Court should consider the constitutionality of the mandatory retirement arrangement, the petition before us was filed.

 

The Petitioners

 

11.       The first and second Petitioners are members of the academic staff of the Technion – Israel Institute of Technology (hereinafter:  the Technion). The first Petitioner, Prof. Gavish, is a full professor in the Faculty of Medicine of the Technion. The second Petitioner, Prof. Segev, is a full professor in the Faculty of Physics of the Technion and also holds the title of Distinguished Professor. According to para. 16(b)(1) of the collective agreement between the Technion and several other employers and the employee organizations (hereinafter: the Pensions Constitution"), senior academic staff members must retire at the age of 68 (one year over the mandatory retirement age prescribed in the Law). Nevertheless, according to the procedures of the Technion, a full professor, whose academic achievements so justify will, on attaining mandatory retirement age, be appointed as an emeritus professor of the Technion. An emeritus professor may continue teaching, mentoring and research work, albeit on a limited scale in comparison with the work of a tenured professor of equivalent rank. According to the Pensions Constitution, Prof. Gavish reached retirement age in October 2014 and could be appointed an emeritus professor. Prof. Segev is expected to reach retirement age in 2027 but because of his senior title – Distinguished Professor –the procedures of the Technion will permit him to extend his service as a tenured senior staff member with an appointment, subject to the necessary approvals.

 

            The third Petitioner, Prof. Kasher, took early retirement and is now Emeritus Professor of the Chair in Professional Ethics and Philosophy of Practice, and Emeritus Professor of philosophy at Tel Aviv University.

 

            As will be explained below, the Petitioners assert that section 4 of the Retirement Age Law which, as aforesaid, grounds the possibility of compelling an employee to retire because of his age, is void.

 

Applications to Join the Petition

 

12.       After the petition had been filed, Prof. (Emeritus) Ruth Ben-Israel filed an application to join the petition as a Petitioner or, in the alternative, as amicus curiae. Prof. Ben-Israel served for many years as a full professor at Tel Aviv University. Over the years she published extensive, important research in labour and social security law, such as on collective agreements, the right to strike and equal opportunities at work. Because of her activity in those years, Prof. Ben-Israel has achieved academic recognition, a variety of degrees, and even the Israel Prize. Prof. Ben-Israel applied to join the proceedings in order to support the petition and, according to her, to put her knowledge and expertise on the issues before the Court. Prof. Ben-Israel stated that she has been researching the phenomenon of discrimination against the elderly in the labour market for years, and she regards herself as being at the forefront of the fight against age discrimination. Prof. Ben-Israel also filed an affidavit in which she detailed the difficult personal experience that she had undergone when she had to retire from the senior academic staff of Tel Aviv University.

 

13.       Another application to join was filed by the Association of Law in the Service of the Elderly. The purpose of the Association is to promote the rights of the elderly in Israel, and in order to achieve that purpose, it operates at the public and legal level. The Association's main battle is against discrimination against the elderly because of their age (a phenomenon which is called ageism). The Association also applied to support the Petitioners' pleas.

 

The Proceedings Before Us

 

14.       There were two oral hearings on the petition. At the end of the first hearing, an order nisi was issued, directing the Respondents to show cause why section 4 of the Retirement Age Law should not be declared void. It was further decided that opposition to the order nisi would be heard before an extended bench, and that the applications to join would be referred to it (President A. Grunis, and Justices E. Arbel and D. Barak-Erez, judgment and decision of February 12, 2014). Other relief that was sought in the petition was struck out by consent of the Petitioners, while reserving their right to raise them in regard to the stricken issues.

 

15.       On November 18, 2014,  a hearing was held before an extended bench of seven Justices. At the end of the hearing, we asked the Attorney General to submit his opinion on the rule established by the National Labour Court in the Weinberger case, and we ordered that the other parties could reply to his opinion. Finally, it was decided that a judgment would be handed down after the notices and replies had been received (Deputy President M. Naor and Justices E. Rubinstein, E. Hayut, Y. Danziger, N. Hendel, U. Vogelman and D. Barak-Erez, decision of November 18, 2014).

 

The Parties' Main Arguments

 

            The Petitioners' Arguments

 

16.       According to the Petitioners, work is a means for their self-fulfilment, health and longevity. Their only wish is to continue working regularly, without the Technion taking into account the retirement age fixed in the Law or in the Pensions Constitution. The Petitioners believe that an employee's age cannot serve as a criterion for his abilities or skills, and that giving weight to that datum is discriminatory and demeaning, contrary to the Employment (Equal Opportunities) Law, 5748-1988 (hereinafter: the Equal Opportunities Law), and also inconsistent with the relevant case law of the Supreme Court. The Petitioners therefore argued that the mandatory retirement arrangement seriously infringes their constitutional right to equality and to freedom of occupation to an extent that is greatr than required. They assert that the biological retirement model can be replaced by a functional retirement model, based on individual competence criteria. According to them, functional retirement presents a lesse infringement of the rights of elderly employees because it is bases the end of the empoyment relationship on a relevant foundation – the worker's performance. The Petitioners emphasized that in Israel there are already individual competence tests, such as those conducted for state employees, and there is therefore no particular difficulty in making use of them in the framework of an overall retirement arrangement. The Petitioners also argued that the harm caused to them exceeds the benefit that derives from the Law. Finally, the Petitioners explained that, in their view, the interpretation of the National Labour Court in the Weinberger case, according to which an employer is obliged to give individual consideration to the request of an employee to continue working after the accepted retirement age, does not make the mandatory retirement arrangement constitutional.

 

            In view of the above, the Petitioners asked that we strike down section 4 of the Retirement Age Law, and consequently order that para. 16 of the Technion's Pensions Constitution is  void, and other relief. Thereafter, on the recommendation of this Court, the Petitioners focused the petition exclusively on the constitutionality of sec. 4 of the Retirement Age Law. 

 

The Respondents' Answers

 

17.       The first Respondent is the Israel Knesset. The second and third Respondents are the Minister of Finance and the Attorney General (hereinafter referred to together as: the State), while the fourth Respondent is the Technion.

 

18.       According to the State, a mandatory retirement arrangement passes the constitutionality test. The State first asserted that the issue of retirement age is a multifaceted economic and social issue, and that judicial intervention in might have far-reaching implications for the Israeli economy. The State went on to argue that it is doubtful whether mandatory retirement infringes constitutional rights because in certain respects, it benefits workers. First, it helps increase job security until retirement age. Second, it permits the entry of new workers into the labor market. Finally, it saves workers having to undergo constant review of their competence in individual competence examinations. The State also asserted that in various countries, a variety of retirement arrangements, including mandatory retirement arrangements, has been introduced. The State emphasized that the various different retirement models have advantages and disadvantages, and that in such circumstances the legislature's decision to choose the mandatory retirement model is not illegitimate. In addition, the State asserted that since the enactment of the Retirement Age Law, the participation of the elderly in the labor market has increased; that the rate of elderly workers in Israel is among the highest in the world; and that the average, actual retirement age is also higher in comparison with other countries. Consequently, the State argued that the Retirement Age Law has not proven detrimental to the situation of elderly workers.

 

19.       As regards the interpretation of the Law laid down in the Weinberger case, in its reply of February 9, 2015 the State did not dispute that an employer is obliged to consider an employee's request to continue working after reaching retirement age, but emphasised that that did not mean that the employer must extend the employee's employment. In addition, according to the State, it is unnecessary to rule on the scope and nature of the factors that the employer must consider in that regard. In order to demonstrate this, the State noted that it doubted whether the employer should, for example, be required to consider the extent of an employee's entitlement to pension. According to the State, obliging the employer to consider that factor might deter employers from employing candidates who are not likely to accrue sufficient pension rights by the time of reaching the mandatory pension age.

 

20.       The Knesset asked to join the State's arguments, and emphasised three matters: first, according to the Knesset, it is not at all clear that the arrangement infringes the rights of elderly persons. According to the Knesset, an arrangement of compulsory retirement because of age might be to the benefit of elderly workers and safeguard their dignity. Secondly, it argued that support for the arrangement existing in Israel can be found in comparative law, especially in Europe. Finally, the Knesset asserted that ruling on the question of retirement age is complex and has far-reaching implications for the labour market, and that being the case, the decision should be made by the legislature.

 

21.       In its response, the Technion, adopted the position of the State as regards the constitutionality of the mandatory retirement arrangement. According to the Technion, the Retirement Age Law adopted the conclusions of the Netanyahu Commission, which had considered the matter and all the factors relevant to the issue of retirement age. Consequently, according to the Technion, there is no justification for judicial intervention in the Law. The Technion further contended that the advantages of a mandatory retirement arrangement are of particular importance in the context of collective agreements, like the Pensions Constitution, which constitute a "package deal", comprising long-term employment alongside a constant increase in wages, on the one hand, and a predetermined time for the labor relationship to end, on the other hand. The Technion asserted that arrangements of this type are especially important in institutions of higher education, in which academic freedom should be maintained. It argued that abolishing the mandatory retirement age would negatively affect collective agreements that are for the benefit of workers, and also harm the Technion's administrative and budget flexibility. Finally, the Technion argued that the interpretation of the mandatory retirement arrangement made in the Weinberger case expresses a balanced solution, suitable to the labor relationship, and makes it unnecessary to abolish the mandatory retirement age.

 

The Response of the Petitioners and Prof. Ben-Israel

 

22.       In their response of September 15, 2014 the Petitioners and Prof. Ben-Israel presented arguments counter to those of the Respondents. It was first argued that the consideration that a mandatory retirement age promotes job security might be relevant only to employees who enjoy tenure and not workers who are employed under personal contracts. In this connection it was asserted that nowadays the majority of workers in the economy are not governed by employment arrangements that incorporate job security, and the mandatory retirement arrangement is of no advantage to them. In addition, it was argued that the Respondents' position with regard to the need to give the employer tools to plan the workforce at the workplace is not persuasive because it was not raised in other relevant contexts. Thus, for example, section 5 of the Retirement Age Law enables, as aforesaid, an employee to retire voluntarily before reaching the qualifying age. However, although the possibility of early retirement also impairs certainty, it was never argued that it makes it difficult for the employer to manage the workplace. The Petitioners further argue that individual competence tests do not demean the employee since, according to them, the requirement of continuing conformity of a worker to the needs of his job is a relevant requirement. Finally, the Petitioners again warned that the solution outlined by the National Labour Court in the Weinberger case "perpetuates and aggravates discrimination against the elderly because it gives it a color of constitutionality" (ibid., para. 26).

 

Discussion and Ruling

 

23.       The question for us to decide is the constitutionality of section 4 of the Retirement Age Law. It is acknowledged that the Court undertakes judicial review of the Knesset's primary legislation with cautious restraint. "In its legislation, the Knesset gives expression to the will of the people's elected representatives" (HCJ 7717/13 Colian v. Minister of Finance, para. 8 (October 2, 2014)). Therefore, "the Knesset's legislation enjoys the presumption of constitutionality, which imposes a substantial burden on whoever argues against it" (HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 62 (September 2, 2010) (hereinafter:  the Lahav case)). A review of the constitutionality of a statute is of narrow scope, which necessitates a delicate balance between the principles of majority rule and the separation of powers, on the one hand, and the constitutional protection of human rights and the fundamental values of the Israeli regime, on the other hand (HCJ 2605/05 Academic Centre for Law and Business, the Human Rights Division v. Minister of Finance, IsrSC 63 (2) 545, 593 (2009) [English: http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-...  (hereinafter: the Prison Privatization case)).

 

24.       Special care is necessary when legislation is involved that delineates wide-ranging social and economic policy (HCJ 1715/97 Israeli Bureau of Investment Managers v. Minister of Finance, IsrSC 51 (4) 367, 386, 388-389 (1997); Lahav, paras. 62-64; Prison Privatization, p. 593; HCJ 4885/03 Israel Association of Poultry Farmers Cooperative Agricultural Society Ltd v.  Government of Israel, IsrSC 59 (2) 14, 60 (2005) [Engish: http://versa.cardozo.yu.edu/opinions/israel-poultry-farmers-association-... HCJ 4948/03 Elhanati v. Minister of Finance, IsrSC 62 (4) 406, 467-468 (2008) (hereinafter:  the Elhanati case). As Justice D. Beinischsummarised in HCJ 4769/95 Menahem v. Minister of Transport, IsrSC 57 (1) 235, 263 (2002) (hereinafter: the Menahem case):

 

            … It has been emphasised many times in this Court's case law that in applying the constitutional criteria prescribed in the Limitation Clause to the legislation of the Knesset, the Court will act with judicial restraint, caution and moderation. This is particularly so when the legislation under constitutional review is in the area of the economic market, which involves broad social and financial aspects. In these spheres there can often be several possible objectives and courses of action. Deciding among them is often based on an evaluation that involves uncertainty, and that involves forecasts and professional considerations that are not always within the expertise of the Court. An incorrect evaluation of the situation may lead to instability or even upheaval in the State economy. Consequently, the authorities responsible for economic policy – the executive branch and the legislative branch – should be given broad discretionary space, since they determine the overall policy, and bear the public and national responsibility for the State economy. Furthermore, the choice between the various different objectives and courses of action in the economy may derive from social-economic perspectives that, despite being different and even contradictory, may all coexist within the framework of the Basic Laws.

 

This statement should also guide us in reviewing the constitutionality of the Retirement Age Law. The issue of retirement is a complex one, that combines both economic and social aspects (LabA (National) 56/196-3 Dead Sea Works Workers Council v. Sharabi, IsrLC 30 283, 313 (1997)). Retirement age itself is a complex, multifaceted subject. It is not without reason that there are several different models in the world in this sphere (for a comprehensive survey of the different models, see Pnina Alon-Shenkar, “Ending Mandatory Retirement: Reassessment,” 35 Windsor Rev. Legal & Soc. Issues 22 (2014) (hereinafter: the Shenkar case); I shall address this again below). Of the possible solutions, the Israeli legislature has decided to adopt a collective model in the Law, which prefers the criterion of age to a specific review of the individual (see, for example: HCJ 7957/07 Sadeh v. Minister of Internal Security, para. 11 of the opinion of Justice E. Hayut (September 2, 2010) (hereinafter referred to as "Sadeh"); HCJ 4487/06 Kelner v. National Labour Court, para. 2 of the opinion of Justice E. Rubinstein (November 25, 2007) (hereinafter: referred to as HCJ Kelner)). This decision results from the conclusions of the Netanyahu Commission, which examined all the aspects of the issue under review. In such circumstances, although the Court will not refrain from exercising constitutional review, it will do so with extreme care (the Prison Privatization case, pp. 593-594; for criticism of certain aspects of this approach, see: Barak Medina,

“‘Economic Constitution,’ Privatization and Public Finance: A Framework of

Judicial Review of Economic Policy,” in Zamir Book on Law, Society and Politics 5, 583, 648-652 (Yoav Dotan and Ariel Bendor (eds), 2005) (Hebrew)).

 

25.       As customary, the review of an argument against the constitutionality of a statute is carried out in stages. First, it is necessary to determine whether the statute infringes a human right grounded in a Basic Law. If the answer is negative, constitutional review comes to an end. If the answer is affirmative, it becomes necessary to examine whether the infringement is lawful, in accordance with the conditions of the Limitation Clause. This expresses the approach prevailing in our legal system, according to which constitutional human rights are relative. Consequently, they can be limited if there is justification for so doing. If the infringement is lawful, the constitutional review ends. If the infringement is unlawful, to the Court must determine the consequence of that unconstitutionality (see and compare: HCJ 7052/03 Adala - The Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, IsrSC 61 (2) 202, 281-282 (2006) [English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... (hereinafter: the Adala case); HCJ 2334/02 Stenger v Speaker of the Knesset, para. 5 of the opinion of President A. Barak (November 26, 2003); HCJ 2254/13 Samuel v  Minister of Finance, para. 8 of the opinion of Justice N. Hendel (May 15, 2014)).

 

            We will now proceed to a review of the constitutionality of the mandatory retirement arrangement.

 

Does Compulsory Retirement by Reason of Age infringe the Right of Equality Deriving from the Constitutional Right to Human Dignity?

 

26.       The Petitioners' main argument is that the Retirement Age Law unlawfully infringes the right of equality that derives from the constitutional right to human dignity. Israeli case law has long recognized the right to equality as a fundamental right of prime importance (see: HCJ 1213/10 Nir v. Speaker of the Knesset, paras. 11-12 of the opinion of President D. Beinisch (February 23, 2012) and the numerous authorities there (hereinafter: the Nir case); Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights, vol. II 685-688 (2014) (Hebrew); Itzhak Zamir and Moshe Sobel, “Equality before the Law,” 5 Mishpat Umimshal 165, 165-170 (5760) (Hebrew)). "Equality is a foundation of social existence. It is one of the pillars of the democratic regime" (HCJFH 4191/97 Recant v. National Labour Court, IsrSC 54 (5) 330, 362 (2000) (hereinafter:  HCJFH Recant). The right to equality has also been recognized as a constitutional right under the intermediate model that also includes discrimination that does not involve humiliation, provided that it is closely associated with human dignity (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 (2006) (hereinafter:the Yeshiva Students case)). The other side of the equality coin is the prohibition of discrimination. There are clear reasons for the prohibition of discrimination: discrimination leads to the creation of a sense of oppression, frustration and social ostracism (Nevo, p. 760). It "… completely erodes human relations…" (HCJ 7111/95 Center for Local Government v. Knesset, IsrSC 50 (3) 485, 503 (1996)).

 

27.       Equality – and the prohibition of discrimination that it entails – are also necessary in labor law ( the Recant case, pp. 340-341; HCJ 1268/09 Zozal v. Israel Prison Service Commissioner, para. 13 of the opinion of Justice E. Hayut (August 27, 2012) [English: http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi... (hereinafter: as the Zozal case); Ruth Ben-Israel, “Occupational Equality, Where from and Where To?" 6 Labour Law Yearbook 85 (1996) (Hebrew)). "This area is 'asking for trouble' as regards prohibited discrimination" (the Elhanati case, p. 450). Consequently, in labor law there is extensive legislation aimed at promoting employment equality (see, for example: Female and Male Workers Equal Pay Law, 5756-1996; the Employment of Women Law, 5714-1954). A central law that reflects the importance of equality in the context of labor law is the Equal Opportunities Law. That statute prohibits an employer from discriminating among employees or among those seeking employment on the basis of their sex, sexual orientation, personal status, pregnancy, fertility treatment, IVF treatment, being parents, their age, race, religion, ethnic group, country of origin, views, political party, or their service in reserve duty, their call for service in reserve duty or their anticipated service in reserve duty (section 2(a) of the Equal Opportunities Law). An exception thereto can be found in section 2(c) of the statute which provides: "Differential treatment necessitated by the character or nature of the assignment or post shall not be regarded as discrimination under this section”.

 

28.       Discrimination by reason of a person's age was already prohibited in certain contexts in Israel at the end of the 1950s (see, for example: sec. 42(a) of the Employment Service Law, 5719-1959; HCJFH Recant, p. 367-369), but only in recent years do we find growing has public and legal awareness (HCJ 10076/02 Rosenbaum v. Israel Prison Service Commissioner, IsrSC 61 (3) 857, 872 (2006) [English: http://versa.cardozo.yu.edu/opinions/rosenbaum-v-israel-prison-service-c... (hereinafter: the Rosenbaum case) and the references  cited there). The primary occurence of discrimination on account of age is discrimination against "the elderly" or "the old", referred to as “ageism” (Israel (Issie) Doron, “Ageing and Anti-Ageing in Israel’s Supreme Court Rulings,” 14 HaMishpat 65 (5771) (Hebrew); Israel Doron and Einat Klein, “The Inappropriate Arena? Discrimination because of Age in the Eyes of the District Labor Court,” 12 Labour, Society and Law 435 (2010) (Hebrew); Israel (Issie) Doron, Old Age in the Temple of Justice: The Old and Ageism in the Case Law of the Supreme Court, (2013) (Hebrew) (hereinafter: Doron)). Discrimination because of age "… usually reflects the entrenchment of stereotypes with regard to the limitations of the body and the mind of the older person. Usually this has no rational or objective basis” " (the Rosenbaum case, p. 871). Such discrimination is not unique to Israel. It exists in the majority of the Western world. Some explain its growing prevalence by the trend of population ageing, which has led to an increase in the number of elderly who constitute part of the general workforce (Pnina Alon-Shenkar, “The World Belongs to the Youth: On Discrimination against Senior Workers and Mandatory Retirement,”, in Liber Amicorum Dalia Dorner Book 81, 82-84, Shlomit Almog, Dorit Beinisch & Yaad Rotem (eds), (5769) (Hebrew) and the comparative research cited there (hereinafter:  Shenkar – The World Belongs to the Youth); see also Batia    Ben-Hador, Aliza Even,      Efrat            Appelbeum,   Hadas Dreiher,          Daphna          Sharon, Yinon Cohen, Guy Mundlak, “Assessing            Employment Discrimination          in         Hiring by Correspondence  Studies,”  11 Labour, Society and Law 381, 395 (2005); Equality at Work: the Continuing Challenge, Global Report under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 100th Session 2011 (Report I(B)), p. 49). It is against that background that the prohibition of age discrimination was added to the Equal Opportunities Law in 1995.

 

29.       Discrimination against a person because of age in the field of employment may be expressed at different stages of the labor relationship between the employee and the employer. This was addressed by the National Labour Court in the Weinberger case:

 

            Discrimination against an elderly person in employment is expressed at all the stages of the relationship between him and the employer or potential employer, from the hiring stage… through determination of the terms of employment and limited promotion options… to the stage of employment termination ”as a catalyst for the employee's dismissal or retirement” (para. 27 of the opinion of Judge S. Davidow-Motola).

 

Age discrimination can also occur upon retirement. To date, the Court has assumed that a compulsory retirement age can be fixed, but that it must be done equally. Consequently, it has been held that the determination of a retirement age that is younger than customary for a certain type of worker without substantive justification is unlawful (see, for example: HCJFH Recant, pp. 364-370; Rosenbaum; Sadeh; Zozal; Nevo; Niv; LabA (National) 1313/04 Asa v. El Al Israel Airlines Ltd, para. 22 of the opinion of Judge S. Zur (March 23, 2006) (hereinafter: the Asa case); LabA (National) 14705-09-10 Muzafi v. Bank Leumi Ltd, paras. 28-31 of the opinion of Judge V. Wirth Livne (May 16, 2012) (hereinafter:  the Muzafi case); LabA (National) 203/09 The Agudath Israel Kindergarten Network v. Boussi, para. 41 of the opinion of Judge R. Rosenfeld (October 2, 2011); LabA (National) 1414/01 Dead Sea Works Ltd. v. Nissim, IsrLC 40 193 (2004) (hereinafter: the Dead Sea Works case); cf. HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Internal Security, IsrSC 58 (2) 358 (2004) [English: http://versa.cardozo.yu.edu/opinions/association-civil-rights-v-minister... (hereinafter: the Association for Civil Rights case)). However, the question of whether requiring a person to retire from work at a predetermined, uniform age is discriminatory per se has not yet been decided in our law. In any event, hard and fast rules have not been laid down as to whether compulsory retirement because of age amounts to the infringement of a constitutional right.

 

30.       The question whether compulsory retirement because of age infringes equality has been described in the case law of this Court as a complex one, on which comparative law is not  unanimous (Rosenbaum, p 875; also see and compare: Sadeh, para. 11 of the opinion of Justice E. Hayut). In the Recant case, various opinions were advanced on the subject, but no binding precedent was set. Justice I. Zamir was of te opinion that age discrimination can find expression in the workplace, inter alia, in the very requirement to retire at some particular age (ibid., pp. 341-342). On the other hand, in the same case, Justice M. Cheshin stated that Israeli law does not prohibit fixing of a compulsory retirement age for workers, and that fixing such an age is not "at the present time" regarded as age discrimination (ibid., p. 336). President D. Beinisch, for her part, stated that "… according to the norms currently accepted in Israel, the fixing of a compulsory retirement age, which is within the accepted norm both in legislation and in collective labor agreements, is not unlawful discrimination but a permitted, relevant distinction because of age…" (ibid., p. 374). Justice D. Beinisch went on to say that "new winds are blowing in our society, as in other societies, and future development cannot be ruled out that will undermine the point of departure in regard to the proper compulsory retirement age and perhaps even in regard to compulsory retirement because of age in general" (ibid.).

 

31.       Opinions are also divided in the legal literature. There are those who assert that retirement based on the employee's chronological age infringes his dignity (see, for example: Ruth Ben-Israel,  “Retirement Age in light of the Principle of Equality: Biological or Functional Retirement,” 43 Hapraklit 251 (1997) (Hebrew) (hereinafter: Ben-Israel); Shnit, p. 509). Others believe that there are concrete circumstances in which a substantive distinction is involved (for example, Sharon Rabin-Margalioth, “Age Discrimination in Israel: A Power Game in the Labor Market,”, 32 Mishpatim 131 (5762) (hereinafter:Rabin-Margaliot) (Hebrew); Sharon Rabin-Margalioth, “The Elusive Case of Employment Discrimination: How Do We Prove Its Existence?”  44 Hapraklit 529 (1999) (Hebrew)).

 

32.       The question whether requiring an employee to retire from work at a uniform age infringes the right to equality is indeed a venerable one. In order to analyze the matter, I am willing to accept that compulsory retirement because of age – as it appears in the Retirement Age Law – does infringe the right to equality that derives from the constitutional right to human dignity, as I shall explain. . The Law under review, according to its wording and purpose, is sweeping, and comprehensive. It distinguishes as regards retirement between young employees and elderly ones without any direct link to their competence or work capacity (see: Zozal, para. 24 of the opinion of Justice S. Joubran). It applies to all employees in the economy, without distinguishing among different types of occupation, types of employee or terms of employment. In such circumstances, individuals might understandably be harmed (HCJ Kelner, para. 2 of the opinion of Justice E. Rubinstein; Shnit, pp. 508-509; Rabin-Margalioth, pp. 144-147; cf. the position of Justices M. Cheshin and D. Beinisch in  the Recant case, supra). Furthermore, it is acknowledged that “The principle of equality does not operate in a social vacuum. The question whether a certain case involves discrimination between equals, or whether it merely involves different treatment of different people, is decided on the basis of the accepted social outlooks” " (HCJ 721/94 El Al Israel Airlines Ltd v. Danilowitz, IsrSC 48 (5) 749, 779 (1994) [English: http://versa.cardozo.yu.edu/opinions/el-al-israel-airlines-v-danielowitz, para. 4, per Dorner J]). While in the past the prevailing view was that there is a close connection between age and performance, it is now clear that reality is more complex and the effect of age on body and mind differs from one person to another (see: The Netanyahu Commission Report, p. 6). In this regard the saying goes that "the only generalization that can be made about the elderly is that one cannot generalize" (Doron p. 28). Consequently, making decisions on the basis of attribution to the elderly group is, as aforesaid, likely to cause injustice to the individual. By way of comparison, that was also the opinion of the Supreme Court of Canada (McKinney v. University of Guelph [1990] 13 C.H.R.R. D/171 (S.C.C) (hereinafter: the Mckinney case; see also Dickason v. University of Alberta, [1992] 2 S.C.R 1103 (hereinafter:  the Dickason case); Harrison v. University of British Columbia [1990], 3 S.C.R. 451; Stoffman v. Vancouver General Hospital [1990] 3 S.C.R. 483).

 

33.       I therefore believe that an infringement of equality is involved. It is acknowledged that not every infringement of equality amounts to an infringement of human dignity. However, in the case before us, we are not concerned with a trivial infringement. Discriminating against an elderly person is harsh and outrageous, and it even "involves an element of humiliation and infringement of his dignity as a person" (HCJFH Recant, p. 366; see also Ruth Ben-Israel and Gideon Ben-Israel, “Senior Citizens: Social Dignity, Status and Representative Organization,” 9 Labor, Society and Law 229 (5762) (Hebrew))). Added to this are the implications associated with making a person retire against his will. As Justice G. Bach stated in Nevo:

 

             Retirement from work has many negative personal, mental and social consequences. Frequently, a person who retires from his employment because of his advancing age feels that he is no longer a participant in the productive sector of society. He feels that he has been deprived of the satisfaction of working and receiving compensation for his labour. This feeling is also strengthened by society's attitude, which in many cases treats him as an "old man" who no longer serves any useful purpose. The situation is more acute in our day, where average life expectancy has increased and people remain healthy even at an advanced age. For this reason, the number of years have increased in which an older person, of sound body and mind, is forced, despite his capabilities, to leave his activities in the labour market and gaze, frequently in frustration, on the progression the accordingly of life's activities in which he can no longer take part  (ibid., p. 755 [http://versa.cardozo.yu.edu/opinions/nevo-v-national-labour-court at para. 5B(1)]).

 

And as Justice E. Hayut stated in Zozal:

 

            An older-person’s retirement is very significant, and carries weighty consequences for that person’s life, in financial and social terms, and no less with respect to the person’s self-image, given the insult inflicted on a person who is capable and wishes to continue working " (ibid., para. 15 [http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi...).

 

Also apt in this regard is the statement of Justice I. Zamir in  the Recant case:

 

            Discrimination against a person because of his belonging to a group, for example discrimination because of race, religion or sex, infringes the person's dignity. It is demeaning.… Such is also the case in respect of discrimination concerning retirement age. A person who was active and effective, involved and useful is suddenly, in his own eyes and the eyes of those around him, made irrelevant. The harm generally caused to someone who has to retire from work at an age that is fixed as a general one for mandatory retirement is aggravated when a person belongs to a group of workers that has to retire at an earlier age (ibid., p. 342).

 

Although the statement was made in regard to compulsory early retirement, it is in my opinion also relevant here. Indeed, work is not merely a source for dignified minimal existence, but also a source for self-fulfillment and social fulfilment. Naturally, the greater the place that work occupies in an individual's life, the greater the harm caused as a result of compulsory retirement because of age. Having regard to the nature and extent of the harm, I am willing, as aforesaid, to accept that such harm amounts to an infringement of human dignity. This approach is consistent with opinions that have recently been expressed in the National Labour Court, according to which compulsory retirement because of age infringes constitutional rights (Weinberger, para. 57 of the opinion of Judge S. Davidow Motola; LabA (National) 107/05 Kelner v. Civil Service Commissioner, para. 7 of the opinion of President S. Adler (February 27, 2006) (hereinafter:  the Kelner case), and compare HCJ Kelner, para. 7 of the opinion of Justice E. Rubinstein; see further: the Asa case, para. 22 of the opinion of Judge S. Zur; the Muzafi case, paras. 16-17 of the opinion of Judge V. Wirth Livne).

 

34.       Even the Respondents do not wholeheartedly dispute that compulsory retirement because of age might harm the elderly who can and want to continue working. Nevertheless, according to them, that harm is negligible when considered against the advantages of a predetermined, uniform chronological retirement age. The Respondents assert that a mandatory retirement age protects the elderly against demeaning competence tests and helps promote job security. Therefore, they assert, weighing the interests of elderly workers as a group leads to the conclusion that a mandatory retirement arrangement protects, rather than harms, employees. These are serious arguments. However, I believe that they do not nullify the harm to the individual. In similar circumstances – in which various aspects of the same right clashed with each other – I stated:

 

            We are therefore concerned with a clash between two constitutional rights that are designed as fundamental. How can this clash be resolved? The solution is not one right “winning” over the other. Indeed, at the constitutional level, the clash cannot be completely resolved, as though “letting a hundred flowers blossom” … The solution will be found at the practical – sub-constitutional – level… A. Barak considered this clash between the subordinate rights of human dignity:

 

                        “The conflict between the subordinate rights does not lead to changing the bundle of rights that expresses the whole of human dignity. Indeed, the solution to the conflict will be found at the sub-constitutional level. At that level it will be determined if a sub-constitutional norm […] that has limited one subordinate right of human dignity in order to protect another subordinate right of human dignity is constitutional. The criterion for the determination of that constitutionality is the rules of proportionality”…

 

            That statement is also apt with regard to the sub-subordinate rights that clash in the instant case. One right does not retreat in the face of the other but a balance is determined between them at the sub-constitutional level. If it is found that the solution chosen by the legislature infringes the constitutional right of the student to obtain an education, then that infringement will only be constitutional if it is proportionate. Therefore, as my colleague Justice E. Arbel has stated, it is necessary to examine whether the statute complies with the criteria of the Limitation Clause… (HCJ 3752/10 Rubinstein v. Knesset, paras. 4-5 of my opinion (September 17, 2014); and compare the opinion of President A. Grunis there).

 

So too in the case before us. The protection of the individual against harm caused by requiring him to retire against his will does not retreat in the face of the necessary protection of the elderly as a group, but a balance must be struck between them in light of the criteria of the Limitation Clause (also see and compare: HCJ 42/94 Manco Food Import & Marketing v. Ministry of Trade and Industry (September 3, 1994) (hereinafter: the Manco case). The Respondents further asserted that the Petitioners have not proven that compulsory retirement because of age is makes there situation worse in comparison with that of young workers. In support of that argument, the Respondents adduced data showing that the participation of the elderly in the workforce is growing and that the actual retirement age in Israel is among the highest in the member states of the Organisation for Economic Cooperation and Development (hereinafter: the OECD). In my opinion, those data indicate less harm to the individual, but it appears that they are not sufficient to neutralize the harm. An employee's very obligation to retire against his will is likely to harm his dignity and his sense of competence, even if the age at which he is obliged to retire is relatively high (cf. HCJ 8665/14 Desta v. Knesset, paras. 58-60 of my opinion (August 11, 2015) (hereinafter: the Desta case)).

 

            In view of the foregoing, the point of departure for our further discussion is that a constitutional right, namely the right to equality that derives from the constitutional right to human dignity, is infringed. However, I would first say that the conclusion that I have reached is that the infringement meets the requirements of the Limitation Cclause and it would therefore be inappropriate to invalidate the provision of the Law that is under review.

 

The Criteria of the Limitation Clause

 

35.       Our assumption that the obligation of a person to retire because of his age infringes the right of equality that derives from the constitutional right to human dignity is not the end of the line in respect to the validity of the Retirement Age Law because it is still necessary to examine whether the infringement is lawful (Elhanati, p. 467; Nir, para. 17 of the opinion of President D. Beinish). The constitutionality of the infringement is examined in accordance with the conditions of the Limitation Clause, according to which constitutional rights are not to be infringed, unless by a law that befits the values of the State of Israel as a Jewish and democratic state, which is intended for a proper purpose and in a way that does not exceed what is necessary. The Limitation Clause is the criterion for balancing competing values (HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62 (4) 715, 764 (2008) [English: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general). It reflects the approach prevailing in our law according to which constitutional rights are not absolute. "The Limitation Clause emphasises the concept that the individual lives within society and that the existence of society and its needs and traditions might justify the infringement of human rights" (the Yeshiva Students case, p. 692). This was also addressed by President D. Beinisch in the Prison Privatization case:

 

            The limitations clause expresses the balance provided in Israeli constitutional law between the rights of the individual and the needs of society as a whole and the rights of other individuals. It reflects our constitutional outlook that human rights are relative and may be restricted. The limitations clause therefore fulfils a dual role — it stipulates that the human rights provided in the Basic Laws shall not be violated unless certain conditions are satisfied, but at the same time it defines the conditions in which the violation of the human rights will be permitted (p. 620 [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-..., para. 8]; emphasis added – MN).

 

The conditions of the Limitation Clause are, inter alia, examined having in light of the nature of the right infringed, the purpose of the enactment and the intensity of the infringement caused in the particular case (Nir, para. 18 of the opinion of President D. Beinish; Menahem, pp. 258-259).

 

36.       In the instant case, the infringement is in the Law. In their arguments before us, the parties did not address the question of the Law's befitting the values of the State of Israel as aJewish and democratic state at any length. Therefore, the purpose of the Law will first be discussed and finally – and this is the essence of the matter before us– the question of the Law's proportionality will be discussed.

 

Proper Purpose

 

37.       A purpose is proper if it is intended to achieve important public interests (see: Desta, para. 24 of my opinion, and the authorities cited there), or if it is intended to promote human rights, "including by prescribing a fair and reasonable balance between rights of individuals with conflicting interests in such a way as leads to a reasonable compromise in granting the optimum rights to each individual" (Menahem, p. 264).

 

38.       The general purpose of the Retirement Age Law is to prescribe uniform rules with regard to retirement age, including raising it gradually (section 1 of the Law). The determination of uniform rules for retirement is intended to promote several interrelated sub-purposes. Those purposes are not expressly mentioned in the purpose section of the Law, but they do find expression in the Explanatory Notes to the Retirement Age Bill, and in the recommendations of the Netanyahu Commission that formed the basis for the Law's enactment (see: The Netanyahu Commission Report, pp. 6-8 for the majority opinion, and pp. 31-32 for the minority opinion of Prof. Raday). The determination of a mandatory retirement age seeks to protect the dignity of workers and improve their job security in the economy until retirement age. At the same time, it is intended to enable the employer to manage the workforce at the workplace, especially in unionized workplaces, where the employees enjoy tenure. Mandatory retirement age is also intended to promote fairness among the generations – the integration and promotion of new employees in specific workplaces where the number of jobs is limited. Alongside this, raising the mandatory retirement age in the Law enables anyone so desirous to work longer, and it thereby also seeks to provide an answer to the continuing increase in life expectancy and the rise in the ratio between the number of elderly in Israeli society and the population in general. Since these demographic changes might cause difficulties in financing the increase created in the various different pensions and place a more onerous burden on social security systems, it has become necessary to extend the time for pension savings by means of a standard rise in the qualifying age and the mandatory retirement age (the Netanyahu Commission Report, pp. 9-10).

 

39.       In my opinion, these are proper purposes. The need to protect interests of workers and promote social security is one of the foundations of the whole of labour law. In addition, a purpose that seeks to safeguard the dignity and livelihood of elderly workers recognizes them as a separate group entitled to protection in the employment market, and expresses a proper awareness of the vulnerability of the elderly in labor relations. On the other hand, in my opinion, it is not improper to have regard for the interests of new workers in the labor market. Giving weight to those interests, prima facie strives towards finding compromises between different generational groups, on the assumption that, in time, everyone is likely to reach an advanced stage of  life (see: Kelner, para. 7 of the opinion of President S. Adler; Asa, para. 22 of the opinion of Judge S. Zur, para. 3 of the opinion of President S. Adler; Weinberger, para. 59 of the opinion of Judge S. Davidow Motola; cf. HCJ 1181/03 Bar Ilan University v. National Labour Court, IsrSC 64 (3)  204, 237 (2011) [English: http://versa.cardozo.yu.edu/opinions/bar-ilan-university-v-national-labor-court] (hereinafter: the Bar Ilan" case; for criticism of this purpose, see, for example: Shenkar, “The World Belongs to the Youth”, pp. 101-105; Shnit, pp. 509-513; Ben-Israel, pp. 259-261). The purpose of managing the workplace and planning manpower is not an improper purpose either.

 

            The purposes mentioned have also been recognized as proper purposes in comparative law. Thus, the European Court of Justice has held that legitimate purposes of an arrangement for mandatory retirement on account of age might include the protection of long-standing employees against the infringement of their dignity; the promotion of new employees and the creation of jobs; and enabling the employer to plan and manage the workforce at the workplace (see, for example: Palacios de la Villa v. Cortefiel Servicios SA (C-411/05) [2007]  (hereinafter:  Palacios de la Villa); Georgiev v. Tehnicheski Universitet - Sofia, Filial Plovdiv (C-250/09) [2010] (hereinafter: Georgiev); Torsten Hörnfeldt v. Posten (C-141/11) [2012] (hereinafter: Torsten Hörnfeldt); Fuchs (C-159/10) and Köhler (C-160/10) v. Hessen [2011] (hereinafter: Fuchs); Petersen v. Berufungsausschuss für Zähn für den Bezirk Westfalen-Lippe (C-341/08) [2010]. That was also the opinion of the Supreme Court in England (Seldon v. Clarkson Wright & Jakes [2012] UKSC 590 (hereinafter: Seldon), and of the Supreme Court in Canada (Dickason; Mckinney). It should be noted that further to a legislative change, the current legal position in Canada is not as it was when the said judgments were handed down. I shall refer to this below.

 

40.       The various purposes of the Retirement Age Law demonstrate the Law's aspiration to effect a balance between the rights and interests of the different "players" in the labour market: the needs of the employer, the rights of the different groups of employees, and the needs of the economy as a whole (see: Weinberger, para. 59 of the opinion of Judge S. Davidow Motola). This also finds expression in the overall provisions of the Retirement Age Law. Thus, for example, the Law enables an employer to require an employee to retire on reaching the age of 67, but this is nevertheless on the assumption that the employee will be entitled to a pension as a substitute for income from work. In addition, the Law does not compel an employee to retire from work on reaching a certain age, and permits him and the employer to agree that the employee will retire at a later stage, and it even obliges the employer to give consideration to continuing the worker's employment after retirement age, if the employee so requests (Weinberger, paras. 64-72 of the opinion of Judge S. Davidow Motola). As a rule, striving for a fair balance between competing interests of individuals is a proper purpose (cf. the Yeshiva Students case, pp. 696-700; Manco). This is also apt in the case before us.

 

            The Petitioners, for their part, asserted that even if the determination of a uniforn rule for retirement is a proper purpose, it can be achieved in other ways, and in any event, it does not justify the serious blow caused to elderly persons by obliging them to retire from work because of their age. I shall now proceed to review these arguments.

 

The Proportionality Criteria

 

41.       The infringement of the right must be proportionate. "While the Limitation Clause stands at the heart of constitutional review, the criterion of proportionality stands at the heart of the Limitation Clause" (Lahav, para. 111 of the opinion of Justice A. Procaccia). In the scope of the proportionality criteria, an examination is made of the relationship between the purpose of the Law and the means chosen by the legislature in order to achieve it (see, for example: HCJ 6133/14 Gorvitz v. Knesset, para. 54 of the opinion of Deputy President E. Rubinstein (March 26, 2015) (hereinafter: the Gorvitz case); an application for a Further Hearing was dismissed, HCJFH 2649/15 Gorvitz v. Knesset (August 2, 2015)).  The proportionality criteria express the concept that it is not sufficient for the purpose of the statute to be a proper one. It is also necessary that the means chosen to achieve that purpose to be fit and proper (the Yeshiva Students case, p. 705). The proportionality of the statute is examined by means of three subordinate criteria. The first subordinate criterion is that of the rational connection, which considers whether the statute has the power to realise the purpose for which it was enacted. The second subordinate criterion – the means of least infringement – examines whether among the means that achieve the purpose of the law, the legislature has chosen the means that infringes human rights the least. Finally, the third subordinate criterion, namely the test of proportionality "stricto sensu", requires that there should be a proper relationship between the purpose of the statute and the associated infringement of the constitutional rights.

 

            The Rational Connection Criterion

 

42.       According to the rational connection test, as aforesaid, the means chosen by the legislature must lead to the achievement of the purpose underlying the statute. This criterion does not require that the statutory means to lead to the achievement of the purpose with absolute certainty. Nevertheless, a slim, theoretical prospect does not suffice (Adala, p. 323; Aharon Barak, Proportionality in Law: Infringement of the Constitutional Right and their Limitations, 373-374 (2010) (hereinafter: Barak, Proportionality)). Does the arrangement in the Retirement Age Law have the power to achieve its purposes? In my opinion, the answer to this question is in the affirmative. A mandatory retirement arrangement is based on rational considerations, for which support can be found in case law and in the economic and legal literature. Firstly, there is a reasonable connection between the determination of an equal, uniform rule for retirement from work and the promotion of certainty in the employment market. The fixing of a retirement age enables the worker to know when he will reach the time to rest from his daily toil. Alongside this, it enables employers to plan the workforce at the workplace (see also: Zozal, para. 24 of the opinion of Judge S. Joubran; Nevo, p. 754). The Petitioners, for their part, asserted that the Law enables flexibility in regard to retirement, and the connection between mandatory retirement and promoting certainty in the economy is therefore slim. The Retirement Age Law does, indeed, provide that in certain circumstances it is possible to retire at an age that is different from the qualifying age or the mandatory retirement age (see: section 5 of the Law, which permits voluntary early retirement on certain conditions; section 3 of the Law, which permits women to retire at a younger age than men; section 10 of the Law, which permits an employee and employer to agree that the retirement age will be higher than the mandatory retirement age). Nevertheless, it cannot be inferred from the foregoing that there is no connection between mandatory retirement and the promotion of certainty, nor can it be inferred that there is no need for certainty in the scope of retirement arrangements. I would mention the the factors of certainty and manpower planning did find expression in the recommendations of Prof. Raday in the Netanyahu Commission Report,. Apart from that, the Retirement Age Law seeks to balance different interests, which naturally cannot lead to the absolute achievement of every single purpose of the Law. Consequently, even if the purpose of certainty is not completely achieved, this does not necessarily attest that there is no rational connection between it and the Law.

 

43.       In my opinion, there is also a rational connection between mandatory retirement and promoting the interests of employees in certain respects. The accepted view is that the existence of a mandatory retirement age limits the need for the employee to undergo repeated tests of his abilities and performance that might cause him pressure and uncertainty, and even lead to arguments over his competence (see and compare: Sadeh, para. 13 of the opinion of Justice E. Hayut; HCJ Recant, pp. 373-374; Weinberger, para. 60 of the opinion of Judge S. Davidow Motola). That being the case, it is not unreasonable to assume that a mandatory retirement arrangement can in promote the employee's interest in this regard. Moreover, when there is a predetermined, uniform retirement age, the ordinary practice is to wait until that age and not require the employee's early retirement, even if there is a certain decline in his competence. Consequently, mandatory retirement might reduce the number of workers who are discharged from the workplace before the normal retirement age (see: Shnit, p. 511 and the authorities cited there). In addition, there are those who argue that a mandatory retirement age is an essential, or at least an important element in the employment model termed "deferred compensation". This model is common in unionized workplaces that grant employees tenure by virtue of collective agreements, but it can also exist in an informal format without any explicit contractual arrangement (Rabin-Margalioth, p. 155). In a deferred compensation system, the employee's wage is characterized by a constant increase in its real value over the period of employment, and at a certain stage it even exceeds the employee's marginal output. Such an employment model is based on the assumption that parties to a labor relationship make investments in their relationship that decline to nothing in the case of employment termination (ibid., p. 154). Both parties – the employee and the employer – therefore wish to maintain a long-term labor relationship. A deferred-compensation employment model helps to promote that objective. As described in the article by Rabin-Margalioth:

 

            The beginning of the relationship constitutes the employee's training period, in which he is remunerated in excess of his marginal output. During the second time period (mid-career), the wage continues to rise, but the rate at which the employee's output increases is greater and the wage paid therefore falls below the worker's marginal output. This increase in output is made possible thanks to the skills that the employee has developed in the course of his work. In the third stage of the relationship (the later period), although the employee's wage continues to rise, his marginal output no longer increases and sometimes even declines (ibid., p. 154).

 

At the same time, the deferred compensation model is also based on the existence of a fixed time that is known in advance for the termination of employment, namely a time when the employee can be required to retire because of his age. Without such a time, a particular employer will find it difficult to assure his employee increased wages linked to increased seniority (ibid., p. 155). This approach – which connects mandatory retirement age with the deferred compensation model – has support in the economic literature and empirical research (Edward P. Lazear, “Why is There Mandatory Retirement?” 87 (6) Journal of Political Economy 1261 (1979); Mandatory Retirement: Why Governments Should Quit Banning It (AIMS Labour Series Commentary #3, 16.12.2008) and the authorities cited  there; Samuel Issacharoff and Erica Worth Harris, “Is Age Discrimination Really Age Discrimination?: The ADEA's Unnatural Solution,” 72 NYU L. Rev. 780, 787-790 (1997) (hereinafter: referred to as Issacharoff & Harris); Beverley Earle and Marianne DelPo Kulow, “The "Deeply Toxic" Damage Caused by the Abolition of Mandatory Retirement and its Collision with Tenure in Higher Education: A Proposal for Statutory Repair,” 24 S. Cal. Interdis. L.J. 369 (2015) (hereinafter: Earle & Kulow); Julie C. Suk, “Evolutions in Antidiscrimination Law in Europe and North America: From Antidiscrimination to Equlity: Stereotypes and the Life Cycle in the United States and Europe,” 60 Am. J. Comp. L. 75, 93 (2012) (hereinafter:  Suk); Rabin-Margalioth, pp. 150-161; Shenkar, The World Belongs to the Youth, pp. 139-141; and also see the opinion of Judge Y. Plitman in Dead Sea Works, mentioning the advantages of fixing a mandatory retirement age in collective agreements (although he was left in the minority there with respect to the result, it appears that the other members of the bench did not specifically dispute his said approach)). It cannot therefore be said that this approach, which regards mandatory retirement age as a means to promote job security, is irrational.

 

44.       As regards the purpose of promoting new employees and increasing jobs, there are no unequivocal findings that employment of the elderly leads to unemployment of the young. Consequently, it appears that if the mandatory retirement arrangement was intended for that purpose, it would have been difficult to find correspondence between it and the means taken (see also “Equality at Work: Tackling the Challenges, Global Report Under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work,” International Labour Conference, 96th Session 2007, Report I (B)), p. 42; Shenkar, The World Belongs to the Youth, pp. 101-104). Notwithstanding the foregoing, the need for a balance between senior employees and new ones might be necessary in certain workplaces typified by a limited number of tenured positions and a "narrow" promotion pyramid (The Netanyahu Commission Report, p. 9 of the majority opinion; LabA (National)  300205/98 Avni v. New Histadrut General Federation of Labor, para. 11 of the opinion of Judge S. Adler (June 2, 1999)). This factor is particularly salient when institutions of higher education are involved, where on the one hand, the integration of new academic staff members is important as a means for the interchange of ideas and innovation, but on the other hand, there is a limited number of positions. The Supreme Court of Canada discussed this in Mckinney:

 

            Mandatory retirement is thus intimately tied to the tenure system. It is true that many universities and colleges in the United States do not have a mandatory retirement but have maintained a tenure system. That does not affect the rationality of the policies, however, because mandatory retirement clearly supports the tenure system. Besides, such an approach, as the Court of Appeal observed, would demand an alternative means of dismissal, likely requiring competency hearings and dismissal for cause. Such an approach would be difficult and costly and constitute a demeaning affront to individual dignity.

 

            Mandatory retirement not only supports the tenure system which undergirds the specific and necessary ambience of university life. It ensures continuing faculty renewal, a necessary process to enable universities to be centres of excellence. Universities need to be on the cutting edge of new discoveries and ideas, and this requires a continuing infusion of new people. In a closed system with limited resources, this can only be achieved by departures of other people. Mandatory retirement achieves this in an orderly way that permits long-term planning both by the universities and the individual.

 

The United States Federal Court of Appeal made a statement along similar lines in Lamb v. Scripps College, 627 F.2d 1015, 1023 (1980):

 

            In light of the unique problems encountered by universities in their efforts to prevent intellectual stagnation and to assure diversity and competence in their faculties … and the likelihood that a mandatory retirement policy will remedy at least some of these problems, … California's determination that different treatment is warranted for a certain class of tenured private college professors than for other tenured private college professors and other employees is rationally based … In rejecting Lamb's equal protection challenge on that basis, we make no endorsement of mandatory retirement as a matter of social policy. We are aware of both the debilitating effect that compulsory retirement can have on an individual, and the potential loss to society in terms of human resources that may result therefrom. The promulgation of a mandatory retirement policy, however, reflects a legislature's resolution of competing interests and this is “precisely the type of clash of competing social goals that is best resolved by the legislative process. The federal courts should not second guess the wisdom or propriety of such legislative resolutions as long as they are rationally based” …

 

The Petitioners, for their part, pleaded that the effect of mandatory retirement on actual retirement age is negligible. According to them, research shows that even in countries where mandatory retirement because of age has been abolished, the retirement age has risen only slightly. Therefore, according to them, abolishing mandatory retirement because of age will, in any event, not affect new workers who wish to progress in the workplace. On the other hand, there is other research according to which the abolition of mandatory retirement has led to an increase in the age of those retiring in certain workplaces (see, for example, Earle & Kulow; Issacharoff & Harris; Orley Ashenfelter and David Card, Did the Elimination of Mandatory Retirement Affect Faculty Retirement Flows? (NBER Working Paper No. 8378) (2001), http://www.nber.org/papers/w8378; but see Till von Wachter, The End of Mandatory Retirement in the US: Effects on Retirement and Implicit Contracts, Center for Labor Economics, University of California, Berkeley (Working Paper No. 49 (2002)), http://cle.berkeley.edu/wp/wp49.pdf)). Nor is it possible to ignore the context of this petition, which we should recall, is brought by senior lecturers in institutions of higher education. According to the data presented to us by the Technion, the number of tenured posts in the institution is limited, and the acceptance of new academic staff depends,  to a certain extent, upon the retirement of senior staff members. Indeed, the weight of the intergenerational argument is not the same in all workplaces, and it is influenced by macro-economic changes. This argument should, therefore, perhaps not be given great weight. However, ultimately, it cannot be said that the connection between mandatory retirement and the promotion and integration of new employees in certain workplaces is merely theoretical.

 

45.       The Petitioners further argued that the purposes of the Law detailed above can be achieved in other ways but, as is known, the rational connection criterion does not require that the means chosen be the only one that can achieve the purpose. It suffices for there to be a reasonable possibility that mandatory retirement age promotes the Law's purposes in order to find that there is a rational connection between the Law's purposes and the means adopted by it. The choice between different possible means for achieving the purpose will now be examined in the scope of the second and third subsidiary tests (see:  the Yeshiva Students case, pp. 706-707; Barak, Proportionality, pp. 376-377).

 

The Means of Lesser Infringement Test

 

46.       The lesser-infringement test consists of two elements. The first element considers whether there is an alternative that can achieve the proper object of the Law to the same extent as the means adopted by the Law. The second element examines whether the alternative infringes constitutional rights to a lesser extent than the infringement of the Law under the Court's review (Barak, Proportionality, p. 399). In Retirement Age Law, the legislature preferred to adopt an overall, uniform criterion, rather than abolish the mandatory retirement age and arrange for individual competence tests. In principle, a sweeping arrangement might raise concern of disproportionality in the sense of the second subordinate criterion. In this respect, the statement of this Court in the Association for Civil Rights case is apt:

 

            Indeed, the employer will find it difficult to satisfy the “smallest possible harm test” if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve (p. 367 [http://versa.cardozo.yu.edu/opinions/association-civil-rights-v-minister..., para. 9, per Barak P]).

 

I also considered this, albeit in a different context, in HCJFH 203/14 Salah v. Prison Service (April 14, 2015):

 

            In general, “any sweeping arrangement is ‘suspect’ of not being the lesser infringing means because of the possibility of individually examining the individuals included in the relevant group” (the Younes case, para. 74 of the opinion of Justice Y. Danziger; see also: El Abeid, pp. 706-707; Saif, pp. 76-77 [http://versa.cardozo.yu.edu/opinions/saif-v-government-press-office]; the Airports Authority case, para. 5 of the decision of President (Emeritus) D. Beinish). On the other hand, sometimes an individual examination will be ineffective or cannot be made at all (see and compare: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, IsrSC 61 (2) 202, (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... HCJ 466/07 MK Zahava Galon – Meretz-Yahad v. Attorney General (January 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]; Younes, para. 74 of the opinion of Justice Y. Danziger and the authorities there, and the opinion of Justice I. Amit).

 

There can, indeed, be situations in which an individual examination will not achieve the purpose of the Law to the same extent (Adalah; HCJ 466/07 Galon v. Attorney General (January 11, 2012)). In view of the overall material presented to us, I believe that in the instant case the Respondents have shown substantial reasons in support of the claim that if mandatory retirement is replaced by an individual examination, that might lead to preventing the achievement of the Law's objectives. Thus, a regime of functional retirement does not meet the need of certainty to the same extent, nor answer the need to plan the workforce in the workplace. Such a model might also upset the balance between senior and new employees at particular workplaces. In addition, a move to functional retirement might impair job security in the workplace. First, because, as noted, arrangements that assure the employee tenure in the workplace (such as the "deferred compensation" model) depend to a large extent on the existence of a mandatory retirement age. Second, in the absence of a mandatory retirement age, employers might more frequently compel workers to retire before the customary retirement age. Moreover, choosing the functional retirement model might expose employees to constant examination of their competence in such a way as might create unease, stress and anxiety. As noted, these considerationsfind support in the legal and economic literature (including the current literature), and they also find expression in foreign legislation and case law. I shall refer to comparative law at greater length in the course of the third subsidiary test, but as regards the criterion of the means of lesser infringement, I believe that the legislature had adequate foundation to determine that the functional retirement model will not achieve the purposes of the Law to the same extent. In any event, it is doubtful whether that model infringes workers' rights and dignity less.

 

            The Petitioners dispute the disadvantages of the functional retirement model. According to them, functional retirement does not contradict the deferred compensation model, which can be safeguarded in other ways, like giving incentives to employees who choose to retire early. In any event, according to them, the deferred compensation model is only relevant to unionized workplaces and not to the economy as a whole. In addition, as they see it, functional retirement does not infringe dignity because it is based on substantive reasons for a person's employment termination. Consequently, they believe that the biological retirement model, as enacted in the Retirement Age Law, does not meet the second proportionality test. The Petitioners, like the Respondents, supported their arguments with various authorities and research in the spheres of economics and law. However, having regard for the factual and legal foundations detailed above, that does not suffice to find that a functional retirement regime should be preferred to biological retirement, and to intervene in the choice made by the legislature. It should be borne in mind that the vast majority of the factors for and against mandatory retirement – like the factors in support of other retirement models – are based on appraisals, various expert opinions, and forecasts. Exact science is not involved. Consequently, it is difficult to find a particular retirement model that will provide the optimum benefit of all the "players" in the labor market. It is not without reason that the public, legal and academic debates on this subject have continued in recent years, including in countries where mandatory retirement because of age has been abolished (see for example, Shenkar, pp. 37-39 and the numerous authorities there; Doron, pp. 31-56; Shnit; Ben-Israel; Rabin-Margalioth; Seldon; Earle & Kulo; Suk; Jonathan R. Kesselman, “Challenging the Economic Assumptions of Mandatory Retirement,” in Time's up!: Mandatory Retirement in Canada 161 (Terry Gillin, David Macgregor, Thomas Klassen (eds.) (2005); Lucy Vickers and Simonetta Manfredi, “Age Equality and Retirement: Squaring the Circle,” 42 Ind. Law J. 61 (2013); Orly Gerbi, “Compulsory Retirement in Israel: Is the end in Sight?” 24 No. 2 Emp. & Indus. Rel. L. 25 (2014); Malcolm Sargeant, “Distinguishing Between Justifiable Treatment and Prohibited Discrimination in Respect of Age,” 4 J.B.L. 398 (2013); Neta Nadiv and Ariel Mirelman, “Respect for the Old: An Examination of the Issue of Employment after Retirement Age,” 10 Kiriat Hamishpat 276 (2014) (hereinafter: Nadav & Mirelman) (Hebrew)). For that reason, as well, I do not believe that it is appropriate to intervene in the legislature's preferring the biological retirement model to the functional retirement model.

 

            Having said that, and although the Petitioners did not refer to it at length, it cannot be ignored that there is a broad spectrum of retirement models between a model of compulsory retirement because of age and a model of functional retirement, (see and compare: Rosenbaum, para. 18 of the opinion of President A. Barak; Weinberger, paras. 61-62 of the opinion of Judge  S. Davidow Motola). Thus, for example, a compulsory retirement age only in the framework of collective agreements, which provide job security and an adequate pension, might have been permitted (ibid.; Rabin-Margalioth). Another solution might have been permitted mandatory retirement only if the employer could justify it. Another alternative is gradual retirement, similar to the model existing at the Technion. I will not deny it: these solutions are fair and reasonable, and it might be proper to give them serious consideration. However, as earlier noted, the Petitioners did not base their arguments on these alternatives and consequently, we were not presented with support for the an argument that the alternatives are of equal value to the biological retirement model. We cannot find that they are means that can achieve the purpose of the Law to an equal extent. Moreover, when comparing the existing retirement model with other alternatives, it should be borne in mind that the existing model, according to our interpretation, requires the employer to give consideration to an employee's request to continue working even after the retirement age fixed in the Law (Weinberger; I shall refer to this at greater length below). Consequently, to some extent, even the existing arrangement exrpressed consideration for the individual particulars of the employee tn a manner that reduces the infringement of his rights.

 

            My conclusion is, therefore, that the mandatory retirement arrangement meets the second proportionality test.

 

Proportionality Stircto Sensu

 

47.       In the scope of the third subsidiary test – that of proportionality “in the narrow sense” – an examination is made of whether there is a right and proper relationship between the benefit that will arise from achieving the Law's purposes and the associated infringement of the constitutional rights. This subsidiary test is a values test, based on a balance between rights and interests (see, for example: Desta, para. 24 of my opinion). In the instant case, the parties have presented two competing philosophies. While the Respondents side with the existing retirement model, the Petitioners ask that we strike it down because it seriously infringes the rights of the elderly. Both parties have put a wide range of arguments to us, each from its own point of view. Ultimately, having weighed the infringement caused by the Law, on the one hand, and its benefit, on the other hand, I have reached the overall conclusion that there are no grounds for the Court to intervene in the legislature's choice to prefer a model of compulsory retirement because of age.

 

48.       As earlier stated, a model of compulsory retirement because of age harms individuals who can, and want to, continue working. Furthermore, as noted, research shows that there is no necessary connection between one’s age and one’s performance at work. Although certain abilities might decline with age, there are substantial differences in output within the elderly group (see, for example: Shnit, p. 511; Ben-Israel, p. 268). Against that background, compulsory retirement might cause economic and social harm and lead to serious feelings of deprivation and incompetence. Compulsory retirement because of age might also perpetuate a collective stigma in regard to the abilities and skills of the elderly (Ben-Israel, p. 273). Indeed, "… forced retirement, based on nothing except their age, sends the message that older workers are not qualified. This message hurts the core of a person’s dignity – a person who, only because of his age, is identified as being of little worth. " (Zozal, para. 26 of the opinion of Justice S. Joubran [http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi...). It should be borne in mind that the determination of a mandatory retirement age does not merely affect the time of a person's retirement from work, but it might also have an effect on his ability to obtain other jobs after he has passed the retirement age (see, for example, the handicaps that were discussed in HCJ Kelner with regard to the acceptance to work of someone who has passed retirement age; see also: LabC (TA District) 6286/06 Matatia v. Paint Lee Ltd. (December 17, 2009); Nadav & Mirelman, p. 275). It can also be argued that compulsory retirement leads to the relinquishment of highly experienced, quality manpower that can contribute to the workplace and the economy in general. Abolishing mandatory retirement would therefore enable society to profit from the experience and skills of the elderly.

 

49.       On the other hand, there are weighty arguments in support of a model of uniform, compulsory retirement, as briefly mentioned earlier. In my opinion, among the various factors, consideration should be given to the argument that the implementation of uniform retirement reduces the need constantly to examine the employee's competence, and thereby diminishes uncertainty, tension and anxiety. A decision that an elderly worker must retire because of a decline in his performance at work might also cause serious feelings of incapacity and create an unfavourable "personal stigma" in respect of him. A statement along similar lines was made by Justice D. Beinisch in HCJ Recant:

 

            I would further add that I personally believe that there are substantial reasons that can  justify a uniform, compulsory retirement age. Since that is not the question to be decided here, I shall not express my opinion on that question in detail, but merely state that I tend to believe that, in general, a uniform retirement age is a solution that is preferable to compulsory retirement on an individual basis. Among the disadvantages of such functional retirement, which is gaining a growing number of supporters, mention may also be made of the infringement to the dignity of the ageing employee whose ability to work will be under constant scrutiny (ibid., p. 374).

 

This was also the opinion of Prof. Raday, who stated in the Netanyahu Report that abolishing the mandatory retirement age might lead to the development of personal competence tests for the elderly who wish to continue working after the usual retirement age, "tests that might demean and infringe the dignity of those elderly people" (p. 31; see also: Sadeh, para. 13 of the opinion of Justice E. Hayut). I am aware that in certain contexts it has been held that individual competence tests do not infringe the employee's dignity. This has regard for the fact that employees' performance is a relevant consideration (the Association for Civil Rights case, p. 369; HCJFH Recant, p. 355). However, even if the intensity of the affront in such a case does not amount to an infringement of human dignity, it certainly has an effect on the worker's conditions of employment and welfare. The practical difficulties involved in the development of individual competence tests cannot be ignored either. While an individual competence test might be simple and possible when work that requires physical skill is involved, that is not the case when occupations that necessitate a qualitative appraisal of work capacity are involved (see and compare: HCJ Kelner, para. B of the opinion of Justice E. Rubinstein). This is reinforced in the instant case, which involves senior members of the Technion's academic staff who enjoy academic freedom and independence in research, while any interference in their work might be perceived as the exertion of improper pressure on some of them (see and compare: Mckinney; and cf. the dissenting opinion in Dickason, above, in which the conduct of peer review was suggested as a means to evaluate the competence of a university's academic staff). The Petitioners indeed argued that frequent use is now made of individual competence tests, and they cited as an example the civil service rules that permits them. Although that possibility does exist, it is not the default. Naturally, if mandatory retirement were abolished, the use of individual competence tests would be far more prevalent, with all the implications thereof.

 

            I would incidentally note that I do not give great weight in my decision to the argument that the development of individual competence tests would place the employer under a financial burden. Although such a budgetary factor might sometimes be relevant, in the case before us it does not justify the infringement of equality. It is generally acknowledged that "human rights cost money", and as a democratic society we must be willing to bear their cost (see and compare, HCJFH Recant, p. 355; HCJ 4541/94 Miller v. Minister of Defence, IsrSC 49 (4) 94, 142 (1995) [English:  http://elyon1.court.gov.il/files_eng/94/410/045/Z01/94045410.z01.pdf]; see also: Age Concern England (C-388/07) [2009] para. 46; Fuchs, para. 52). My reasons in this regard are entirely concerned with the possible harm to workers that would be caused by widespread application of individual competence tests, and the practical difficulties of implementing them equally and fairly.

 

50.       Another relevant factor is the scope of the elderly's participation in the labor market. There is concern, as aforesaid, that the abolition of the mandatory retirement age will lead to the early dismissal of elderly employees even before reaching the accepted retirement age, and will also affect the arrangements that give job security to workers. Moreover, as mentioned above, the mandatory retirement age might increase certainty and facilitate the planning of manpower in the workplace, as Prof. Raday stated in the Netanyahu Report. Finally, as noted, a model of compulsory retirement because of age takes into account the interests of new workers in the labor market, although this factor is at most relevant to certain workplaces in which the number of posts and the possibilities of promotion are limited. Added to these overall factors is the underlying premise of the Retirement Age Law that a person who retires can continue subsisting independently after retirement by receiving some or other pension (that factor has also been raised in the case law of the European Court of Justice: Palacios de la Villa, para. 73; Rosenbladt v. Oellerking Gebäudereinigungsges GmbH (C-45/09) [2011], para. 44-47 (hereinafter: Rosenbladt); Alysia Blackham, “Tackling Age Discrimination against Older Workers: a Comparative Analysis of Laws in the United Kingdom and Finland,” 4 Cambridge J. Int'l & Comp. L. 108, 112-117 (2015)). This is even though reforms in retirement arrangements, like the transition from pension savings based on the accrual of rights ("defined benefits") to pension savings based on the accrual of money ("defined contributions"), have created different arrangements between one employee and another (as regards the pension arrangements existing in Israel, see: HCJ 2944/10 Koritsky v. National Labour Court (October 13, 2015), and the numerous authorities cited there – applications for a further hearing were dismissed: HCJFH 7730/15, HCJFH 7649/15 State of Israel - Ministry of Finance v. Koritsky (February 23, 2016); and see also Bar-Ilan; Elhatani; HCJ 6460/12 Eliav v. National Labour Court, IsrSC 60 (4) 411 (2006)).

 

51.       It emerges from the aforegoing that the model of compulsory retirement because of age has advantages and disadvantages. As opposed to this, other models, such as the functional retirement model, based on individual competence tests, are not entirely free of difficulties (see also the comprehensive review of the arguments for and against a mandatory retirement age in Sadeh, para. 13 of the opinion of Justice E. Hayut). Given this complex background, I believe that the legislature's preference of the model of compulsory retirement because of age over other models is based on reasonable considerations that give no cause for the Court's intervention. As this Court has acknowledged, in the context of a constitutional review, the legislature enjoys a "margin of proportionality", within which there are several options. The Court will intervene only when the means chosen by the legislature "departs considerably from the scope of the margin of legislative appreciation given to it and is clearly disproportionate " (Prison Privatization, p. 623 [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-..., para. 46, per Beinisch P] (emphasis added – MN); Gorvitz, para. 53; AAA 4436/02 Tishim HaKadurim – Members Club Restaurant v. Haifa Municipality, IsrSC 58(3) 782, 812-813 (2004)).

 

            In my opinion, the choice of the compulsory retirement because of age model is not "clearly" disproportionate. This model was chosen after the Netanyahu Commission had deliberated and found that it is inappropriate, for the time being, to abolish mandatory retirement. A similar conclusion was also reached by earlier public commissions that had similarly considered the issue of retirement age (the Nitzan Commission (1967); the Kister Commission (1975); the Vogel Commission (1994); see the reference thereto at p. 26 of the Netanyahu Commission Report). Contrary to the Petitioners’ claim, the Netanyahu Commission considered factors for and against mandatory retirement. This clearly emerges from the recommendations of the Commission in which those factors were detailed (see, respectively: pp. 6-8 and pp. 31-32 of the Netanyahu Commission Report). The legislature's choice of the compulsory retirement because of age model reflects was an informed choice among different possibilities. In view of all the advantages and disadvantages described above, that choice does not depart from the broad margin of proportionality given to the legislature under the circumstances (see also: Weinberger, para. 14 of the opinion of Judge O. Verbner). Under these circumstances, even if some of the usual considerations justifying mandatory retirement, and their relative weight can be questioned, that does not suffice in order to find that the Law is disproportionate.

 

52.       This conclusion is supported by various data from which it emerges that the mandatory retirement age model does not actually cause substantial harm to the group of elderly workers in Israel. First, the situation of Israel is better relative to that of the countries in the OECD: the rates of employment of elderly workers in Israel are higher, the demographic make-up of Israel is younger, and the retirement age is the highest in the OECD (Ronnie Hacohen, “Employment of the Elderly in Israel: Review of the State of People over the Age of 45 in the Israeli Labour Market,” The Israeli Employment Service – Policy Research Division, Deputy Director of Planning (February 2014); see also: The Bank of Israel Report, 2015, p. 45 http://www.boi.org.il/he/NewsAndPublications/RegularPublications/DocLib3...).

 

            Moreover, according to OECD research, the average effective retirement age in Israel between 2009 and 2014 was among the highest of the countries examined in the research, including countries like the United States and Australia, where mandatory retirement because of age has been abolished by legislation (OECD, Ageing and Employment Policies – Statistics On Average Effective Age of Retirement, http://www.oecd.org/els/emp/ageingandemploymentpolicies-statisticsonaver...):

 

 

 

 

 

 

MEN

WOMEN

53.       The mandatory retirement age model also exists in various different countries and is not exceptional in that respect. Although the possibility of requiring a person to retire because of his age is not usually prescribed by general legislation, it very common in the employment market in various  contractual frameworks or in specific legislation (Shenkar, p. 25). In addition, in 2000, the European Union adopted a directive intended to lay down a general framework for employment equality (Council Directive 2000/78/EC of 27 November 2000). Inter alia, the directive prohibits discrimination against a worker because of his age (Articles 1 and 2), while establishing specific exceptions to the prohibition of age discrimination (Articles 6(1) and 6(2)):

 

            Justification of differences of treatment on grounds of age

 

            1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

 

            Such differences of treatment may include, among others:

 

            (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

 

            (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

 

            (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

 

            2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.

 

Based on the principles of the said directive, the European Court of Justice has on several occasions held that a mandatory retirement age can be fixed if it is accompanied by a legitimate aim, and if the means taken to achieve it are reasonable and proportionate. Thus, the European Court has held  in a series of judgments on the subject, that legitimate aims in this connection include, for example, the access of new workers to the labor market; planning manpower in the workplace; avoiding disputes with employees with regard to their competence for work and the "negative" personal labelling of employees who have been forced to retire due to individual incapacity; and the sharing of opinions and ideas between senior and new employees, especially in institutes of higher education (see, for example: the judgments in Palacios de la Villa Georgiev; Torsten Hörnfeldt; Fuchs). As regards the proportionality of mandatory retirement, the European Court of Justice held in one of the cases that it is generally a practice that does not infringe rights more than necessary. In this context the Court stated that the compulsory retirement because of age model is common in Europe, and can serve to balance political, economic, social, demographic and budgetary considerations (Torsten Hörnfeldt, para. 28; Rosenbladt, para. 44).

 

54.       Accordingly, in various European countries there is in no legal bar to the fixing of a mandatory retirement age. In Germany, for example, the majority of State employees are required to retire between the ages of 65 and 67, while it is possible to extend their service beyond that, if consistent with the needs of the employer, and the employee agrees (Beamtenstatusgesetz Länder [Civil Servant Status Act for the Civil Servants of the Federate States], promulgated June 17, 2008 Bundesgesetzblatt [BGBl] BGBl I 2008, 1010). Similarly, a mandatory retirement age can be prescribed in an agreement between the employee and the employer, provided that the retirement age fixed is no less than the customary retirement age, and that there is justification for it, such as management of the manpower in the workplace (Sozialgesetzbuch VI: Gesetzliche Rentenversicherung [SGB VI] [Social Act VI] 19.Februar 2002 Bundesgesetzblatt [BGBl.]). Similar law also applies in France (Code du travail [French Labour Code] Art. L1237-5-1; Loi n° 84-834 du 13 Septembre 1984 relative à la limite d'âge dans la fonction publique et le secteur public [law n. 84-834 concerning the age limit of civil servants] available at legifrance.fr); in Austria (Beamten-Dienstrechtsgesetz 1979 [BDG] [Civil Servant Act 1979] Bundesgesetzblatt [BGBl.] Nr. 333/1979 §13-14); Norway (Act Relating to Working Environment, Working Hours and Employment Protection, § 13-15); Sweden (Developing Anti-Discrimination Law in Europe (European Commision, 2013), p. 36, http://ec.europa.eu/justice/discrimination/files/comparative_analysis_20...); and Switzerland (Personal- und Besoldungsgesetz des Kantons Schwyz [PG] [Employee and Remuneration Act of Canton Schwyz] June 26, 1991).

 

            It should be noted that there have been changes over the last year in some European countries. In Denmark, the mandatory retirement age in the public sector was abolished, but private employers were able to require employees to retire because of age (Ageing and Employment Policies: Denmark 2015, Working Better with Age (OECD Publishing), p. 21-22). As of January 2016, a mandatory retirement age has also been abolished in the private sector. In Ireland, a December 2015 enactment has limited the ability to fix a mandatory retirement age (Employment Equality Act 1998; Equality (Miscellaneous Provisions) Act 2015).

 

            A mandatory retirement age also applies in countries of Asia like Japan and South Korea (A Comparative Review of International Approaches to Mandatory Retirement (Research Report No. 674 (2010), https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil... (hereinafter: Comparative Review of Mandatory Retirement); http://www.agediscrimination.info/international/Pages/southkorea.aspx; see also the comprehensive comparative review in the opinion of Justice N. Hendel in Zozal).

 

55.       On the other hand, there are countries where the fixing of a mandatory retirement age has been prohibited      . In the United States, for example, compulsory retirement because of age was abolished in by law in 1986 (Age Discrimination in Employment Act, 29 USC 621-34 (1967) [ADEA]). At a later stage, it also became prohibited to require a person to retire because of his age in Britain, Canada, Australia and New Zealand (Comparative Review of Mandatory Retirement, pp. 2-3; Shenkar, pp. 24-25). Nevertheless, it should be emphasised that when the constitutionality of mandatory retirement has been considered by the American  and Canadian courts, the courts there refused to intervene (see, for example: McKinney; Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)). The change in retirement policy has been made, as aforesaid, in legislation. Similarly, in those countries, too, there are exceptions to the prohibition against requiring a person to retire because of his age, and some of the exceptions are quite broad. Thus, for example, in Britain, although the uniform mandatory retirement age was abolished in 2011, an employer can still bring the employment of a worker to an end because of his age on the basis of legitimate social factors, such as intergenerational justice (giving employment possibilities to new workers), and the desire to avoid infringing the dignity of an employee against the background of arguments concerning his competence. This is all provided that the employee's obligation to retire because of his age is proportionate (Equality Act 2010 (UK), c 15, §13(1)-(2); Malcolm Sargeant and Susan Bison-Rapp, “Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States,” 44 Loy. U. Chi. L.J. 717 (2013); Seldon). In contrast, in the United States the exception is relatively narrow: it is permissible to compel an employee to retire only if the same is reasonably obliged by the nature of the job (Anthony Sheppard, „Mandatory Retirement: Termination at 65 is Ended, but Exceptions Linger On,” 41 U.B.C. L. Rev. 139, 176-177 (2008); Anja Wiesbrock, “Mandatory Retirement in the EU and the US: The Scope of Protection Against Age Discrimination in Employment,” 29 Int'l Comp. Lab. L. & Ind. Rel. 305 (2013)). Similarly, in Australia and New Zealand an employer can require an employee to retire if he can no longer meet the basic requirements of the job (Rachael Patterson, “The Eradication of Compulsory Retirement and Age Discrimination in the Australian Workplace: A Cause for Celebration and Concern,” 3 Elder Law Review 1 (2004)). In Canada, there are different arrangements in each province (Shenkar, pp. 31-32). In some, the law is similar to that in the United States, while in others, the exception is broader. Thus, for example, one of the provinces permits fixing a mandatory retirement age, provided that it involves a bona fide requirement that is part of a retirement or pension arrangement. According to a judgment of the Canadian Supreme Court on this issue, it is not necessary to show that mandatory retirement is an essential part of the pension arrangement (New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan, [2008] 2 S.C.R).

 

56.       A comparative examination of the retirement issue shows that the retirement model chosen by the legislature is not exceptional. In different countries there are a range of possibilities for the regulation of retirement generally, and pension age in particular. The various factors for and against mandatory retirement age are frequently debated in those countries, and the legal, social and economic controversy is not yet over. Even when significant changes to retirement arrangements have been made in other countries, those changes have, as noted, been made in legislation and not by judicial ruling. It would appear that this is also the course that should be taken in the instant case.

 

57.       In addition, even were we of the opinion that the mandatory retirement age is improper in its present format, it would be possible to conceive of various ways to rectify it. Thus, for example, it might be desirable, or even proper, to consider a further increase in the age of mandatory retirement instead of abolishing it altogether. A model of gradual retirement can also be conceived of, like the model that exists in the Technion, together with abolishing mandatory the retirement age in certain sectors, or limiting the permission to fix a mandatory retirement age to cases in which it constitutes part of an overall pension arrangement. Any solution should take into account a substantial number of factors: the needs of employees, the needs of employers; the effects on the extent of elderly employment, and more. The link between the pension qualifying age and the mandatory retirement age cannot be overlooked either. Increasing mandatory the retirement age – or abolishing it altogether – might, in the long term, lead to an increase in the qualifying age for the receipt of pension benefits (see, for example, the change that has occurred in the United States, where the qualifying age to receive social security benefits is due to rise from 65 in 2000, to 67 in 2022; Shenkar, opposite  fn. 13).

 

            A "polycentric" problem is therefore involved, in which, as a rule, the Court rarely intervenes (see and compare: HCJ 3677/09 Israel Insurance Adjusters Association v. Supervisor of Insurance and the Capital Market (December 7, 2010)). This does not relieve the Court of its duty to analyze the Retirement Age Law in light of the constitutional criteria. Nevertheless, it cannot be ignored that there is a difficulty involved in making a material change to retirement age in one fell swoop. A change of such type necessitates scrupulous preparatory work, the analysis of various factors, hearing opinions from factors in the economy, and anticipating possible broad repercussions. It should be borne in mind that the legislature itself initiated changes to retirement age after its feasibility had been studied in depth by various public commissions.

 

58.       Added to this is the fact that a collective retirement model, which lays down a predetermined, uniform retirement age, has been customary in Israel for many years. Replacing that model with another one, such as a functional retirement model that takes into account the individual particulars of every employee, might substantially affect the employment market. This is especially so if the change were made immediately, further to a judicial decision. In order to illustrate this, I would note that Bank of Israel research has shown that raising the mandatory retirement age and the qualifying age have led to immediate changes in the economy. While raising the retirement age has led to a significant increase in the number of persons employed at older ages, and to an increase in the income of high earners, it has reduced the income of those finding it difficult to integrate in the labor market at an older age (low-income employees and individuals not working), inter alia because they have been unable to plan for it in advance. The recommendation of those conducting the research was, therefore, that if another increase in retirement age is decided upon, it would be appropriate to introduce it gradually (Bank of Israel Report 2014, pp. 129-134, http://www.boi.org.il/he/NewsAndPublications/RegularPublications/Pages/D... see also: Bank of Israel Report 2010, pp. 171-175, http://www.boi.org.il/he/NewsAndPublications/RegularPublications/Doch201...). Having regard to all the aforegoing reasons, it would be inappropriate to find that the legislature exceeded the margin of proportionality granted it.

 

59.       Although not strictly necessary, I would add that the interpretation of section 4 of the Retirement Age Law also affects its constitutionality. As noted, reading sections 4 and 10 of the Retirement Age Law together led the National Labour Court to conclude in the Weinberger case that the Retirement Age Law grants an employee the right to ask his employer to permit him to continue working even after he has reached mandatory retirement age, and that right the employer is required to review the request on its merits and on an individual basis. The Labour Court further held that the same does not mean that the employer must accede to the employee's request, but it must consider it seriously, having regard to all the relevant circumstances. This approach of the Labour Court, in my opinion, gives expression to the need for flexibility in retirement and "softens" the collective model of compulsory retirement, without abolishing it completely. It adds to the balance between the needs of different "players" in the labor market, and is consistent with the retirement mechanism existing in the civil service, which makes it possible to extend the service of an employee beyond the retirement age in certain cases (section 18(a) of the Civil Service (Benefits) Law; the Civil Service (Benefits) Regulations; the provisions of sec. 82.54 of the Civil Service Regulations; Commissioner's Directive No. 8.3 of December 21, 2014; see also: The State Service Commission, Headquarters for Implementation of the Reform, Knowledge Management and Theory Department, Extension of Service Beyond Retirement Age Policy Document (December 2014), http://www.csc.gov.il/Units/Reform/RetirementDoc/index.html#1/z). In any event, the State itself has not objected to the determination that an employer must give individual consideration to a person's continued employment if he has so requested, subject to the same not obliging the employer to grant the request.

 

60.       The Labor Court further held that in considering an employee's request to continue working, the employer must weigh a broad range of factors concerning the employee's personal circumstances, systemic factors of the workplace, and the broader effects on other workers. The Labor Court stated that it was not seeking to lay down a closed list of factors, but that, in general, it would be proper to consider the number of years the employee has worked in the workplace; the extent of his entitlement to pension, and his financial and family situation; the employee's contribution to the workplace; the nature of his job, and his success in performing it. In addition, the Labor Court stated that it would be proper to consider "whether there is objective concern that his competence has declined with age (giving an opportunity for an individual competence test insofar as necessary)"; "whether there is a possibility of transferring him to another job etc."; and also, "whether there is a possibility of continuing to employ the worker in another way, like reducing his position to part time, or making him an independent consultant" (ibid., paras. 66-67). As for myself, I see no reason to detail the considerations because we are not concerned with a request that the employer must accept. In any event, presumably the list of factors will evolve or change from case to case (see also: UA (Tel Aviv District) 9172/09 Cohen v. Bank Leumi Ltd. (August 26, 2014); and see: Tamar Golan, “My Duty to Retire? Your Duty to Consider It,” The Advocate (January 2013) (Hebrew); Avinoam Cohen, "Work Without Welfare: Further to LabA (National) 209/10 Libi Weinberger v. Bar Ilan University," 5 Mivzakei He’arot Pesika – (Hamishpat Online)  7-13 (April 2013) (Hebrew)). Ultimately, it suffices that the mandatory retirement age is not legally obligatory,and that the employer must give consideration to the worker's continued employment after retirement age in order to limit the harm to the employee.

 

            As noted, the Labor Court went on to state that it might be appropriate to interpret section 4 of the Retirement Age Law as making it possible to oblige an employee to retire because of his age only when it is carried out in the scope of an "overall pension arrangement". The Labor Court refrained from defining that concept, but did intimate that arrangements that generally exist in unionized workplaces are involved. The Labour Cort did not rule on the question because, in the case before it, the appellant's retirement was in the framework of a pension arrangement of that type. Again, in the petition herein, I do not believe that we must rule on the issue. This interpretation does not, in my opinion, decide whether the Law is constitutional, and the parties have in any event not made any arguments in that regard. I would note that in this case, as well, the Petitioners' employment is regulated by a collective agreement, which entitles employees to a pension upon retirement.

 

            Consequently, having regard to all the reasons detailed above, I believe that the Law also passes the third test of proportionality.

 

Conclusion

 

61.       I have reached the conclusion that there are no grunds for our intervention in section 4 of the Retirement Age Law. Since the Retirement Age Law was enacted, the retirement age has gradually risen in accordance with the mechanisms prescribed in the Law. Even after full implementation of the Law, the public debate on this issue has not ended. From time to time, the Knesset addresses the issue, and only recently a private member’s bill was resubmitted on the matter of the mandatory retirement age. While the bill proposes prohibiting the fixing of a mandatory retirement age, it does permit the employer to require the employee to retire on reaching retirement age if there is functional unsuitability in his case (Retirement Age (Amendment – Abolition of Mandatory Retirement Age) Bill, 5776-2016). There are other debates on the qualifying age of women (Tali Heruti-Sover, “Galon and Yachimovich Propose: Abolition of Mandatory Retirement and Variable Qualifying Age for Pension,” The Marker (August 27, 2015); see also: The Retirement Age for Women (Legislative Amendments) Bill, 5726-2016). Moreover, as we were informed in the State's notice of February 9, 2015, the issue of retirement age will be referred to the executive branch in accordance with the Government Work Regulations for it to consider whether it is appropriate to review it, including by setting up a commission. And now, it has also recently been reported that the Minister of Finance has appointed a commission to consider increasing the retirement age for women, which will be responsible, inter alia, for considering the possibilities of raising retirement age and encouraging employment of the elderly (http://mof.gov.il/Releases/Pages/presha.aspx). The fact that the issue of retirement age is still on the public agenda reinforces the conclusion that the appropriate place for considering further changes thereto is legislature. Although I have found that the Law does pass constitutional review, it would appear to me that the Respondents did well in deciding to refer this issue back to the Government.

 

62.       Finally, the petition should be dismissed. No order will be made for costs.

 

 

 

Justice Y. Danziger

 

            I concur.

 

 

 

Deputy President E. Rubinstein

 

1.         I concur in the comprehensive opinion of my colleague the President. I would like to add somewhat.

 

2.         In HCJ 4487/06 Kelner v.National Labour Court (2007) I had the opportunity to say (para. 1 of my opinion), as is also appropriate here:

 

            This case raises a question that, apart from being legal, is also a social, moral and humane question that concerns Israel, like other countries, in an age in which, thank God, life expectancy has become longer, as have the abilities of people to work until an advanced tage. On the one hand, there are those who want to enable people to continue working even after the statutory retirement age, on the basis of their functional ability… On the other hand, there are those who regard longer life expectancy as an opportunity for men and women pleasantly to enjoy their free time after retirement as they wish. The Israeli legislature, in enacting the Retirement Age Law, 5764-2004, did not choose the American way, in which there is no obligatory retirement age and the criterion is functional, and it instead chose a method of fixing an age, older than was customary in the past, for mandatory retirement.

 

            Indeed, the subject of retirement age is complex and dynamic. On the one hand, the constant rise in life expectancy and quality of life supports increasing retirement age over the years, and the Petitioners before us are a living example of that. From the economic aspect of the individual as well, increased life expectancy clearly necessitates greater pension contributions, which might be achievable, inter alia, by working for more years and only utilising the pension payments at a later age. See, for example, in this regard, the Bank of Israel Report for 2010 (which was appended to the State's reply of April 4, 2013 – R/4), from which it appears that the ratio between people aged 25 to 64 and those aged 65 or more in Israel was 4.6:1 in 2005; the forecast for 2015 is 4.2:1; and the forecast for 2030 is 3.4:1 (Bank of Israel Report for 2010, p. 175 (2011)). Increased life expectancy is, of course, a blessing in itself. that the statement "sixty  for mature age" in Ethics of the Fathers (5:21) no longer represents typical old age, nor even do older ages,  and we are certainly not dealing with the age at which the Levites stopped serving in the Tabernacle (the age of 50 – Numbers 4:3); see also the determination of 60 years of age in the Torah with regard to the assessment of value (Leviticus 23:3); see also Rabbi Shlomo Yosef  Zevin, L’Ohr Hahalachah, the chapter entitled "Old Age", p. 176 et seq.; see also the comprehensive review by Judge O. Verbner in LabA (National) 209/10 Weinberger v.- Bar Ilan University (2012), para. 13, which is partly based on the review by Rabbi Dr Yaron Unger, Adv. and Prof. Yuval Sinai, “Compulsory Retirement Because of Age in Jewish Law,” The Centre for Practical Jewish Law  (CPJL), 2012 (Hebrew); and see the many authorities cited there. Their review, based on Jewish sources, speaks in praise of the elderly and the duty to exalt their dignity. It further speaks in praise of work, and as regards the Levites, for whom a mandatory retirement age (appropriate to life expectancy then) was fixed as aforesaid, the Jewish law authorities have qualified the rule so that it is not absolute (Maimonides, Laws concerning Temple Vessels 3:8). See also Gordon Ashton, Caroline Bielanska, Elderly People and the Law (2nd ed., 2014), pp. 120-121, as regards equal treatment of pensioners and p. 123 with regard to part-time employment during retirement.

 

3.         In my opinion, insofar as the ratio of the elderly as aforesaid continues to decline, and from the data it appears that the trend is growing, an increase in the retirement age will be a necessity. This derives from the fact that elderly people who are still full of vigour will want to continue working in view of life expectancy and also, and perhaps no less, because of the State's limited ability – which is more and more worrying – to provide real social security to an increasing number of people who are not included in the labor market. This is also consistent with section 1 of the Retirement Age Law, 5764-2004 (hereinafter: the Law), which states that "the purpose of this Law is to establish standard rules with regard to retirement age, including raising it gradually …" (emphasis added – ER).

 

            In Kelner, I added (para. 10):

 

            Indeed, the world of today sanctifies youth, unlike the ancient world that perceived old age as  as a source of experience and wisdom. The media feeds the public success stories of young people, who do of course bring with them charm, freshness and energy; but the the elderly have not reached the end of the road, not only because of longer life expectancy but also because of the ability and need to utilize the knowlege and experience that they have acquired. In the world beyond the “regular” work frameworks there are those who continue to contribute to a great age – in politics, science, the humanities, and more. Take a close look at the Jewish ethos in which old age is perceived as corresponding to wisdom – “with the ancient is wisdom; and in length of days understanding”' (Job 12:12). In the Biblical world, the old were the leaders and in fact, also the judges: “your elders and judges shall go out” (Deuteronomy 21:2). Of the verse “stand up in the presence of the elderly, and show respect for the aged” (Leviticus 19:32), the Sages said (Babylonian Talmud, Kidushin 32:2) “not old but wise, as it is said (Numbers 11:16) 'Gather before me seventy men who are recognized as elders and leaders of Israel' (ultimately the Sanhedrin or Great Court – ER). Rabbi Yossi the Galilean says, not an old man but one who has acquired wisdom, as it is said (according to wisdom,  the wise wise person in the Book of Proverbs, for example – ER) “the Lord possessed me in the beginning of his way' (Proverbs 8:22)”. See also the entry “wise” in the Talmudic Encyclopaedia, vol. 15, 51 (Hebrew). In the Mishna, old age is 60 ("sixty for mature age" (Ethics of the Fathers 8:21), and at the time this was based on the general life expectancy. Nevertheless, there has been increasing awareness of “do not cast me off in the time of old age; forsake me not when my strength is spent” (Psalms 71:9).

 

4.         In view of all this, I believe that it would be best for the relevant authorities to review the concrete retirement age every decade, at most, and whether the changing circumstances are such as to require increasing it. This is connected not only with longer life expectancy, but also social security. I shall refer to this again below. In this respect, leadership must at all times look to the future, beyond the period of its own office. Let me cite an example: in the second half of the 1980s, when I was Cabinet Secretary in the National Unity Government, after in-depth discussions with pension experts and actuaries in the Directors General Forum of the Government Ministries, it was suggested to the relevant ministers that they consider the matter of the pension funds, on the assumption that a crisis concerning lack of coverage would erupt in or about the year 2000. The response was personal. Action thereafter wnet on for very many years in various commissions and government decisions.

 

5.         On the other hand, I believe that the factor of intergenerational fairness, namely the effect of postponing retirement together with the integration of a young labor force in the economy, has been given very significant weight in determining retirement age. Indeed, as the State has noted, this factor might carry less weight at the macro level. That is to say that there are no data indicating that in a satisfactory economy that is growing, raising retirement age will necessarily impair the ability of young people to integrate in the labor market (Report of the Public Commission on Retirement Age, p. 7 (5760-2000)). However it does have effects at the micro level, and the academic institutions from which the Petitioners come are an example. Clearly, given a limited budget, as the age of the lecturers and researchers in the Israeli academic institutions increases, the ability of young lecturers and researchers to integrate in those places, especially as tenured lecturers and researchers,  the much longed-for tenured posts in those institutions, will constantly diminish. Hence, although there can be no question that the Law does infringe a certain element of the Petitioners' right of equality, it is done for a proper purpose, which is to increase the ability of the younger generation to integrate in the employment market. See the statement by President Adler in an earlier case:

 

            I would add that in my opinion, fixing a chronological retirement age does indeed infringe constitutional rights like freedom of occupation and human dignity but it is done for a proper purpose. And what is that proper purpose? Providing a fair opportunity to new participants in the labor market. As such there is a proper balance between the constitutional rights of senior employees and the rights of younger workers from an overall societal point of view (LabA (National) 107/05 Kelner v. Commissioner of the Civil Service, para. 7 (2006); see also the opinion of President Adler in LabA (National) 1313/04 Asa - El v. Al Israel Airlines Ltd, (2006)).

 

6.         And finally – with genuine sympathy for the Petitioners and the worthy self-fulfilment for which they strive – it should be borne in mind that the Petitioners are not merely seeking an increase in the mandatory retirement age, but they are asking that we adjudicate that the very determination of a mandatory retirement age is unconstitutional and, in fact, to require the State to prescribe an alternative model to that existing in the Law, for example a model of functional retirement. We must make our ruling having regard to: the fact that the course that the Israeli legislature has chosen in this connection is no different from that of many legal systems around the world; the considerable disadvantages involved in the prevailing systems, inter alia, in the United States and Britain; the proper purpose underlying the Law, as I mentioned above; and the fact that it is difficult to say that the Law's infringement of the Petitioners' right to equality is so disproportionate as to necessitate the exceptional intervention of this Court, all as stated in the President's opinion. Having regard for all that, the obstacle that the Petitioners had to overcome in order to prove their case was significant, and I do not believe that they were able to do so. However, common sense seeks a balance, and among other things, it is proper and even essential to increase the retirement age from time to time, and also to consider the nature and quality of pension arrangements, the future of which appears to be cause for concern.

 

7.         On reading the opinion of Justice Hendel, I would add that he rightly considered the feelings of someone who has retired from work and feels detached and lacking in dignity. To a certain extent, it can be compared to the feelings of someone who is unemployed, although a retiree knows that he has reached the age at which many good people stop actively working, while as regards the unemployed person who is in mid-life, his lack of work not only affronts his dignity and self-esteem but it also, of course, affects his livelihood with all the implications thereof. There is no need to expound on the importance of work to many people – "When good things increase, those who consume them increase" (Ecclesiastes 5:11), and in the words of the poet H.N. Bialik – "Whom should we thank, whom should we bless?  Labor and work! ". The various plans in the different sectors of the population in respect of old age and leisure, the numerous frameworks for that in the world of culture, Torah and academia, the establishment of a government ministry for the affairs of retirees (now the Ministry of Social Equality), all reflect awareness that longer life expectancy necessitates arrangements for an era in which many people live longer and are also in satisfactory physical and mental condition. Programs must be arranged for them, together with employment for those desirous, either for financial reasons or to occupy their leisure time. Incidentally, in the academic world, after retirement many continue to teach more or less voluntarily and in consideration receive a certain work environment which, perhaps, has no real financial remuneration, but does involve professional and human continuity, and there are voluntary frameworks in other spheres as well.  Therefore, it is very important to uphold human dignity in its simple sense: "The School of Rabbi Ishmael taught: 'And you shall choose life' (Deuteronomy 30:19) – this means a skill," i.e., a profession (Jerusalem Talmud, Peah 1:1); "'so that the Lord your God will bless you' (Deuteronomy 14:29) – you might think that this means even if you sit idle, therefore Scripture states 'in all the work of your hands that you will do' (ibid.) – if a person works, he is blessed, and if not, he is not blessed" (Tanna Devei Eliyahu, 12; Yalkut Shimoni on Psalm 23; cited in H.N. Bialik and Y.H. Ravnitzky, Sefer HaAgadah 1903); "Rav Sheshet said, work is great, because it warms the person who does it" (Babylonian Talmud, Gittin 67b). All of these, ultimately, are human dignity, and see the entry "Human dignity" in the Talmudic Encyclopedia 26 (1907) (Hebrew); see also N. Rakover, Human Dignity is Great (1998) 137. Work therefore leads to life and blessing, and giving expression to it in human life, insofar as it is possible, can only be good. This is true of work, and it is also true of rewarding activity during retirement.

 

 

8.         For the reasons stated above, as aforesaid, I concur in the opinion of my colleague the President. However, I must propose that the matter be reviewed periodically with a view to increasing retirement age in a fair and balanced way. I was therefore pleased to read recently that the Government decided, in June 2015, to charge government agencies with formulating a trial scheme in the scope of the Civil Service for an employment track specifically for senior citizens after retirement age (the review by Mr Kobi Bleich, Senior Deputy Director General for Administration and Projects in the Ministry of Social Equality, State Service Commission Information Booklet, issue 39 (April 2016)). That list mentions that average life expectancy in Israel is currently 80 for men and 84 for women, and see also the survey there by Tzachi Kelner, the Director of the Israeli Retirement Centre. On March 28, 2016 the Minister of Finance also appointed a commission to review retirement age, which was charged with "studying and formulating recommendations in respect of the age at which a woman born in or after 1955 is entitled to retire because of her age… Moreover, the commission was charged with reviewing the implementation of a mechanism for raising retirement age in consequence of longer life expectancy, and also reviewing the application of supportive and supplementary tools for increasing retirement age and encouraging employment of the elderly" (from an approach to the public by the Commission for the Review of Retirement Age, Calcalist, Nissan 9, 5776 (April 17, 2016), emphasis added).

 

 

 

Justice U. Vogelman

 

            I concur in the comprehensive opinion of my colleague President M. Naor and with the comments of my colleague Deputy President E. Rubinstein.

 

            In my view, as well, the provision of the statute that is at the center of the current debate passes constitutional review, based on the analysis detailed in the opinion of President M. Naor. I would emphasize that, in my opinion, the ruling that the employer must give consideration to the worker's continued employment after retirement age – in order to limit the harm to the employee – is an element of considerable weight when examining the balances in the framework of the third subsidiary test of proportionality.

 

            As my colleagues make clear, sealing the legal debate at the present point in time does not put an end to the public debate, or to continued deliberation by the executive branch. In that context, the latter will also consider whether the time is ripe to review the issue.

 

            Subject to these remarks, I concur, as stated, in the opinion of President M. Naor.

 

 

 

Justice D. Barak-Erez

 

1.         I concur with my colleague President M. Naor that the petition should be dismissed. The statutory arrangement that makes it possible to require an employee to retire on attaining the age defined as retirement age provokes dilemmas and questions that will presumably remain on the public agenda. That is only proper. However, it cannot be said that it infringes rights so disproportionately as to justify the intervention of this Court in the scope of a constitutional review of a statute.

 

The Point of Departure: A Reasoned Infringement of Equality

 

2.         Let me first say that, like the President, I also believe that an arrangement that prescribes that a person can be compelled to retire merely because he has reached a particular age does involve an infringement of equality. A distinction based on mere age is one that is founded on a generalization that reflects a social perception in respect of older people who have passed a certain age, as opposed to a distinction based on an evaluation of the relevant individual's abilities. In that respect, I also believe that the Petitioners are right that the determination of a mandatory retirement age is not problem free. However, ultimately, I believe that this infringement of equality is, in the instant case, based on good reasons and passes the tests of constitutional review.

 

3.         In fact, the State presented three central reasons to justify the present arrangement – the fact that the determination of a mandatory retirement age is in the interest of employees generally; the contribution of the arrangement as regards "intergenerational fairness"; and its contribution to the planning and renewal of the workplace as regards the employer's interests. All these are reasons with fairness and logic on their side, that have also been recognized as justifying retirement arrangements in the precedents of courts elsewhere in the world, as the President showed in her opinion. Moreover, they are not based on general assumptions with regard to the incapacity of elderly people, that is to say that they are not tainted by ageism. Nevertheless, I would emphasise that I personally believe that the most important of the said reasons, which for me tips the scales, is the argument concerning the contribution of retirement age to the rights of retirees themselves. Although the reasons of "intergenerational fairness" and the ability to plan the workplace are important, these are interests, the protection of which when they infringe the right of equality, raises questions that I do not believe arise in respect to the argument concerning protecting the rights of workers themselves. This is therefore not a case of infringing rights merely for the promotion of important public interests, but it is a case in which there is a clash of two clear aspects of the protection of the rights of elderly workers, and even of different groups of elderly workers.

 

4.         Several advantages of the fixing of a mandatory retirement age can be indicated from the perspective of the rights of workers themselves. First, as the State rightly argued, the mandatory retirement age creates the effect of a "protective shelter" over the heads of elderly employees, in the sense that it creates a presumption against terminating their employment before they reach retirement age, especially as they approach that age. Second, the existence of a retirement age "on the horizon" substantially weakens the incentive of employers to initiate general competence tests for employees, which might be significantly strengthened in circumstances in which the decision to terminate employment necessitates an indication of functional difficulty or handicap. Indeed, even now there are such tests in certain places, but they are not the rule. It is important to note that such tests, despite perhaps serving legitimate interests of the employer, might cast a shadow of unease over the workplace, and in any event "color" any retirement decision with incompetence. Despite the Petitioners' arguments, currently an employee who retires from work does so without his leaving work representing any negative judgment about his ability to continue working. That is essentially different from retirement based on a determination – difficult and painful for the relevant employee, especially having regard to the fact that it is given public expression – that there is a decline in his function and competence. Third, and no less important, without acknowledging the legitimacy of mandatory retirement age, the willingness to grant tenure to employees, or even to reach partial job security arrangements will be weakened to a great extent. The ability to acquire tenure is of great importance to many employees since it enables them to plan in advance for the long-term, and contributes to their emotional welfare. The abolition of mandatory the retirement age might, therefore, affect job security, which is also an interest that is dear to many workers.

 

The Limits of Judicial Review in Areas that Necessitate Complex Legislative Arrangement

 

5.         The Petitioners argued with great self-assurance that the alternative based on the employee's functional testing is preferable to the determination of a standard retirement age. However, as explained above, there are also substantial reasons that weigh against this. The question of which is the preferable retirement arrangement – that based on a retirement age norm or one based on the employee's functional testing – is one that remains the subject of controversy, and there are arguments both ways. As for myself, I believe that the advantages of the arrangement that sets a mandatory retirement age are preferable for the reasons that have been detailed, as I shall explain below. However, it is important first to say that we do not need to decide which is the desirable arrangement. That question is first and foremost a matter for the legislature, which should deliberate and rule on policy questions that are characterized by being "polycentric", as the State has rightly said (see: HCJ 7721/96 Israel Insurance Adjusters Association v. Supervisor of Insurance, IsrSC 55 (3) 625, 645 (2001). For the source of that expression, see: Lon L. Fuller, “The Forms and Limits of Adjudication,” 92 Harv. L. Rev. 353, 394-404 (1978)). The question that has been put to us is one of the "second order" – whether prevailing legislative policy involves a disproportionate infringement of rights to an extent that necessitates judicial intervention. In my opinion, too, the answer to that question is in the negative.

 

6.         As the President stated, the comparative examples that have been presented to us concerning the erosion of the mandatory retirement age regime in other countries in fact support the decision to dismiss the petition. From those examples, it appears that changes affecting the mandatory retirement age arrangement have mainly been made by legislation. In the major examples cited , the courts found it inappropriate to invalidate mandatory retirement age arrangements, and the changes in that area have been made through the legislative process, on the basis of social debate and persuasion in the public arena (in the United States, the claim of discrimination by virtue of the determination of retirement age was dismissed in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), and the change in the legal situation was made in a 1986 legislative amendment to the Age Discrimination in Employment Act; in Canada, the argument that the determination of retirement age does not meet the constitutional standard for the protection of rights in accordance with the Charter was dismissed in McKinney v University of Guelph [1990] 3 S.C.R. 229, and then a 2012 amendment to the Canadian Human Rights Act abolished the determination of retirement age as deviating from the prohibition of age discrimination; in Britain, the general recognition of mandatory retirement age, called the "default retirement age", was abolished in 2011 in the scope of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (hereinafter: the 2011 Regulations), which revised the general law on equality (the Equality Act 2010) so as also to apply to retirement arrangements.

 

7.         Regulating the issue of retirement age in legislation makes it possible to do so comprehensively, with reference to associated economic and employment aspects as well, including insurance and pension factors. Thus, for example, in Britain in the scope of the 2011 Regulations, alongside the repeal of compulsory retirement because of age, it was established that employers can make different insurance arrangements for employees who have reached state pension age or have passed the age of 65, whichever is the higher. More generally, the relevant legislation in various different countries leaves room for exceptions, a matter that is also suitable for legislative arrangement and necessitates the laying of a broader foundation than has been laid before us.

 

8.         To this it can one may add that – unlike what is implied by the petition – the abolition of mandatory retirement age does not necessarily also mean individual competency examination of every single employee in all workplaces. Even in countries where mandatory retirement age is not customary, examples can be found of the determination by various employers of arrangements that do include an element of mandatory retirement age, and it has also been held that there is no bar to doing so – so long as there is good justification (or in our constitutional language, when the same is done for proper purposes and insofar as the means prescribed are proportionate). Thus, for example in Seldon v Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16, the British Supreme Court held that the determination of retirement arrangements for the partners of the particular law firm had been done for a proper purpose (in the circumstances, the proportionality of the arrangements that were prescribed was left for later litigation). Indeed, that judgment revolved around events that occurred at a time when the British legislation recognized mandatory retirement age, but the principles that were delineated in it are also regarded as having guiding value in the review of retirement arrangements made in the context of the new statutory position.

 

The Possible Effects of abolishing the Retirement Age on Employees' Rights in View of the Diversity of the Labor Market

 

9.         As stated, the most persuasive reason, in my view, for finding that the arrangement involved in the petition passes the proportionality tests is the protection of workers themselves. In this connection, the Petitioners made two main arguments. First, they asserted that the abolition of the mandatory retirement age is not likely to affect those workers who, in any event, do not benefit from tenure, the proportion of whom in the current labour market is significant. Secondly, they argued that, in any event, even if the arrangement of mandatory retirement age is beneficial for some workers, it is not of benefit to the Petitioners, and the infringement of their rights for the sake of other workers cannot be justified. As for myself, I believe that neither part of this argument is persuasive, as explained below.

 

10.       First, I believe that although the abolition of a statutory retirement age is first of all likely to have an effect of eroding existing tenure arrangements (and is therefore problematic for those who are employed where tenure arrangements are customary), there is basis to believe that it might also affect employees in workplaces where there are no tenure arrangements at all. The reason for this is the concern, which is of course regrettable, that various employers "will seek a reason" (whether or not they formally need to indicate such a reason) to terminate the employment of relatively old employees in circumstances where there is no foreseen date for the end of the contract of employment. In that sense, it appears that a mandatory retirement age helps workers who do not enjoy tenure. In this connection, it should also be noted that the overall interests of those workers have not been presented to us, which also makes it difficult to accept the argument that the harm to workers who do not enjoy tenure is limited.

 

11.       Secondly, one cannot accept the assertion that the arrangement of mandatory retirement age has not been of benefit to the Petitioners. The question whether the arrangement of mandatory retirement age has been of benefit to the Petitioners themselves cannot be asked after the event ("ex post"), at the present point in time when they want to continue working, knowing their health and employment situation, after they have "enjoyed" the advantages of the arrangement. That question should be considered looking to the future ("ex ante") – would the Petitioners and others like them be rewarded by having entered a labor market in which there were tenure arrangements and in which they have not been subjected until retirement age to functional examinations that affect their employment stability (as opposed to evaluations that affect promotion)? The contribution of mandatory retirement age should, therefore, be examined when the parties to the discussion look at the question through "the veil of ignorance", when they do not know whether they have been successful employees, enjoying good health and sheltering under comfortable tenure arrangements. The question is what position could have been taken in view of the possibility that they were employed in less comfortable work, and perhaps their health or performance was impaired to some extent before reaching the age at which they had to retire in accordance with the arrangements in their workplace. One way or the other, I believe that specifically in the context of general labour arrangements, it is right and proper to consider their contribution to workers with a broad view that goes beyond the bounds of the autonomous wishes of the specific employee.

 

12.       In fact, opinions have been expressed in the legal literature that recognize the legitimacy of arrangements that include an element of mandatory retirement age when those involved are employees who receive "consideration" for that element in their terms of employment, in the form of tenure and adequate pension arrangements (see Sharon Rabin-Margalioth, “Age Discrimination in Israel: A Power Game in the Labor Market,”,” 32 Mishpatim 131, 174 (2002) (hereinafter: Rabin-Margalioth). For an approach that supports the same but with more limitations, like making it possible for employees who are so desirous "to leave" the collective arrangement, see for example: Pnina Alon-Shenkar, “The World Belongs to the Youth: On Discrimination against Senior Workers and Mandatory Retirement,” in Liber Amicorum Dalia Dorner Book81, 139-141 (Dorit Beinisch et al. (eds.) 2009) (Hebrew)). The aspect of collectively arranging retirement age was also emphasised in a case of the European Court of Justice (see: Palacios de la Villa v. Cortefiel Servicios SA, C-411/05 [2007] ECR I-8531).

 

13.       Under the circumstances, in my opinion there is also some importance to the fact that the Petitioners only challenged the mandatory retirement age arrangement after they reached retirement age, despite the fact that, prima facie, they could have put it to the test in the past, while they actually enjoyed the tenure arrangements (and it should be reiterated that the Law in its present form – the Retirement Age Law, 5754-2004 – was enacted several years before the Petitioners reached retirement age). In other words, the petition was brought by those who for years enjoyed strong tenure arrangements, and are now seeking to avoid paying the bill (see: Rabin-Margalioth, p. 159).

 

14.       To all the foregoing we should add reference to the characteristics of the Petitioners' workplaces – institutes of higher education. Although this petition is being heard as a general one against the principle of mandatory retirement age, it cannot be ignored that the case of the Petitioners– university professors – also raises other difficulties concerning the importance of protecting the academic freedom of the faculty members of those institutions. The tenure arrangements existing at the universities protect not only the welfare of the academic faculty, but especially their freedom so that they can conduct research and fearlessly express their professional opinions. Abolishing retirement age in a way that might erode the tenure arrangements would yield a less protected academic environment, and might also lead to the infringement of another important public interest. In fact, this point also illustrates that the determination of a mandatory retirement age involves other arrangements, such that its abolition by the Court might have repercussions that have not been made clear to us.

 

15.       Also of importance is the fact that the Petitioners' workplaces are specifically public institutions, as opposed to workplaces that clearly belong to the private sector. In fact, in some of the countries were the mandatory retirement age has been abolished, the identity of the employer (as "public" or "private") is of significance as regards evaluating the justification for determining a mandatory retirement age, which is regarded as more acceptable in the public arena. It should be noted that the private member’s bills that have been submitted on this subject (see for example: The Retirement Age (Amendment – Abolition of Mandatory Retirement Age) Bill, 5773-2003) include the possibility of authorizing the Minister of the Economy to exclude "certain spheres of work".

 

16.       Hence, the Petitioners fall within the scope of the cases that are regarded as less "difficult" as regards the constitutional questions that the determination of a mandatory retirement age raises, even according to those who believe that mandatory retirement age arrangements do raise difficulties.

 

Other Aspects of the Legal and Public Debate Looking to the Future

 

17.       A distinction should, of course, be drawn between the principle of mandatory retirement age and the aspects that concern its implementation. The petition did not address the question of the proper retirement age having regard for longer life expectancy. It might be right to consider increasing retirement age, as my colleague, Deputy President E. Rubinstein mentioned. However, such a decision would concern the implementation of the principle, as opposed to the principle itself, against which the petition is aimed. It is important to emphasize that the Petitioners did not focus on the specific retirement age prescribed in the Law, and that has therefore not been examined by us.

 

18.       Furthermore, as the President has emphasized, recognizing the constitutionality of the retirement age does not relieve the employer of his obligation to consider the possibility of continuing the employment of a worker who seeks not to retire. This takes account of numerous factors, including the ability of the employee, how essential he is to the workplace, and even the extent of the pension rights accumulated by him so that he can live with dignity after retiring from work. The discussion appropriate to these questions is therefore a contextual one in the circumstances of each individual case, as distinct from a general discussion like that which conducted before us.

 

19.       Incidentally, I would raise another point for consideration, which does not tip the scales against the petition, but should be examined as part of the repercussions of any future retirement age reform. Formally, the question before us revolved, as noted, only around the constitutionality of the determination of a mandatory retirement age, as opposed to recognizing the institution of retirement age, namely permitting the worker to retire on attaining a certain age, an option that not a few employees would like. From the point of view of many employees in the economy, the possibility of retiring at a certain age is a blessing; an aspiration for which they long after years of wearying work – physically, emotionally or mentally. In fact, historically, the determination of a retirement age is regarded as a social innovation that only began at the end of the 19th century, but mainly in the 20th century. Before then, it was a benefit to which workers could not aspire. They had to work "until death" unless they had the means to enjoy retirement, which was considered a luxury. The determination of a retirement age therefore went hand-in-hand with the development of welfare and pension schemes that were intended to ensure a source for the subsistence of workers on reaching retirement age. Prima facie, this is a separate issue. The Petitioners say: those who want to retire, should retire and those who want to carry on working, should work. From the purely analytical perspective, that is correct. However, having regard to the broader social context, it is only partially correct. If retirement age could be chosen by the worker, there might be an erosion in the development of pension arrangements available to workers upon their retirement. Such a state of affairs would sharpen the view of retirement as a privilege that might not be appropriate if the employee and the economy "cannot afford" it. Alongside the concern of "being cast aside in old age", there is therefore concern for workers being thrown back into the world without an adequately protected retirement, with all the related implications.

 

Conclusion

 

20.       In concluding, let us go on to mention that discrimination for reasons of age is illegitimate. Moreover, ageism is an ugly social phenomenon that should be opposed. Our judgment in this case is not based on an assumption as to the incompetence of workers who have reached retirement age, and needless to say that the same also goes for the Petitioners themselves. Nevertheless, the arrangement of mandatory retirement age is a complex one that also involves the protection of rights, where that protection is viewed in its broad sense, going beyond the protection of the individual employee's freedom to decide.

 

21.       I therefore believe that the petition should be dismissed, although the matter raised by it should continue to be examined in the public arena.

 

 

 

Justice E. Hayut

 

            I concur in the comprehensive opinion of my colleague President M. Naor and the conclusion reached by her that the model of compulsory retirement because of age established in section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Age Law), and its preference to other models, like that of functional retirement, which the Petitioners support, is not unconstitutional to an extent that justifies the repeal of the section.

 

1.         As my colleague the President stated, each of these models has advantages and disadvantages. They have been set out at length in her opinion, and I have therefore not considered it appropriate to repeat them (see also in this regard, HCJ 7957/07 Sadeh v. \Minister of Internal Security, para. 13 (September 2, 2010)). Indeed, making an employee retire merely because his or her age has been fixed as the retirement age is one of the most injurious phenomena of age discrimination (see: HCJ 1268/09 Zozal v. Israel Prison Service Commissioner, para. 15 (August 27, 2012) [[English: http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi...  (hereinafter referred to as "Zozal")). However, as my colleague the President showed, the regime of compulsory retirement because of age passes the tests of the Limitation Clause in section 8 of Basic Law: Human Dignity and Liberty and is therefore not constitutionally invalid. Among the grounds justifying the present arrangement, in my opinion the one that ought to be emphasied is that concerning the aspects that are beneficial to workers generally, and in that I am in full agreementwith my colleague Justice D. Barak-Erez. The legislature's provision in section 4 of the Retirement Age Law that 67 is the mandatory retirement age for men and women, implies a statement that, in general, the employer's terminating the labor relationship before the employee has reached that age is illegitimate. The legislature thereby set a clear criterion that helps eradicate phenomena of discriminating against workers because of their age before they reach mandatory retirement age, while transferring the discretion concerning the time of the employee's retirement to the employer on the basis of competence and function tests does not set such a clear criterion and might legitimate employers' requiring employees to retire even before they have reached the age of 67. My colleague the President therefore rightly said that "mandatory retirement might reduce the number of workers who are discharged from the workplace before the normal retirement age" (para. 43 of her opinion). This conclusion is all the more important in view of the fact that the majority of workers in the economy are employed under personal contracts, and not protected by unions and collective agreements (Mundlak G, Saporta I, Haberfeld Y, Cohen Y, “Union Density in Israel 1995-2010: The Hybridization of Industrial Relations,” 52(1) Ind Relat. (Berkeley) 78 (2013)). The labor relationship between an employer and an employee who is not unionized leaves the worker without collective protection in the event of unlawful dismissal. In that situation, the general law of contracts, as well as shield legislation come to the aid of the employee (Guy Mundlak, “The      Rule    on        Dismissals: Default           and      Mandatory     Rules, and      Some  Interim Options,”  23 Iyunei Mishpat 819, 822 (1999)). In that sense, section 4 of the Retirement Age Law can be regarded as one of those  statutory shield provisions that regulate clear criteria with regard to the employer's ability to dismiss an employee (as regards the shield provisions of the Retirement Age Law, see also section 10 of the Law, and as to the duty owed by the employer to give substantive consideration to the employee's request to remain at work after retirement age, see: LabA (National) 209/10 Weinberger v. Bar Ilan University (December 6, 2012)).

 

2.         The petition before us has again placed on the legal agenda the fact that the labor market in Israel, and in fact the whole Western world, is undergoing far-reaching changes in view of the increase in life expectancy, while maintaining levels of competence and function at work at more advanced ages than in the past. These changes have significant economic and social implications, and necessitate rethinking, inter alia, with regard to retirement age, and perhaps also with regard to the appropriate model to be adopted in that respect. In any event, the trend apparent in Israeli law is a clear one of increasing retirement age for both men and women (Zozal, para. 25), and the Israeli legislature may continue to adapt the relevant legislation to that trend.

 

 

 

Justice N. Hendel

 

          I concur with the result reached by my colleague President M. Naor, according to which the petition to strike down section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Law), requiring an employee to retire at the age of 67, because of its unconstitutionality, should be dismissed. Nevertheless, there are nuances that distinguish us. In my opinion, they are of importance especially in regard to the future – and old age has a future – and I have therefore deemed fit to present them.

 

Discrimination on the Basis of Age – Innovation, Uniqueness and Gravity of the Infringement

 

1.         The prohibition of discrimination – or as formulated on the positive side of the coin, the protection of equality – is a developing doctrine. The canopy of equality is expanding. Consequently, distinctions between different groups, based on some or other characteristics, that used to be socially or legally acceptable without question or a second thought, are no longer such at present. One of the examples of this is age as a basis for discrimination in the labor market.

 

            Historical, economic, social and legal changes have led to the status of the "working elder" experiencing many changes over the years. Prof. Ruth BenIsrael, in her article (Ruth Ben-Israel, “Retirement Age in light of the Principle of Equality: Biological or Functional Retirement”, 43 Hapraklit 251, 253-257 (5757)) described the position in the following way: in the distant past, the status of the elder was lofty and exalted and he was regarded as having power, status and influence. It can further be said that in those years the elderly were distinguished from the rest of the population, but "discrimination for the better" was involved. In the opinion of the learned author, in the 18th century there was a sharp decline in the social image of the old, who came to be identified with inaction and dependence upon others. This, of course, also affected his position in the labor market. The trend intensified in the 20th century, during the period that Prof. Ben-Israel calls "the cult of youth". The metamorphosis in the labor market – like the disappearance of certain professions, and new, mainly technological, professions that have replaced them – has necessitated constant change that has mainly affected the elderly who are employed in the waning professions, and displaced them from the market. These days, and especially in very recent years, the pendulum has been swinging, slowly but surely, back to the other side. That is to say that opinions are being aired and research conducted that seek to emphasize the value – to workers and society in general – involved in the employment of older workers, inter alia, in view of the experience and professionalism that they have accumulated.

 

2.         The foregoing description is, of course, a very brief summary of very significant moves and shifts. Nevertheless, it would appear that it suffices to illustrate what I began with: reference to discrimination (or equality) is dynamic and so too – and perhaps especially – in respect of age. This is true in at least two senses: first, the index of social sensitivity. In recent years there has been far greater sensitivity to discrimination on account of age and its legal and constitutional implications in the labor market, as well. As Fredman stated, the idea that differentiation based on age might be unconstitutional is a "new phenomenon", driven by the ageing of the population and the declining birthrate (S. Fredman, Discrimination Law, 101-102 (2002)). The increasing prominence of individual rights in recent decades, and the importance attributed to them in liberal countries have, of course, also contributed to the shift.

 

            Second, the extent of the infringement – age discrimination in the context of the labor market involves extensive, deep violation of emotions, fundamental rights and values that are at the heart of the system. Like my colleague President M. Naor, I too believe that in the circumstances of the petition there is an infringement of equality, which amounts to an infringement of human dignity. Indeed, ", in the case before us, we are not concerned with a trivial infringement ’ (para. 33 of the President's opinion). However, in my opinion, a much broader, more deeply rooted infringement is involved, which ought to be emphasized. The description by Justice I. Zamir in HCJ Recant in respect of discrimination concerning retirement age and its accompanying affront is apt in this regard: "a person who was active and effective, involved and useful is suddenly, in his own eyes and the eyes of those around him, made irrelevant (HCJ 6051/95 Recant v. National Labour Court, IsrSC 51 (3) 289, 342 (1997)). In addition, in my opinion, the infringement of equality – which amounts to an infringement of human dignity in the instant circumstances – is not the only violation. The freedom of the individual to work, create and express himself, which reflects another salient aspect of human dignity, is also infringed here, and substantially. And not only is there an infringement of equality, dignity and the freedom of occupation, but also of liberty and autonomy.

 

            The severity of the infringement essentially derives from a combination of the following: first, the major place that work has in our lives, and its being a means of self-fulfilment for many, beyond its being a source of income. This can also be learned from Jewish law. "Shmaayah would say: Love work" (Ethics of the Fathers 1:10). Of that Rabbi Eliezer said: "Work is so important that even Adam tasted nothing until he worked, as it is said,‘and placed him in the Garden of Eden, to till it and tend it (Genesis 2:15)" (Minor Tractates, Avot de-Rabbi Nathan, Recension B, Chapter 21). Rabbi Soloveitchik also wrote on this: "there is no doubt that the term 'image of God' in the first account refers to man's inner charismatic endowment as a creative being. Man's likeness to God expresses itself in man's striving and ability to become a creator. Adam the first who was fashioned in the image of God was blessed with great drive for creative activity and immeasurable resources for the realization of this goal" (Rabbi Joseph B. Soloveitchik, “The Lonely Man of Faith,” 7 (2) Tradition 5, 11 (1965). Second, the understanding that leaving the labor market is caused merely by reaching a particular age, in circumstances independent of the worker, which he cannot avoid. The creation of distinctions between people because of characteristics at the very heart of the definition of being human, over which he has no control – like race and sex – constitutes a salient sign of illegitimate discrimination, that might involve arbitrariness. In this sense, age might belong to that list of characteristics that are "forced" on a person. Moreover, ageism has other characteristics that might aggravate the infringement, For example, it is not static, but a variable that worsens.

 

Another related point is the difficulty of protecting against the infringement caused by age discrimination. There are several reasons. The first, the boundary between "equal" and "different" is not so clear with age, compared with other characteristics, which leads to vagueness. Expression of this can be seen in the fact that European law recognizes all age groups as groups that are protected against discrimination, while the 1967 statute in the United States extended the protection against discrimination based on age only to those aged 40 or more (see Fredman, 101). The second derives from the universal nature of the characteristic of age. The aspiration is for everyone to experience the whole "cycle of life". In the words of the wisest of men, "one generation goes and another generation comes" (Ecclesiastes 1:4). However, specifically because of that, there is a tendency to minimize the severity of the infringement caused by age discrimination. This is because it appears that there is "equality of infringement". That is to say that age discrimination is unkind to a person at a certain stage of  life, but might be kind to him at other stages. The matter is complex and even creates something of a contest of rights between generations, and even between man and himself at different times of life. However, constitutional review stands at the ready, and the story of man’s life does not prevent him demanding his rights, dignity and liberty at any given time.

 

            One should, of course, take care to avoid discrimination in all its forms, but it appears to me that the unique aspect of age discrimination is such as to affect the way in which the matter is analyzed and looked upon. With all the importance of a broad view of society and the general public, it should not be forgotten that Basic Law: Human Dignity and Liberty places the emphasis on the individual. There are people who welcome and accept the obligation to retire at a given age with open arms. The question when to retire at the upper limit does not have to be decided by them. There is acceptance and even, perhaps, peace in the knowledge that it is not to be determined by them. It is perfectly possible to create in different ways, not merely at work. That is certainly a legitimate approach. But alongside this there are also people for whom there is a close link between their definition of self and their contribution through work. And suddenly, bidden by the calendar, they have to break the link completely. This is despite the fact that some of them are still able and willing to contribute, even at a high standard. Time, which is man's dearest asset, seeks alternative substance but in vain. Such a person can feel worthless, lonely and even degraded. He might also feel that he is outside the main fabric of society, and as we know, it is sometimes very cold outside.

 

            And note well that I concur with my colleague the President's statement that constitutional review of legislative arrangements that delineate far-reaching social and economic policy necessitates extreme caution (para. 24 of her opinion). Indeed, the problem that the petition presents is "a polycentric' one in which as a rule the Court rarely intervenes" (ibid., para. 57). I further agree that the very determination of a mandatory retirement age is supported by proper purposes: the protection of workers' dignity and the improvement of job security in the economy; granting the employer certainty and stability and the ability to manage and plan manpower in the workplace; and intergenerational fairness (paras. 38-40 of the President's opinion). Despite all the aforegoing, and perhaps specifically because of it, I have considered it appropriate to emphasize and concentrate on the gravity of the infringement of the values and rights on the agenda. Based on the President's persuasive reasoning, I have not found intervention appropriate in the present petition, especially because of job security. Nevertheless, as regards both the real and the ideal, this result is far removed from being the final word.

 

The Choice between Different Models, and the Necessary Broad Factual Basis

 

3.         In accordance with the way in which matters have been presented by the Petitioners, my colleague the President's opinion concentrated on the question of which of the two models should be chosen: biological retirement or functional retirement. From that point of view, a contest is evident between two different philosophies, two ends of the spectrum, each of which is fair and reasonable. Each of the conflicting philosophies has advantages and disadvantages, as described at length by my colleague. It should also be noted that the point of view of the employee does not necessarily oblige the adoption of biological retirement rather than functional retirement, or vice versa. Thus, for example, the term "dignity" can serve both conflicting approaches: compulsory retirement does involve some infringement of the employee's dignity, as described above, but such infringement might also occur, albeit practically, when he is subjected to competence tests.

 

In any event, for the reasons detailed at length in her opinion, my colleague believes that the legislature's choice of the first of the two models is legitimate and passes the hurdle of constitutionality. As I see it, insofar as we must choose between the two options against the overall background that has been presented to us, that conclusion is indeed required. Nevertheless, I do not believe that the present situation is a desirable one that exhausts the choice. In my opinion, the time is right to expand the discussion about the range of different possibilities, if only because of the uniqueness and complexity of the matter. Before going into detail, I would make it clear that I am aware that the choice of the biological retirement model in our system is not located right at the end of the spectrum, because there are certain qualifications and subtleties. First, section 10 of the Retirement Age Law, 5764-2004, establishes that, with the employer's agreement, it can be agreed " that the age at which an employee can be required to retire from work because of age shall be higher than mandatory retirement age ". Secondly, in Weinberger (LabA (National) 209/10 Weinberger v. Bar Ilan University (December 6, 2012)), the Labor Court held that if the employee wishes to continue working after the age of 67, the employer is obliged to give relevant, individual consideration to that request. Nevertheless, in view of the complexity of the matter and the gravity of the infringement, I do not believe that those qualifications and subtleties are adequate in the circumstances.

 

4.         To be more precise, as the President stated (para. 46), there is a wide range of retirement arrangements between the model of compulsory retirement because of age and the model of functional retirement. Alongside the examples that were cited (ibid.), and with the object of expanding, I shall refer to three matters: the first, other arrangements; the second, greater focus on different jobs; and the third, the arrangement of a comprehensive, up to date examination of the issue.

 

            As regards other arrangements, it would appear that one solution is to increase retirement age. This point is important, but I would like to augment it. In my opinion, an approach should not be taken whereby one size fits all. As aforesaid, the issue should be examined as a whole, not merely through the lens of dignity, but also through the lens of liberty. If the social security that is expressed in tenure is what necessitates retirement at a fixed age, one can also think of a model whereby the employee chooses between different types of benefit at different stages of his life and career. In that sense, the age at which the employee starts working at a particular workplace might be important. These are, of course, mere examples to indicate that it is necessary to think outside the box.

 

            As regards focusing on different jobs, the case before us in fact illustrates the point. Working as a professor in academia has certain characteristics (regarding which, see the opinion of Justice D. Barak-Erez). Indeed, new ideas can be raised in this work environment. For example, evaluation mechanisms can be formulated in the universities for professors who have tenure (and there has been such experience, for example, in the United States. See: Samuel Issacharoff & Erica Worth Harris, “Is Age Discrimination Really Age Discrimination? The ADEA’s Unnatural Solution,” 72 N.Y.U.L Rev. 780, 790 (1997)). The existing mechanisms can be expanded in the form of enabling professors in academia to work solely in research or solely in teaching, also in a limited format, for example, in accordance with such criteria as would be decided. Here again, because of the complexity of the matter, an approach should not be taken according to which one solution is suitable for everyone. Among other things, it is necessary to examine whether a private or public workplace is involved, whether the employees there enjoy tenure or other job security, the economic implications of the various different alternatives – both to the employee and the employer, and to the market as a whole, etc.

 

            This leads us to the third point – a comprehensive, up-to-date examination of the issue. The choice between biological retirement and functional retirement is "forced" upon us by the petition in the absence of adequate foundation in support of other alternatives (see also para. 46 of the President's opinion). Although the fundamental controversy surrounding these matters in the public arena, with all its complexity and characteristics, does indeed support the conclusion that it is not for us to intervene now, it does appear to me that it is proper, necessary and even vital to lay down a broad, thorough and up to date factual foundation. The effect of mandatory retirement age on emplyees' standing, and on the labor market as a whole, is a highly complex issue that is context and society dependent. The answer requires social-science evidence, adapted to the prevailing economic, social and legal system. Evidence of that type has not been produced to us, but it should be made clear that no criticism of the parties' attorneys is implied thereby. A comprehensive, up-to-date examination requires proper supervision and resources. Individual workers cannot be expected to perform that task. The importance of the contribution is in actually raising the matter, and perhaps indicating what is deficient. In my opinion, a public commission, composed fro various areas, should be established in order to collect the relevant material, including empirical data, and hear testimony, and it should recommend proper policy for the current period.

 

            In order to illustrate the dimensions of the deficiency, it should be borne in mind that the recommendations of the public commission that was appointed to examine the issue of retirement age, together with its social and economic aspects, headed by Justice (Emeritus) Shoshana Netanyahu were submitted in 2000. The Commission itself was appointed back in 1997, some two decades ago. The Netanyahu Commission sat and deliberated the various different factors and the possibilities on the agenda for changing the mandatory retirement age, including the possibility of abolishing it altogether. However the Commission's work – comprehensive and thorough as it was – is far less relevant now, a generation after it convened (see and compare the opinion of my colleague Deputy President E. Rubinstein, according to which there should be an examination every 10 years). The assumptions and data upon which it relied, like the labor market in general, have changed. In my opinion, that fact necessitates an organized and thorough rethink – and as soon as possible. I therefore wholeheartedly join in the opinion of my colleague Justice E. Hayut, in para. 2 of her opinion.

 

To this we might add that the approach of different countries, that served, inter alia, as a source of comparison for the Netanyahu Commission, changed a few years ago, primarily afger the Commission's recommendations were submitted (in 2000). In some of the countries there has been a major change in outlook, in the same direction – namely the abolition by legislation of a compulsory retirement age (subject to certain exceptions, see para. 55 of the President's opinion). This has happened, for example, in England, where mandatory retirement in numerous sectors, including institutes of higher education, was abolished in 2011. In Canada too, mandatory retirement (in the public sector) was abolished in 2012.

 

As I have mentioned, I am conscious of the fact that issues of the type that the petition involves are dependent upon concrete context and society. For that reason, among others, extreme care should be taken when drawing analogies through comparative law. Another reason can be that social sensitivity in regard to social security is greater in Israel than it is, for example, in the United States. Nevertheless, it does appear to me that the tool of comparative law can also assist us in the complex issues facing us, provided that it is used in a careful, measured manner. Just as the experience of a worker in a particular job is of value, so too, is the experience of various different legal systems, even if it is necessary to make certain adaptations to the conditions of the country and its labor market.

 

5.         In conclusion, my opinion is that the legislature's choice of a compulsory retirement model because of age, at the time, reflected an informed choice among different possibilities. Changing times and developments along the way, the severity of the infringement involved in compulsory retirement, which is at the heart of man and his sense of self, the sensitivity of the matter and its complexity that is dependent upon context, society, and concrete, up-to-date data all now necessitate a thorough review by the legislature (and perhaps also by certain workplaces like universities), and an ensuing informed choice. Insofar as such a review is not made within a reasonable time, in my opinion the parties' arguments should be reserved. We, as a society, ought to properly contend with the issue and consider it in the best way, as required. This is especially the case in our day and age when not only is life expectancy changing, but so is the way in which quality of life is perceived. Subject to my foregoing statements, I concur with the result reached by President M. Naor that the petition should be dismissed. Let me conclude by saying "ageing is what we all hope for and all fear. Let there be more hope and less fear".

 

 

 

Decided as stated in the opinion of President M. Naor.

 

Given this 13th day of Nissan 5776 (April 21, 2016).

 

 

The President	The Deputy President		Justice
Justice	Justice	Justice	Justice

 

            

HCJ 5239/11

HCJ 5392/11

HCJ 5549/11

HCJ 2072/12

 

 

Petitioners in HCJ 5239/11:                1. Uri Avneri

                                                            2. Gush Shalom

 

Petitioners in HCJ 5392/11                 1. Adi Barkai, Adv.

                                                            2. Iris Yaron Unger, Adv.

                                                            3. Anat Yariv

                                                            4. Dr. Adia Barkai

                                                            5. Dana Shani

                                                            6. Miriam Bialer

 

Petitioners in HCJ 5549/11                 1. Arab Movement for Renewal – Ta’al

                                                            2. MK Dr. Ahmed Tibi

 

Petitioners in HCJ 20172/12               1. Coalition of Women for Peace

                                                            2. Supreme Monitoring Committee for Arab Affairs

                                                            3. Jerusalem Legal Aid and Human Rights Center

                                                            4. Association for Civil Rights in Israel

                                                            5. Public Council against Torture

                                                            6. Hamoked: Center for the Defence of the Individual

                                                            7. Religious Action Center of Reform Judaism

                                                            8. Yesh Din – Volunteers for Human Rights

9. Adalah – The Legal Center for Arab Minority Rights in     Israel

 

 

                                                                        v.

 

Respondents in HCJ 5239/11                  1. Knesset

                                                                 2. Speaker of the Knesset

 

Respondents in HCJ 5392/11                  1. Knesset

                                                                 2. Speaker of the Knesset

                                                                 3. Minister of Finance

                                                                 4. Attorney General

 

Respondent in HCJ 5549/11                   Knesset

 

Respondents in HCJ/2072/12                  1. Knesset

                                                                 2. Minister of Finance

                                                                 3. Minister of Justice

 

Requester to join:                                      Legal Forum for Israel

 

Attorneys for the Petitioners in HCJ 5239/11: Gabi Laski, Adv; Neri Ramati, Adv.

Attorneys for the Petitioners in HCJ 5392/11: Adi Barkai, Adv.; Iris Yaron-Unger, Adv.

Attorneys for the Petitioners in HCJ 5549/11: Osama Saadi, Adv.; Amer Yassin, Adv.

Attorneys for the Petitioners in HCJ 2072/12: Hassan Jabarin, Adv.; Sawsan Zaher, Adv.; Dan Yakir, Adv.

 

Attorneys for Respondents in HCJ 5239/11,

Respondents 1-2 in HCJ 5392/11,

Respondent in HCJ 5549/11,

and Respondent 1 in HCJ 2072/12:                Eyal Yinon, Adv.; Gur Bligh, Adv.

 

Attorneys for Respondents 3-4 in HCJ 5392/11

and Respondents 2-3 in HCJ 2072/12:           Yochi Genesin            , Adv.; Uri Kedar, Adv.; Avishai Kraus, Adv.

 

Attorneys for the Requester to join:               Avi Har-Zahav, Adv.; Yifat Segal, Adv.; Tomer Meir Yisrael, Adv.

 

 

The Supreme Court sitting as High Court of Justice

 

Before: President Emeritus A. Grunis, President M. Naor, Deputy President. E. Rubinstein, Justice S. Joubran, Justice H. Melcer, Justice Y. Danziger, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit

 

Responses to an Order Nisi

 

Facts: The petitions sought to void the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Boycott Law or the Law). The Law attributes tortious liability and establishes various administrative restrictions against anyone who knowingly publishes a public call to impose a boycott on the State of Israel, as defined by the Law. The Petitioners argued that the Law was unconstitutional for infringing various constitutional rights (inter alia, freedom of expression, the right to equality, freedom of occupation), without meeting the conditions of the “Limitation Clauses” of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation.

 

The High Court of Justice, in an expanded bench of nine justices, held:

 

The Court unanimously decided to void sec. 2(c) of the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011, and to deny the petitions in regard to secs. 3 and 4 of the Law. Additionally, the majority (per Melcer J., Grunis P., Naor P., Rubinstein D.P., and Amit J. concurring) denied the petitions in regard to secs. 2(a) and 2(b) of the Law, against the dissenting opinion of Danziger J., Joubran J. concurring, and the separate dissents of Hendel J. and Vogelman J.

Justice Melcer: From the language of the Law, we learn that anyone who knowingly publishes a call for the imposition of a boycott against the State of Israel, as defined by the Law, may be deemed to have committed a tort. Moreover, the participation of such a person, or one who has committed to participate in such a boycott, may be restricted, and it is possible that such a person may be prevented from receiving various financial benefits (governmental grants, tax exemptions, state guarantees, etc.). Thus, most of the sanctions imposed by the Law already apply at the speech stage. Therefore, the Boycott Law indeed infringes freedom of expression and is repugnant to the constitutional right to human dignity. However, in the opinion of Justice Melcer, we are not concerned here with an infringement of the core of freedom of expression, even where political speech is concerned, inasmuch as the infringement is relatively limited, and applies only to a call for a boycott against the State of Israel, as defined by the Law, or anyone who commits to participate in such a boycott, which is a legal act that exceeds speech.

However, that constitutional right, like all other constitutional rights in Israel, is not absolute, but rather relative, and may be restricted if the infringement meets the requirements of the “Limitation Clause” in sec. 8 of Basic Law: Human Dignity and Liberty. As is well known, the Limitation Clause comprises four cumulative tests: the infringement of the constitutional right must be made by a law or by virtue of a law; it must befit the values of the State of Israel as a Jewish and democratic state; it must serve a proper purpose; and it may only infringe the right to an extent no greater than is required. The last condition comprises three subtests, which are: the rational connection test, the least harmful means test, and the proportionality “stricto sensu” test. For the purpose of this examination, Justice Melcer also made recourse to comparative law.

There is no dispute that the first condition is met. As for the remaining conditions, Justice Melcer was of the opinion that the provisions of the Law that are intended to prevent harm to the State of Israel by means of an economic, cultural, or academic boycott of a person or any other entity, merely due to its connection to the State of Israel, one of its institutions, or an area under its control, fall under the doctrine of “defensive democracy”, and promote protection of the state and its institutions, as well as equality and personal liberty, and the Law, therefore, is intended for a proper purpose that befits the values of the State of Israel as a Jewish and democratic state. Justice Melcer was also of the opinion that “calls for a boycott against the State of Israel, as defined by the Law, do not serve the classical purpose of freedom of expression”. This view is based upon Justice Melcer’s distinction between speech intended to “persuade” and speech employed as a “means of coercion”. In his opinion, a call for a boycott is a form of coercive expression, and therefore, it is entitled to less protection that that afforded to other types of political speech.

However, in the context of examining the fourth condition – proportionality – and in accordance with a narrow interpretive approach, Justice Melcer concluded that whereas secs. 2(a), 2(b), 3 and 4 of the Law meet the conditions of the proportionality test, sec. 2(c) of the Law does not meet the demands of the least harmful means test.

In this context, Justice Melcer referred to the chilling-effect doctrine, which addresses a deterrent effect that extends beyond the scope of expression intended by the legislature, and proposed limiting this chilling effect by means of narrow construction that would somewhat restrict the bounds of the tort under sec. 2(a) of the Law. Justice Melcer therefore recommended that the realization of the “boycott tort” be contingent upon the existence of damage, and a causal connection between the tortious conduct and the damage. However, a potential causal connection would not suffice. Rather, there must be awareness of the reasonable possibility that the call and the circumstances of its publication would lead to the imposition of a boycott, and the right to bring suit must be reserved only to the direct victim of the tort.

By accepting this interpretive approach, sec. 2(b) of the Law would also be constitutional. Pursuant to that, it was further held, inter alia, that a person seeking damages under sec. 2(b) of the Law would have to prove not only the element of a call for a boycott, but also the following elements: causation as defined in sec. 62(a) of the Civil Wrongs Ordinance, breach, a causal connection between the boycott and the breach, a mental element of awareness, and monetary loss.

On the other hand, as far as sec. 2(c), concerning damages not contingent upon damage (that might be categorized as “punitive damages”) and which are not capped by any ceiling in this regard, Justice Melcer was of the opinion that this section did not meet the second test of the least harmful means test, and must be voided.

Thus, in accordance with this approach, even if a person calling for a boycott be found liable in tort, the damages that would be imposed upon him would not exceed the harm that he actually caused.

In regard to secs. 3 and 4 of the Law, Justice Melcer was of the opinion that the administrative sanctions – preventing participation in tenders and restricting the possibility of obtaining public benefits – constitute merely “second order” infringements of freedom of expression. Accordingly, these are proportionate sanctions in view of the procedures required for the approval of the restrictions, and in view of the state’s right to withhold benefits from anyone who employs them against the state. He does not distinguish, in this regard, between a boycott against the state and a boycott against the Area. According to his approach, the constitutionality of secs. 3 and 4 of the Law should not be addressed until specific petitions are filed in the matter of an actual decision by the Treasury, on the basis of a concrete factual foundation.

In conclusion, Justice Melcer drew additional support for the proposed approach, inter alia: a construction of a law that places it within constitutional boundaries is preferable to striking it down; respect for the legislature by virtue of deference; the margin-of-appreciation theory; the ripeness doctrine as applied to the matter before the Court requires that, other than the striking down of sec. 2(c) of the Law , the claims of potential claimants or potential defendants in regard to the Law be examined in the course of applied review.

President (Emeritus) A. Grunis, President M. Naor, Deputy President E. Rubinstein, and Justice I. Amit concurred in the opinion of Justice Melcer in separate opinions.

Justice Y. Danziger: The Prevention of Harm to the State of Israel by means of Boycott Law substantially violates freedom of expression. We are concerned with an infringement of the freedom of political expression, which is at the “core” of the constitutional right to freedom of expression, and which forms part of the constitutional right to human dignity. Under his approach, that infringement does not meet the requirements of the Limitation Clause under sec. 8 of Basic Law: Human Dignity and Liberty because the Law does not pass the third subtest of proportionality – proportionality “stricto sensu” – particularly in regard to a call for a boycott of the Area, inasmuch as calling for a boycott of the Area is a subject that is clearly within the bounds of legitimate democratic discourse. In his view, the narrow interpretive approach proposed by Justice Melcer is insufficient.

Despite that conclusion, Justice Danziger was of the opinion that it would be possible to avoid the extreme result of voiding the Law for unconstitutionality through an interpretation that would significantly reduce the Law’s infringement and permit the Law to pass the constitutionality tests. This could be accomplished by establishing that sec. 1 of the Law, which is the Law’s “entry way”, be construed as such that only a boycott of an “institution” or “area” that is a boycott of the State of Israel and derives from the institution or area belonging to the state would fall within the scope of the Law’s definition, whereas a boycott of an “institution” or “area” that is not part of a boycott of the State of Israel in its entirety would not fall within the Law’s definition. In other words, the Law should be interpreted as applying only to calls for a boycott of the State of Israel in its entirety, but not to calls to boycott the Area alone.

Justice N. Hendel accepted the solution proposed by Justice Melcer as a legitimate interpretation of the Law. However, in his view, section 2 in its entirety – sec. 2(a) establishing boycott as a tort, sec. 2(b) establishing that a person calling for a boycott, as defined by the Law, acts without sufficient justification in regard to the tortious inducement of breach of contract, and sec. 2(c) in regard to damages without proof of damage – does not meet the third constitutional test of proportionality – proportionality stricto sensu.  Therefore, Justice Hendel was of the opinion that sec. 2 of the Law should be struck down in its entirety for lack of proportionality, but concurred in the approval of secs. 3 and 4 for the time being.

Justice U. Vogelman concurred with the general approach of Justice Danziger, but was of the opinion that the “blue pencil” rule should be adopted in this regard. Accordingly, the words “an area under its control” should be stricken from sec. 1 of the Law. In his view, sec. 2(c), as well,   should be struck down, while retaining secs. 3 and 4. Additionally, in his view, the validity of the Law requires that it be interpreted in such a manner that it would apply only to those cases in which the sole reason for the call for “refraining from economic, cultural or academic ties with another person” is the connection to the State of Israel or one of its institutions.

Justice S. Joubran was of the opinion that sec. 2(c) of the Law should be struck down, and that sec. 1 should be interpreted as proposed by Justice Y. Danziger in regard to areas under the control of the state. In addition, like Justices Y. Danziger and I. Amit, he was of the opinion that a distinction should be drawn between calling for a boycott against a person due to his connection to the State of Israel or one of its institutions, and a call for a boycott against a person due to his connection to an area under the control of the state.

 

Judgment

 

Justice H. Melcer

1.         The Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Boycott Law or the Law) [https://www.nevo.co.il/law/78646], imposes tortious liability and establishes various administrative restrictions upon anyone who knowingly publishes a public call to impose a boycott on the State of Israel, as defined by the Law. Does the Law infringe the right to freedom of expression and other constitutional rights? Does that infringement, to the extent that it may exist, meet the tests of the “Limitation Clauses” of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation? These are the questions upon which the petitions before us focus.

            I will begin by presenting the relevant, basic information.

2.         On July 11, 2011, the Knesset enacted the Boycott Law. Inasmuch as the Law is concise, I will first present its full text:

                        Definition:

1.  In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm.

Boycott – Civil Wrong:

2.         (a) Anyone who knowingly publishes a public call for a boycott against the State of Israel, where according to the content and circumstances of the publication there is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility, commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him.

(b) In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.

(c) If the court find that a civil wrong, as defined by this law, was committed with malice, it may require the tortfeasor to pay damages that are independent of the actual damage caused (in this section – exemplary damages); in calculating the sum of exemplary damages, the court will consider, inter alia, the circumstances under which the wrong was carried out, its severity and its extent.

Directives restricting participation in tenders:

3.         The Minister of Finance is authorized, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, to issue directives in regard to restricting the participation in a tender of anyone who knowingly published a public call for a boycott against the State of Israel, or who committed to participate in such a boycott, including a commitment not to purchase goods or services produced or supplied in Israel, by one of its institutions, or in an area under its control; in this section, a “tender” is defined as any tender that must be administered in accordance with the Mandatory Tenders Law, 5752-1992.

 Regulations preventing benefits:

4.         (a) The Minister of Finance, in consultation with the Minister of Justice, may decide that someone who knowingly published a public call for a boycott against the State of Israel or committed to participate in a boycott:

(1) Will not be deemed a public institution under clause 46 of the Income Tax Ordinance;

(2) Will not be eligible to receive monies from the Sports Betting Council under section 9 of the Regulation of Sports Betting Law, 5727-1967; exercise of the authority under this section requires the consent of the Minister of Culture and Sports;

(3) Will not be deemed a public institution under section 3A of the Foundations of the Budget Law. 5745-1985, regarding the receipt of support under any budget line item; exercise of the authority under this section requires the consent of the Minister appointed by the Government as responsible for said budgetary line, as stated in section 2 of the definition of  “person responsible for a budget line item”;

(4) Will not be eligible for guarantees under the State Guarantees Law, 5718-1958;

(5) Will not be eligible for benefits under the Encouragement of Capital Investment Law, 5719-1959, or under to the Encouragement of Research and Development in Industry Law, 5744-1984; exercise of the authority under this section requires the consent of the Minister of Industry, Commerce and Employment.

(b)        In exercising the authority according to subsection (a), the Minister of Finance will act in accordance with regulations that he will promulgate in this regard, with the consent of the Minister of Justice, and with the approval of the Knesset Constitution, Law and Justice Committee; however, if no such regulations have been promulgated, it will not detract from the authority under subsection (a).

Implementation:

5.         The Minister of Justice is appointed to implement this law.

Effective Date:

6.         Section 4 shall come into force ninety days from the publication of this law.

(For convenience, the tortious liability imposed under section 2 of the Law shall be referred to hereinafter as “the boycott tort”, and the provisions established under sections 3 and 4 will be referred to hereinafter as “the administrative restrictions”. The three aforesaid sections shall together be referred to hereinafter as “the Law’s sanctions”).

 

3.         The legislative process of the Law was complex, and I will, therefore, briefly present its steps and what accompanied them, immediately below:

A.        On July 5, 2010, the Prevention of Harm to the State of Israel by means of Boycott Bill, 5770-2010, was tabled before the eighteenth Knesset (the text of the Bill was appended to the response of the Knesset as R/1). The Bill was initiated by twenty-five members of Knesset from various parties, both of the coalition and opposition. The Bill was approved in a preliminary reading on July 14, 2010, and was transferred to the Constitution, Law and Justice Committee (hereinafter: the Committee, or the Constitution Committee) for preparation for a first reading.

B.        The Committee conducted its first discussion of the Bill on Feb. 15, 2011 (the protocol of the meeting was appended to the response of the Knesset as R/2). The Bill was presented at the outset of the meeting by one of its initiators, MK Zev Elkin, who explained that the original draft of the Bill was broader, but pursuant to the decision of the Ministerial Committee for Legislation in this regard, the scope of the Bill was limited by the removal of sections of the Bill concerning calls for boycott by a party who is not a citizen or resident of Israel, a boycott imposed by an organ of a foreign state, and retroactive force of the legislation. MK Elkin explained that the Law was intended to provide a response to an absurd situation that had arose, in which, as he explained, states friendly to Israel prohibit the imposition of a boycott upon the state, and impose sanctions upon bodies that seek to join a boycott of Israel, while there is no parallel sanction in Israeli law. Accordingly, in his words: “This law is intended to protect the State of Israel, at least minimally. An Israeli citizen who acts against it must know that he will bear the consequences” [ibid., p. 3 of the protocol of the meeting].

            In the course of that meeting, several members of the Committee expressed their opposition to the Bill. Among other things, they argued that it was an anti-democratic bill that restricted freedom of expression, that boycotting was a legitimate civil means for expressing dissent, and that the Law would ultimately harm the State of Israel. The legal advisor of the Foreign Ministry, Advocate Ehud Keinan, noted that, in his opinion, the Law would not be helpful in the fight against boycotting Israel, and might even harm that effort (ibid., pp. 21-22 of the above protocol). The representative of the Manufacturers Association, Mr. Netanel Heiman, expressed reservations about the Bill, and argued that it should conform to the existing American law on the subject (ibid., pp. 22-23 of the above protocol). Similarly, Prof. Mordechai Kremnitzer, who appeared before the committee, noted that “if this bill were constructed along the lines of existing models in the world, I would not have a word to say on the constitutional level” (ibid., p. 28 of the above protocol). Prof. Kremnitzer, however, added that the Bill – in the form presented – infringes fundamental rights, among them the right to freedom of expression (ibid., pp. 29-30 of the above protocol).

            The representatives of the Ministry of Justice explained at the meeting that even after the removal of certain sections of the Bill, as aforementioned, the prohibitions established under the Bill remain too broad and should be limited (ibid., pp. 17-19 of the above protocol). In response, the legal advisor of the Committee, Advocate Sigal Kogut, explained that changes would be made in the wording of the Bill in order to more precisely define the term “boycott” in the Law, as well as the conduct element it comprises (ibid., p. 32 of the above protocol). At the end of the meeting, the Committee approved the Bill for a first reading by a majority vote.

C.        On Feb. 28, 2011, even before the Bill was tabled before the Knesset for a first reading, the Committee approved a request for a revision of the Bill. Pursuant to that, the Committee was presented a revised draft of the Bill that was the result of discussions between MK Elkin and the Legal Advisors of the Committee and the Knesset (the meeting protocol was appended to the response of the Knesset as R/3). In accordance with the comments of the Knesset Legal Advisor, the definition of the term “a boycott against the State of Israel" in the amended Bill (sec. 1 of the original Bill) was narrowed, and the criminal prohibition of a call for a boycott against the State of Israel was removed (sec. 2 of the original Bill). However, it was agreed that the latter would be reconsidered in the framework of preparing the Bill for a second and third reading (see: the Explanatory Notes to the Bill that were published by the initiating members of Knesset and the Constitution Committee in 5771 H.H. 373, p. 112 of March 2, 2011). Ultimately, at the request of the Committee chair, MK David Rotem, a section was added to the Bill stating that the Minister of Finance, with the consent of the Constitution Committee, may establish provisions restricting the participation of participants in the boycott against the State of Israel in public tenders (ibid., pp. 3-4 of the above protocol).

            At the end of the meeting, the amended Bill was approved for a first reading by a majority vote with eight supporting and four opposing, and it was also approved by the Knesset plenum in a first reading on March 7, 2011 by a majority of 32 in favor and 12 opposed, with no abstentions. The Bill was then returned to the Constitution Committee for preparation for a second and third reading.

D.        On June 27, 2011, the Constitution Committee discussed the Bill in the framework of its preparation for second and third readings (the protocol of the meeting was appended to the response of the Knesset as R/5). Prior to the said meeting, the members of Knesset were presented with an amended version of the Bill, which was prepared in cooperation with representatives of the Ministry of Justice, following the Bill’s approval in the first reading. This draft included a list of additional provisions regarding the denial of financial benefits from the state to anyone calling for a boycott against the State of Israel (as defined in the Bill), or anyone undertaking to participate in such a boycott (the text of the amended Bill was appended to the response of the Knesset as R/6).

            In the course of the meeting, the Deputy Attorney General (Criminal Affairs), Advocate Raz Nizri, explained that the Bill, as presented to the Committee, accords with the course that “the Attorney General agreed to follow” (protocol of the meeting of June 27, 2011, p. 15). However, Advocate Nizri stressed that the Attorney General’s position is that the legal course presented “is very, very marginal” and that it “raises not insignificant problems”, and therefore, in his opinion, any further change in the wording of the Bill “endangers this already unstable structure” (loc. cit.). In this regard, Advocate Nizri noted the importance of retaining the requirement of a mental element of “malice” as a condition for imposing exemplary damages (sec. 2(c) of the Bill), and for retaining the various conditions established in the Bill in regard to denying benefits provided by the state (ibid., pp. 21-26 of the above meeting protocol). The representative of the Ministry of Justice, Advocate Roni Neubauer, also underlined that in light of the exceptionality of “punitive damages” in the civil law, they should be conditioned upon an element of “malice” on the part of the tortfeasor, and should be limited to situations in which the court wishes to express real abhorrence at the tortfeasor’s conduct (ibid., pp. 70-71 of the above meeting protocol).

            The representative of the legal department of the Ministry of Foreign Affairs, Advocate Karin Dosoretz, stressed that the Foreign Ministry shared the desire to fight the boycott phenomenon, but the Ministry was of the opinion that the Bill might lead to the opposite result (ibid., p. 58 of the above meeting protocol).  The Legal Advisor of the Ministry of Finance, Advocate Joel Baris, emphasized that “the Government decided to support the Bill,” and therefore he was speaking “within that framework”, however, in continuing, he took the view that sec. 3 of the Bill was problematic in that it sought to introduce political values into the procedure. He added that that could carry a hidden price that could not be estimated in terms of its budgetary effect. He also expressed his fear of transferring decisions on matters tangential to the political sphere to civil servants (ibid., p. 72-73 of the above meeting protocol). It should be noted that, as will be explained below, this comment by Advocate Baris found expression in the final version of the Law, which established that the exercise of the authority by the Minister of Finance under sec. 4 of the Law would be by in accordance with regulations that would require the approval of the Constitution Committee (however, such regulations have not yet been promulgated).

             The representative of the legal department of the Ministry of Industry, Commerce and Employment, Advocate Deborah Milstein, explained that the restrictions that the Law established in regard to participating in public tenders do not infringe Israel’s international obligations, inasmuch as under the Mandatory Tenders Law, 5752-1992 (hereinafter: the Mandatory Tenders Law), the directives that will be issued under the Law will be subject to the international treaties to which Israel is a party (ibid., p. 72 of the above meeting protocol).

            In the course of the said meeting, many Knesset members expressed their opposition to the Bill, and some of them argued that even the amended version of the Bill was too broad, infringed freedom of expression, and might accelerate the process of Israel’s delegitimization.

            As opposed to this, Prof. Gershon (Gerald) Steinberg of Bar Ilan University, who researches the anti-Israel boycott phenomenon, argued before the Committee that “anyone who thinks that the boycott, BDS (Boycott, Divestment and Sanctions) process, is something narrow, something marginal, something that does not harm the continued existence of the State of Israel, does not understand the phenomenon”. He added that, in his opinion, anyone who opposes the Bill should suggest an alternative solution for the fight against the boycotts initiated against Israel (ibid., p. 63 of the above meeting protocol).

            The Legal Advisor of the Committee, Advocate Sigal Kogut, explained that, in her opinion, there is a distinction between imposing restrictions on someone who calls for a boycott of the State of Israel, which can be justified, and the restrictions imposed upon someone who calls for the boycotting of a person due to his connection “to an area under its control”, which are problematic, in her view, and constitute “the primary constitutional problem in this tort” (ibid., p. 61 of the above meeting protocol).

            At the request of MK Plesner, who was of the opinion that the section regarding the denial of benefits granted by the state to anyone who calls for a boycott constitutes “a deviation from the subject”, under sec. 120(a) of the Knesset Rules of Procedure (now sec. 85 of the Rules), the meeting of the Committee was adjourned, and the matter was referred to the House Committee for its decision. After the House Committee ruled that the matter did not constitute a “new subject”, the Constitution Committee’s meeting was resumed, and in the end, all the reservations in regard to the Bill were removed, and the Bill was approved for second and third readings by a majority vote of eight in favor and five opposed (the protocol of the resumed meeting of the Committee was appended to the Knesset’s response as R/7).

E.         On July 10, 2011, before the Bill was debated in the Knesset plenum, MK Plesner requested that the Legal Advisor of the Knesset state his opinion as to the constitutionality of the Bill. In his response to MK Plesner that same day, the Legal Advisor of the Knesset, Advocate Eyal Yinon, explained the problem that he found in imposing tortious liability upon someone who calls for boycotting a person due to his connection to “an area under the control” of the State of Israel, and wrote, inter alia, as follows:

3. This tort [in the Law], together with the broad definition of the term “boycott against the State of Israel” […] creates a cause of action in tort for the payment of damages for calls for a boycott that are intended to influence the political dispute in regard to the future of Judea and Samaria, a dispute at the heart of the political discourse in the State of Israel for over forty years.

4. Moreover, leaving the section as is in this wording will lead to a situation in which a call for a boycott in regard to one issue, and to one political position, will constitute a tort and grounds for other administrative sanctions, while a call for a boycott for other ideological, social or religious reasons will continue to be legitimate in the framework of public discourse. Thus, for example, a call for a boycott directed at artists who did not serve in the IDF, against universities that do not play the anthem at commencement exercises, against bodies that do not keep kosher, and of late, consumer boycotts against manufacturers and supermarket chains that sell products at prices that are viewed as too high, will not constitute grounds for any sanctions whatsoever, while calls for a boycott in regard to the dispute over the future of the areas of Judea and Samaria will be deemed a wrongful act that justifies the payment of damages.

[…]

5. Under these circumstances, we are of the opinion that the definition of “boycott against the State of Israel” in this broad wording, together with the tort, should be seen as an infringement that goes to the heart of freedom of political expression in the State of Israel that brings these elements of the Bill to the brink of unconstitutionality, and perhaps even over it.

(Emphasis original – H.M.; The letter of Knesset’s Legal Advisor was appended to the response of the Knesset as R/8).

F.         On the following day, July 11, 2011, the Bill was brought before the Knesset plenum for second and third readings. In the course of the plenum debate, MK Elkin clarified the reasoning grounding the extending of the Law to calls for boycotts related to Judea and Samaria (hereinafter: the Area), explaining as follows:

Anyone who examines the legislation on the subject of boycotts and the subject of discrimination in the various countries will discover a very simple thing – that even in France, and even in Germany, and even in other countries, there are types of discrimination and types of boycotts that are forbidden and that are permitted. In general, there is a basic list of characteristics of a person that the law forbids to serve as grounds for discrimination and boycott: religion, race, nationality, sex. […] In my view, a person’s citizenship and place of residence are among the most basic characteristics. One can conduct a political struggle, but boycotting a person merely because he is a citizen of the State of Israel, particularly where this causes him injury, is prohibited. And if not prohibited, then at least a person who does so must be ready to bear the cost of the injury. […] There is no difference between a resident of Ariel and a resident of Tel Aviv. You want to use boycott as a means for a political struggle? Boycott. Boycott me, boycott Likud voters, whatever you like. But to boycott a person because of where he lives? […] The dispute over the borders of the state must be carried out here, and not at the expense of companies, and not at the expense of people who live there at the behest of the State of Israel. Some like it, some do not like it, but [this is] the place for deciding the dispute – not by boycotts [ibid., at pp. 168-169 of the protocol of the plenum debate; emphasis added – H.M.].

            Minister of Finance, MK Yuval Steinitz, also explained that he supported the Bill due to his principled objection to boycotts of distinct groups, in view of the belligerent character of this method, stating as follows:

Boycott of one or another particular community is, in principle, not a proper expression of freedom of expression, freedom of debate, and freedom of speech, because a boycott is belligerent. It is an attempt to use force to harm and defeat a community that thinks differently, and therefore it makes sense for the state to protect itself and its ideological or ethnic communities from such types of boycotts. [Boycott] is a deplorable, belligerent phenomenon that is […] inconsistent with the democratic idea that we debate and decide in accordance with the majority opinion and not in accordance with the power of a group that thinks differently. Not by force, not by boycott, and not by ostracism [ibid., at p. 99 of the protocol of the plenum debate].

            Many members of Knesset expressed their opposition to the Bill, to a great extent for the same reasons expressed earlier in the meetings of the Constitution Committee referenced above.

G.        At the conclusion of the debate, the Bill was approved in a second and third reading by a majority of 47 in favor, 38 opposed, and no abstentions. In the course of the debate, a reservation submitted by the Ministry of Finance was adopted, according to which the exercise of the Minister of Finance’s authority under sec. 4 of the Law would be in accordance with regulations that would require the approval of the Constitution Committee, although it was also decided that if such regulations were not established, it would not detract from the authority granted under the section to the Minister of Finance.

4.         Following the enactment of the Law, the four petitions before us were filed. Three of the petitions ask for the voiding of the entire Law, while one (HCJ 5392/11) argues only for the voiding of section 2-3 of the Law.

            On Dec. 5, 2012, a hearing on the petitions was held before a panel of three justices. Following the hearing, on Dec. 9, 2012, an order nisi was granted, ordering the Respondents to show cause why the Law, or at least sections 2-3 of the Law, should not be voided. In the said decision, it was further decided that the hearing on the responses to the order nisi would be conducted before an expanded panel, which convened on Feb. 16, 2014.

5.         Below, I will present the various parties to the petitions, and following that, I will present the responses of the Respondents. I will already state that, for the sake of clarity, and inasmuch as most of the arguments of the Petitioners and of the Respondents are repeated in the four petitions, with various differences in wording and structure, I will make a unified presentation of the gist of the arguments of the Petitioners and of the Respondents.

 

The Parties to the Petitions

6.         Petitioner 1 in HCJ 5239/11 (hereinafter: the Avneri Petition) is one of the founders of Petitioner 2 in this petition, which is an association that, inter alia, acts to advance a peaceful solution between the State of Israel and the Palestinians. The Petitioners in HCJ 5392?11 (hereinafter: the Barkai Petition) are citizens and residents of the state who see themselves as potential defendants under sec. 2 of the Law, and ask that they be permitted to call for a boycott of the settlements and products produced there (but not against the State of Israel as such). Petitioner 2 in HCJ 5549/11, MK Dr. Ahmed Tibi, is a member of Knesset on behalf of Petitioner 1 of this petition, which is a political party that was elected to the 19^th Knesset (hereinafter: the Ta’al Petition). The Petitioners in HCJ 2072/12 (hereinafter: the Women’s Coalition Petition) are various associations that work, inter alia, for the realization of human rights and for equality among the citizens of the State of Israel.

            Prior to filing the petitions, Petitioner 2 in the Avneri Petition and Petitioner 1 in the Women’s Coalition Petition published lists of products originating in Jewish communities in the Area, in various ways, and called for boycotting them. However, pursuant to the passage of the Law, they ceased to do so, in fear that the Law’s sanctions would be enforced against them.

7.         The Respondents in the above Petitions are: the Knesset and the Speaker of the Knesset (above and hereinafter: the Knesset), the Minister of Finance, the Minister of Justice, and the Attorney General (hereinafter collectively: the Government), and the Legal Forum for Israel (hereinafter: the Legal Forum), which was heard in the proceedings at its request.

8.         The Respondents’ claim, upon which the petitions are grounded, is that the Boycott Law is inconsistent with the constitutional standards and values established in Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. However, before addressing the arguments of the parties in regard to the constitutional tests in detail, I will present two preliminary questions raised by the Respondents, and the Petitioners’ response to them.

A.        The focus of the Petition: According to the Respondents, the Petitioners’ arguments in the various petitions focus upon the claim that the Law restricts freedom of political expression in all that concerns the policy of the State of Israel in regard to the Area, and that the Law precludes calling for imposing a boycott due to the connection of a person or party to the Area. That being the case, the Respondents argue that the petitions are not directed at the constitutionality of the Law in its entirety, but are directed solely at the term “an area under its control” in the definition of “boycott against the State of Israel” in sec. 1 of the Law, and can, therefore, only lead to the deletion of those words.

            As opposed to this, in the course of the hearing, the Respondents were asked if, indeed their petitions focused only upon the term “an area under its control” in sec. 1 of the Law, and some of them responded that their petitions were directed at the Law in its entirety.

B.        Ripeness: The Respondents are of the opinion that the petitions should be denied for lack of ripeness, lack of concreteness, and for generality. According to the Respondents, the Boycott Law has not yet been applied by the courts, and therefore, there is no need to decide the question of its constitutionality at this time. In regard to the tortious liability imposed by the Law, the trial court is granted broad discretion as to the construction of the elements of the tort, as well as in regard to the conditions for awarding damages. That being the case, the need for constitutional review of the Law – before the trial courts have addressed it in a concrete case – has not yet ripened. This is also the case in regard to the administrative restrictions imposed by the Law, regarding which the Minister of Finance is granted broad discretion in drafting the provisions that would lead to the imposition of the said sanctions.  Moreover, at the time of the hearing (and to the best of my knowledge, to this day) the parameters for the Minister’s exercise of the said authority have not been established, and none of the Petitioners laid a clear foundation attesting to its having suffered injury as a result of the administrative restrictions. In light of the above, and despite the “chilling effect” that the Law may cause, the Respondents are of the opinion that the petitions are not yet ripe, and that should suffice for their denial in limine.

            As opposed to this, the Petitioners argue that the question of overturning the Boycott Law is appropriate for consideration. According to the Petitioners in the Avneri Petition, since 1995 they have published lists of products produced in the Area and called for their boycott. Pursuant to the enactment of the Law, they have been forced to desist from that activity. Therefore, the Law has a “chilling effect” upon them, and therefore, as stated, the Petition to void the Law is ripe for decision. The Petitioners in the Women’s Coalition Petition joined that argument. In addition, all of the Petitioners argue that the scope of the Boycott Law is sufficiently clear, and there is no reason, in principle, to defer its review until after it is actually implmented.

 

Arguments in regard to the Constitutional Tests

9.         As noted, the Petitioners argue on the merits that the Boycott Law is unconstitutional. In their view, the Law infringes various constitutional rights (among them: freedom of expression, equality, and freedom of occupation), without meeting the criteria established in that regard in the “Limitations Clauses” of the aforementioned value-based Basic Laws. The Petitioners further note that this argument is also raised in the position expressed by the Legal Advisor of the Knesset (in his letter of July 10, 2011, referenced in para 3(E) above). As opposed to this, the Respondents are of the opinion that the Law meets the constitutional criteria.

            Therefore, I will now present the arguments of the parties in accordance with the various stages of the model for constitutional review.

A. Infringement of a Constitutional Right

10.       First, the Petitioners argue that the Boycott Law infringes the right to freedom of expression. Infringing freedom of expression, including freedom of political expression, has been recognized in the case law as an infringement of human dignity.  According to the Petitioners, boycotting is a legitimate democratic device, like a demonstration or a protest march, which allows citizens to express their opposition to the policy of a private or public body. Thus, for example, various communities impose a variety of boycotts for such reasons as consumer and religious considerations, and reasons of conscience. Therefore, infringing the possibility of calling for a boycott against the State of Israel, as defined by the Law, by means of imposing sanctions upon anyone who does so, infringes freedom of expression.

            According to the Petitioners, the Law also infringes the right to freedom of occupation. Sections 3 and 4 of the Law make it possible to exclude a person who calls for a boycott, or commits to participate in a boycott against the State of Israel, from participating in (public) tenders, as defined in the Mandatory Tenders Law, and also permit denying him various economic benefits. In so doing, the Petitioners argue, the Law infringes freedom of occupation.

            Moreover, according to the Petitioners, over the last few years there have been states and companies that have objected to the Government’s policy in the Area, and that refuse to do business with companies that operate there. As a result, companies that are interested in breaking into foreign markets, or to continue their overseas activities, may be required to declare that they do not manufacture or purchase goods from the Area, and that they do not operate there, and they should be permitted to make such declarations, as otherwise, their business and freedom of occupation will be harmed.

            The Petitioners further argue that the Law also infringes the right to equality. The right to equality has also been recognized by the case law as deriving from the right to human dignity. The Petitioners argue that the Boycott Law does not oppose boycotts as such, but rather focuses only on those that call for a boycott of the State of Israel, its institutions, or activities conducted in “an area under its control”. According to the Petitioners, distinguishing between one boycott and another is unacceptable, and just as boycotts motivated by consumer or religious concerns, matters of conscience, and so forth are tolerated, the Law should similarly view those who call for boycotting the State of Israel, as defined by the Law. They argue that the provisions of the Law also potentially harm only certain sectors of society, due to their political beliefs. They further note in this regard that the fact that the European Union imposes economic sanctions upon activity in the Area, while Israel nevertheless continues its commercial, cultural and academic relations with  EU members, constitutes a form of unequal treatment by the State in regard to citizens and residents of Israel who independently wish to call for a boycott of goods produced in the Area, as opposed to those who are required to do so by foreign governmental agencies, and whose acquiescence, with certain reservations, is not prohibited.

11.       As opposed to the Petitioners, the Respondents are divided in regard to the question of whether the law infringes the right to freedom of expression. The Attorneys for the Knesset expressed the opinion that while the Law indeed infringes the freedom of expression, that infringement is, in their opinion, proportionate (as will be explained below).  As opposed to this, the representatives of the State Attorney’s Office are of the opinion, expressed before us by their attorney, that although the tortious liability that may be imposed by the Law indeed constitutes a certain degree of infringement of freedom of expression, the administrative restrictions to not pose such an infringement. The reason for this is related to the fact that, according to the Government’s approach, neither a citizen nor any other body has a vested right to enjoy various benefits that the state grants, and clearly, the Government has the right not to transfer funding that may be exploited for activities opposing its policy, or for harming third parties merely due to their connection to the state, one of its institutions, or an area under its control. In regard to the authority to restrict participation in tenders, the Government is of the opinion that although the principle of equality in the participation in tenders must be upheld, that principle is premised upon the obligation to ensure equal, fair distribution of the budgetary “pie”. Therefore, these restrictions should be examined in the same manner as the restriction of benefits under sec. 4 of the Law. The Government adds that the state’s choice not to grant funding to a particular body does not necessarily lead to an infringement of its freedom of expression or freedom of occupation, as its freedom to act in the manner it chose is not impaired (but only its possibility of obtaining public funding intended for given purposes that a governmental agncy wishes to promote).

            In this context of the infringement of freedom of expression, the Respondents add that, actually, calling for and employing boycotts limit freedom of expression in light of their rationales. One of the purposes of the right to freedom of expression is the promotion of a “free marketplace of ideas”. In the opinion of the Respondents, calling for and participating in a boycott introduce economic considerations and constraints into that “marketplace of ideas”, and prevent it from functioning as a “free marketplace of ideas”.

            Insofar as the Petitioners’ claims in regard to the right to equality, the Respondents are of the opinion that the fact that the legislature saw fit to regulate a certain issue in legislation, believing that the matter required an appropriate legislative response (while leaving other issues without parallel regulation) does not give rise to a constitutional cause for annulling the Law by reason of an infringement of equality. They argue that the foundation of the right to equality, as recognized in the case law, is an infringement of “the autonomy of the individual will, freedom of choice, physical and intellectual integrity of the human being and the entirety of a person’s humanity”. In their opinion, the fact that there is no legislation that addresses matters that are similar or close to the boycotts that are precluded by the Law does not constitute such an infringement.

 

B. Is the Law befitting the Values of the State of Israel and intended for a Proper Purpose?

12.       According to the Petitioners, the primary purpose of the Law is to prevent a boycott of the Area, to silence the expression of opposition to the Government’s policy, and thereby to intimidate only a particular side of the political map. The Petitioners further argued that the Law advances a punitive purpose that seeks to impose sanctions upon political speech on the basis of its content. In the opinion of the Petitioners, that purpose of the Law is improper in that it limits the democratic tools that a minority possesses for expressing its legitimate opposition to the settlements and the Government’s policy.

            As opposed to this, the Respondents are of the opinion that the purpose of the Law is to protect the state (or Israeli institutions and entities) against the imposition of a boycott that might harm them merely because of their connection to the state, one of its institutions, or an area under its control. This is a proper purpose, in their view, in that it is an expression of the state’s obligation to protect the individuals and institutions connected to it, and to prevent discrimination against Israeli citizens on an illegitimate basis (such as their place of residence). Moreover, an additional purpose of the Law is to prevent harm to the international standing of Israel, or harm to its relations with other states and its foreign relations, which is also, in the Respondents’ view, a proper purpose.

            The Legal Forum asked to add in this regard that the scope of the boycott phenomenon and calls for boycotts of Israel and its conduct, and the negative potential that inheres therein, is very significant, and for that reason, the enactment of the Law was necessary in order to prevent significant harm to the state and its citizens. In this regard, the Legal Forum pointed to many extreme publications by the BDS movement throughout the world that call for boycott, divestment and sanctions against Israel, and for the rejection of the existence of the state. In the meantime, prior to the writing of this judgment, many books and articles have been published that treat of this phenomenon in various sectors that it affects, and its dangers for the State of Israel and its institutions. See: Cary Nelson & Gabriel Noah Brahm, eds., The Case against Academic Boycotts of Israel (2015) (hereinafter: The Case against Academic Boycotts); Ben-Dror Yemini, The Industry of Lies, especially pp. 271-290 (2014) (Hebrew); Amnon Rubinstein & Isaac Pasha, Sdakim Ba’academia (Academic Flaws: Freedom and Responsibility in Israeli Higher Education), especially pp. 117-132 (2014) (Hebrew) (hereinafter: Rubinstein & Pasha, Academic Flaws); Marc A. Greendorfer, The BDS Movement: That Which We Call a Foreign Boycott, By Any Other Name, Is Still Illegal (January 2015) (unpublished manuscript) (hereinafter: Greendorfer).

 

C. The Proportionality Requirement

13.       The Petitioners are of the opinion that the Law does not meet the requirement of proportionality and its three subtests, as shall be detailed below.

(1) The Rational Connection Test

14.       The Petitioners are of the opinion that the Law does not serve or further its declared purpose. According to them, the Boycott Law is entirely ineffective in the fight against the international boycott that motivates the Law’s initiators, and in practice, it may actually amplify the phenomenon of boycotts against Israel, as it will harm Israel’s image as a democratic state. The Petitioners add that they are of the opinion that the Law will also not lessen the number of people calling for a boycott of Israel, inasmuch as their motivations are ideological, and it is, therefore, unreasonable to imagine that the existence of the Law will cause them to refrain from calling for a boycott.

            As opposed to this, the Respondents are of the opinion that there is a rational connection between the Law’s sanctions and the purpose that the Law seeks to serve. They argue that, on the one hand, the boycott tort and the administrative restrictions may remedy the economic harm, to the extent that it derives from a call to boycott, while on the other hand, they present those who call for boycott with a logical choice between that conduct and the full realization of their freedom of speech (knowing that it may cause harm to third parties), and their desire to enjoy various governmental benefits.

 

(2) The Least Harmful Means Test

15.       The Petitioners are of the opinion that there are tools that could ensure the purpose of the Law even without exercising the means set out in the Law, for example, by means of establishing a system for compensating those who are harmed by the boycott from the public purse. The Petitioners further argue that already existing laws can be utilized to achieve the purposes that the Law’s initiators sought to promote. For example, in their opinion, a person harmed by the boycott can already directly sue someone who harms their business on the basis of the Civil Wrongs Ordinance [New Version] (hereinafter: the Civil Wrongs Ordinance). In their opinion, in regard to tenders, as well, specific conditions can be established in individual tenders that would prohibit the participation in boycotts against Israel, and therefore there is no need to employ primary legislation for this purpose.

            As opposed to this, the Respondents argue that the Law meets the Least Harmful Means Test. According to them, the boycott tort does not normally enable a person to recover more than the actual damage caused to him by the person calling for a boycott (except in regard to damages under sec. 2(c) of the Law, which is limited by the requirement of “malice”, as will be explained below). In regard to the administrative restrictions, as well, the sanctions concern only the depriving of benefits (which do not constitute vested rights) from a person who calls for a boycott of the State of Israel, and therefore this would appear to be a reasonable infringement, under the circumstances, in regard to those who choose to act that manner.

 

(3) The Proportionality Test “Stricto Sensu”

16.       In the opinion of the Petitioners, the interest that Israeli citizens and residents not call for boycotting the State of Israel and the boycotting of produce of the Area is not proportionate to the infringement of the fundamental rights of those who believe that the settlement enterprise in the Area is an impediment to peace and to the future of the State of Israel. The Petitioners further specifically emphasize, in regard to sec. 2(c) of the Law, that under the said section it is possible to impose punitive damages upon a person calling for a boycott even without proof of damage, contrary to the accepted principles grounding tort law.

            As opposed to this, the Respondents argue that the Law meets the Proportionality Test stricto sensu, in view of “narrowing aspects” in the Law that limit the harm that it might cause to constitutional rights. In this regard, the Respondents refer to the following aspects:

a)         The Law does not directly prevent political expression in regard to disputed political issues, but rather it concerns only a call for instituting a (economic, cultural, or academic) boycott against the State of Israel, as the term is defined by the Law, which alone is prohibited.

b)         The call for a boycott to which the Law applies must be public and done knowingly in order that liability for it be imposed in principle.

c)         The criminal sanction incorporated into the Law in its original version was deleted.

d)         The general principles of tort law apply, in principle, to an action under the boycott tort, including the “de minimus” proviso, the requirement of proof of damage, and a causal connection between the tort and the damage, as a precondition to obtaining a remedy.

e)         In regard to the boycott tort, imposing of damages without proof of damage is conditional upon a mental element of “malice”. Therefore, according to the Respondents, this section will only rarely be employed. According to the Respondents, the trial courts asked to award damages under this section will address the Law’s malice requirement.

f)         In regard to the administrative restrictions, the Law establishes a complex administrative process that involves several relevant actors who can oversee the manner of the exercise of discretion, and all of them are subject to the principles of administrative law.

 

Additional Arguments that were raised in general

17.       The Petitioners also argue that the Law is logically flawed. The reason for this is that, in practice, the Law establishes that a call for a boycott is, in their view, more serious than the boycott itself, inasmuch as while the Law imposes various sanctions upon a person who calls for a boycott, a person’s actual choice to institute a boycott (e.g., in regard to products produced in the Area) is not, in their opinion, deemed a tort in the eyes of the Law, and does not, in their view, lead to punitive or administrative sanctions.

            The Respondents denied the logical flaw, but added that even if the Petitioners were correct, that would not give rise to a constitutional claim that would lead to the invalidity of the Law. The Government further argued before us that, at times, the call for a boycott may indeed be more serious than the boycott itself, due to the possible influence of the call for a boycott, which can exceed a particular person’s individual decision.

18.       The Legal Forum addressed the distinction that arose in some of the arguments of some of the Petitioners (to which the Government and the Knesset related, as well), by which – as an alternative to striking down the Law in its entirety – consideration should be given only to the erasure of the term “an area under its control” in sec. 1 of the Law. According to the Legal Forum, even if the term “an area under its control” in sec. 1 of the Law – defining a “boycott against the State of Israel” – were to be erased, that rejection might lead to boycotts against an entire community, and that would suffice to damage the purpose of the Law. Moreover, even if that term were erased, it would still be possible to justify any boycott against the State of Israel, or a community in Israel (such as the residents of the settlements, because they have a connection with the State of Israel).

19.       Additional arguments raised by the parties will be addressed in the course of the next chapter, as necessary. However, before proceeding, we should note that in the course of the proceedings, there was a request for an interim order (in the Ta’al Petition), which was denied on July 27, 2011 (in regard to the considerations for granting an interim order against a law in cases of constitutional review, see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 380-382 (1997) (hereinafter: the Investment Managers Association case).

            I shall now examine the case on the merits.

 

Discussion and Decision

20.       I will begin with a necessary observation. The examination that follows will not consider the wisdom of the Law (which was even questioned by some of the Government’s representatives, as noted in para. 3, above), but only its constitutionality. In this regard, we are guided by the words of President A. Barak in the Investment Managers Association case (ibid., p. 386), as follows:

The Court does not come to replace the legislature’s considerations with its own. The Court does not put itself in the shoes of the legislature. It does not ask itself what means it would have chosen if it had been a member of the legislative body. The Court performs judicial review. It examines the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective or just. The question is whether it is constitutional [...] Establishing policy is the role of the legislature, and its realization is the role of the government, which are granted a margin of constitutional appreciation [emphasis added – H.M.].

In view of the above criteria, and having reviewed the copious material submitted to us, and heard the arguments of the attorneys of the parties, I have concluded that the Law can, for the most part, overcome the requirements of the “Limitation Clause” – although not easily – with the exception of sec. 2(c), which must be struck down, and so I shall recommend to my colleagues.

            My reasons for the said conclusions will be set out in detail below. The discussion will proceed as follows: I shall first examine whether or not there is an infringement of a constitutional right, and show that the Law does, indeed, infringe the right to freedom of expression, as well as other constitutional rights. Following that, I will examine whether or not the various provisions of the Law meet the tests established by the “Limitation Clause”, while, inter alia, drawing upon comparative law. Finally, I will provide further support for my conclusion by reference to additional theories that have been developed in the field of constitutional law in regard to the invalidation of laws.

            I will now set out my examination from first to last.

 

Infringement of a Constitutional Right

21.       From the language of the Law, presented above in para. 2, we learn that anyone who knowingly publishes a call for the imposition of a boycott against the State of Israel, as defined by the Law, may be deemed to have committed a tort. Moreover, the participation of such a person, or one who has committed to participate in such a boycott in public tenders, may be restricted, and it is possible that such a person may be prevented from receiving various financial benefits (governmental grants, tax exemptions, state guarantees, etc.).

            Thus we find that most of the sanctions imposed by the Law already apply at the speech stage.

            It is, therefore, hard to deny that the Boycott Law indeed infringes freedom of expression (as argued by the Petitioners, and as Respondent admit, in part), which is “closely and materially bound to human dignity” (as stated by my colleague (then) Justice M. Naor in HCJ 10203/03 Hamifkad Haleumi Ltd. v. Attorney General, IsrSC 62 (4) 715, 763 (2008) [English: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general, at para. 26]; and see: Aharon Barak, Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, pp 708-712 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)] (hereinafter: Barak, Human Dignity), and the case-law cited there). However, we are not concerned here with an infringement of the core of freedom of expression, even where political speech is concerned, inasmuch as the infringement is relatively limited, and applies only to a call for a boycott against the State of Israel, as defined by the Law, or anyone who commits to participate in such a boycott, which is a legal act that exceeds speech.

            Here we must pause for a moment to explain that the laws concerning calls for (and participation in) a boycott have undergone various incarnations in legal and political history. In the ancient world – both in Jewish law and in Greece – there was an institution of ostracism under which people who acted contrary to societal rules, or who were feared might undermine the social order, were ostracized (or, at times, exiled) (see Ha’encyclopedia Ha’ivrit, vol. 18, pp. 51-59,  s.v. “Herem (nidui, schemata) bayahadut” (Hebrew); ibid., vol. 2, pp. 29-30, s.v. “Ostracism”; The Case Against Academic Boycotts, pp. 4-5). However, even early in those days, many began to sense that the institution of ostracism was problematic and harmful to democracy, and in this regard, the renowned Greek philosopher Plutarch (ca. 45-120 CE), in his monumental work Parallel Lives, tells the story of Aristides (a renowned Greek statesman at the beginning of the 5^th cent. BCE, of whom Plato declared that “of all the great renowned men in the city of Athens, he was the only one worthy of consideration”). Aristides was called “the Just” in appreciation of his virtues, but Athenian society nevertheless voted to ostracize and exile him. When a common citizen in the crowd was asked why this was done, he replied that he was “tired of hearing him everywhere called the just”. (At the end of the story, Athenian society realizes its error and returns Aristides to the community and his status, see: Ha’encyclopedia Ha’ivrit, vol. 5, pp. 871-872, s.v. “Aristides” (Hebrew); The Case Against Academic Boycotts, pp. 4-5).

            Since then, and for centuries, religious and political thinking have expressed doubts in regard to ostracism (see, for example, in our sources:  Babylonian Talmud, Tractate Mo’ed Katan 17a). Nonetheless, modern history has seen boycotts employed from time to time, as for example, in the American Revolution, when (on Dec. 16, 1773) the Boston Tea Party saw a cargo of imported tea thrown into the sea, followed by a boycott of various British goods by Americans who sought freedom and emancipation from England. However, the institution was only “officially” revived and given its “modern” name in the 19^th century, following a strike of tenant farmers against Captain Charles Boycott in 1873. After his retirement from the army, Captain Boycott began a campaign to evict Irish tenant farmers from their farms due to their refusal to agree to a raise in rent. The response of the farmers and their supporters was expressed in a successful call to cut off all ties to Boycott, the other landowners, and their produce. The institution has since been called “boycott” in English. In time, criticism and doubts arose in regard to the institution of boycotts, and the 20th century saw the draawing of various distinctions between “permissible boycotts” (such as the Montgomery Bus Boycott, and Gandhi’s boycott of British goods), and “impermissible boycotts” that are prohibited by law. And see: Gary Minda, Boycott in America: How Imagination and Ideology shape the Legal Mind (1999), where the author notes (at p. 197):

                        “Group boycotts may appear to some as acts of political terrorism.”

            That statement is made even though, in the United States, boycotts against expressions of racism, or in the framework of labor disputes, are deemed permissible. See: NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964); and see: NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (hereinafter: the Claiborne case); also see: Yaniv Meno, “Consumer Boycotts, the Ethical Weapon of the Consumers,” 15 Hamishpat 729 (2010) (Hebrew); Nili Cohen, “Law, Play, Game - The ‘Merchant of Venice’ and the ‘Breakdown’,” 51 Hapraklit 407, 433-434 (2012) (Hebrew) http://www.hapraklit.co.il/_Uploads/dbsAttachedFiles/Nili_Cohen_Article.pdf).

22.       In light of the finding that we are faced with an infringement of freedom of expression, which is a “daughter right” of human dignity (to adopt the term coined by Prof. Barak in his book Human Dignity, ibid.), the sanctions in the Boycott Law constitute an infringement of a protected constitutional right. However, that constitutional right, like all other constitutional rights in Israel, is not absolute, but rather relative, and may be restricted if the infringement meets the requirements of the “Limitation Clause” in sec. 8 of Basic Law: Human Dignity and Liberty (see: Aharon Barak, Proportionality in Law, 53 (2010) (Hebrew) (hereinafter: Barak, Proportionality in Law) [published in English as: Aharon Barak, Proportionality – Constitutional Rights and their Limitations, (Doron Kalir, trans.)]; HCJ 2194/06 Shinui- The Center Party v. the Chairman of the Central Elections Committee (2006) (published in Nevo) (hereinafter: the Shinui case); HCJ 236/13 Otzma Leyisrael v. Chairman of the Central Elections Committee for the 19^th Knesset (2013) (published in Nevo)).

            I will, therefore, examine below whether the Boycott Law meets the requirements of the “Limitation Clause”. But before doing so, I would note that we are aware of many instances of legislative prohibitions that were recognized as valid, even though they infringed freedom of expression per se. I would note a few examples: the prohibition of defamation (under the Prohibition of Defamation Law, 5725-1965 [19 L.S.I. 254] , which establishes both a criminal offense and a civil tort); racial incitement (see: sec. 144B of the Penal Law, 5737-1977 (hereinafter: the Penal Law); incitement to terrorism (see: the Prevention of Terrorism Ordinance, 5708-1948, and see: Dafna Barak-Erez & Dudi Zechariah, “Incitement to Terrorism and the Limits of Freedom of Expression: Between Direct and Indirect Limits,” 35 Iyunei Mishpat (2012) (Hebrew) (hereinafter: Barak-Erez & Zechariah); sedition (see; sec. 134 of the Penal Law. And see: Mordechai Kremnitzer and Liat Levanon-Morag, “Restricting the Freedom of Expression Due to Fear of Violence – On the Protected Value and Probability Tests in Crimes of Incitement to Sedition and Incitement to Violence in the Wake of the Kahane Case,” 7 Mishpat U’Mimshal 305 (2004) (Hebrew). A. Dorfman, “Freedom of Speech and the Economic Theory of Uncertainty”, 8 Mishpat U’Mimshal 313 (2005) (Hebrew). Barak, Human Dignity, pp. 737-738); procurement of prostitution (see: secs. 205B and 205C of the Penal Law); publications infringing a person’s privacy (see: sec. 2(11) of the Protection of Privacy Law, 5741-1981, and recently: CA 8854/11 Anonymous v. Anonymous (April 24, 2014) (published in Nevo); restrictions upon political campaign advertising (see: Elections (Means of Propaganda) Law, 5719-1959, and recently, HCJ 979/15 Yisrael Beiteinu Party v. Chairman of the Central Elections Committee for the 20^th Knesset (Feb. 25, 2015) (published in Nevo), and note that this judgment is currently pending in a Further Hearing); offences concerning public services that explicitly include a threat or intimidation by ostracism (see sec. 161 of the Penal Law; as well as contempt of court (see: sec. 255 of the Penal Law), and insulting a civil servant (see: sec. 288 of the Penal Law. And see: Re’em Segev (under the supervision of Prof. Mordecai Kremnitzer), Freedom of Expression against Governmental Authorities, pp. 31-35 (2001) (Hebrew)).

            It should be noted that some of the above provisions fall within the scope of the Validity of Laws provision under sec. 10 of Basic Law: Human Dignity and Liberty. On the interpretation of that section, see: Aharon Barak, “Validity of Laws,” (to be published in the Beinisch Volume); FH 5698/11 State of Israel v. Mustafa Dirani (January 15, 2015) (published in Nevo) (hereinafter: the Dirani case). Moreover, the case law of this Court has approved restrictions imposed pursuant to expressions (that would be deemed to be within the scope of freedom of expression in the United States) that smacked of racism, even though the restriction had no express statutory support. See: HCJ 4646/08 Lavi v. Prime Minister (Oct. 12, 2008) (published in Nevo).

            Thus we see that abstract “freedom of expression” is not the be-all and end-all. Against this background, this Court’s case law has, indeed, quoted with approval the words of United States Supreme Court Justice Brennan that “debate on public issues should be uninhibited, robust and wide-open” (see: CA 723/74 Ha'aretz Daily Newspaper Ltd. v. Israel Electric Corporation, IsrSC 31 (2) 281, 296 (1997) per Shamgar J.) [English: http://versa.cardozo.yu.edu/opinions/haaretz-daily-newspaper-ltd-v-israel-electric-corporation]; and see: HCJ 399/85 Kahane v. Broadcasting Authority, IsrSC 41 (3) 255, 280 (1987) (hereinafter: the Kahane case). However, when it found that the infringement of the said freedom met all of the conditions of the “Limitation Clause” (including the requirement of proportionality) in circumstances in which permitting the expression “could undermine axiomatic foundations in a manner that might threaten the social and national fabric” (HCJ Bakri v. Israel Film Council, IsrSC 58 (1) 278, 249 (2003)), the Court held that the restriction would be approved (and compare: para. 9 of the opinion of Barak P. in the Shinui case).

            23.       At this point we should note that even the case law of the Supreme Court of the United States – where the First Amendment to the Constitution grants particularly broad protection of freedom of expression – has created exceptions:

            First, everyone agrees that protection does not extend to a person falsely shouting “fire” in a packed theater, thus causing unnecessary panic, as Holmes J. stated in Schenck v. United States, 249 U.S. 47 (1919): 

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.

            These words have frequently been quoted in the past and were most recently referred to by my colleague Justice N. Hendel in LCrimA 2533/10 State of Israel v. Michael Ben Horin (Dec. 26, 2011) (published in Nevo). I would stress that this exception is somewhat artificial in that there is general consensus that falsely shouting fire in a theater may cause harm (and is therefore not protected), whereas the justification for calling for a boycott against the state is the subject of political debate. Nonetheless, along with this agreed exception, the United States – which is the most liberal in this field – has developed additional exceptions and new approaches, insofar as this has become necessary by changing times and needs. I will address these in para. 24A below, and further on.

24.       The constitutional examination that will be presented in my opinion will, as noted, focus on the legal aspects of the relevant provisions of the Law, and will also be aided by comparative law. However, several additional, basic premises underlying the examinations must be laid out:

(a).       It would seem that when expression does not solely concern an attempt to persuade the public in regard to facts, beliefs and worldviews, but also calls for action, we enter an area that goes beyond mere freedom of expression, and the matter also concerns, inter alia, the legality or morality of the referenced act (the boycott), its general context, and other considerations that balance the various interests concerned. Thus, a call to participate in a criminal act, or in a restrictive trade practice, or to breach a contract is generally prohibited (subject to exceptions). Therefore, we do not find a general law treating of boycott, or as Stevens J. stated in the United States Supreme Court decision in the Claiborne case, boycott is a concept that has a “chameleon-like” character that presents “elements of criminality and elements of majesty” (ibid., at p. 888). Thus, even in the United States, where freedom of expression enjoys primacy relative to other fundamental rights, sometimes a call for a boycott is permissible and deemed to fall within the scope of “freedom of speech” (see: the Claiborne case), and sometimes it is limited or prohibited, despite “freedom of speech” (and see: International Longshoremen's Association, AFL-CIO, v. Allied International, Inc., 456 U.S. 212 (1982); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (hereinafter: the Holder case); the latter two cases are closer to the material of the case at bar).

            Thus, while almost every expression of opinion is permissible in a democratic state, and the same is true, in principle, in regard to demonstrations (subject to certain restrictions of public safety), a call for a boycott is context-contingent, and involves, inter alia, the “legality” of the said boycott. Thus, for example, a consumer boycott that serves consumer objectives is generally possible (but an “advertising boycott” that harms the freedom of the press is generally deemed to be prohibited, in addition to the antitrust aspects that may be involved), while a boycott for a political end is generally forbidden. (See: Gordon M. Orloff, “The Political Boycott: An Unprivileged Form of Expression,” 1983 Duke L. J. 1076 (1983) (hereinafter: Orloff, “The Political Boycott”); and see: CA 115/75 Israeli Association of Travel and Tourism Agents v. Kopel Tours Ltd., IsrSC 29 (2) 799 (1975).

            Because the determination in regard to a boycott in the United States depends upon its type and circumstances, judicial review in this area is conducted from “the bottom up”, and is carried out as applied review rather than as facial review. On these distinctions and their consequences, see Ronen Polliack, “Relative Ripeness: As-Applied or Abstract Constitutional Judicial Review,” 37 (1) Iyunei Mishpat 45 (Feb., 2014), written following HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance, (Jan. 5, 2012) (published in Nevo) [English:  http://versa.cardozo.yu.edu/opinions/alumni-association-arab-orthodox-school-haifa-v-minister-finance] (hereinafter: the Alumni Association case); and Elena Chachko, “On Ripeness and Constitutionality: HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance and HCJ 3803/11  Israeli Capital Markets Trustees Association v. State of Israel,” 43 Mishpatim 419 (2013) (hereinafter: Chachko, “On Ripeness and Constitutionality”) (for a detailed discussion of the ripeness doctrine in the context of our discussion, see para. 60, below).

(b).       In regard to the issues that are the subject of the petitions at bar, the Law defines itself – even by its name – as intended to prevent harm to the State of Israel by means of a boycott. We thus find that we must assume as a basic fact that the Knesset chose to enact legislation to aid in the state’s battle against those who seek to ostracize it and its residents.

(c).       It would appear that both the legislature and the Petitioners (with the exception of the Petitioners in the Barkai Petition), as well as the BDS (Boycott, Divestment and Sanctions) Movement, which acts against Israel, make no distinction between the State of Israel and its institutions, and areas under the control of the state. In calling for such a boycott, those addressed are asked to refrain from any economic, cultural, or academic connection with a person or other body solely due to their connection to the State of Israel or its institutions, or to areas under its control, and not due to their conduct.

            As noted, we addressed questions in this regard to the parties in the course of the hearing. Some of the attorneys for the Petitioners replied that even if the settlements (which are currently the focus of the calls for boycott) did not exist, it would still be permissible, in their opinion, to call for a boycott of the State of Israel, as defined by the Law, as long as Israel continues to conduct itself in a manner that they view as discriminating against the Arab minority, or does not change its character (as a Jewish state). True to this approach, some of the attorneys of the Petitioners informed us that they believe that it would have been permissible (even prior to the peace accords with Egypt and Jordan, and the “Paris Protocol” with the Palestinian representatives) to call for participation in the Arab League’s economic boycott against Israel – a boycott that, at the time, inflicted significant economic harm to the State of Israel and its residents when many international companies refused to trade with Israel, or conduct business in Israel. According to this view, the same legal approach should apply both to the current situation, in which, in the opinion of the Petitioners, it is permissible to encourage participation in boycotts against Israel, even in the future, and even if an arrangement for coexistence is achieved between Israel and its neighbors, as long as all the other “claims” that they see as justifying the call for a boycott continue to exist.

            At this juncture, we should recall that the State of Israel was rescued from the said “Arab Boycott”, inter alia, thanks to specific American and European legislation that prohibited participation in the boycott, or submission to it – legislation that remains in effect in those countries (for the details of that legislation, see the surveys prepared by the Knesset Research and Information Center that were presented to the Constitution Committee http://www.knesset.gov.il/mmm/data/pdf/m02861.pdf (Hebrew); and see: Greendorfer in regard to the current situation in the United States. The U.S. legislation that prohibited cooperation with the Arab Boycott was not found to be repugnant to the First Amendment of the U.S. Constitution, see:  Briggs & Stratton Corporation v. Baldridge, 782 F.2d 915 (7th Cir. 1984); The Trane Company v. Baldridge, 552 F. Supp. 1378 (W. Dist. Wisc. 1983). On the situation in Europe, see below, para. 49ff.).

25.       As we see from the above, a call for participation in the boycott against the State of Israel, as defined in the Law, organized by various actors in the United States, Europe, or Israel constitutes encouragement to participate in an unlawful act, or conduct that comprises prohibited elements of discrimination, impermissible intervention in contractual relations, or even restrictive trade practices (all in accordance with the relevant law), regarding which, in principle,  liability can already be imposed under the existing law. Nevertheless, the Knesset was of the opinion that it would be appropriate to provide a more tightly defined normative framework for the said wrongful conduct, and therefore three principles were established under sec. 2 of the Law:

(a)        Publishing a call for imposing a boycott against the State of Israel, as defined by the Law, and subject to the conditions set out in sec. 2(a) of the Law, constitutes a tort (sec. 2(a) of the Law).

(b)        In regard to sec. 62(a) of the Civil Wrongs Ordinance, a person who causes a breach of a legally binding contract by calling for a boycott against the State of Israel will not be deemed to have acted with sufficient justification (sec. 2(b) of the Law).

(c)        Under sec. 2(c) of the Law, the court may impose damages that are not contingent upon proof of damage (hereinafter: exemplary damages) upon anyone who commits a tort, as defined by the Law.

            In addition to the above, the Law establishes that, in the context of secs. 3-4, the Minister of Finance is granted the authority – subject to the conditions stated therein – to restrict the participation in a tender (in accordance with the Mandatory Tenders Law), or to withhold economic benefits as defined in sec. 4 of the Law, in regard to anyone who publishes a call for the imposition of a boycott against the State of Israel, as defined by the Law, or who commits to participate in such a boycott.

            I must now examine whether or not the said provisions meet the conditions of the “Limitation Clause”. I will put the cart before the horse and state that, in my opinion, secs. 2(a), 2(b), 3 and 4 of the Law can successfully overcome the constitutional “Limitation Clause”, whereas sec. 2(c) of the Law fails the required tests.

            I will now explain this in orderly detail, but before embarking, I would note that having expressed the view that there is an infringement of freedom of expression, there is no need for a separate examination of the Petitioners’ claims in regard to infringement of freedom of occupation and other constitutional rights, inasmuch as all of those infringements in this case derive from the infringement of freedom of expression, and if that infringement meets the criteria of the “Limitation Clause”, then the same holds for the other infringements. See: HCJ 6427/02 Movement for Quality Government in Israel v. The Knesset, IsrSC 61 (1) 619, 674-675 (2006) per Barak P., pursuant to HCJ 4676/94 Meatrael Ltd. v. Knesset, IsrSC 50 (5) 206 (1998).

 

Examining the Provisions of the Law under the “Limitation Clause”

26.       Section 8 of Basic Law: Human Dignity and Liberty provides as follows, in what is commonly referred to as the “Limitation Clause”:

Violation of Rights

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.

            I will, therefore, examine the provisions of the Law in terms of the conditions of the Limitation Clause.

27.       The first condition established by the Limitation Clause requires that the violation of a constitutional right “under this Basic Law” be implemented by a law (or by virtue of express authorization in such a law).  This condition is met in the case before us, as the sanctions established under secs. 2-4 of the Boycott Law are established in a statute enacted by the Knesset.

28.       The second condition established by the Limitation Clause requires that the law befit the values of the State of Israel. This clause has been interpreted as pointing, first and foremost, to the values of the State of Israel as a “Jewish and democratic state”, which must be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel, as stated in sec. 1 and 1A of Basic Law: Human Dignity and Liberty. Other fundamental values of the State of Israel may also be considered within this framework.

            There is tension between the positions of the Petitioners and the Respondents in regard to whether this condition is met. The Petitioners are of the opinion that the Law infringes freedom of expression and detracts from the democratic character of the state. The Respondents, who justify the Law, argue that the Law falls within the scope of the state’s need to defend itself against those who would seek to destroy it, or those who seek to change its character, and it is thus an implement that a “defensive democracy” must have in its “tool box”. Moreover, the Law is intended to prevent discrimination against the citizens of the State of Israel, whether due to their national identity or due to their residence in areas under the control of the state. This disagreement will be examined below, and I shall try to provide answers to the said question in that framework.

29.       The “defensive democracy” doctrine was recognized – in a majority opinion – in EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset, IsrSC 19 (3) 365, although at the time, that approach did not have any express statutory underpinning (and see: Amnon Rubinstein & Barak Medina, The Constitutional Law of the State of Israel, vol. 2, (6^th ed., 2005) pp. 588-591, 604-618). That doctrine must be effected in accordance with the conditions of each state and its residents (see: Jan-Werner Muller, “A ‘Practical Dilemma Which Philosophy Alone Cannot Resolve’? Rethinking Militant Democracy: An Introduction,” 19 Int’l J Crit.Dem.Theory (2012) (hereinafter: Muller, “Militant Democracy”); and see: Svetlana Tyulkina, Militant Democracy (2015)). Accordingly, this approach was adopted through the recognition of Israel as a “Jewish and democratic state”, and this basic constitutional element was recognized and given expression in the Basic Laws enacted since 1992, as well as in the sub-constitutional normative area (for a list of all the relevant legal provisions, see: Hanan Melcer, “The IDF as the Army of a Jewish and Democratic State,” in Rubinstein Volume (2014) pp. 347, 349-351). In this regard, we must take note that in the Boycott Law the legislature expressed its intent that the Law’s provisions were meant to prevent harm to the state of Israel by means of boycott, and thus, on its face, and on the basis of the presumption of constitutionality of the Law, it would appear that the Law falls within the scope of the “defensive democracy” doctrine (and moreover, some of the Petitioners declared, as noted, that in their opinion it is indeed legitimate to call for a boycott as long as the character of the state remains unchanged). On the consequences of the “defensive democracy” doctrine, see my opinion in the Dirani case, and see: G.H. Fox & G. Nolte, “Intolerant Democracies,” 36 Harv. Int. L. J. (1995); Barak Medina, “Forty Years to the Yeredor Decision: The Right to Political Participation,” 22 Mehkerey Mishpat (Bar-Ilan University Law Review) 327-383 (2006) [Hebrew] (hereinafter: Medina, “Forty Years to the Yeredor Decision”) which mentions the decision (although the author criticizes it), stating:

On the basis of the principle regarding “defensive democracy”, it is possible to justify governmental restrictions upon elements that seek to harm important interests recognized as fundamental rights [of third parties – H.C.], even if those elements are committed to non-violent methods in this regard. [But it is questionable whether this comprises calls for boycott, as I shall explain below – H.M].

30.       Moreover, it would appear that a call for a boycott deviates from pure freedom of expression. Thus, for example, as Justice A. Barak wrote in regard to the purposes of freedom of expression in the Kahane case:

The justification for freedom of expression is complex and intertwined. It is the individual’s right to realize himself, to form a worldview and an opinion by giving flight to his spirit, creative and receptive. It is the freedom of the individual and the community to illuminate the truth through a free and unending struggle between truth and falsity. It is the freedom of society’s members to exchange opinions and views in a spirit of tolerance, without fear, with respect for the autonomy of every individual, and to persuade one another in order to strengthen, secure and develop the democratic regime [ibid., p. 272 – emphasis added – H.M.].

            Freedom of expression is thus intended, inter alia, to enhance public discourse and to present even unaccepted views, so that society’s political decisions will be made freely and intelligently, through persuasion, with tolerance, and with respect for the autonomy of the other.

            Thus, calls for a boycott against the State of Israel, as defined by the Law, do not serve the classical purpose of freedom of expression. As opposed to the view of the Petitioners, according to which calls for boycott advance “open and enhanced political discourse”, such calls are not actually interested in political decisions on the basis of free will, but seek to impose views by means of economic and other means (in the field of contracts, as well, influence by means of economic coercion has been recognized in the law and the case law as contrary to free will, and thus gives rise to a cause for rescission of the contract (see: sec. 17 of the Contracts (General Part) Law, 5733-1973; CA 8/88 Shaul Rahamin Ltd., v. Expomedia Ltd., IsrSC 43 (4) 95, 100-101 (1989); CA 1569/93 Maya v. Panford (Israel) Ltd., IsrSC 48 (5) 705, 706 (1994); and cf. Daniel Friedman & Nili Cohen, Contracts, vol. 2, 965 (1992),  who include in the scope of coercion: “also threats of ‘boycott’ or ‘blacklisting’, whose significance is that suppliers will refrain from transacting with a person, or that customers will refrain from transacting with him, or that other employers will refuse to employ him”, and conclude: “In this area , as well, it is conceivable that the threat, if not made in order to protect a justified interest, may constitute coercion”).

            This approach of calling for economic, academic and cultural boycott does not, therefore, serve democracy, but rather harms it, as I shall explain:

(A)       The Petitioners argue that the Boycott Law violates their freedom to conduct political discourse, but in this regard it would be proper to delineate the distinction between freedom of expression as a means of persuasion, which is a cornerstone of a democratic state, and freedom of expression as a means of coercion, which undermines the values of a democratic state. Whereas in order to advance freedom of thought and opinion, a democratic state will seek to encourage a free marketplace of ideas through freedom of expression, when that freedom is employed (by way of calling for boycotts) as a means for violating the right of the individual to choose on the basis of his opinions and beliefs, the protection granted to freedom of expression can be somewhat restricted. See: Orloff, “The Political Boycott” (ibid., pp. 1076-1077):

A political boycott is a coercive mode of expression that, regardless of its goals, deprives its victims of their freedom to speak and to associate as they please… A political boycott uses economic coercion to force its victims to speak or act politically in a way that furthers the goals, not necessarily of the speaker, but of the boycotter.

            Thus, a call for boycott falls within the category referred to in constitutional literature as “the democratic paradox”, in which it is permissible to limit the rights of those who seek to benefit from democracy in order to harm it (see: EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi, IsrSC 57 (4) 1, 14-18 (2003), per Barak P.). Calling for or participating in a boycott may thus, at times, smack of “political terrorism”.

            This view can be compared to the provisions of sec. 122 of the Knesset Elections [Consolidated Version] Law, 5729-1969:

122.     The following shall be liable to imprisonment for a term of five years or to a fine of IL 20,000:

(1)        a person who gives or offers a bribe for the purpose of inducing a voter to vote or to refrain from voting, whether generally or for a particular candidates’ list;

…

(3)        a person who threatens a voter with inflicting harm on him or any other person if such voter votes or refrains from voting, whether generally or for a particular candidates’ list;

…

(6)        a person who procures a person to vote or refrain from voting, whether generally or for a particular candidates’ list, by means of an oath, a curse, shunning, ostracism [Hebrew: “ḥerem”],[1] a vow, releasing from a vow, a promise to bestow a blessing, or giving an amulet; for the purpose of this section, “amulet” includes any object that some members of the public believe can cause benefit or harm to a person [emphasis added – H.M.].

 

            In explaining the purpose of this law, Justice M. Cheshin wrote as follows:

The purpose of the law is that voters decide for themselves for whom to vote and for whom not to vote, after free and informed consideration of whom they believe worthy of their vote…the purpose of the law is to prevent the improper phenomenon of people voting or refraining from voting for a party or candidate for prime minister while under the influence of extraneous or other improper considerations [EA 11/01 Pines-Paz v. Shas, IsrSC 55 (3) 168 (2001); emphasis added – H.M.].

(B)       The above is of special concern in regard to the boycotting of Israeli academia. Such a call for the boycotting of the Israeli academic community, or of Israeli lecturers, undermines academic freedom itself and prevents research and instruction whose purpose, inter alia, is the search for truth. It is, in effect, a boycott of intellectualism itself, as boycott silences the discourse. Therefore, the Law that prohibits such activity is appropriate to the values of the State of Israel that, inter alia, ensure full academic freedom and advance research and excellence, which underlie Israel’s qualitative advantages. See: Rubinstein & Pasha, Academic Flaws, pp. 117-119.

31.       All of the above arguments can suffice to show that the Law meets the second condition of the Limitation Clause, and also shed light upon the third condition, which I shall now address.

32.       The third condition established by the Limitation Clause requires that the law under which a protected right is infringed serve a proper purpose. It would appear that the Law before us also meets this condition, which in our context also somewhat overlaps the second condition (and therefore, to the extent that the matters are shared, I will not repeat them).

            As explained in paras. 28-30 above, the Law (without addressing the issue of the wisdom of its enactment) serves purposes that can be explained on the basis of the values of the state, and it is even intended to serve a number of specific purposes that can be viewed as legitimate:

1. It is intended to prevent harm by means of boycott to the State of Israel, as these terms are defined by the Law.
2. It delineates what is permitted and forbidden within the framework of freedom of expression, viz: it is permissible to express any political opinion and to attempt to persuade; it is permissible to demonstrate; it is forbidden to call for a boycott (which may also involve criminal elements (restrictive trade practices, improper violation of equality, or “boycott prohibitions” per se), or tortious elements (tortious inducement of breach of contract; unlawful acts of discrimination), or may be contrary to the fundamental values of the state (or its legal system)). Professor Preuss, in his article “Associative Rights (The Right to The Freedoms of Petition, Assembly, and Association)”, suggests an additional distinction according to which the expression of personal political dissent is permitted, whereas calls for collective action is prohibited, and comprises elements of conspiracy (see: Ulrich K. Preuss, “Associative Rights (The Right to The Freedoms of Petition, Assembly, and Association),” in Michael Rosenfeld & Andreas Sajo, eds., Oxford Handbook of Comparative Constitutional Law,  948, 963 (2012)). This distinction also provides an answer to the Petitioners’ claim of a logical fallacy in the Law.
3. It advances the values of equality and the prohibition of discrimination.

I will permit myself to expand somewhat in regard to the prohibitions of discrimination, which embody the right to equality insofar as they are related to the questions before us, and in relation to the issue of boycott.

33.       As noted, the Boycott Law defines a boycott against the State of Israel as: “deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm” (emphasis added – H.M.). This definition does not speak of a boycott against the conduct of the object of the boycott, but rather it applies only to their connection to the State of Israel, its institutions, or an area under its control.

            I am of the opinion that a law that is intended to prevent such a boycott can be said to advance a proper purpose, in terms of its legal meaning and consequences, in that, inter alia, it expresses the right to equality, which has been recognized in the case law as a fundamental right (see: Barak, Human Dignity, at pp. 691-705), as follows:

(A)       Boycott shares characteristics of unlawful discrimination. Both boycott and discrimination lead to a reduction of economic and other connections with people on the basis of an interest that may be deemed illegitimate. In the case of the Boycott Law, the basis for the boycott is a connection to the State of Israel. A similar basis – connection to a country of origin – is recognized by Israeli law as a justified basis for imposing tortious liability in the framework of the tort of discrimination. The Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: the Prohibition of Discrimination Law), which treats of a tort regarding discrimination, states, in sec. 3 and 5, as follows:

3. (a) Any person whose business is the supply of products or of public services, or who operates a public place, shall not – in the supply of products or of public services, in admitting to a public place or in providing a service in a public place – discriminate because of race, religion or religious group, nationality, country of origin, sex, sexual inclination, opinion, political allegiance, personal status, or parenthood.

…

5. (a) An act or an omission in violation of sections 3 and 4 constitutes a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] shall apply to them, subject to the provisions of this Law [emphasis added – H.M.].

            The Prohibition of Discrimination Law thus establishes that distinctions on the basis of country of origin are prohibited, and that a provider of products or services who discriminates on that basis exposes himself to an action in tort. It should further be noted that under the said law, a person’s opinion or political allegiance do not constitute a legitimate basis for making distinctions in supplying services or products. In other words, to some extent, the Prohibition of Discrimination Law defines discrimination even more broadly than the Boycott Law.

(B)       Here we should further note that the fact that a person politically objects to the policy of a country does no itself justify discrimination on the basis of country of origin. Discrimination based upon that justification harms the individual on the basis of acts and conduct that are not contingent upon him: This is “collective punishment” that uses an innocent individual as a means for deterring another (and cf: sec. 40G of the Penal Law). Such conduct is unacceptable, just as, for example, boycotting products produced by certain minorities is unacceptable.

34.       It would not be superfluous to note that the Boycott Law is not exclusive to Israel, and such laws – expressed in similar language, and comprising prohibitions upon discrimination on the basis of country of origin – can be found in many other countries. In fact, in some of those countries, the scope of the said prohibition upon discrimination is even broader than in Israel. Thus, for example, in France, the Penal Code includes a prohibition upon any discrimination that disrupts normal economic activity (Penal Code, Article 225-2). In England and Germany, the law defines any less favorable treatment of A towards B because of a protected characteristic as direct discrimination (sec. 13 of the Equality Act 2010 and sec. 3 of the General Act on Equal Treatment, respectively).

            From all the above we can conclude that the Boycott Law, like the Prohibition of Discrimination Law, also advances a proper purpose of equality in that it is intended, inter alia, to prevent discrimination, which is a purpose grounded in additional Israeli legislation, as well as in the legislation of many other countries.

35.       Now that we have established that the Law is consistent with the values of the State of Israel, and is intended for a proper purpose, it remains for us to examine whether the restriction it imposes upon freedom of expression is “to an extent no greater than is required”, which is the fourth condition of the limitation clause. I shall now proceed to that examination.

 

“To an extent no greater than is required” – Proportionality Tests

36.       The fourth and last condition for examining the constitutionality of an infringement of a basic right is that the violation be “to an extent no greater than is required”. The proportionality of the Law must be examined in light of three subtests of proportionality, as established in the case law: the rational connection test, the least harmful means test, the proportionality test “stricto sensu” – sometimes referred to as the “relativity test”— which is a type of “cost-benefit” test (see: the Hamifkad Haleumi case, CrimA 8823/07 Anonymous v. State of Israel (published in Nevo) (Feb. 11, 2010); my opinion in HCJ 6784/06 Major Shlitner v. Director of Payment of Pensions (published in Nevo) (Jan. 12, 2011) (hereinafter: the Shlitner case); Barak, Proportionality in Law, chaps. 9-12).

            We shall address these below.

The Rational Connection Subtest

37.       Under the rational connection subtest, there must be a possible rational connection between the proper purpose and the means that the law chose to advance that purpose (see: Barak, Proportionality in Law, pp. 373-383 [English: 303-307]; on the method for applying this subtest, see the majority opinion in HCJ 1661/05 Hof Azza Regional Council v. The Knesset, IsrSC 59 (2) 481(2005)). In the case at bar, although some of the Petitioners argued that the Law is not effective in advancing the fight against boycotts (and thus it would seem that, in their view, it does not actually infringe freedom of expression), the general tenor of the arguments was that they admit that there is, in effect, a rational connection between the Law and the intention to prevent calls for boycott, inasmuch as that connection (which the Petitioners oppose) motivated the petitions. Indeed, some of the Petitioners stated that they were affected by the “chilling effect” of the Law, and were therefore forced to desist from publishing lists of products produced by Israeli actors in the Area, for the purpose of boycotting them. It is, therefore, clear that the Law, if only according to its initiators, advances its purpose, at least partially, by acting and helping to prevent harm which, in my view, only if caused would constitute the tort established by the Law in a manner that would permit collecting damages from the person calling for the boycott. Therefore, it is not repugnant inasmuch as the tortfeasor has a choice (as distinct from the provision under sec. 2(c) of the Law, which deems the call for a boycott to be a tort that justifies compensation even without proof of harm – which I believe must be voided).

            Thus, the Law passes the first subtest of proportionality. Moreover, one of the objectives of tort law is deterrence (see: Amos Herman, Introduction to Tort Law, 4-7 (2006) (hereinafter: Herman); Ariel Porat, Tort Law, vol. 1, chap. 6 (Optimal Deterrence), pp. 25-53 (2013) (hereinafter: Porat)).

 

The Least Harmful Means Subtest

38.       Under the second subtest of proportionality, we must examine whether the legislature chose the means that is relatively less harmful to human rights in comparison to the other available alternatives. The requirement is not that the means chosen be that which is absolutely the least harmful, but rather it is sufficient that the means fall within the “margin of proportionality” (HCJ 7052/03 Adalah v. Minister of the Interior, IsrSC 61 (2) 202, 234-235, para. 68 per A. Barak P. (2006) [English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]; the Hamifkad Haleumi case, at p. 784, para. 51, per Naor J.), and that its harm be relatively moderate, even if it is not the least possible harm (HCJ 6304/09 Lahav – Bureau of Organizations of Self-Employed  v. Attorney General (published in Nevo) para. 115, per A. Procaccia J. (Sept. 2, 2010)).

            As noted, the purposes that the Law advances are the protection of the state and its values, equality, and individual liberty. Therefore, in order to avoid infringing freedom of expression as far as possible, the restriction of the right must be limited to that required in order to prevent those harms that might be caused by the boycott and that would intrude upon those purposes. Therefore, the Law may not create an excessive “chilling effect” upon political speech, as such, that is beyond what is required to prevent harm to the said purposes. Do the means incorporated in the Law meet that requirement? In order to answer that question, we must first consider the principles of the boycott tort as they appear in the Law, and in each of its subsections, and examine whether each means set forth in sec. 2 of the Law meets the least harmful means test. Following that, we must also examine whether the administrative restrictions imposed under the Law pass this subtest, as well. I shall now proceed to do so.

 

Section 2(a) of the Law

39.       This provision comprises several elements that must be examined.

(A)       The application of the Civil Wrongs Ordinance to the Boycott Tort

Section 2(a) of the Boycott Law establishes as follows:

Anyone who knowingly publishes a public call for a boycott against the State of Israel … commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him.

We find language similar to that of this subsection in the Prohibition of Discrimination Law, which also applies the Civil Wrongs Ordinance to the tort that is the subject of that law, as follows:

5. (a) An act or an omission in violation of sections 3 and 4 constitutes a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] shall apply to them, subject to the provisions of this Law.

            The significant difference between the above laws is that the Prohibition of Discrimination Law states “shall apply to them”, that is, to the act and omission, whereas the Boycott Law states “will apply to him”, that is, to the tortfeasor. I do not think that we should split hairs in regard to how application to the tortfeasor as opposed to application to the tort might influence the substantive meaning of the Law. There are two reasons for this:

(1)        It would be contrary to the narrow-construction approach that I have recommended in regard to the Law, which is accepted in constitutional interpretation that tends to prefer narrow construction to voiding a legal provision, and which I will discuss in para. 56, below.

(2)        Such an approach would not be consistent with the opinion of Cheshin J. in CFH 5712/01 Barazani v. Bezeq Israeli Telecommunications Company Ltd., IsrSC 57 (6)  385, 408 (2003) (hereinafter: the Barazani case), in which he held (para. 30) as follows:

I also do not find any merit in the arguments of the Consumer Council comparing the phrase “as a tort” in our case to similar but not identical wording in other statutes. Thus, for example, sec. 11 of the Commercial Torts Law, 5759-1999, states “The violation of the provisions of Chapters One and Two is a tort, and the Civil Wrongs Ordinance [New Version] … shall apply to it…” At times we find this wording and at times other wording, and we will not hang mountains by a hair.^[2] The same is true with regard to other statutes that employ various wordings. See, for example: sec. 28 of the Adoption of Children Law, 5741-1981; sec. 5 (a) of the Prohibition of Discrimination in Products, Services, and Entry into Public Places, 5761-2000; sec. 15 of the Banking (Customer Services) Law, 5741-1981, and others. In my opinion, the purpose of the Law in this case is crystal clear, and comparisons to other laws will not succeed [emphasis added – H.M.].

(B)       A rational connection and damage: If the approach I have recommended above is accepted, and we would, indeed, apply the principles of the Civil Wrongs Ordinance to the boycott tort, then it would seem to follow that some of the elements of the tort established under sec. 2(a) of the Law would require damage, and a rational connection between the tort and that damage, as a condition for obtaining relief. This conclusion derives from the opinion of Cheshin J. in the Barazani case. In that case, Justice Cheshin refers to secs. 2(a) and 31(a) of the Consumer Protection Law, 5741-1981 (hereinafter: the Consumer Protection Law). Those sections establish a tort of consumer deceit, but do not expressly state a requirement of damage or of a rational connection, stating as follows:

2. (a) A dealer must not do anything – by deed or by omission, in writing, by word of mouth or in any other manner, also after the transaction has been contracted – which is liable to mislead a consumer in regard to any material element of the transaction (hereinafter – deceit); without derogating from the generality of the aforesaid, the following matters shall be deemed as material for a transaction:

(1) the quality, nature, quantity and category of an asset or service;

(2) the size, weight, shape and components of an asset;

…                   

31. (a) Any act or omission in violation of Chapters Two, Three, or Four shall be treated as a tort under the Civil Wrongs Ordinance [New Version].

            Justice Cheshin noted in this regard that the fact that the requirements of a causal connection and damage do not expressly appear in the above sections does not nullify those requirements, as he states there:

35.       … one doctrine is that of causation, under which – in accordance with sec. 64 of the Civil Wrongs Ordinance – there must be a causal connection between a person’s act or omission – an act or omission that constitute a tort – and the damage incurred by the victim, for which he seeks redress. As stated in sec. 64 of the Civil Wrongs Ordinance: “… a person shall be deemed to be at fault for such damage when the fault was the cause or one of the causes of the damage …

36.       This is also the case in regard to the compensation doctrine. In accordance with sec. 76 of the Civil Wrongs Ordinance, and as has always been the case: a person is entitled to compensation only for damage caused as a result of the tortious act. A person will be entitled to compensation only to the extent of the damage incurred, and as stated in sec 76: “only in respect of such damage which may naturally arise in the usual course of things and which directly arose from the defendant’s civil wrong”. A fundamental principle of tort law is that of restitutio ad integrum, and therefore, a person who did not suffer damage will not be entitled to compensation… Of course, the legislature is free to deviate from this principle, and decide – for various reasons – that a victim be granted compensation without showing that he incurred damage… However, these are but exceptions to the rule [ibid., at p. 401].

            This approach is consistent with the harm principle of the philosopher John Stuart Mill (see: John Stuart Mill, On Liberty (1859); J. Feinberg, Harm to Others (Oxford University Press, 1984); and the principles of corrective justice, see: Porat, at pp. 55-56; Herman, at pp. 9-7), and it also contributes to the distinction that I propose that we make between the validity of secs. 2(a) and 2(b) of the Law, and the voidness of sec. 2(c) of the Law.

             In view of the above, I am of the opinion that a reasonable construction of the Law leads to the conclusion that the tort created under sec. 2(a) of the Law requires damage and a causal connection as preconditions to relief, and that a “potential causal connection” alone would not suffice. Therefore, the requirement of a “reasonable possibility” to show that the call for a boycott might lead to its realization, as it appears in that section, is, in my opinion, a requirement that is additional to that of the normally required causal connection, and that hampers rather than eases the crystallizing of the tort.

            Moreover, from the absence of a requirement of damage in sec. 2(c) of the Law (which I believe should be voided), one might infer a positive requirement of damage in sec. 2(a) of the Law.

            It should be stressed that having found that the boycott tort requires damage as one of the elements of the tort in order for the boycotted party to seek relief from the party calling for a boycott, it is also clear that the tort meets the “near certainty test” (established in HCJ 73/53 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (2) 871 (1953) [English:  http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior] (hereinafter: the Kol Ha’am case)). On the relationship between the “near certainty test” and the proportionality requirement, see: Barak, Proportionality in Law, pp. 643-650; HCJ 4541/94 Miller v. Minister of Defense, IsrSC 49 (4) 94, 141 per Dorner J. (1995) [English: http://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]; Medina, “Forty Years to the Yeredor Decision”, pp. 377-380; Barak Medina & Ilan Saban, “On the Freedom of a Knesset Member to Oppose the Occupation (following HCJ 11225/03 Beshare v. AG),” 37 Mishpatim (Hebrew University Law Review) 219, 231-232 (2007) [Hebrew]. Under the “near certainty” test, when freedom of expression clashes with another interest, we may prefer the other interest only if there is a high probability that the harm to the interest will actually be realized. From this we learn that in the matter before us, in which the boycott tort gives rise to a right to relief only after the realization of the damage, there is no further need to examine the probability of the realization of the infringement of the protected interest, inasmuch as imposing liability is contingent upon harm that caused damage.

(C)       Potential Plaintiffs: Having reached the conclusion that the principles of the Civil Wrongs Ordinance apply to the boycott tort, it is clear that only the direct victim of the tort can sue upon it, in accordance with sec. 3 of the Civil Wrongs Ordinance:

3.         The matters in this Ordinance hereinafter enumerated shall be civil wrongs, and subject to the provisions of this Ordinance, any person who suffers any injury or damage by reason of any civil wrong committed in Israel shall be entitled as against the person committing or liable for such civil wrong to the remedy hereinafter specified.

(D)       Mental element: The section requires that the publication of the call for a boycott be done “knowingly”. This requirement, as well, should be construed as limiting the scope. Thus, in regard to the elements of the tort regarding which there is a requirement of awareness, it must be shown that “according to the content and circumstances of the publication there is reasonable possibility that the call will lead to a boycott” (sec. 2(a) of the Boycott Law).

40.       The above demonstrates that the scope of the restriction upon calling for a boycott under sec. 2(a) of the Boycott Law is limited. Only a person directly harmed, who can prove a causal connection between the call and the damage he incurred and the tortfeasor’s awareness of the reasonable possibility that the harm would transpire as a result of the boycott, can obtain relief (and see: secs. 10, 64, and 76 of the Civil Wrongs Ordinance). Thus it would appear that we are concerned with a burden of proof not easily met by a claimant. Moreover, the section suffices with establishing a civil wrong, and the Law does not comprise an imposition of criminal sanctions upon a person calling for a boycott (this, for example, as opposed to the similar French legislation, as will be explained in paras. 49-51, below). It would, therefore, appear to me that the legislature reasonably exercised its authority in the framework of the “margin of proportionality”, in order to try to prevent the phenomenon of calls for boycott, which could inflict harm.

 

Section 2(b) of the Law

41.       In order to explain the nature of sec. 2(b) of the Boycott Law, I will first present sec. 62(a) of the Civil Wrongs Ordinance, which treats of the tort of causing a breach of contract:

62. (a) Any person who knowingly and without sufficient justification causes any other person to breach a legally binding contract with a third person commits a civil wrong against such third person; provided that such third person will not recover compensation in respect of such civil wrong unless he has suffered pecuniary damage thereby.

            In other words, in order to pursue a cause of action for causing a breach of contract, the claimant must prove five elements (see: CA 123/50 Bauernfreud v. Dresner, IsrSC 5 (1) 1559 (1950)): (a) the existence of a binding contract; (b) a breach of the contract (which realizes the harm, in principle); (c) causation – comprising a causal connection between the causative act and the breach; (d) “knowingly” – awareness of the contract and of the causative connection between the cause and the breach; (e) without sufficient justification. Additionally, the section establishes that a “third person will not recover compensation in respect of such civil wrong unless he has suffered pecuniary damage thereby”.

            Although much has been written on the nature of these five elements, and about the requirement of damage (see: Nili Cohen, Inducing Breach of Contract (1986) (Hebrew)), what has been said thus far is sufficient for the purpose of this discussion.

            We will now proceed to interpret sec. 2(b) of the Boycott Law, which establishes as follows:

In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.

            What sec. 2(b) of the Boycott Law means is that if a person called for a boycott and caused financial harm, the person who incurred that harm can sue the person who called for the boycott, and the tortfeasor will not have recourse to the defense of sufficient justification. However, the claimant will still have to prove the additional elements of the tort in order to recover damages. That being so, a person wishing to recover damages by virtue of sec. 2(b) of the Law will also have to prove the following elements in addition to the element of a call for a boycott: causation, as defined under sec. 62(a) of the Civil Wrongs Ordinance, breach, a causal connection between the call for boycott and the breach, the mental element of awareness, and pecuniary damage. Thus to the extent that we find that sec. 2(a) of the law is constitutional, sec. 2(b) of the Law will, accordingly, also be constitutional. I am therefore of the opinion that sec. 2(b) also meets the second subtest.

Section 2(c) of the Law

42.       Section 2(c) of the Boycott Law establishes as follows:

(c) If the court find that a civil wrong, as defined by this law, was committed with malice, it will may require the tortfeasor to pay damages that are independent of the actual damage caused (in this section – exemplary damages); in calculating the sum of exemplary damages, the court will consider, inter alia, the circumstances under which the wrong was carried out, its severity and its extent.

            The damages awarded under the above section are not contingent upon damage, and as such, they do not realize the normal rule of tort law in regard to “restitution as integrum”. That being the case, it would be correct to characterize them as “punitive damages”, which are a type of hybrid creation grounded upon purposes both from the civil area and from the criminal area (see: Elyakim Rubinstein, “Punitive Damages – A View from the Bench,” in Orr Volume – Articles in Honor of Justice Theodore Orr, 99, 99-105 (2013) (Hebrew) (hereinafter: Rubinstein, “Punitive Damages”)). My colleague Justice Rubinstein also addressed the rationale grounding the granting of punitive damages in his opinion in CA 9656/03 Estate of Marciano v. Zinger, (published in Nevo) (April 11, 2005) (hereinafter: the Estate of Marciano case):

The rationale behind punitive damages is not to “rectify” or “repair”, in accordance with the usual approach of tort law, but to punish and deter.  This rationale is neither simple nor self-evident in civil law, but can be justified in particularly severe cases or instances of infringement of constitutional rights, and it can serve to reinforce effective deterrence where the criminal law does not apply [ibid., para. 34].

43.       Punitive damages are not generally awarded. The courts are reticent to grant such damages, which are imposed upon the wrongdoer only in exceptional cases (see: the Estate of Marciano case; CA 140/00 Estate of Ettinger v. Company for the Reconstruction and Development of the Jewish Quarter in the Old City of Jerusalem Ltd., IsrSC 58 (4) 486 (2004) [http://versa.cardozo.yu.edu/opinions/ettinger-estate-v-jewish-quarter-co... CA 2570/07 Lam v. Hadassah Medical Organization (published in Nevo) (July 7, 2011); CA 9225/01 Zeiman v. Qumran (published in Nevo) (Dec. 13, 2006), and cf: Rubinstein, “Punitive Damages”, p. 117). Even where the legislature chose to establish damages that are not contingent upon damage, it generally set limits to such damages, and did not leave them “unlimited”, as in the case before us (see, e.g.: sec. 31A of the Consumer Protection Law, sec. 4 of the Right to Work while Sitting Law, 5767-2007; sec. 11 of the Aviation Services (Compensation and Assistance for Flight Cancellation or Change of Conditions) Law, 5772-2012).

            Thus, the imposition of a regime of unlimited punitive damages in regard to the boycott tort deviates, in my opinion, from the bounds of proper proportionality. Where a delicate balance must be achieved in order to ensure minimal infringement of the basic right of freedom of expression, and to refrain as far as possible from creating any unnecessary “chilling effect” upon political expression and vibrant public debate, recourse should not be made to tools that are exceptions in civil law, and that deviate from the classic requirement of damage that is generally a condition for the imposition of a civil obligation, and one of the primary jurisprudential justifications for governmental intervention in the affairs of the individual (see: Mill, On Liberty; the Holder case). Imposing punitive damages would thus make the boycott tort unnecessarily proximate to the criminal sphere, and would overly deter expression (to the extent that it does not have the potential for causing proven harm to society or an individual).

            In light of the above, in my opinion, sec. 2(c) of the Boycott Law does not meet the requirements of the second, least-harmful-means, subtest, and must be declared void.

 

Sections 3 and 4 of the Law

44.       I will first cite the language of sections 3 and 4 of the Law:

                        Directives restricting participation in tenders:

3.         The Minister of Finance is authorized, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, to issue directives in regard to restricting the participation in a tender of anyone who knowingly published a public call for a boycott against the State of Israel, or who committed to participate in such a boycott, including a commitment not to purchase goods or services produced or supplied in Israel, by one of its institutions, or in an area under its control; in this section, a “tender” is defined as any tender that must be administered in accordance with the Mandatory Tenders Law, 5752-1992.

                        Regulations preventing benefits:

4.         (a) The Minister of Finance, in consultation with the Minister of Justice, may decide that someone who knowingly published a public call for a boycott against the State of Israel or committed to participate in a boycott:

(1) Will not be deemed a public institution under clause 46 of the Income Tax Ordinance;

(2) Will not be eligible to receive monies from the Sports Betting Council under section 9 of the Regulation of Sports Betting Law, 5727-1967; exercise of the authority under this section requires the consent of the Minister of Culture and Sports;

(3) Will not be deemed a public institution under section 3A of the Foundations of the Budget Law. 5745-1985, regarding the receipt of support under any budget line item; exercise of the authority under this section requires the consent of the Minister appointed by the Government as responsible for said budgetary line, as stated in section 2 of the definition of  “person responsible for a budget line item”;

(4) Will not be eligible for guarantees under the State Guarantees Law, 5718-1958;

(5) Will not be eligible for benefits under the Encouragement of Capital Investment Law, 5719-1959, or under to the Encouragement of Research and Development in Industry Law, 5744-1984; exercise of the authority under this section requires the consent of the Minister of Industry, Commerce and Employment.

(b)        In exercising the authority according to subsection (a), the Minister of Finance will act in accordance with regulations that he will promulgate in this regard, with the consent of the Minister of Justice, and with the approval of the Knesset Constitution, Law and Justice Committee; however, if no such regulations have been promulgated, it will not detract from the authority under subsection (a).

            From the language of the Law, we learn that the administrative restrictions imposed thereunder are contingent upon a procedure that involves supervision by the Government and by the Knesset. Thus, in order for the Minister of Finance to issue directives that would restrict participation in a tender of someone who calls for or committed to participate in a boycott, as defined by the Law, he must first obtain the consent of the Minister of Justice and the approval of the Knesset Constitution Committee. Denying benefits to someone who calls for or committed to participate in a boycott must be done in consultation with the Minister of Justice, and issuing directives in that regard requires the consent of the Minister of Justice and the approval of the Knesset Constitution Committee. It would seem that the above procedures, required in order to approve the imposition of the restrictions, would serve to lessen the possible infringement of freedom of expression, if only by ensuring that the restrictions would not be imposed arbitrarily.

            But over and above this procedural restriction, I am of the opinion that the infringement caused by preventing the participation in a tender, and all the more so the infringement caused by denying state benefits, are inherently second order infringements, inasmuch as, in principle, the Government enjoys broad discretion in choosing with whom to do business, or to whom to grant financial support. Thus, in the matter of financial support granted by the state, it has been held on more than one occasion that a person or body does not have a vested right to receive state grants. See, in this regard: HCJ 1438/98 Masorti Movement v. Minister of Religious Affairs, 53 (5) 337, 385 (1999), where we find:

The state is entitled to grant or not grant support. The state is authorized to provide – or not provide – this and that activity with financial support, and in granting support to a particular activity, to decide how much money it will receive.

            And also see, inter alia: HCJ 5264/05 Shavei Shomron Yeshiva v. Minister of Education, Culture and Sport, (published in Nevo) (Nov. 16, 2005).

            We should further note that in regard to the participation in tenders, sec. 3B of the Mandatory Tenders Law states as follows:

The government, with the approval of the Knesset Foreign Affairs and Defense Committee, may direct, by order, that the State or a government corporation may not enter into a contract for the execution of a transaction as stated in section 2 with a particular foreign country or with a particular foreign supplier for reasons of foreign policy.

            If the Government may do so by order (with the approval of the Knesset Foreign Affairs and Defense Committee), it would seem, a fortiori, that the Knesset may enact a statute (like that before us) in regard to the possibility of denying participation in tenders to certain bodies for reasons that are, by nature, related to reasons of foreign policy or defense of the state (preventing a boycott of the State of Israel, as defined by the Law).

45.       One may also deduce the power of the state to deny benefits from those who use them against the state by analogy to the judgment in HCJ 10104/04 Peace Now – Shaal Educational Enterprises v. Ruth Yosef, Supervisor of Jewish Settlement in Judea and Samaria, IsrSC 61 (2) 93 (2006), which held that local and regional councils in the Area could not use government grants to finance protest activity against the Disengagement Plan. In this regard, Deputy President Cheshin wrote (ibid., pp. 185-186):

We cannot accept that a local council may use support funding provided by the state in order to fight against a state-initiated plan. A person will not be permitted to slap the hand extended to help him.

I concur with the opinion of Justice Dorner and with the opinion of my colleague Justice Rubinstein that it is improper and unacceptable that monies that the state granted to a local authority in support of its day-to-day municipal activity be used to fund the council’s struggle against a state decision. A local council that fights against a state plan, and funds that fight with support funding given by the state for other purposes, does something that should not be done. Such conduct by the council is incompatible with the principle of fairness, as well as with the rules of good governance. This rule is self-evident, and I think there is no need to elaborate [emphasis added – H.M.].

Indeed, the prohibition of “ingratitude” is everywhere a matter of conventional wisdom – both moral and legal –and various cultures have idiomatic expressions for it (in the U.S. “Do not bite the hand that feeds you”, in traditional Jewish sources: “To act like Zimri and be rewarded like Pinchas” (Babylonian Talmud, Sanhedrin 82a).

            Moreover, the administrative restrictions against those who call for a boycott have a kind of internal logic of their own, inasmuch as how can people who call for a boycott request aid from the very bodies that they believe should be boycotted? In this regard, the standard that the Law applies to those who call for a boycott is the standard that they themselves suggest.

            I would further emphasize that the infringement caused by the administrative restrictions also meets the “near-certainty” test. As I shall explain below.

46.       In the context of this case, the “near certainty” test requires that the in order to permit an infringement of freedom of expression, a nearly certain infringement of the protected interest must be shown to exist. Thus, for example, the Kol Ha’am case held that it must be proven to a near certainty that, under the circumstances, granting freedom of expression would cause “nearly certain” harm to public security.

            In the matter before us, the protected interest is not public security. As explained, one of the purposes of the administrative restrictions is the interest in preventing the funding of organizations or persons who call for a boycott against the State of Israel, as defined by the Law, in a manner that discriminates against the state’s citizens by coercive means that, in effect, infringe the free marketplace of ideas, and seeks to impose the views of the boycotters upon those harmed by the boycott. In addition, the administrative restrictions seek to prevent a situation in which a person or organization would “bite the hand that feeds them”, and act with premeditated ingratitude in seeking to exploit the benefits they would receive in order to expand their activities against the one who granted them those very benefits (and compare: the Holden case, and see: Barak-Erez & Zachariah, pp. 574-575).

            Thus, in the event that the benefits and various grants would be given to those who call for a boycott against the State of Israel, the said interest would certainly be harmed. That would be the case whether or not the call would lead to real damage. The reason for this is that, as noted, the very granting of the benefits to those who call for a boycott would involve a transfer of state resources to the benefit of organizations seeking to harm the state and discriminate among its citizens. This is a separate category, also recognized in comparative law, which permits authorities to predetermine situations of “expected ingratitude”, and deny benefits in advance. See: South Dakota v. Dole 483 U.S. 203 (1987; Regan v. Taxation with Representation 461 U.S. 540 (1983); Rust v. Sullivan 500 U.S. 173 (1991) (hereinafter: the Rust case), which held:

A legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right.

            That rule was somewhat narrowed by the majority in Agency for International Development et al. v. Alliance for Open Society International, Inc., et al. 570 U.S 1 (2013), in that it held that an organization receiving governmental funding to fight AIDS abroad, cannot be forced to publicly profess – in accordance with the Government’s policy – that it does not support legalizing prostitution, or provide funding for organizations that have not explicitly declared that they are opposed to prostitution. However, that case differs from the one at bar, inasmuch as our case does not require that those who call for a boycott support the Government’s policy against the boycott, but only not to encourage the boycott, and such cases fall within the scope of the rule enunciated in Rust (and compare: HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs, (published in Nevo) (June 4, 2013) [English: http://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-minority-rights-israel-v-ministry-social-affairs], and in Jewish law in regard ingratitude: Babylonian Talmud, Avoda Zara 5a-b. And see: Nili Cohen, “On Parents, Children and Ingratitude: The Transaction of King Lear,” 14 Hamishpat 381 (2011) (Hebrew); Nili Cohen, “Law, Morality and Ex Turpi Causa,” Orr Volume 259 (2013) (Hebrew)).

            In light of all the above, it would appear that the infringement caused by the administrative restrictions also meet the least-harmful-means subtest.

 

The Proportionality Stricto Sensu Test

47.       Even after finding that the Law serves permissible purposes and falls within the “margin of proportionality” in achieving those purposes, it remains that we examine the Law’s proportionality “stricto sensu”, which is the third subtest of “proportionality”. Prof. Barak explains that the comparison here is not between the advantage in realizing the law’s purpose and the harm caused by infringing the right. “Rather, the comparison focuses only on the marginal effects – on both the benefits and the harm – caused by the law.  In other words, the comparison is between the margins”. In this regard, he adds: “we must consider the hypothetical proportional alternative to the limiting law. If indeed, such an alternative exists, then the comparison between the marginal benefits and marginal harm is made in light of that proportional alternative. Although this alternative was not adopted by the limiting law itself, the lawmaker can still adopt it as an amendment to the limiting law.” (See: Barak, Proportionality in Law, p. 432 [English: p. 350] (emphasis added – M.C.); and see my opinion in the Shlitner case).

            At this stage, we must therefore examine whether the balance between the harm caused to freedom of expression by the Law and the values grounding the Law, and ultimately decide whether one can say that the Boycott Law does not deviate from the proper balance between those values and interests, and therefore passes the “relativity” subtest. In this regard, I am of the opinion that the Law manages, if just barely, to meet the third subtest of relativity, as I shall now explain.

48.       As noted, the Boycott Law applies to those who call for the imposition of a boycott against anyone who has a connection to the State of Israel or an area under its control. In so doing, a person calling for a boycott may inflict harm upon an individual and violate his liberty. Imposing tortious liability upon a person whose call may cause harm to another is not exceptional in Israeli law. For example, sec. 12 of the Civil Wrongs Ordinance states as follows:

12. For the purposes of this Ordinance, any person who joins or aids in, authorises, counsels, commands, procures or ratifies any act done or to be done, or any omission made or to be made, by any other person will be liable for such act or omission.

            The above section also presents a certain infringement of freedom of expression, in that a person who procures another (even if only by speech) to commit a tort is exposed to a tort suit, see: CA 5977/07 Hebrew University of Jerusalem v. Schocken Publishing House Ltd. (published in Nevo) (June 20, 2014); CA 10717/05 Florist de Kwakel B.V v. Baruch Hajaj, (published in Nevo) (Sept. 3, 2013) [English: http://versa.cardozo.yu.edu/opinions/de-kwakel-bv-v-hajaj]; Paul S Davis, “Aid, Abet, Counsel or Procure,” in Chamberlain, Neyeres & Pitel, eds., Tort Law: Challenging Orthodoxy 413 (2013).

            Thus we see that in weighing the overall considerations, the legislator of the Law before us was of the view that the interest in preventing harm justified imposing tortious liability upon the wrongdoer, even at the expense of a certain infringement of freedom of expression. This constitutes something of a complement to the long-accepted principle in our case law that where a person encourages illegitimate discrimination by wrongful speech, the law recognizes the possibility of limiting his freedom of expression. Thus, for example, there is a provision in the Prohibition of Discrimination Law (sec. 4) that somewhat infringes freedom of expression in order to protect the right of an individual to equality:

4.         A person, whose business is the supply of products or of public services, or the operation of a public place, shall not publish any advertisement that includes any discrimination prohibited under section 3 [emphasis added – H.M.].

            However, the infringement of freedom of expression caused as a result of the Boycott Law is somewhat different from the infringement resulting from the torts listed above, inasmuch as the Law may have a “chilling effect” on the freedom of political expression, which is of particular importance in the public arena (see, for example: HCJ 606/93 Kidum Enterprises and Publishers (1981) Ltd. v. Broadcasting Authority, IsrSC 48(2) 1, 12 (1994)). It therefore remains for us to examine whether such an infringement nevertheless meets the requirements of the third subtest of proportionality. On this freighted point, I will “travel” abroad to bring back support from decisions that treated of related subjects and concluded that the infringement is, indeed, proportionate.

49.       The European Court of Human Rights in Strasbourg addressed the infringement of freedom of political expression in the context with which we are concerned, and this is the story:

            In the course of a town-council meeting, Jean-Claude Fernand Willem, the mayor of the French town of Seclin, called for a boycott of Israeli products (primarily citrus juice) due to Israel’s policy towards the Palestinians. That call was also published on the town’s Internet site. Pursuant to that call, a criminal complaint was filed against the Mayor with the public prosecutor, who decided to bring criminal charges against the Mayor for provoking discrimination on national, racial and religious grounds, which is an offense under secs. 23-24 of the French Law on the Freedom of the Press (Loi sur la liberté de la presse du 29 juillet 1881), which establish as follows:

Article 23: Seront punis comme complices d'une action qualifiée crime ou délit ceux qui, soit par des discours, cris ou menaces proférés dans des lieux ou réunions publics, soit par des écrits, imprimés, dessins, gravures, peintures, emblèmes, images ou tout autre support de l'écrit, de la parole ou de l'image vendus ou distribués, mis en vente ou exposés dans des lieux ou réunions publics, soit par des placards ou des affiches exposés au regard du public, soit par tout moyen de communication au public par voie électronique, auront directement provoqué l'auteur ou les auteurs à commettre ladite action, si la provocation a été suivie d'effet.

Cette disposition sera également applicable lorsque la provocation n'aura été suivie que d'une tentative de crime prévue par l'article 2 du code pénal.

Article 24: …Ceux qui, par l'un des moyens énoncés à l'article 23, auront provoqué à la discrimination, à la haine ou à la violence à l'égard d'une personne ou d'un groupe de personnes à raison de leur origine ou de leur appartenance ou de leur non-appartenance à une ethnie, une nation, une race ou une religion déterminée, seront punis d'un an d'emprisonnement et de 45 000 euros d'amende ou de l'une de ces deux peines seulement.

And in English translation:

Article 23: Will be punished as accomplices to an action qualified as a crime or a misdemeanor, those who, either by speech, calls or threats spoken in public places or public assemblies, or by writing, printed, drawings, engravings paintings, emblems, images or all other written support (format), spoken format, or visual image sold or distributed offered for sale or exposed in (public) places or public assemblies, either through billboards or via posters exposed for public access (viewing), or by any method of communication to the public by electronic means, which would have directly provoked the perpetrator (instigator) (single) or perpetrators (instigators)(plural), if the provocation was followed by the effect (or followed by a reaction).

This clause will be equally applicable in situations where the provocation would have been followed just by an attempted crime as provided by section 2of the penal code.

Article 24: … Those who, by one of the methods outlined in article 23, did provoke to discrimination, to hatred or to violence towards a person or towards a group of people by reason of their origin or of their membership (part of) or of their non-membership to a determined ethnic group, a nation, a race or a religion. Will be punished by a one year prison sentence and of a 45 000 Euro fine, or to either of these sentences alone.

            The Mayor was acquitted by the Lille Criminal Court, but the Court of Appeals ruled that the Mayor’s call was tainted by discrimination on national, racial and religious grounds, found him guilty, and imposed a fine of 1000 Euro. That decision was later upheld by the French Cour de Cassation.

50.       The Mayor appealed the judgment to the European Court of Human Rights, which denied the Mayor’s appeal (see: Willem v. France (application no. 10883/05), 10.12.2009).

            The panel of the European Court of Human Rights, composed of judges from Denmark, France, Germany, Liechtenstein, Monaco, Macedonia and the Czech Republic, held, in a majority ruling of 6 to 1 (the Czech judge), that the Mayor was not convicted for his political opinions, but rather because he called for discrimination against Israeli producers and their products. The European Court of Human Rights also found that the French law met the conditions of the European limitation clause, which is essentially similar to the Israeli “Limitation Clause”. The European Court of Human Rights further held that under the French Law, the Mayor was not entitled to undermine the French governmental authorities by calling for an “embargo” on the products of a foreign country, and noted that the penalty imposed upon him was relatively moderate.

            The European Court of Human Rights further held that the decision of the French courts to convict the Mayor was not inconsistent with the right to freedom of expression enshrined in sec. 10 of the European Convention on Human Rights. According to the European Court of Human Rights, the fine imposed upon the Mayor was lawful and intended for a proper purpose – protection of the rights of Israeli producers. The Court based its decision (ibid., para 20), inter alia, on another decision of the French Constitutional Court, in which it was held that a declaration made by a French company that sought to contract with another company from the United Arab Emirates, according to which it would not trade with Israel or transfer goods to it, was unlawful under sec. 225-1 and 225-2 of the French Penal Code. And see: the decision of the European Court of Human Rights in Leroy v. France, Application no. 36109/03 of Oct. 2, 2008.

51.       A similar matter, adjudicated in France and similarly decided, concerned the conviction of Saquina Arnaud-Khimoun by the Criminal Court in Bordeaux for labeling Israeli products with the sticker “Boycott Apartheid Israel”. The court held that Khimoun had hindered the normal exercise of economic activities by making a distinction on the basis of nationality. After the verdict was affirmed by the Appeals Court of Bordeaux, an appeal was filed with the Cour de Cassation (No B 10-88.315), which, in May 2012, reaffirmed the decision of the Appeals Court. For a discussion of the matter, see Rubinstein & Pasha, Academic Flaws, at pp 118-119, which also provides some answer to the Petitioners’ argument that the above cases differs from the Law under consideration, in that the European judgments concerned sanctions imposed upon persons calling for a boycott of a foreign state, whereas the Israeli Law imposes a prohibition upon persons calling for a boycott of their own state. In their book, the learned authors address the exceptional phenomenon of calling for a boycott of one’s own state, and suggest that this is the reason why there are no direct precedents on the matter, stating:

We have not found a parallel example in the United States [to Israeli calls for boycotting Israeli academia – M.C] of academic calls for boycotting the United States – not even in the turbulent times of the Vietnam War. Not even after four students were killed by the National Guard at Kent State University [ibid., p. 118].

52.       Having touched upon comparative law, it would be appropriate to add that in American law, in which freedom of expression is particularly broad, the call for a boycott in the Claiborne case was not disallowed due to the fact that the objects of the boycott had themselves behaved in a discriminatory manner towards African-Americans, and the boycott was intended to eradicate that discriminatory phenomenon by a focused attack upon those boycotted. As opposed to that, in the matter at bar, those being boycotted merely have a connection to the State of Israel, and it is the state that those who call for the boycott claim acts illegitimately. Therefore, it would seem that such a case, to the extent that it results in harm, would not fall within the scope of freedom of expression even in the United States (see the reasoning in the Holder case, as well as the article of Dafna Barak-Erez & Dudi Zechariah, ibid.).

53.       We may thus conclude that in accordance with the above European decisions and the approach we may deduce from the American Holder case, the Law that is the subject of the Petitions falls within the “legislative discretionary space”, sometimes referred to as the “margin of proportionality” or “zone of proportionality” (see: Barak, Proportionality in Law, pp. 505-508) [English: pp. 415-418]). Therein, the question posed before us is not whether the chosen arrangement is the best, but rather whether the chosen arrangement is lawful, that is, whether it falls within the “discretionary space” in which the legislature may act (see my opinion in the Shlitner case).

            I am of the opinion, as stated, that in this case, the arrangement enacted in the framework of the Boycott Law falls within the “legislative discretionary space”, even if one might say that it is at the outer limit of that space.

            The Law, in this case, does not impose a criminal prohibition upon political expressions as such, and the tort that the Law creates applies only to a call for the imposition of a boycott, but does not attribute tortious liability to a person who expresses the political views that underlie the call for a boycott (as long as they do not constitute a call for a boycott). Moreover, the injury to the person calling for a boycott is, as noted, limited: in order for a cause of action for relief under the tort to reach fruition, many conditions must be met: proof of harm, a causal connection between the tort and the harm, and awareness of a reasonable possibility for the realization of the harm. In addition, if tortious liability is attributed to a person calling for a boycott, the damages imposed upon him will not exceed the actual harm that he caused (subject, of course, to my holding as to the unconstitutionality of sec. 2(c) of the Law). The administrative restrictions imposed upon a person calling for a boycott are also proportionate, in view of the procedure required for their approval, and particularly in view of what I pointed out in paras. 44-45 above in regard to the broad discretion granted to a government in regard to the allocation of benefits and grants.

54.       The above holding can also be supported by several additional doctrines that all lead to the same result, which serves to show that in terms of jurisprudence (particularly in the field of public law), the conclusion is correct (see: my opinion in CA 4244/12 Haaretz Newspaper Publication Ltd. v. Major General Ephraim Bracha (published in Nevo) (February 19, 2014)). I will refer to those doctrines below.

 

Additional Approaches supporting the Proposed Conclusion

55.       The conclusion that I have reached is also required by additional constitutional law theories on the subject of annulling laws, which will now be surveyed.

An Interpretation of a Statute that upholds its Constitutionality is preferable to one that would annul it

56.       The above proposition validates the approach that nullifying a law should be the last resort, which should be adopted only when there is no other choice, as Justice Rivlin stated in HCJ 9098 Ganis v. Ministry of Building and Housing, IsrSC 59 (4) 286 (2004) (English: http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housing] (hereinafter: the Ganis case). In this regard, our case law has developed a preference for the interpretive approach described by Justice Beinisch in the Ganis case:

Everyone agrees that when the validity of a statute is questioned and a doubt arises as to its constitutionality, the court should first consider whether it is possible to find a reasonable interpretation that will make it unnecessary to decide upon its constitutionality and will allow the statute to exist in harmony with the basic principles of the constitution and the legal system. [ibid., at pp. 290-291, and see the sources cited there in support of that proposition; and see HCJ 5113/12 Friedman v. Knesset, (published in Nevo) (Aug. 7, 2012) (hereinafter: the Friedman case)].

            That is the approach that was adopted by the expanded panel in HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police, (published in Nevo) (May 28, 2012) (hereinafter: the Association for Civil Rights case). Thus, the path of narrow construction that I proposed for the provisions of sec. 2(a) and 2(b), and secs. 3 and 4 of the Law is preferable to invalidating the said provisions.

            At this point, three additional comments would be appropriate:

(A)       Certain matters are indeed unclear in the provisions of sec. 2 of the Law. However, as noted, that lack of clarity can be mitigated through interpretation. Moreover, ambiguity does not constitute grounds for voiding a law. As a rule, in judicial review we must be careful to observe the difference between the grounds for review under constitutional law (in which the grounds are much more limited) and administrative law (where the grounds are inherently broader). See the Association for Civil Rights case.

(B)       The fear expressed that it might be possible to exercise prior restraint upon a call for boycott by means of a restraining order under the boycott tort is unfounded, inasmuch as it has already been held in a related matter that prior restraint in matters of freedom of expression must be very limited (see: CA 214/89 Avneri v. Shapira, IsrSC 43 (3) 840 (1989); and also cf: Avigdor Klagsbald, “Criminal Offense and Prior Restraint,” 2 Plilim 93 (1991)).

(C)       My proposal to void sec. 2(c) of the Law shows that there are limits to interpretation, and in the absence of an interpretive solution, the provision must be annulled.

 

The Legislature should be granted Deference

57.       In his book Proportionality in Law (ibid., pp. 488-491) [English: 396-399], Prof. Barak sought to reject the doctrine of deference that is accepted in many countries (both in Europe and in the United States), and that constitutes a certain constraint upon the judicial review of laws. Consequently, he characterized the concept of deference as “submission”.

            Justice E. Rivlin – who called for the adoption of this doctrine in appropriate cases – took the view that the term deference should be referred to as respect (for the legislature), see: HCJ 466/07 MK Zahava Gal-On v. Attorney General (published in Nevo) (Jan. 11, 2012), paras. 20-24 of his opinion [English: http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]. A similar position was adopted by my colleague Justice E. Rubinstein in the Friedman case.

            I would like comment in this regard that I believe that the Deference Doctrine can be situated in the framework of the proportionality tests (as for possible alternatives to the legislation – these would be examined in the framework of the second subtest, and the “overall relativity” would be examined in the framework of the third subtest – see: Alan D.P Brady, Proportionality and Deference under the UK Human Rights Act: An Institutionally Sensitive Approach, 30-34 (2012)).

            If we apply this approach to the matter before us, the result that I have proposed is necessary.

 

The “Margin of Appreciation” Theory also justifies the Proposed Result

58.       The Margin of Appreciation Theory was developed in European law, beginning with the decision of the European Court of Human Rights in Handyside v. The United Kingdom, App. No. 5493/72, 1 EHRR 737 (1979). It was held in that case that the margin of appreciation grants preference to the national legislature and the authorities of the state (that is part of the European Union), including its courts, in interpreting and applying domestic law, by reason of the relevant constitutional principles and circumstances of that state. On the development of the Margin of Appreciation Doctrine over the years, see: John Wadham, Helen Mounfield, Caoilfjionn Gallagher & Elizabeth Prochaska with Anna Edmundson, Blackstone’s Guide to The Human Rights Act 1998, 40-42 (5th ed., 2009).

            In his book Proportionality in Law, Prof. Barak explains the distinction between the “margin of proportionality” [which Barak terms the “zone of proportionality” – ed.] and the “margin of appreciation” as follows:

The notion of the zone of proportionality examines the constitutionality of a limitation on a human right from a national standpoint. It determines the framework of factual and normative data from which the legislator may derive a valid limitation on a human right. The doctrine of the “margin of appreciation” examines the constitutionality of the limitation of a right from the standpoint of the international community. It determines the framework of factual and normative data whose existence allows the international community to provide considerable weight to the factual and normative determinations made by contracting state actors. (ibid., p. 511) [English: pp. 419-420].

 

            Against the background of the similarity and difference between the two doctrines, Prof. Barak considers the place of the “margin of appreciation” in national (domestic) law, and finds that examining this doctrine is important in that it explains the international and foreign case-law to the local judge, and comparative law has a recognized place in constitutional interpretation (see: Barak, Proportionality in Law, pp. 91-94). He concludes:

First, the study of the concept is of major importance, as it may explain and clarify much of the international law decisions and rulings that can also apply locally…But these contributions conclude the role of the concept of margin of appreciation for the national (domestic) judge (see: Rivers “Proportionality and Variable Intensity of Review” 65 Cambridge L.J 175 (2006)). While ruling on domestic issues, the judge should base his or her decisions on the notion of the “zone of proportionality.” At the basis of such a decision is that legal system’s notion of the proper balance between the public interest and individual human rights. (ibid., p. 512) [English trans., p. 421].

            However, there those who are of the opinion that the margin of appreciation theory can also be situated in the “proportionality tests”, and that the “margin of appreciation” even applies to the relationship between domestic law and international law (see: Andrew Legg, The Margin of Appreciation in International Human Rights Law, 194-196 (2012); Paola Bilancia, The Dynamics of The EU Integration and The Impact on The National Constitutional Law, 147 (2012)).

            In view of the decisions of the European Court of Human Rights cited above, it would seem that the provisions established by the Israeli legislature in secs. 2(a) and 2(c) of the Law fall within the Israeli “margin of proportionality”, particularly in light of the “margin of appreciation”. And cf. my opinion in AAA 5493/06 Emanuel Peled v. Prison Service (published in Nevo) (Oct. 12, 2010).

            Moreover, a contrary holding by this Court might undermine the “margin of appreciation” that the European Court of Human Rights has recognized (in regard to France) in connection with the boycott against the State of Israel.

 

The Claim of Discrimination in regard to the enactment of the Boycott Law (in comparison to other boycotts not prohibited by law) must be dismissed

59.       The Petitioners argue that the Knesset chose to enact only a law against calling for a boycott against the State of Israel, as defined by the Law, but refrained from legislatively prohibiting other forms of boycott (such as consumer boycotts, religious boycotts, etc.), which constitutes a form of discrimination that should result in the voiding of the Law.

                        This argument is of no merit. As a rule, a claim of discrimination cannot be raised against the legislature for choosing to address a specific subject while refraining from addressing another, similar situation.

            Such an administrative cause of action cannot be claimed against the legislature, even if we ignore the subject of “lacuna”, “negative arrangement”, and legislative void in constitutional contexts. See: the Association for Civil Rights case.

 

The Ripeness Doctrine in Constitutional Law, as applied to the Matter at Bar, requires that other than the voiding of Section 2(c), the Claims of the Potential Claimants and Potential Defendants in regard to the Law will be examined in Application

60.       The Ripeness Doctrine was adopted into Israeli constitutional law in the Alumni Association case, and was further developed of late in HCJ 2311/11 Uri Sabah v. Knesset (published in Nevo) (Sept. 17, 2014) (hereinafter: the Acceptance Committee case), and see: Chachko, “On Ripeness and Constitutionality”. This doctrine “allows the Court to decide that a decision in regard to a constitutional question before it will be made at a later stage, if at all” (see: HCJ 7190/05 Lobel v. State of Israel (published in Nevo) para. 6 of the opinion of M. Naor J. (Jan. 18, 2006) (hereinafter: the Lobel case)), “due to the absence of a complete set of clear, concrete facts necessary for making a fundamental judicial decision” (the Lobel case, para. 4 of the opinion of M. Naor J.)). Also see: HCJ 3803/11 Israeli Capital Markets Trustees Association v. State of Israel (published in Nevo) (Feb. 5, 2012); HCJ 5440/11 David Hananel (Chen) v. Minister of Justice (published in Nevo) (March 11, 2012); HCJ 7872/10 Jaffa Moslem Council v. Prime Minister (published in Nevo) (June 7, 2012); the Acceptance Committee case.

            In his article cited in para. 6(A) above, Ronen Polliack tried to show that this doctrine should be applied in a relative manner, such that two additional pathways be added, which he views as preferable to the existing pathway: applied judicial review by the High Court of Justice, and applied judicial review by the trial court. In his opinion, the proposed model reflects a more careful balance between applied review and facial review, a subject that has recently been the subject of considerable discussion in the United States (see: Richard H. Fallon, Jr., “Fact and Fiction about Facial Challenges,” 99 Calif. L. Rev 915 (2011)).

            In fact, a similar approach was adopted in the decision in the Acceptance Committee case.

            In my opinion, applying the constitutional ripeness doctrine to the matter before us requires that – other that the striking down sec. 2(c) of the Law – the claims of potential claimants and potential defendants in regard to the Law should be subjected to applied review in the trial courts in the course of suits that may be filed in regard to secs. 2(a) and 2(b), or alternatively, when individual petitions are filed in regard to secs. 3 and 4 of the Law against a concrete decision of the Minister of Finance. We would thus follow the accepted American approach in which constitutional issues generally arise and are examined in the course of an “indirect challenge” and “from the bottom up”. This approach is also accepted in Continental Europe, as we see from the evolution of the case concerning the French mayor, which began in the local criminal court and reached the European Court of Human Rights. This development is particularly apt in the matter before us because, as I have explained, the law views boycotting as a “chameleon concept” that is sometimes acceptable and sometimes prohibited. This approach affects the legal outcome, which is also contingent upon the circumstances.

Conclusion

61.       In light of all the above, only sec. 2(c) of the Law should be struck down, while the remaining provisions should be left in force. This conclusion does not preclude the possibility of raising constitutional questions that have not been decided here at the “applied stage” (when actions brought under the law are examined), however, it would seem that it would be preferable to follow the American and European approach under which cases regarding “calls for boycott” begin in the trial courts (where the claims are examined in the context of concrete facts), and the matter then rises through the judicial system.

62.       Before concluding, I would add that I have, of course, read the opinions of my colleague the President, the Emeritus President, and my other colleagues, and I naturally agree with all of the reasons of those who concur with my position and added other considered reasons to it, as they saw fit. I also have the greatest respect for the views of those who disagree with me, but I have chosen not to open a round of responses and counter-responses, so as not to further lengthen my opinion, and inasmuch as the main points are set out for all, and now that we have decided, the reader can review and criticize in the appropriate forums.

63.       I will conclude in stating – above and beyond the result that I have reached – that, as a rule, it is preferable to follow the historical approach that saw fit to restrict boycotts in their various forms, at home or abroad, except for limited exceptions (among which the boycott against the State of Israel, as defined in the Law, is not included),. Boycotts are generally bad for the entire state (including the Jewish State), and bad both for democracy and for society.

 

Justice Danziger:

I have received my colleague Justice Melcer’s comprehensive opinion, read it, and concluded that I hold a different opinion. In my view, the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Law or the Boycott Law) substantially infringes the right to freedom of expression. In my opinion, that infringement does not meet the tests under the Limitation Clause in sec. 8 of Basic Law: Human Dignity and Liberty. Despite this conclusion, I believe that the degree of that infringement can be substantially lessened by means of interpretation, such that the Law can successfully ford the constitutional tests. Therefore, if my opinion were accepted, we would order that the Law be understood such that – as I shall explain more fully below – only a boycott of an “institution” or “area” that is a boycott against Israel, and that derives from their connection to the state, would fall within the scope of the Boycott Law, whereas a boycott against an “institution” or “area” that is not part of a boycott against the State of Israel would not fall within the scope of the Law’s definition.

1.         My colleague Justice Melcer surveyed the Law’s provisions in detail, as well as its legislative background and the arguments of the parties, and I see no need for repetition. The Petitioners present constitutional arguments. They ask that we strike down the Boycott Law for being repugnant, in their opinion, to Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. The examination of these claims must be carried out in three stages. At the first stage, the question to be examined is whether a constitutional right is violated. If so, then we must proceed to the second stage of constitutional review, in which the constitutionality of the violation is examined in light of the tests set out in the Limitation Clause. In the third stage, which would be addressed only if the Law were to be found unconstitutional, we would decide the consequences of that unconstitutionality (HCJ 10203/03 Hamifkad Haleumi Ltd. v. Attorney General, IsrSC 62 (4) 715, 757 (2008) [English: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general] (hereinafter: the Hamifkad Haleumi case); HCJ 1661/05 Hof Azza Regional Council v. The Knesset, IsrSC 59 (2) 481(2005) (hereinafter: the Hof Azza Regional Council case).

 

The Boycott Law and its Infringement of Political Freedom of Expression

2.         My colleague Justice Melcer is of the opinion, with which I concur, that the Boycott Law infringes freedom of expression, and that it, therefore, violates the constitutional right to human dignity. However, my colleague believes that “we are not concerned here with an infringement of the nucleus of freedom of expression, even where political speech is concerned” (para. 21 of his opinion). I cannot agree.

3.         Freedom of expression is a constitutional human right. Its strict defense is an inseparable part of the Israeli constitutional tradition. Freedom of expression was granted far-reaching protection even before the enactment of the Basic Laws. It was made clear already then that freedom of expression is a “supreme value”, and that it “constitutes the pre-requisite to the realisation of almost all the other freedoms” (HCJ 73/53 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (2) 871, 878 (1953) [English:  http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior] (hereinafter: the Kol Ha’am case)). It has further been held that it is “the apple of democracy’s eye” (CrimA 255/68 State of Israel v. Ben Moshe, IsrSC 22 (2) 427, 435 (1968)). With the enactment of Basic Law: Human Dignity and Liberty, freedom of expression was established as a constitutional right. A long line of decisions by this Court have established that certain aspects of freedom of expression – including freedom of political expression – are part of the constitutional right to dignity (see, for example: CA 4534/02 Schocken Chain Ltd. v. Herzikowitz, IsrSC 58 (3) 558, 565-566 (2004); HCJ 2557/05 Majority Camp v. Prison Service, IsrSC 62 (1) 200, 215-218 (2006) [English: http://versa.cardozo.yu.edu/opinions/majority-camp-v-israel-police] (hereinafter: the Majority Camp case); PPA 4463/94 Golan v. Prison Service, IsrSC 50 (4) 136, 156-157 (1996); LCA 10520/03 Ben Gvir v. Dankner (published in Nevo) para. 10 per E. Rivilin J. (Nov. 12, 2006) (hereinafter: the Ben Gvir case); the Hamifkad Haleumi case, paras. 22-26 per M. Naor J, at pp. 760-763; Aharon Barak, Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, pp 708-712 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)] (hereinafter: Barak, Human Dignity).

4.         The importance of freedom of expression can be learned from its purpose. In its extensive case law on the subject of freedom of expression, this Court has presented three primary purposes grounding the right (see, for example: Ilana Dayan-Orbach, “The Democratic Model of Freedom of Speech,” 20 Iyunei Mishpat 379-384 (1996) (Hebrew); Aharon Barak, “The Tradition of Freedom of Speech in Israel and its Problems,” in Aharon Barak, Selected Essays, (H. Cohn & I. Zamir, eds.) vol. 1, 531, 535-536 (2000) (Hebrew)).

            The first purpose is the search for truth. Grounding this purpose is the approach by which “sunlight is said to be the best of disinfectants”. Only in a free, spirited, and “sophisticated” marketplace of ideas and opinions allows the truth to overcome lies. John Milton expressed this justification in his famous saying: ““Let her [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” (John Milton, “Areopagitica; A speech for the Liberty of Unlicensed Printing, to the Parliament of England,” quoted by Dorner J. in HCJ 316/03 Bakri v. Israel Film Council, IsrSC 58 (1) 249, 270 (2003) [English: http://versa.cardozo.yu.edu/opinions/bakri-v-israel-film-council] (Hereinafter: the Bakri case); the Kol Ha’am case, p. 877).

            The second purpose of freedom of expression concerns autonomy and individual self-fulfillment. “Without the freedom to be heard and to hear, to write or read, to speak or be silent, the individual’s personality suffers, as a person’s spiritual and intellectual development depends upon the ability to freely shape one’s worldview” HCJ 399/85 MK Rabbi Meir Kahane v. Managing Board of the Israeli Broadcasting Authority, IsrSC 41(3) 255, 274 (1987) (hereinafter: the Kahane case); and see: CA 8954/11 Ploni v. Plonit, (published in Nevo), para. 62 per N. Sohlberg J. (April 24, 2014)). Freedom of expression allows the individual, in the words of Agranat J., “to nurture and develop his ego to the fullest extent possible; to express his opinion on every subject that he regards as vital to him; in short, to state his mind, in order that life may appear to him to be worthwhile” (the Kol Ha’am case, p. 878).

            The third purpose concerns democracy. “The principle of freedom of expression is closely bound up with the democratic process” (the Kol Ha’am case, p. 876, per Agranat J.; and see: HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture, IsrSC 38 (3) 233, 238 (1984) (hereinafter: the Klopfer-Naveh case)). Freedom of expression is a precondition for the free flow of the information relevant to living as a community. Indeed, “elections in a democratic system would be unimaginable without a prior exchange of opinions and mutual persuasion” (the Klopfer-Naveh case, p. 239, per Shamgar P.). “A regime that usurps the right to decide what the citizen should know, will ultimately decide what the citizen should think. There is no greater contradiction than this for a true democracy that is not ‘guided’ from above” (HCJ 243/62 Israel Film Studios v. Levy, IsrSC 16 2407, 2415-2416 (1962)). The exchange of opinions and ideas in the free marketplace of speech is a condition for the possibility of changing the government. It is vital to preventing tyranny of the majority. It makes participation in the democratic process possible, and it is, therefore, fundamental to the political community. The right to freedom of expression ensures the legitimacy of the regime. Moreover, freedom of expression provides a means for “letting off steam” that might otherwise be stored up and vented in undesirable ways for lack of a legitimate avenue for release (see: the Bakri case, p. 262).

5.         These objectives of freedom of expression define its scope and the strength of its defense. Freedom of expression comprises a broad spectrum of speech. It applies to commercial and artistic expression, comprises political speech and news reporting, it extends to lies, tasteless statements, pornography, and even racism. But its wide range is met with differing levels of protection of the particular forms of expression. “A violation of the very heart of the right is not equivalent to a violation at its periphery” (the Hamifkad Haleumi case, pp. 760-761, para. 22, per Naor J.). Thus, as a rule, commercial speech will be afforded less protection than artistic expression. Racist speech will generally receive especially less protection. Political speech stands at the top of the ladder. “Freedom of political expression lies at the heart of the right to freedom of speech” (the Hamifkad Haleumi case, p. 761, para. 23, per Naor J.); and see: HCJ 6226/01 Indor v. Mayor of Jerusalem, IsrSC 57 (2) 157, 164 (2003) (hereinafter: the Indor case); the Kahane case, p. 293).  The protection of political speech, more than any other form of expression, ensures a free exchange of the opinion and positions relevant to our communal life. Freedom of political expression allows the individual to express himself within his community. It allows the individual to advance his views and objectives. It is a precondition to political assembly and association. Freedom of political expression is also “more exposed to political harassment by the regime than any other form of expression”, and therefore its protection is of particular importance (HCJ 6396/96 Zakin v. Mayor of Beer Sheva, IsrSC 289, 303, per Zamir J. (1999)).

6.         And so we arrive at the Law before us.

            The Boycott Law prohibits – in the manner set out therein – “a public call for a boycott” and “committing” to participate in a boycott. In general, a boycott may have various objectives. For example, a boycott may be motivated by economic, consumer or political considerations. The boycott that is addressed by the Law is a political-ideological boycott. The purpose of such a boycott is to “reflect the ethical position of the imposers of the boycott” and “express ideological discontent” (Nili Cohen, “Nili Cohen, “Law, Play, Game - The ‘Merchant of Venice’ and the ‘Breakdown’,” 51 Hapraklit 407, 433-434 (2012) (Hebrew) http://www.hapraklit.co.il/_Uploads/dbsAttachedFiles/Nili_Cohen_Article.pdf) (hereinafter: Nili Cohen, “Law, Play, Game”)). By means of the boycott, the boycotter refrains from supporting and encouraging actions that, in its opinion, are unworthy of its support. In certain senses, the boycott testifies to the “seriousness” of the expression, in that it embodies a readiness to act or refrain from acting. In addition, there are characteristics of a boycott that are not merely declaratory. Boycott is meant to lead change. It advances a practical result. The “tools” of the boycott are economic and social pressure. Boycott is a non-violent means for political change. It is intended to change, lessen or condemn the boycotted conduct.

            A call for a boycott, and a political boycott itself, are consistent with the three primary purposes of freedom of expression. Thus, the call for a boycott contributes its underlying political position to the marketplace of ideas. It allows the boycotting position to vie for its place, attempt to influence other positions and succeed or fail in that attempt. Theresa J. Lee addressed this in her article “Democratizing the Economic Sphere: A Case for the Political Boycott”, 115 W. Va. L. Rev. 531 (2012) (hereinafter: Lee, “Political Boycott”).

'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts. The boycott is precisely a means to persuade others to action, including those being targeted and those inspired to join. This "free trade" in persuasion is why the boycott finds a natural home under the marketplace of ideas theory…

In addition, even when a boycott does not necessarily achieve its ultimate end, it remains a vehicle for forcing the dissemination of an idea. Boycotts make the perhaps otherwise latent dissent visible to a greater number of participants in the marketplace of ideas, highlighting not only their position but also the very existence of the debate [ibid., p. 549].

            In the democratic context, political boycott is a means for achieving political objectives by peaceful means. “Indeed, public boycotting is a tool in the democratic game: it seeks to engender change by non-violent means, and it can be as effective as a legal sanction” (Nili Cohen, ““Law, Play, Game,” p. 433; and see: Lee, “Political Boycott,” pp. 553-556). The political boycott is also a means for self-fulfillment. It allows an individual to express his political views, influence his future, and decide for himself what values will be supported by his resources (see: Lee, “Political Boycott,” pp. 556-558); for further discussion of political boycotts, see: Notes, “Political Boycott Activity and the First Amendment,” 91 Harv. L. Rev. 659 (1977-1978)).

7.         My colleague Justice Melcer is of the opinion that “calls for a boycott against the State of Israel, as defined by the Law, do not serve the classical purpose of freedom of expression” (para. 30 of his opinion). The source of this position is the distinction that my colleague made between the terms “persuade” and “means for coercion”. According to his approach, a call for a boycott is a coercive form of expression, and therefore it should be afforded less protection than that granted other forms of political speech. I do not agree with that position. As I stated, I believe that calling for a boycott is consistent with the objectives of freedom of expression. Indeed, calling for a boycott, like imposing a boycott, comprises coercive characteristics. Calling for a boycott seeks, inter alia, to influence the object of the boycott to change its policy or conduct by inflicting economic, cultural or academic harm. However, that is not its sole purpose. A boycott expresses revulsion for the boycotted conduct. It testifies to a lack of desire to support and finance conduct that the boycotter finds objectionable. These characteristics of boycott justify its protection as a form of expression. True, we should not ignore the coercive elements of boycotting. A boycott can make political discourse superficial. It may put a “price tag” on political or other conduct that is inconsistent with the views of the boycotter. That can result in a “chilling effect” that will remove the boycotted expressions from the marketplace of opinions and ideas. However, as stated, that is not the only characteristic of boycotts. Along with the chilling effect, political boycott also has the potential of enriching the marketplace of opinions. Moreover, even if boycotting harms the boycotted positions, that is insufficient to automatically justify infringing it as a form of expression. The “harm” to the boycotted view as a result of the boycott is imposed by the members of society in the framework of their free activity in the marketplace of ideas. Prohibiting boycotts is not part of the free competition in the marketplace of ideas. As Lee aptly explains in “Political Boycott”:

Claims that boycotts fail to satisfy the values of the marketplace of ideas because they coerce others into not speaking, thus depriving the market of those ideas, must fail. Such claims give the boycott too much credit. Boycotts are only one voice among many; they are a costly form of speech for the speaker and within the market, they can be combated with further speech. As the Court has often made clear, just because one voice is louder does not mean that other voices are being silenced, and even if the danger of drowning out arises, the way to combat it has never been to temper the louder voice… [ibid., p. 549].

            And further on:

While a successful boycott may appear to drown out another position, the remedy is not to silence the boycott but instead for those on the other side to endeavor to make themselves 'louder' [ibid., p. 550].

8.         The decision of the United States Supreme Court in NAACP v. Claiborne Hardware Co., 458 U.S. 886, (1982) (hereinafter: the Claiborne case) reflects this position. In 1966, Afro-American residents of Claiborne County declared a boycott against white businessmen in the county. The purpose of the boycott was to persuade the government to act against racial discrimination and to promote integration. The boycott inflicted financial harm upon the white businessmen, some of whom filed suit against the boycott’s organizers and its supporters. The businessmen won the suit, and 92 of the boycotters were ordered to pay the businessmen damages in a total amount of 1.25 million dollars. The case ultimately reached the Supreme Court of the United States, which reversed the judgment. The Court held that boycotting, organizing a boycott, and supporting it are activities that fall within the compass of protected speech under the First Amendment of the Constitution. In so doing, the Court also held that the fact that the purpose of the boycott was to persuade others to change their views or conduct, and even to coerce them to do so, does not change its character as protected speech. As Justice Sevens wrote:

Petitioners admittedly sought to persuade others to join the boycott through social pressure and the “threat” of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action [ibid., p. 909-910].

And further on:

The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper… Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability [ibid., p. 911].

            And see: Barbara Ellen Cohen, “The Scope of First Amendment Protection for Political Boycotts: Means and Ends in First Amendment Analysis: NAACP v. Claiborne Hardware Co.,” 1984 Wis. L. Rev. 1273 (1984).

9.         The Boycott Law is not directed at any political boycott in general. It treats only of a boycott of a specific type – “a boycott against the State of Israel”. The Law defines this term as “deliberately refraining from economic, cultural or academic ties with another person or body solely because of his connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm (sec. 1 of the Boycott Law). According to its plain meaning, it “grasps” several types of boycotts. The first, self-evident, “type” is a comprehensive boycott against the State of Israel as such. An additional “type” of boycott that is apparently included in the definition is a boycott applying solely to the areas of Judea and Samaria (hereinafter: the Area), even when not ancillary to a boycott of the entire state. Such a boycott would appear to be deemed one that harms an individual or other element solely for its connection to “an area under its control” by the State of Israel. The future of the Area and the settlements located there is the subject of heated political and public debate in Israel. Many publics largely define their political loyalties by their stand on this debate. It would not seem an exaggeration to count the “subject of the territories” as one of the most politically disputed issues in Israel. Indeed, this issue has held a central place in Israeli public discourse for a generation (and compare: Kalman Neuman, Territorial Concessions as an Issue of Religion and State, Policy Paper No. 96, (IDI, 2013) (Hebrew) [http://en.idi.org.il/media/2108337/PP96.pdf]; Yael Hadar, Naomi Himeyn-Raisch, and Anna Knafelman, “Doves and Hawks in Israeli Society: Stances on National Security,” (2008) [http://en.idi.org.il/analysis/articles/doves-and-hawks-in-israeli-societ... Ephraim Yaar & Zev Shavit, eds., Trends in Israeli Society, vol. 2, 1165, 1224 (2003); Menachem Hofnung, Israel - Security Needs vs. the Rule of Law, 282-283 (Nevo: 1991) (Hebrew); Tamir Magal, Neta Oren, Daniel Bar-Tal & Eran Halprin, “Views of the Israeli Occupation by Jews in Israel: Data and Implications,: in Daniel Bar-Tal & Itzhak Schnell, eds., The Impacts of Occupation on Israeli Society (2013) (Hebrew) [http://lib.ruppin.ac.il/multimedia_library/pdf/45558.pdf]; Elisha Efrat, “Return to Partition of the Land of Israel,” in 23 New Directions 78, 81 (2010) (Hebrew); Chaim Gans, “Is There a Historical Right to the Land of Israel?” 24 Tchelet 103, 118 (2006) [English: 27 Azure (2007) http://azure.org.il/article.php?id=32]). And as Justice D. Beinisch so aptly described this in HCJ 7622/02 Zonschein v. Military Advocate General, IsrSC 57 (1) 726 (2002) [English: http://versa.cardozo.yu.edu/opinions/zonstien-v-judge-advocate-general]:

Political conflicts in Israeli society agitate its most sensitive nerves. Israeli society is characterized by its intense ideological conflicts, including conflicts based on reasons of conscience and reasons of religious faith [ibid., p. 735].

            In that case, this Court addressed the lawfulness of the Chief of Staff’s decision not to exempt the Petitioners from military reserve duty in the Area (on this, compare: Chaim Ganz, “Right and Left: Ideological Disobedience in Israel,” 36 Israel L. Rev. 19 (2002)).

            Calling for a boycott in order to express dissatisfaction with the Government’s policy in regard to the Area, to refrain from supporting that policy, or to persuade others to oppose that policy is a form of speech that clearly falls within the scope of political expression, and that is entitled to the full protection that our constitutional regime grants to political speech.

 

The Constitutionality of the Infringement

10.       Even expression that falls within the scope of political expression can be limited by the legislature. Various statutes limit, in one way or another, the voicing of political statements. Many of those laws were surveyed in the opinion of my colleague Justice Melcer (para. 21 of his opinion). That is clear. In spite of its importance, freedom of expression, like other constitutional rights, is not absolute. Other rights and interests may justify its restriction. In order for an infringement of freedom of expression to be constitutional, it must meet the criteria of the Limitation Clause in sec. 8 of Basic Law: Human Dignity and Liberty. As is well known, the Limitation Clause comprises four cumulative tests: the infringement of the constitutional right must be made by a law or by virtue of a law; it must befit the values of the State of Israel as a Jewish and democratic state; it must serve a proper purpose; and it may only infringe the right to an extent no greater than is required. The last condition comprises three subtests, which are: the Rational Connection test, the Least Harmful Means test, and the Proportionality “Stricto Sensu” test.

11.       The application of these criteria differs in accordance with the infringed right. In the case before us, we are concerned with freedom of political expression. I addressed the importance of this right above. Particularly careful, strict review is required in order to justify an infringement of political expression. Justice D. Dorner addressed this in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367 (1997) (hereinafter: the Investment Managers Association case):

As for the test in regard to matching the means to the purpose, the degree of certainty that will be required for matching the means and its effectiveness is influenced by the importance of the right and the reasons that ground it. Where we are concerned with an important right, “near certainty”, perhaps even nearly absolute, that the means will effectively and comprehensively realize its purpose may be required. As opposed to this, where a less important right is concerned, it may be possible to suffice with a “reasonable possibility” for the promotion of the purpose.

As for the test regarding the choice of the means that infringes the right to the minimally required extent, which as noted, is not an absolute test, the choice will be influenced by the infringed right. Where a particularly important, fundamental right is concerned, we will be stricter as to the choice of a means that only minimally infringes it, even if this means choosing a means of significant cost. The rule may be different where a less important right is concerned, whose protection will not require that the state adopt means that may be particularly burdensome.

As for the test in which a balance is struck between the benefit achieved by the purpose and the harm caused by the means for its achievement, that test will be applied – as accepted in the case law that I addressed above, treating of decisions of administrative authorities – in consideration of the nature of the relevant right, the reasons that ground it, and the values and interests harmed in the specific case [ibid., pp. 422-423].

12.       I will already state that, in my opinion, the Boycott Law disproportionately infringes the constitutional right to freedom of expression. This conclusion makes an examination of the other criteria of the Limitation Clause superfluous. In short, I will note that I concur with my colleague Justice Melcer that the Boycott Law befits the values of the State of Israel, and that it is intended to serve a proper purpose. I will address the proper purposes that I believe ground the Law in greater detail in addressing the third subtest of proportionality, when I examine whether the benefit from achieving the purpose justifies the infringement of freedom of political expression. Needless to say, the infringement of the right to freedom of expression by the Law is “by a law” or “by virtue of a law”.

 

Proportionality – Rational Connection

13.       In my view, the Boycott Law meets the first subtest of proportionality – the rational connection test. That test examines whether the means chosen by the Law serve the purposes that the Law is intended to achieve (see, e.g.: Aharon Barak, Proportionality in Law, 373-376 (2010) (hereinafter: Barak, Proportionality in Law)). The purpose of the Law, which I shall address at greater length below, is the prevention of harm to the State of Israel by means of boycott. That purpose is clearly promoted by the Law, the provisions of which are intended to impede the conduct of those calling for a boycott against the State of Israel, and to encourage them to refrain from doing so. On this point, we should note that some of the Petitioners pointed to various statements made by some persons or others in the course of the Knesset deliberations prior to the completion of the legislative process. From these statements, it would seem that those persons were of the opinion that the Law would not promote its intended purpose. An example of such a statement is the position taken by the representative of the Ministry of Foreign Affairs at a meeting of the Constitution, Law and Justice Committee (hereinafter: the Constitution Committee) on Feb. 15, 2011, according to which: “Not only does this bill not help in the fight against the international boycott, it may even harm it”. Another example is the position expressed by the representative of the legal department of the Ministry of Foreign Affairs in the Constitution Committee on June 27, 2011, according to which: “This bill, if passed, may yield the opposite result of its purpose, and increase the boycott phenomenon”. I do not think that we can learn from these statements that there is no rational connection between the provisions of the Law and its purpose. First, the purpose of the Boycott Law is not limited to preventing harm to the State of Israel by an international boycott, but is also intended to apply, perhaps primarily, to “homegrown” boycotts. Moreover, other professional positions were expressed beside those of the representatives of the Ministry of Foreign Affairs. Indeed, as my colleague Justice Melcer pointed out, the fact that some of the Petitioners reported that they, themselves, had been influenced in practice by the Law, and had ceased to call for boycotting products from the Area after its enactment, testifies to a rational connection between the provisions of the Law and it objective of preventing boycotts.

 

Proportionality – the Least Harmful Means

14.       I am of the opinion that the Boycott Law, in all its parts, also meets the requirements of the second subtest of proportionality – the least harmful means test (also referred to as the “necessity test”).  This second subtest examines whether the legislative means adopted least infringes the constitutional right from among the possible means that would realize the proper purpose of the Law. President Barak addressed this test in the Investment Managers Association case:

The legislative means can be compared to a ladder that the legislature climbs in order to reach the legislative purpose. The legislature must stop at that rung at which the legislative purpose is achieved, and that least harms the human right. The legislature must begin at the least harmful “rung”, and slowly climb until it reaches that rung that achieves the proper purpose without infringing the human right more than is required [ibid., p. 385].

            This subtest is grounded upon two premises. The first examines whether there is a hypothetical alternative that can achieve the “same level” of the purpose grounding the law. “However, if a hypothetical alternative means that equally advances the law’s purpose does not exist, or if this alternative means exists but its limitation of the constitutional right is no less than that of the limiting law, then we can conclude that the limiting law itself is necessary. The necessity test is met” (Barak, Proportionality in Law, p. 399) [English: p. 323]. “The second element of the necessity test examines the question whether the hypothetical alternative limits the constitutional right to a lesser extent than the limiting law” (Barak, Proportionality in Law, p. 405) [English: p. 326]. It has been held in this regard that “the means chosen must be of a kind whose infringement of the human right is moderate, but not necessarily the least possibly harmful in the range of possibilities” (HCJ 6304/09 Lahav – Bureau of Organizations of Self-Employed and Businesses in Israel v. Attorney General, (published in Nevo), para. 115, per A. Procaccia J.); and see: HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57 (1) 235, 280 (2002); the Investment Managers Association case, p. 420).

15.       It would appear that the Boycott Law meets these criteria. The Petitioners did not propose alternative means that might equally achieve the purpose – preventing harm to the State of Israel by means of a boycott – while harming freedom of political expression to a lesser degree. Thus, some of the Petitioners suggested that the state treasury compensate anyone who is harmed by a boycott against the state as a less harmful means. In my view, such a measure cannot yield the same measure of protection to the purpose. That suggested means, as opposed to the arrangements in the Law, could not be expected to deter those calling for a boycott from continuing to do so. Therefore, it cannot be expected to result in the same chilling effect as the Boycott Law. In practice, in this case, the Law’s infringement of rights and its effectiveness are closely tied. The harm that the Law causes to those who call for a boycott, which is expressed in civil and administrative sanctions, is the means that the legislature chose to achieve the Law’s purpose. Lessening the harm to those who call for a boycott would inevitably result in a lessening of the chilling effect, and would thus render the Law less effective in achieving its purpose. Additionally, compensating those private actors harmed by the boycott would not result in fully attaining the Law’s purpose. The Law is not solely meant to prevent harm to citizens and private actors. The boycott phenomenon harms the public in its entirety. Imposing the costs of the boycott on the public pocket, as the Petitioners suggest, would indeed lessen the harm to private actors, but would not lessen the public harm. In practice, the public harm, in turn, would translate into harm to the pockets of the citizens of the state. It is elementary that “harm to the public pocket … harms the public in its entirety” (CFH 3993/07 Jerusalem Assessment Officer 3 v. Ikafood Ltd., (published in Nevo), para 10, per E. Arbel J. (July 7, 2011)). In this regard, my colleague Justice Rubinstein aptly wrote in  AAA 7335/10 Rehabilitation Officer, Ministry of Defense v. Lupo, (published in Nevo) (Dec. 29, 2013), in regard to the importance of public resources:

It is elementary that the public pocket is not infinitely deep. Slicing and distributing the budgetary pie is like a blanket that is too short to cover the entire bed in view of the responsibilities and challenges facing the state in the fields of education, security, public welfare, etc. [ibid., para. 27].

            Another of the Plaintiffs’ claims is that there are existing legal devices that would suffice to achieve the Law’s purpose without infringing constitutional rights. This argument is not persuasive. Even if existing legal apparatuses could make it possible to contend with the boycott phenomenon to some extent, they cannot realize the said purpose to a similar extent. The fact that the Petitioners think that the existing apparatuses are less harmful to those calling for boycotts demonstrates this problem and shows that even according to the Plaintiffs’ approach, the chilling effect created by the existing law is not equivalent to that created by the Boycott Law.

16.       My colleague Justice Melcer takes the view that sec. 2(c) of the Law does not meet the criterion of the least harmful means. I, too, believe that this section unjustifiably infringes freedom of political expression and must be struck down. However, in my opinion, the reason for this is a lack of proportionality “stricto sensu”, and not a failure to meet the least harmful means test. It should be emphasized that the conclusion that there are no alternative means to be found that would achieve the Law’s purpose to the same “extent” while posing a lesser threat to freedom of political expression, does not mean that the Law is constitutional. However, “the same is true in those cases where the alternative, less limiting means are available, but the advancement of the law’s purpose is lesser than that of the limiting law. Here, too, the necessity test is of no assistance to the limited right” (Barak, Proportionality in Law, p. 415 [English: p. 338]). In such a case, the focus of constitutional review moves to the third subtest. As Barak writes in his book Proportionality in Law:

Judges should be honest with themselves. They must speak the truth and the truth is that in many cases the judge reveals that an alternative means that limits the right in question to a lesser extent does exist; but upon further examination it turn out that these means may not achieve the law’s purpose in full, or that in order to achieve those purposes in full the state has to change its national priorities or limit other rights. In those cases, the judge should rule that the law is necessary, and that the less limiting means cannot achieve the intended legislative purpose. Then, the judge must proceed to the next stage of the examination – and determine the constitutionality of the law within the framework of proportionality stricto sensu [ibid., pp. 416-417 [English: pp. 338-339]].

 

            We will now turn to the application of this subtest.

 

Proportionality – Proportionality “Stricto Sensu”

17.       The third subtest – that of proportionality “stricto sensu” – is a balancing test. “This is the most important of proportionality’s tests” (Barak, Proportionality in Law, p. 419 [English: p. 340]). It examines the proportionality between the social benefit inherent in achieving the Law’s purpose and the harm that may be caused to the protected right – in this case, freedom of political expression – as a result of the Law’s application. It focuses upon the marginal addition – positive and negative – of the examined law. This subtest addresses the “comparison between the proper purpose before and after the enactment of the law, and the situation of the human right before and after the enactment of the law” (Barak, Proportionality in Law, p. 433). Conducting this comparison requires an examination of the extent of the harm to the constitutional right, on the one hand, and the social benefit from achieving the legislative purpose, on the other. After placing the harm and benefit on the scales, they must be balanced, and it must be decided thereby which is to be afforded the greater weight. As noted, the balancing equation changes in accordance with the nature of the infringed right. In the matter before us, we are concerned with a “heavy” right – freedom of political expression. We are thus concerned with the “Kol Ha’am equation”, which requires a “near certainty” of real harm to an important public interest in order to justify infringing freedom of expression (the Kol Ha’am case, pp. 893-887; and see: the Bakri case, p. 263; Barak, Proportionality in Law, p. 631).

 

Proportionality “Stricto Sensu” – The Infringement of the Right

18.       The Boycott Law clearly and directly infringes the right to freedom of political expression. It establishes civil and administrative sanctions for political statements. The right to freedom of expression indeed includes the right not to be harmed by its realization (compare: the Majority Camp case, pp. 218-219). In the instant case, we are concerned with a particularly severe infringement, inasmuch as it is premised upon the content of the speech (compare the American rule of thumb, by which “[An] act would be content based if it required 'enforcement authorities' to 'examine the content of the message that is conveyed to determine whether' a violation has occurred” (McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014) per Roberts CJ). The Boycott Law does not prohibit every type of call for a boycott. For example, it does not prohibit a call for a boycott of a person by reason of his association with any political position, whatever it may be. It also does not prohibit calls for boycotting a person by reason of his place of residence, wherever it may be. Its effect is limited to calling for a boycott against a person by reason of his connection to the State of Israel or the Area. In the Israeli political reality, calls for boycotting the State of Israel, and primarily calls for boycotting the Area, are voiced by only one side of the political map. A content-based limitation of freedom of expression, especially freedom of political expression, is particularly suspect. It comprises a breach of the neutrality that the state should exercise when acting as a “regulator” of the marketplace of ideas. Such intervention in the “rules of the game” endangers the marketplace of ideas and the free flow of information. It violates the democratic process. It undermines the protection that freedom of expression provides against tyranny of the majority. Discrimination also inheres in such a breach of state neutrality. It reflects a measure of preference for one opinion as against another. Such a preference harms the ability of those who hold a “silenced” political position” to compete on an even playing field for the place of their view in public opinion (and compare the Indor case, which struck down a decision by the Jerusalem Municipality to prohibit the publication of an advertisement due to its content).

19.       The rejection of content-based restrictions on freedom of expression while creating viewpoint discrimination, is a fundamental principle of American constitutional law. The principle has two main purposes. The first is the prevention of governmental action motivated by extraneous considerations or improper justifications. The second is the prevention of skewing the marketplace of ideas (see: Cass R. Sunstein, “Half-Truths of the First Amendment,” 1993 U. Chi. Legal. F. 25, 26-27 (1993) (hereinafter: Sunstein); and see the discussion of these purposes in Amnon Reichman, "The Voice of America in Hebrew – The US Influence on Israeli Freedom of Expression Doctrines," in Michael Birnhack, ed., Quiet, Someone is Talking: The Legal Culture of Free Speech, 185, 192-193 (2006) (Hebrew) (hereinafter: Reichman); and see: Elena Kagan, “The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion,” 1992 Sup. Ct. Rev. 29 (1992)). As Sunstein explains:

The notion that the First Amendment bans skewing effects on public deliberation is connected with the idea that government may not distort the deliberative process by erasing one side of a debate. Above all, government may not distort the deliberative process by insulating itself from criticism. The very freedom of the democratic process depends on forbidding that form of self-insulation [ibid., p. 27].

            Indeed, in a long line of decisions, the United States Supreme Court held that content-based prohibition of expression is incompatible with the First Amendment of the Constitution. Thus, for example, R.A.V. v. St. Paul, 505 U.S. 377 (1992) concerned the review of an ordinance that prohibited the placing of symbols – including a burning cross or a swastika – on private or public property in a manner that arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender. The Court held that the ordinance was incompatible with the right to freedom of speech. The Court found that the statute prohibited only “fighting words” that could insult or provoke violence, and it is, therefore, possible that the government could comprehensively prohibit such expressions. However, the government is not permitted to prohibit only certain expressions of this type while permitting others. In this case, expressions arousing anger or resentment on the basis of race were prohibited, while, for example, expressions arousing anger or resentment on the basis of, for example, political views or sexual orientation were not prohibited. As Justice Scalia explained:

[T]he ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas -- to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality – are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects… [ibid., p.391].

            The Supreme Court further held that the problem with the ordinance was, inter alia, that it prohibited the use of certain expressions – “fighting words” – only on one side of the political divide. Thus, one side is permitted to “fight freestyle” while the other side must show good sportsmanship, and fight by the Marquis of Queensberry rules. Justice Scalia wrote:

In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words – odious racial epithets, for example – would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or gender – aspersions upon a person's mother, for example – would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers' opponents. One could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules [ibid., p. 391-392].

            These words are also appropriate to the matter before us. The Boycott Law does not prohibit all forms of boycotts. It only prohibits a specific type of boycott that expresses a particular political view. The law thereby creates viewpoint discrimination. Such discrimination grants an advantage to one side of the political divide, while forcing only one of the sides to act according to the Marquis of Queensberry rules in the political arena. Such influence is particularly serious when the view protected by the law is, in effect, the view of the government. In this regard, the words of Justice Kennedy (who was in the minority in regard to the result in the case) in Hill v. Colorado, 530 U.S. 703 (2000) are appropriate:

Laws punishing speech which protests the lawfulness or morality of the government's own policy are the essence of the tyrannical power the First Amendment guards against [ibid., p. 787].

20.       My colleague Justice Melcer is of the opinion that the administrative sanction – preventing participation in a tender and restrictions on obtaining benefits – constitute merely “second order” infringements of freedom of expression. Indeed, as my colleague notes, the state enjoys broad discretion in deciding with whom to transact and which entities to support. Private entities do not enjoy a vested right to government support (see: HCJ 1438/98 Masorti Movement v. Minister of Religious Affairs, 53 (5) 337, 384 (1999) (hereinafter: the Masorti Movement case); HCJ 5364/05 Shavei Shomron Yeshiva v. Minister of Education (published in Nevo) (Nov. 16, 2005) (hereinafter: the Shavei Shomron case); HCJ 11020/05 Panim For Jewish Renaissance v. Minister of Education, Culture and Sport (published in Nevo) (July 16, 2006) para. 10 (hereinafter: the Jewish Renaissance case)). However, once the state has decided to support a certain type of activity, it must do so in accordance with the rules of administrative law. In doing so, it must employ “relevant considerations grounded upon considerations that relate to the substance of the supported activity, as distinct from the entity receiving the support” (HCJ 11585/05 Israel Movement for Progressive Judaism v.   Ministry of Immigrant Absorption (published in Nevo) May 19, 2009) para. 11) (hereinafter: the Movement for Progressive Judaism case)). It must distribute the support monies “among public institutions of the same type on the basis of equal criteria” (Sec. 3A of the Budget Foundations Law, 5745-1985). An authority is not allowed to distinguish among entities that are substantively members of the same “equality group” in a discriminatory manner, and may not make distinctions that violate protected fundamental rights. Justice I. Amit addressed these principles in AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality (published in Nevo) (Sept. 14, 2010) (hereinafter: the Open House case) [English translation: http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality]:

As a rule, no entity has a vested right in the receipt of support from the state ... However, once an authority has declared its intent to provide support and establishes criteria under which institutions will receive support, these criteria must comport with the principle of equality... The same principle applies to both support in general and to any specific benefit [ibid., para. 34].

            Justice Amit further stated in the Open House case that in distributing financial support or subsidies “require the administrative authorities to exercise their powers in a manner that protects the values protected by said Basic Laws” (ibid., para 35).

21.       These principles are a common thread in a long line of decisions treating of criteria for granting support (see, e.g: HCJ 59/88 MK Tzaban v. Minister of Finance, IsrSC 42 (4) 705, 706-707 (1989); HCJ 2196/00 Israel Camerata Jerusalem Orchestra v. Minister of Science, Culture and Sport, IsrSC 58 (4) 807, 814-816 (2004); HCJ 3354/12 Zankol Ltd. v. Government of Israel (published in Nevo) (Aug. 18, 2014) para. 15; HCJ 2021/11 Vaaknin v. Minister of Finance (published in Nevo) (June 6, 2013) para. 16). Thus, for example, the Movement for Progressive Judaism case addressed the validity of the rules for the distribution of support to conversion institutes. Those rules established that only Orthodox conversion institutes would be eligible for support. This Court held that the state is not required to support private conversion institutions. However, having decided to support such institutions, it must distribute the funds on the basis of relevant considerations, and without creating distinctions that violate fundamental rights. Therefore, it was held that the state was not permitted to discriminate against the Progressive Movement’s private conversion institutes on the basis of their religious views. It was held that such a distinction violated the right of the Reform conversion institutes to freedom of religion. As President D. Beinisch wrote:

It would appear undeniable that, in practice, the state does not wish to support the Petitioner because it has a religious outlook that is different from the one the state chooses to advance.  That is an irrelevant criterion for funding, on its face.  Furthermore, by doing so, the government shows preference for one religious outlook over another, consequently causing inappropriate damage in the proper "free market" of religious views that should be preserved.  This leads to the conclusion that the criteria for funding stand in contradiction to the state's duty to protect the religious freedom of the Petitioner, and discriminate on the basis of its religious outlook [ibid., para. 16].

            The above also applies to the matter before us. Just as the state may not discriminate among entities on the basis of their religious beliefs, so it cannot discriminate among them on the basis of their political statements. Both the first form of discrimination and the second form of discrimination constitute a violation of a constitutional right. Both harm the “free marketplace” of ideas. In the absence of relevant justification related to the nature of the supported activity, the state’s duty to maintain neutrality in exercising its regulatory authority does not permit it to distinguish among entities seeking support due to the manner by which they realize their right to freedom of expression. It must be emphasized that the state may support one type of activity but not another, It may promote its policy, inter alia, by providing financial support for matters that are the subjects of public debate. But, having decided to support an activity – no matter how hotly debated – the state may not distinguish among entities involved in such activity on the basis of considerations that are not relevant to the purpose of the support and that might violate constitutional rights. Thus, for example, the state may allocate funds in support of Torah study institutes, a matter that may be the subject of public debate (see: the Shavei Shomron case; the Masorti Movement case), but it may not distinguish among institutions operating in that area without relevant justification related to the purpose of the support. It cannot, for example, distinguish between two otherwise identical institutions, even in terms of their religious merits, simply because one of the institutions publicly expresses support for the political views of the ruling party or of a coalition partner, while the other does not.

22.       An example of this distinction can be found in Agency for International Development. v. Alliance for Open Society International, Inc., 133 S. Ct. 2321 (2013). In that decision, the United States Supreme Court addressed a law that provided generous federal grants to private agencies working to fight the spread of the HIV virus and AIDS. The law required that in order to receive the funding, the supported agency must adopt a policy explicitly opposing prostitution. The United States Supreme Court held that the restriction violated the constitutional right to free speech. It held that, as a rule, the fact that activity does not receive funding does not violate the rights of an entity that does not receive support. However, in order for a restriction related to the applicant’s views to be valid, it must be relevant to the funding program, and must be related to the funded activity itself. A restriction that lies “outside the contours” of the program in a manner that “leverages” the grant in order to interfere in the marketplace of ideas may not stand up to constitutional review. As Chief Justice Roberts wrote:

[T]he relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program – those that specify the activities Congress wants to subsidize – and conditions that seek to leverage funding to regulate speech outside the contours of the program itself [ibid., p. 2328].

            The Court further held that the said restriction conditioning the grant upon adopting the government’s position on prostitution did not meet the tests of constitutionality. It was held that such a restriction was not relevant to the definition of the nature of the supported activity – in this case, the fight against AIDS/HIV – and was intended to influence those receiving the funding in a manner unrelated to that fight. As Chief Justice Roberts explains:

By demanding that funding recipients adopt – as their own – the Government's view on an issue of public concern, the condition by its very nature affects “protected conduct outside the scope of the federally funded program”… A recipient cannot avow the belief dictated by the Policy Requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime. By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient [ibid., p.2330].      

            That is consistent with the view of this Court in the cases cited above. In my opinion, they also serve to show that the Law’s administrative sanction substantially violates freedom of political expression. In sec. 4, the Boycott Law authorizes the Minister of Finance to establish that a person who publishes a call for a boycott against the State of Israel will not receive various governmental benefits. The Law does not limit its scope to those activities and forms of support that are relevant to the boycott phenomenon or to promoting the international standing of the State of Israel. The general authorization that it grants for denying support to any entity that calls for imposing a boycott against the State of Israel, and primarily, to any entity that calls for the imposing of a boycott against a person by reason of his connection to the Area, permits a priori consideration of the political views of the funded entity, divorced of any connection to the purpose of the actual grant. This problem can be demonstrated by means of sec. 4(a)(2) of the Boycott Law. This section authorizes the Minister of Finance, with the consent of the Minister of Culture and Sports, to decide that anyone calling for a boycott against the State of Israel will not be entitled to receive funds granted under sec. 9 of the Regulation of Sports Betting Law, 5727-1967 (hereinafter: the Regulation of Sports Betting Law). Section 9 of the Regulation of Sports Betting Law establishes that monies distributed thereunder be used “to promote and develop physical culture, physical education, and sports in Israel”. The subsections of sec. 9(b1) of that law itemize the particular details of that purpose, establishing that grant funds be used, inter alia, to support “the basic infrastructures of sports”; “sports associations and clubs”; “women’s sports and sports in areas of national priority”; and to support “popular amateur sports”. The declared political view of a funded entity is a consideration that deviates from the above criteria. The fact that a particular entity calls, for example, for a boycott of certain products produced in the Area is irrelevant to its contribution “to promote and develop physical culture, physical education, and sports in Israel”. It is a consideration that concerns the funded entity and not the nature of its funded activities. Taking account of that consideration in the context of the Regulation of Sports Betting Law violates the funded entity’s freedom of expression and forces it to refrain from realizing its constitutional rights in areas that are unconnected to its funded activities. As earlier noted, taking that consideration into account may even lead to discrimination against those who call for a boycott against the State of Israel or the Area as opposed to those that hold other political views, even if they choose to express those views by means of calling for imposing a boycott. This situation can be compared, for example, to denying benefits to entities that have a particular religious character.

23.       It is fitting in this context to draw a distinction between calls for a boycott against the State of Israel and calls for a boycott against the Area. The question of Israeli control over the Area is a subject of heated political debate (see para. 9 above, and the references cited there). Calling for a boycott against the Area is “within” the Israeli political debate, and is not comparable to calls for a boycott of the entire state. Therefore, one might be of the opinion that while the consideration of preventing a boycott of the Area is irrelevant to the purposes of some of the types of funding mentioned in the Boycott Law, the consideration of preventing a boycott of the State of Israel might be deemed relevant to such funding. That relevance is grounded upon the general principle that a democratic state may defend itself against those who seek to do it harm. Indeed, in the past, this Court has recognized the authority of administrative authorities to weigh general public considerations, even when such considerations are not directly connected to the exercised authority. Thus, for example, in HCJ 612/81 Shabo v. Minister of Finance, IsrSC 36 (4) 296, 301 (1982), the Court held that the Director of Customs and Excise may weigh road-safety concerns as “general public considerations”. In AAA 8840/09 Bauer v. National Planning and Building Board Appeals Subcommittee (published in Nevo) (Sept. 11, 2014) para. 13 per H. Melcer J., it was held that planning boards could take account of considerations of harming religious sentiments as a “general consideration”. It has also been held that planning authorities may weigh general considerations “of protection of the rule of law and deterrence of criminal behavior” (AAA 9057/09 Inger v. Hashmura Ltd. (published in Nevo) (Oct. 20, 2010) per U. Vogelman J.), and that in declaring a particular phenomenon to be a “natural disaster”, the Minister of Agriculture may weigh, as a “general consideration”, the financial burden on the state treasury (HCJ 3627/92 Israel Fruit Growers Association Ltd. v. Government of Israel, IsrSC 47 (3) 387, 391 (1993)). In the instant case, no significant question of authority arises, inasmuch as the consideration of preventing boycotts is explicit in the Boycott Law. However, by analogy to the above decisions, one might take the view that the consideration of preventing a boycott against the State of Israel may be a general consideration that would justify withholding governmental support from those who frontally oppose the state. That general consideration is not extraneous to any provision authorizing administrative agencies to grant support, inasmuch as it derives from the general principle that permits the state to refrain from directly supporting those who oppose it.

24.       My colleague Justice Melcer is of the opinion that the administrative sanctions in the Boycott Law are consistent with “the power of the state to deny benefits from those who use them against the state” (para. 45 of his opinion). My colleague does not distinguish in this regard between a boycott against the state and a boycott against the Area. He basis that position on HCJ 10104/04 Peace Now – Shaal Educational Enterprises v. Ruth Yosef, Supervisor of Jewish Settlement in Judea and Samaria, IsrSC 61 (2) 93 (2006) (hereinafter: the Peace Now case), which addressed the question of whether a local council in Judea and Samaria could use its budget in order to oppose the implementation of the Disengagement Plan. The opinion of the Court was divided in that case. Deputy President Cheshin, who was in the minority in this matter, was of the opinion that local councils, as statutory bodies, were not authorized to act against the Disengagement Plan, inasmuch as, in his opinion, that plan would not directly affect the municipal welfare of the residents of the local councils. Justice Cheshin further held that even if the local councils were authorized to do so, they could not use state funding for that purpose. Justice Cheshin held that a local council’s use of state funds in order to oppose governmental policy “is inconsistent with the fairness doctrine and the principles of good government”. In doing so, Justice Cheshin adopted the view of Justice D. Dorner in HCJ 2838/95 Greenberg v. Katzrin Local Council, IsrSC 53 (1) 1, 23 (1997) (see the Peace Now case, p. 186, para. 39, per M. Cheshin DP), in which Justice Dorner noted that “indeed, the possibility of protesting against the Government’s policy is vital to a democratic state, but it is not within the scope of authority of local councils”. Thus, Justice Cheshin’s opinion in the Peace Now case was based upon the fact that the authorities that were the subject of the opinion were statutory bodies that are subject to the principle of administrative legality. That is the general context of the decision, which primarily focused upon the question of authority. The opinion of Justice D. Beinisch in the Peace Now case clarifies in this regard:

In my view, we must distinguish between the clear interests of the residents in regard to their continued residence and life in the area of the local council and the interest of the local council in this regard. A decision to dissolve the local council may be of decisive importance in the lives of its residents. They may, of course, adopt every lawful democratic means at their disposal to fight the Government’s decision in regard to the local council. However, the local council itself was established in order to realize the purposes that inhere in the powers granted to it by law, and therefore, its continued existence as a local council is not, in my view, an independent purpose [ibid., p. 200, para. 3, per D. Beinisch J].

            Such reasoning is not relevant to private entities, and they – and not administrative agencies – are the objects of the Boycott Law. In regard to private entities, the legality principle applies in reverse (and cf: LCrimA 10141/09 Ben Haim v. State of Israel (published in Nevo) (March 6, 2012) para. 3 of my opinion). Individuals in a society, as opposed to local councils, are not part of the government. Their opposition to its policies does not violate the rules of good governance. It does not give rise to the problem inherent in an action of an organ against the body to which it belongs. Moreover, as opposed to a local council, individuals enjoy the constitutional right to freedom of expression in its full scope. While the role of governmental agencies is, in the sphere of their authority, to ensure the freedom of speech to the members of the society (sec. 11 of Basic Law: Human Dignity and Liberty), the members of that society are the subjects of that right, not its defenders. Therefore, even if it is possible to countenance a certain limitation upon funding those who call for a boycott against the State of Israel, that restriction cannot be based upon the reasoning of the Peace Now case. That is not to say that it would not be proper to recognize a general principle that, in certain cases,  would justify refraining from granting support to those who call for action against the supporting body – in this case, the state. Where a boycott against the State of Israel is concerned, such a justification may be derived from the principle of defensive democracy, which I shall address presently. However, inasmuch as the Boycott Law is directed at private entities, and because the Law substantially infringes freedom of political expression, that infringement must pass the tests of the Limitation Clause and be justified by a substantial interest in preventing nearly certain, substantial harm to an important public interest.

25.       One might further add that the tortious and administrative sanctions of the Law, which impede those who call for a boycott against the State of Israel, and particularly those who call for a boycott against the Area, are inconsistent with the principle of pluralism. This principle, which has been recognized in the case-law of this Court as an expression of the principle of equality (the Progressive Judaism case, para. 17), supports granting a voice to the entire spectrum of views and positions of society. Pluralism is tightly bound to freedom of expression. Without freedom of expression, there can be no pluralism. Without granting the possibility of expressing different opinions, including extreme positions that are not at the heart of the consensus, pluralism and the democratic process suffer. In this regard, the words of Justice I. Zamir in the Masorti Movement case are apt:

In a democratic society, different groups among the public, including spurned minorities, have the right to express themselves in the fields of culture, religion and tradition, each in its own way, and each according to its own beliefs. Moreover, it is advantageous to society that there be a variety of beliefs, lifestyles and institutions.  Variety enriches. It expresses vitality; it contributes to the improvement of life; it gives practical meaning to freedom. Freedom is choice. Without the possibility of choice between alternative paths, the freedom to choose one’s path is mere rhetoric. This is the heart of pluralism, which is a vital, central element of democratic society not only in politics, but also in culture and religion: a variety of paths and the possibility to choose among them [ibid., pp. 375-376].

            And see Justice E. Arbel in the Jewish Renaissance case:

The assumption is that pluralism is a basic, vital element of proper democratic life, because it is variety that expresses democracy in practice. A democratic state respects all of its streams, views and differences, grants them the space to live and thrive, and even supports them equally. A democratic society cannot merely suffice in providing the possibility for allowing different streams to exist; it must grant equal financial support to all of them. This does not mean that the state must support any particular activity. But once the state has decided to support a certain activity, it cannot discriminate against a particular group that performs that activity simply because of its identification with a particular stream [ibid., para. 90].

26.       Additionally, I would note that, in my opinion, no analogy can be drawn in this matter fron sec. 3B of the Mandatory Tenders Law, 5752-1992, to which my colleague Justice Melcer referred. That provision authorizes the Government to prevent governmental agencies from transacting with “a foreign state” or “a foreign supplier” “for reasons of foreign policy”. As opposed to that provision, the Boycott Law is not limited to reasons of foreign policy. It also applies, and perhaps primarily applies, to the residents and citizens of the state. It acts to prevent boycotting of the State of Israel, as well as boycotting of the Area. Of course, in regard to the residents and citizens of the state – who are members of Israeli political society and who enjoy the full scope of the constitutional right to freedom of expression – a significantly more substantial justification is required than that needed to categorically restrict the possibility of certain foreign actors to participate in tenders (and in regard to the consideration of a person being a foreigner, cf., for example: HCJ 5627/02 Saif v. Government Press Office, IsrSC 58 (5) 70, 75 (2004) [English trans: http://versa.cardozo.yu.edu/opinions/saif-v-government-press-office]; and on the different treatment due to an enemy detained by the state as opposed to an enemy operating from a foreign state: CFH 5698/11 State of Israel v. Dirani (published in Nevo) (Jan. 15, 2015)).

27.       We thus see that the Boycott Law prohibits the voicing of statements based on their content. It does so by means of ex post harm to a person expressing himself in a manner prohibited by the Law, by imposing civil and “administrative” sanctions. Along with this, the Law also comprises an ex ante harm that is expressed in the deterrent, chilling effect created by its provisions. Freedom of expression can, of course, be infringed by restricting it in advance. That is the case, for example, with censorship (and cf., for example: HCJ 4804/94 Station Film Co. Ltd. v. Film Review Board, IsrSC 50 (5) 661 (1997) [English trans: http://versa.cardozo.yu.edu/opinions/station-film-co-v-film-review-board]; the Bakri case), when holding a demonstration is prohibited (see, e.g: HCJ 153/83 Levi v. Commander of the Southern Police District, IsrSC 38 (2) 393 (1984)), when posting advertisements is prohibited (e.g: the Indor case, p. 164), or when voicing statements in any other way is prohibited (cf., for example: HCJ 2194/06 Shinui - The Center Party v. Chairman of the Central Elections Committee (published in Nevo) (June 28, 2006); the Mifkad Haleumi case; HCJ 7192/08 Hamateh Lehatzalat Ha’am Veha’aretz v. Second Authority for Television and Radio (Oct. 10, 2009)). It is customarily said that prior restraint of speech has a “chilling effect” on freedom of expression. However, freedom of expression can be indirectly harmed by imposing post facto burdens on the speaker or deterring expression. Such deterrence may cause those who might otherwise express themselves in a particular way to refrain from doing so in fear of being harmed. In this manner, potential speakers are harmed, the marketplace of ideas is impoverished, and democracy suffers. Justice A. Barak addressed the distinction between prior restraint of freedom of expression and ex post burdening of the speaker in HCJ 806/88 Universal City Studios Inc. v. Film and Theater Review Board, IsrSC 43 (2) 22 (1989):

The restriction of freedom of expression takes various forms. The most severe restrictions are those which prevent the expression in advance. An a priori ban prevents publication. The damage caused to freedom of expression is immediate. A less severe restriction is the criminal or civil liability of the person uttering the expression. The expression sees the light of day, but the person uttering the expression bears the responsibility “post-facto”. If the a priori prohibition “freezes” the expression, then after-the-fact responsibility “chills” it… [ibid., p. 35].

            The chilling effect’s infringement of freedom of expression has been recognized in the decisions of this Court. For example, it was held that a chilling effect upon freedom of expression may be relevant to establishing the extent of liability under the Prohibition of Defamation Law, 5725–1965 (hereinafter: the Prohibition of Defamation Law) and the application of the defenses that it provides, and may affect the interpretation of the provisions of the law (see, in regard to the defenses under that law, e.g., LCA 3614/97 Avi Yitzchak, Adv. v. Israel News Co. Ltd., IsrSC 53 (1) 62, 71-72 (1998); LCA 1104/07 Advocate Hir v. Advocate Gil, IsrSC 63 (2) 115, 517-518 (2009); CFH 2121/12 Ploni v. Dr. Dayan Urbach (pubished in Nevo) (Sept. 18, 2014) paras. 38, 50, 55, 78 and 83 per A. Grunis P.) (hereinafter: the Dayan case); the Ben Gvir case, para. 33, per E. Rivlin J. (dissenting). On the interpretation of sec. 4 of the Prohibition of Defamation Law, see: CA 8345/08 Ben Natan, Adv. v. Bakri (published in Nevo) (July 27, 2011), paras. 45-54 of my opinion, and para. 8 of the opinion of I. Amit J.). In regard to calculating the amount of damages, see: CA 89/04 Dr. Nudelman v. Scharansky (pubished in Nevo) (Aug. 4, 2008) para. 61; CA 5845/05 Hoter-Yishai v. Gilat (publlished in Nevo) (Sept. 20, 2007) per E. Rivlin DP (dissenting on the matter of damages)). Also, in his dissent in HCJ 6706/14 MK Zoabi v. Knesset Ethics Committee (published in Nevo) (Feb. 10, 2015) para. 15, (hereinafter: the Zoabi case), S. Joubran J. expressed his opinion that in a disciplinary hearing of a Knesset member for statements made by that member, the Ethics Committee must consider the chilling effect that may result from its decision. The minority in CrimFH 7383/08 Ungerfeld v. State of Israel (published in Nevo) (July 11, 2011) para. 29 (hereinafter: the Ungerfeld case), expressed the view that the possibility of a chilling effect is a relevant consideration in interpreting the offense of insulting a public servant under sec. 288 of the Penal Law, 5737-1977. In addressing the danger of a chilling effect on political expression as a result of imposing sanctions on a speaker, Deputy President E. Rivlin aptly wrote (concerning criminal sanctions in the Ungerfeld case):

Criticism directed against governmental policy, even if expressed before a public servant, is at the heart of freedom of expression. Its contribution to democracy, to enriching the marketplace of ideas, to the search for truth, and to the advancement of the principle of individual self-fulfillment is significant and central. It is also important to the very ensuring of the proper and appropriate functioning of government. A chilling effect upon criticism of the government would be destructive to the democratic system [ibid., para 29, per E. Rivlin DP].

28.       The chilling-effect doctrine has also earned a place in American law. In a long line of decisions, the United States Supreme Court recognized the possibility of violating freedom of expression through the creating of a chilling effect (see, e.g: Frederick Schauer, “Fear, Risk and the First Amendment: Unraveling the  ‘Chilling Effect’,” 58 B.U. L. Rev. 685 (1978) (hereinafter: Schauer); Notes, “The Chilling Effect in Constitutional Law,” 69 Colum. L. Rev. 808 (1969); Monica Youn, “The Chilling Effect and the Problem of Private Action,” 66 Vand. L. Rev. 1473 (2013); Leslie Kendrick, “Speech, Intent, and the Chilling Effect,” 54 Wm. & Mary L. Rev. 1633 (2013)).

29.       In my opinion, both aspects of the Boycott Law – the tortious and the administrative – may create a substantial chilling effect. As regards the tortious sanctions, the matter would appear to be self-evident. Imposing tortious liability for expression increases the “price” of expression in the estimation of the potential speaker. It adds an additional consideration – tortious liability – to the relevant set of considerations. This additional possible cost may cause a lessening of motivation to speak out, and may even cause certain potential speakers to entirely refrain from expressing themselves in “prohibited” ways. In practice, this deterrent effect is one of the objectives of tort law. Israel Gilead addressed this effect in his book Tort Law: Limits of Liability (2012) (Hebrew):

Imposing tortious liability on a wrongdoer is, by its nature, usually accompanied by a deterrent result. Deterrence, in this regard, is a change in the patterns of conduct of one who is influenced by the tortious liability.

First and foremost, deterrence affects potential wrongdoers, in other words, those involved in activity that results or may result in future liability. Imposing liability in tort, and the associated discomfort, are a sort of notice to anyone who may undertake such activity that he will bear the burden of any damage that the tortious activity may cause. That notice raises the price of the activity, inasmuch as bearing the cost of the damage for which liability will be imposed is added to the cost of the activity. Making the activity more expensive may lead to all of the following: a cessation of the activity if and to the extent that increased cost makes it not worthwhile for the potential wrongdoer; a change in the activity so that the cost of liability will be lessened; attempts at risk protection through of insurance or other means [ibid., pp. 45-46].

            The presence of a chilling effect in this case is not at all speculative. The creation of a chilling effect is the primary means chosen by the legislature for achieving the Law’s purpose. The state even addressed this in its response to the petition. It noted in regard to the “rational connection” that “it is clear that creating a cause of action in tort and imposing administrative sanctions on those who call for a boycott against people for their connection to the State of Israel or a area under the control of the State of Israel will deter such actors from acting to impose such a boycott, and will make the phenomenon less common”.

30.       My colleague Justice Melcer proposed that the chilling effect be reduced by means of narrow construction that would somewhat limit the boundaries of the tort under sec. 2(a) of the Law. To that end, my colleague proposed that the realization of the “boycott tort” be contingent upon actual damage; the existence of a causal connection between the tort and the damage; awareness of the reasonable possibility that the call and the circumstances of its publication would lead to the imposition of a boycott; and reserving the right to bring suit only to the direct victim of the tort. In my opinion, that construction, narrow as it may be, does not significantly reduce the Law’s chilling effect. The above “restricting” provisions are, as my colleague also notes, part of general tort law. They apply, as a rule, to most torts. Inasmuch as tort law is understood as promoting deterrence, and capable, as such, of directing human conduct, I do not think that applying the “regular” restrictions of tort law to the boycott tort is sufficient to significantly lessen the Law’s chilling effect.

            Nonetheless, I wish to note that I agree with my colleague’s proposed interpretation that the Law’s requirement of a “reasonable possibility that the call will lead to a boycott” (sec. 2(a)) joins with the requirement of the regular causal connection. It adds an additional requirement to the existence of general causation, which examines “whether the negligence was likely to cause damage of the type incurred by the claimant” (CFH 4693/05 Carmel-Haifa Hospital v. Maloul (published in Nevo) (Aug. 29, 2010), para. 128 per Naor J.). The potential causal connection does not replace the requirement for the standard causal connection. Justice Naor addressed this in regard to a negligence suit for exposure to poisonous substances (CA 1639/01 Kibbutz Maayan Zvi v. Krishov (published in Nevo) (June 2, 2004):

We have addressed the traditional rule that a person is held liable only for the harm that he caused: accordingly, when the question of the potential factual causation arises, the claimant must show not only potential factual causation (the exposure was capable of causing illness), but also specific factual causation (the exposure connected to the defendant caused the claimant’s illness) [ibid., para. 14 per M. Naor J].

31.       Another reason why I believe that the restrictive interpretation proposed by my colleague Justice Melcer is insufficient is the chilling effect caused by the very existence of the boycott tort. The existence of a tort of calling for a boycott, regardless of its scope, exposes those who call for a boycott to the possibility of a civil suit. That possibility creates uncertainty by its very nature. Indeed, a legal proceeding is not a sterile laboratory – “all litigation, and indeed the entire legal process, is surrounded by uncertainty” (Schauer, p. 687). A person calling for a boycott may have difficulty in assessing the results of the possible proceedings that may await him. That uncertainty increases the cost of his expression. It comprises the theoretical possibility of the imposition of liability where it is unjustified. It exposes the speaker to the possibility of bearing the heavy financial and emotional costs of litigation. That exposure, itself, imposes a burden upon potential speakers in a manner that creates a chilling effect. In this regard, Justice S. Joubran (dissenting) aptly noted in HCJ 1213/10 Nir v. Knesset (Feb. 23, 2012):

It should be noted in this regard that, in many cases, even if some law is not enforced, a law can create a chilling effect upon the performance of a particular action, and indirectly violate human rights… [ibid., para. 16 per S. Joubran J].

            And see the relevant statement of Justice Scalia in Virginia v. Hicks, 539 U.S. 11 (2003), which addressed the constitutionality of a policy that prohibited trespass on certain streets:

Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech… harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas [ibid., p. 119].

            A relevant example for our case can be found in Thornhill v. Alabama, 310 U.S. 88 (1940). In that case from the past, the United States Supreme Court considered an Alabama law that prohibited “loitering or picketing” near a place of business with the intent of influencing others to refrain from purchasing its products or to conduct business with it. In that, the law addressed in the Thornhill case is not unlike the one before us, inasmuch as it, too, concerns expression – demonstrating – in order to persuade a person to refrain from commercial trade with another, as in the case of a boycott. The United State Supreme Court found the law to be unconstitutional for violating freedom of political speech. The Court explained that the violation of freedom of speech derived from the very existence of the law itself, as just the possibility of imposing sanctions upon speech could deter a person from speaking, much as the actions of a censor. Justice Murphy, delivering the opinion of the Court, wrote:

The existence of such a statute… results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. It is not any less effective or, if the restraint is not permissible, less pernicious than the restraint on freedom of discussion imposed by the threat of censorship [ibid., p. 98].

            On the chilling effect created by imposing tortious liability, also see, e.g: Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).

32.       Those words are appropriate to the three types of tort sanctions in sec. 2 of the Boycott Law. I agree with my colleague Justice Melcer’s statement that “to the extent that we find that sec. 2(a) of the law is constitutional, sec. 2(b) of the Law will, accordingly, also be constitutional” (para. 41 of his opinion). Therefore, the conclusion in regard to the violation of freedom of expression by sec. 2(a), even under the “narrow” interpretation, is relevant to sec. 2(b), as well. Moreover, clearly the chilling effect created by the Law is particularly significant in the case of exemplary damages without proof of damage. On this point, I agree with my colleague’s conclusion that sec. 2(c) of the Law does not meet the proportionality tests. I also agree with my colleague’s reasoning that damages in the absence of proof of damage are an “exception” that deviates from the basic rules of civil law, and comprise an element of punitive fine. For these reasons, I am of the opinion that sec. 2(c) must be struck down.

            The administrative sanctions may also have a chilling effect of freedom of expression. The source of that effect is the possible fear of groups entitled to support to express themselves in the manner prohibited by the Law out of a fear of being denied support. The broad application of the administrative sanction creates a real danger of a broad violation of political views.

33.       We have addressed the Law’s infringement of freedom of expression. It is now time to evaluate its benefits.

 

Proportionality “Stricto Sensu” – The Social Benefit Aspect

34.       The Boycott Law comprises several purposes. One clear purpose, as its title testifies, is “prevention of harm to the State of Israel by means of boycott”. One aspect of this purpose is to be found in the desire to protect the citizens and residents of the state against economic, cultural, and academic harm. It would appear that the Law is primarily directed at combatting the BDS movement, which my colleague Justice Melcer addressed at length. Indeed, the damage caused by the boycott phenomenon is not inconsiderable (see, e.g: Lior A. Brinn, “The Israeli Anti-Boycott Law: Balancing the Need for National Legitimacy Against the Rights of Dissenting Individuals,” 38 Brooklyn J. Int'l L. 345, 352 (2012); Marc A. Greendorfer, “The BDS Movement: That Which We Call a Foreign Boycott, By Any Other Name, is Still Illegal,” (2015) (Available at SSRN: http://ssrn.com/abstract=2531130) (hereinafter: Greendorfer)). Mitigating the damage of this phenomenon is a proper and important purpose.

35.       However, it should be noted that the Boycott Law is an Israeli municipal law. Its sanctions are therefore intended primarily to influence calls for boycott “performed” in Israel. This is primarily so in regard to the Law’s tort sanctions. The rules of choice of law in tort law establish that the applicable law in regard to torts is the place of the performance of the tort – lex loci delicti (CA 1432/03 Yinon Food Products Manufacture and Marketing Ltd v. Kara'an, IsrSC 59 (1) 345, 372-374 (2004) (hereinafter: the Yinon case); CFH 4655/09 Schaller v. Uviner (published in Nevo) (Oct. 25, 2011) para. 8, per Rivlin DP). Therefore, as a rule, the tort law of the State of Israel – including the Boycott Law – apply to “boycott torts” perpetrated in Israel. Of course, there are several exceptions to this rule. In the Yinon case, it was held that “when the place in which the tort was perpetrated is a fortuitous factor, lacking any real connection to the event” it is possible to apply tort law that is not the lex loci delicti (the Yinon case, p. 374). Moreover, it is not inconceivable that the development of additional exceptions may, under certain circumstances, allow for the application of Israeli law to torts that affect the State of Israel (cf. the “effect doctrine” that might make it possible, under certain circumstances, to apply Israeli law to acts occurring outside the borders of the state if their perpetration negatively impacts the state. (On the application of this doctrine on restrictive trade practices, see, e.g: Michal Gal, “Extra-territorial Application of Antitrust – The Case of a Small Economy (Israel),” New York University Law and Economics Working Papers No. 09-03 (2009)). Inasmuch as we may assume that the “tortious” effect of the Law will be more focused upon its influence on internal Israeli political discourse, and less upon its influence on international calls for boycotting Israel or the Area, this would somewhat reduce the Law’s potential contribution to the fight against international boycotts and the BDS movement. In addition, the arguments presented by the parties before us show that the “type” of boycott relevant to the internal Israeli discourse is, primarily, a boycott against the Area rather than a boycott against the State of Israel in its entirety. The result is that a call for a boycott against the Area will, it would seem, be prohibited when performed in Israel, and of a type that would be hard to prevent by means of the Law if it were performed outside on the state. This is a problematic result wherein protests that are permissible in international discourse would be prohibited internally, and a form of protest recognized in international discourse will be prohibited precisely to those seeking to advance their political views “internally”, within our political public rather than externally.

36.       Another aspect of the purpose of preventing harm to the State of Israel concerns the principle of defensive democracy. The declarations of some of those calling for a boycott of the State of Israel express a rejection of the state as such. Those speakers do not act within the Israeli political discourse, but rather seek to deny it. Some find such characteristics in the BDS movement. Greendorfer addresses this:

The BDS Movement is not a grass roots movement, nor is it a peace movement. In charitable terms, the BDS Movement is simply the latest iteration of the longstanding Arab League mandate to eliminate the only non-Arab state from the Middle East. In less charitable terms, the BDS Movement is the non-violent propaganda arm of the modern Islamist terror movement [ibid., p. 35].

            These characteristics are not unique to the BDS movement. Greendorfer is of the opinion that some of the global players calling for a boycott of Israel share those views. “While the names change, the objectives of many such groups remain the same: the demonization, marginalization and destruction of Israel” (ibid., p. 29).

            Defense against those who oppose the state is a proper and important purpose. Moreover, the very call for a boycott of the State of Israel, regardless of the objectives and characteristics of the caller, is a serious phenomenon that the state cannot ignore. I am of the opinion that the state may have a justified interest in restricting such calls. That interest can be premised upon the principle of defensive democracy. That principle permits the restricting of fundamental rights – including freedom of political speech, and even the right to vote and to run for office – in order to protect the fundamental principles of the democratic state (see, e.g: in EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset, IsrSC 19 (3) 365, 390 (1965); EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi, IsrSC 57 (4) 1, 66 (2003) (hereinafter: the Tibi case); HCJ 6339/05 Matar v. IDF Commander in the Gaza Strip (published in Nevo) (Aug. 1, 2005) para. 10; and cf. the Zoabi case, which held that a call by a member of Knesset for the imposition of a blockade against the State of Israel justifies imposing disciplinary sanctions of suspension from plenum and committee sessions. And see: Barak Medina & Ilan Saban, “Widening the Gap? On the Freedom of a Knesset Member to Oppose the Occupation (following HCJ 11225/03 Beshara v. AG),” 37 Mishpatim (Hebrew University Law Review) 219, 229 (2007) (Hebrew) (hereinafter: Medina & Saban, “Widening the Gap”). Justice A. Barak addressed this in EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 39 (2) 225 (1985), IsrSJ 8, 83 [English trans: http://versa.cardozo.yu.edu/opinions/neiman-v-chairman-elections-committee]:

On the one hand, the fundamental right to political expression is not to be denied merely because of the nature of the political view. Quite the contrary, the power of democracy lies in the freedom it allows to express opinions, however offensive to others. On the other hand, democracy is allowed to protect itself, and it need not commit suicide so as to prove its vitality [ibid., p. 315, (English trans: para. 12)].

37.       However, the purpose concerning defensive democracy does not apply in the same manner and to the same extent to all the various forms of expression that fall within the compass of the Boycott Law. While one can accommodate applying that principle to calls for a boycott against the State of Israel per se, it is hard to harmonize that principle of defensive democracy with calls for a boycott only against the Area. A boycott of the Area is not directed at denying the State of Israel’s right to exist, but rather expresses opposition to one of the “expressions of its policy”. Israel’s policy in regard to the Area is not one of the fundamental characteristics of the state, like it Jewish character or its democratic regime, and opposing that policy is not equivalent to opposing the state’s right to exist. One can learn something about this from the decision in the Tibi case, in which the Court did not approve the decision of the Central Elections Committee to bar Knesset Member Tibi from participating in the elections. In so doing, it was held that MK Tibi’s statements reflecting non-violent opposition to the “occupation” did not justify disallowing his candidacy. President A. Barak wrote:

Knesset Member Tibi does not deny that he opposes the occupation and envisions its end. At the same time, he expressly and unambiguously declares that the opposition that he supports is not armed struggle, but rather non-militant, popular resistance. That is a form of opposition that does not involve the use of weapons. Indeed, the evidence before us does not reveal expressions or actions that evoke support for the armed struggle against the State of Israel…

For these reasons, the decision of the Elections Committee disallowing Knesset Member Tibi’s participation in the elections cannot be approved [ibid., pp. 49-50].

            I am of the opinion that, as a rule, great care should be taken in making recourse to the “defensive democracy” principle as justification for violating freedom of political expression. “Defensive democracy” draws rigid lines between legitimate and illegitimate views – between those views that are part of the political discourse and those that should properly remain outside of it. Drawing those lines is no easy task. “If the line is drawn too far, democracy will not endure, and to the regret of its supporters, it will collapse. But if the line is drawn too close, the apple of its eye will suffer, and those who cherish it will no longer recognize it. The resilience of the state in which democracy abides makes a decisive contribution to deciding the location of the borderline. The stronger the state, the further away the line, and vice versa” (EA 2600/99 Erlich v. Chairman of the Central Elections Committee, IsrSC 53 (3) 38, 48 (1999) per Y. Kedmi J). Restricting calls for boycott against the entirety of the State of Israel infringes freedom of expression. But such calls reside in a “gray area” that may justify their restriction in order to protect the state’s power to defend itself against those who seek to do it harm. However, calls for boycotting the Area are clearly located within the boundaries of legitimate democratic discourse. Calling upon the principle of defensive democracy in order to infringe non-violent political expression against a particular state policy is unacceptable.

38.       Another proper purpose grounding the Boycott Law is the prevention of discrimination. Calling for a boycott is not merely an expression of an opinion. Calling for a boycott is a call to action (or, more precisely, to refrain from performing an action) – the imposition of a boycott. Bboycott action harms the objects of the boycott. That harm may not be worthy of the protection of freedom of expression. Thus, clearly, a call for a boycott that would prevent the provision of products or services to publics on the basis of race, or for racist motives, would be deemed wrong. That would also be true for a boycott based upon “religion or religious group, nationality, country of origin, sex, sexual inclination, opinion, political allegiance, personal status, or parenthood”  (sec. 3(a) of the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: the Prohibition of Discrimination Law). And see sec. 4 of that law, as well as sec. 12 of the Civil Wrongs Ordinance [New Version]). Indeed, boycotting a person solely by reason of his connection to the State of Israel is a discriminatory act. It is an instance of treating a person differently – ostracizing him – by reason of his belonging to the group of which he is a member. In addition, the boycott that the Law addresses is a “secondary” boycott”. It is not directed at harming the state – for example, by refusing to trade with it – but at harming those who have a “connection” to the state. Such harm, arising from connection or membership, does not relates to the unique characteristics or conduct of the person ostracized. Such harm is particularly severe because a person’s connection to the state (despite the theoretical possibility to emigrate) may be viewed as an immutable characteristic. In that sense, a distinction based upon a connection to a state is comparable to a wrongful distinction based upon “country of origin”, which is included in the list of prohibited distinctions in the Prohibition of Discrimination Law.

39.       The state sought to argue that this reasoning also applied to a call for a boycott against the Area. It argued that calling for a boycott against a person due to his connection to the area is, in practice, discrimination on the basis of place of residence. To its thinking, such discrimination is wrongful, inter alia, because a person’s place of residence is “inherent to a person’s identity”. In this context, it should be noted that place of residence is considered to be “more” given to a person’s choice than connection to his state. In addition, and this is the main point, the Boycott Law does not prohibit discrimination on the basis of place of residence, or even the boycotting of a person due to his place of residence (for bills in that spirit, see: Employment (Equal Opportunities) Bill (Amendment No. 22) (Prohibition of Discrimination due to Place of Residence), 5773-2012, H.H. 499). The Boycott Law only prohibits calling for a boycott due to residence in the Area. Therefore, we are not concerned with “classic” anti-discrimination law, but rather with state intervention in the field of political debate. The attempt to clothe that in the garb of preventing discrimination can only fail. Anti-discrimination law must, by its very nature, be neutral. We cannot countenance a law prohibiting discrimination on the basis of one sexual orientation but not another, or a law prohibiting discrimination against one race while permitting discrimination against another (a certain exception to this is found in the principle of affirmative action, but that principle is justly viewed as promoting equality. See, in this regard, e.g: HCJ 10026 Adalah Legal Center for Arab Minority Rights in Israel v. Prime Minister of Israel, IsrSC 57 (3) 31, 38-40 (2003); HCJ 453/94 Israel Women’s Network v. Government of Israel, IsrSC 48 (5) 501, 516-521 (1994) [English trans: http://versa.cardozo.yu.edu/opinions/israel-women%E2%80%99s-network-v-government-israel]). The Boycott Law does not show such neutrality. Therefore, I am of the opinion that one cannot “muster” the full force of the interest in preventing discrimination in its defense.

            This conclusion does not apply to a boycott directed against the state in its entirety. While the Law does not prohibit boycotting a person by reason of his connection to any state whatsoever, but only in regard to his connection to the State of Israel, the state has a justified right to prevent discrimination between its citizens and residents and those of other countries. However, it must act in an equal, pertinent manner towards the residents of the various areas of the state and the areas under its control. 

 

Proportionality “Stricto Sensu” – A Final Balance

40.       As we have seen, the Boycott Law infringes the right to freedom of expression. We are concerned with the infringement of freedom of political expression, which is at the “core” of the constitutional right to freedom of expression, and constitutes part of the constitutional right to human dignity. This infringement results from the complex of the Law’s provisions as a whole. The tort sanction and the administrative sanction retroactively harm anyone who calls for the imposition of a boycott against the State of Israel or the Area. We are concerned with a severe infringement, as it specifically applies only to those who express political opinions of a certain type. The Boycott Law also infringes freedom of expression by deterring potential speakers from expressing themselves politically. These infringements of freedom of political speech are most severe in regard to calling for boycotting the Area. The “territories issue” is a subject of heated public debate. The viewpoint harmed by the Law is one that is critical of the Government’s policy. Changing the rules of the game in a manner that harms this viewpoint is inconsistent with the state’s obligation to maintain neutrality in regulating the “marketplace of ideas”. In order to justify these infringements of the constitutional right to freedom of political expression, the public benefit of the law must outweigh its harm. That balance must be struck in accordance with the near-certainty formula for significant harm to a public interest. Indeed, the Law does promote some important public purposes. The Boycott Law is expected to lessen the phenomenon of boycotting the State of Israel. That phenomenon inflicts economic, cultural, and academic harm upon the citizens and residents of the state. It challenges the fundamental principles of the state, and it harms equality between the objects of the boycott and those who are not exposed to it. The social benefit of the Law changes in accordance with the character of the specific boycott under consideration. Preventing a boycott against the State of Israel is consistent with the state’s right to defend itself against those who seek to do it harm. That is not the case in regard to a boycott directed at the Area. A boycott of this type concerns an internal Israeli political issue (although various entities around the world also express their opinions on this issue). Such a boycott cannot be deemed as targeting the state per se. It clearly falls within the bounds of legitimate political discourse.

            It would appear that the Law’s infringement of freedom of expression is particularly severe, but I am of the opinion that the method of interpretation that I shall propose below can prevent the extreme result of declaring the Law unconstitutional. Indeed, the Law serves several important purposes, but I do not believe that it is necessary in order to prevent the nearly certain realization of real harm, and that is certainly the case in regard to the Law’s effect in regard to calls for boycotting the Area. The sanctions imposed upon those who express themselves in this manner lead to a severe infringement of freedom of political speech. Lessening the prevalence of such calls yields a social benefit that is significantly less than the benefit inherent in imposing restrictions upon boycotts against the state in its entirety.

 

Consequences of Unconstitutionality

41.       I have considered the possibility that it might be proper to go over the Law with a “blue pencil”, in a manner that would let it ford the constitutionality tests. By this I mean writing out of the Law the words “or an area under its control” in the definition of a “boycott against the State of Israel”. This would abate the Law’s primary harm inherent in intervening in the political discourse by prohibiting calls for boycotting the Area. Eliminating that phrase would remove such boycotts from the Boycott Law. Indeed, “The Court is not liable to order the voidance of the law in its entirety. It may order the law to be split, so that those provisions of the law that suffer from a constitutional defect are declared void, while the other provisions remain valid” HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, IsrSC 61 (2) 202, 350 per A. Barak P. (2006) [English trans: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]. And see HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 59 (4) 241, 267-268 (2004) [English trans: http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housing] (hereinafter: the Ganis case); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 736 (1994) (hereinafter: Barak, Constitutional Interpretation)). But the blue-pencil rule should not be employed when the result will upset the law’s internal balance and its purposes (HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63 (2) 545, 638 (2009) [English trans: http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-minister-finance]; Barak, Constitutional Interpretation, p. 737).

42.       Ultimately, I have come to the conclusion that this approach should not be adopted. The reason for this, in my view, is that a similar result can be achieved through interpretation, without having to strike down one of the Law’s provisions. In my view, the interpretive solution is a proportionate one that limits judicial intervention in Knesset legislation, giving appropriate weight to the principle of separation of powers among the branches of government. The Knesset is the legislative branch. But the Court is the authorized interpreter of every piece of legislation. Indeed, “upon the completion of the legislative process, the law leaves the courtyard of the legislature. It lives independently, and its interpretation – in the broad meaning of the term – falls, at the end of the day, to the courts, and to them alone” LCrimA 1127/93 State of Israel v. Klein, IsrSC 48 (3) 485, 501 (1994) per Cheshin J.). And see: HCJ 73/85 Kach Faction v. Shlomo Hillel – Speaker of the Knesset, IsrSC 39 (3) 141, 152 (1985); Aharon Barak, Interpretation in Law – Statutory Interpretation, 57-58 (1993) (hereinafter: Barak, Statutory Interpretation). This approach is expressed in the well-known talmudic story of the “Oven of Akhnai” (TB Bava Metzia 59b). In that story, according to one of the interpretations, God the Legislator “admits” – saying “My sons have defeated Me, My sons have defeated Me”, for even though God was of the opinion that a particular interpretation – that of Rabbi Eliezer – was the correct one, the decision was not His but was in the hands of the Sages. Thus, after the norm is created, its creator loses the power to interpret it. The authorized interpreter may declare that it is not bound by a later interpretation presented by the legislator – “It is not in heaven”).[3]

            Indeed, this Court has held in a long line of decisions that interpretation is the preferred solution for resolving constitutional problems. In this manner, we can resolve the apparent contradiction between the law under examination and the constitutional norm without activating the “doomsday weapon” of declaring total or partial voidance (see, e.g: HCJ 5771/12 Moshe v. Board for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Authorization & Status of the Newborn Child) Law, 5756-1996 (published in Nevo) (Sept. 18, 2014) para. 5 of the opinion of H. Melcer J. [English trans: http://versa.cardozo.yu.edu/opinions/moshe-v-board-approval-embryo-carrying-agreements-under-embryo-carrying-agreements-law]; HCJ 2311/11 Sabah v. Knesset (published in Nevo) (Sept. 17, 2014) para. 5 of the opinion of H. Melcer J.; LCA 7205/06 Erlich v. Advocate Bartal (published in Nevo) (Aug. 22, 2012) para. 40 of the opinion of H. Melcer J.; HCJ 5113/12 Friedman v. Knesset, (published in Nevo) (Aug. 7, 2012) para. 5 of the opinion of E. Arbel J.). Grounding this approach is the idea that every legislative act is intended to advance – in addition to the concrete purposes that the legislature sought to promote – the fundamental values of our regime. Those fundamental values include the principles of democracy and the protection and advancement of human rights. The practical effect of this approach is expressed in the presumption that “the purpose of every legislative enactment is to realize the principles of the system and advance human rights within it” (HCJ 693/91 Dr. Efrat v. Director of the Polulation Registry in the Ministry of the Interior, IsrSC 47 (1) 749, 763 (1993) per A. Barak J.), and the presumption according to which “the legislature is presumed to be aware of the contents of the Basic Laws and their ramifications for every statute that is enacted subsequently” CrimA 6659/06 Anonymous v. State of Israel, IsrSC 62 (4) 329, 351 (2008) per D. Beinisch P. (hereinafter: the Anonymous case) [English trans: http://versa.cardozo.yu.edu/opinions/v-state-israel-1]).

43.       One of the primary techniques that enable the Court to employ interpretation to remove apparent contradictions between a “regular” law and the provisions of a Basic Law is narrow construction. By this approach, the normative effect of the law is limited such that the semantic field that does not stand in contradiction to the Basic Laws is isolated from among the linguistic possibilities (see, e.g: Aharon Barak, “Judicial Lawmaking,” 13 Mishpatim 25, 30-32 (1983) (Hebrew); the Ganis case, p. 273; HCJ 4562/92  Zandberg v. Broadcasting Authority,  IsrSC. 50 (2) 793, 808 (1996); HCJ 4790/14 Torah Judaism – Agudath Yisrael – Degel HAtorah v. Minister of Religious Affairs (published in Nevo) (Oct. 19, 2014) para. 26 of the opinion of U. Vogelman J; HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police (published in Nevo) (May 28, 2012) para. 15 of the opinion of D. Beinisch P.; Barak, Constitutional Interpretation, p. 737). Justice Barak’s words in the Zandberg case are apt in this regard:

Indeed, the judge must not “sit on his hands” and observe the failure of the legislative purpose. He must interpret the law in accordance with its purpose. At times, that interpretation will lead to the conclusion that the language of the law can be broadly construed. At times – as in the case before us – that interpretation leads to the conclusion that the law must be narrowly construed…

Thus, where the language of the statute is broad, the judge is permitted and competent to give it a narrower meaning, which extends only to some of the options inherent in the language, provided that by doing so he realizes the purpose of the legislation. [ibid., p. 811].

            And see President Barak’s opinion in the Ganis case:

Is the interpreter permitted to narrow the broad language of the text in order to achieve the purpose of the text? When the text provides a legal arrangement that applies to “every person”,”with regard to “every object” or “in all circumstances”, may the interpreter — who wishes to achieve the purpose underlying the text — interpret the text in such a way that it does not apply to a particular class of persons (not “every” person) or such that it does not apply to a particular class of objects (not “every” object) or such that it does not apply in a particular class of circumstances (not “all” circumstances)? The answer given to this question in Israel and in comparative law is yes [ibid., p. 277].

44.       As for the matter before us, sec. 1 of the Boycott Law, which establishes its scope, is the entry way into the Law. Only a boycott that can be deemed “a boycott against the State of Israel”, as defined in that section, allows for the imposition of the Law’s tortious or administrative sanction upon the caller. Establishing the dimensions of the entry way in sec. 1 of the Law is an interpretive endeavor. It is carried out with the interpretive tools. First and foremost, we must address the language of the Law, which is the starting point of any interpretive endeavor. But the language of the Law is not necessarily the end point. The interpretation of the Law must take its purpose into account. In so doing, one must, as noted, address the specific purpose of the Law, but also, as explained above, the fundamental principles of our legal system and the general purpose of protecting human rights.

45.       I am of the opinion that the dimensions of that normative “entry way” in sec. 1 of the Law should be construed narrowly. The interpretation must allow only a certain “type” of boycott to cross the threshold – a general boycott of the State of Israel as such. As opposed to that, we must establish that other “types” of calls for boycott – primarily calls for the boycotting of the Area alone – will not cross the threshold, and not be deemed a “boycott against the State of Israel”.

            Section 1 of the Law instructs as follows:

In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm.

            Thus we find that in order to enter the compass of the Law, the boycott must be “because of its connection” to the State of Israel, one of its institutions, or an area under its control. The relationship between the “State of Israel” and the institutions and areas mentioned in the definition in sec. 1 is a relationship of belonging. In order for a boycott against a person due to his connection to an institution to enter into the compass of the law, the institution must be “one of the institutions” of the state. In order for a boycott against a person due to his connection to an area to enter this definition, the area must be “under its control” of the state. In my view, that belonging of “the institution” or “the area” to the State of Israel cannot remain merely technical. That requirement must be given normative significance. The belonging requirement must pertinently connect the boycott “against the State of Israel” and the boycott of the institution or the area. Its effect is the broadening of the scope of belonging, such that it also extends to the relationship between the boycott against the state and the boycott against the institution or against the area. Therefore, not every boycott of an institution or an area physically “belonging” to the state will fall within the definition of the Law. Only a boycott of an institution or of an area because of the boycotting of the state in its entirety should fall within this definition.

            Actually, this is a necessary interpretation. Clearly, the Boycott Law was not intended to apply, for example, to a call to boycott a public institution because of that institution’s particular characteristics. Consider, for example, a call to boycott a person due to his connection to a public institution because that institution conducts experiments on animals. Or, for example, a call to boycott a person due to his connection to a public institution because that institution promotes a policy that harms the environment. Or a call to boycott a person due to his connection to an Israeli community (which is “an area under [the state’s] control”) because of the community’s policy in regard to membership (cf. the Sabah decision).  On its face, according to the language of the Law, such boycotts might fall within the scope of the law and be prohibited by it. The reason for this is that they are calls for a boycott against a person merely because of his connection to one of the state’s institutions or an area under its control. Clearly, however, that was not “what the author had in mind”. The purpose of the Boycott Law, as its name shows, is to prevent harm to the State of Israel by means of boycotts. The law is intended to contend with the phenomenon of boycotts against the state. It is not intended, for example, to harm those who call for a boycott of an institution because of its destruction of natural treasures simply because that institution, coincidentally, “belongs” to the State of Israel and is not a private body. The fact that the institution in the example is a public institution may, of course, show that the policy that is the target of the boycott is a public policy. However, it would not be proper to interpret the Law as opposing calls for boycotts targeting any public policy, when the boycott does not comprise a dominant factor of opposition to the state as such. As the state’s attorneys noted before the Court, the Boycott Law is not intended, for example, to affect calls to boycott cottage cheese. I am of the opinion that this conclusion must stand even if it transpires that some of the boycotted cottage-cheese producers are state owned.

46.       Therefore, the terms treating of an “institution” and “area” were not intended to direct the Law at “new” types of boycotts. They were intended to reinforce the arrangement treating of the typical boycott with which the Law was intended to contend – a boycott against the State of Israel. Their purpose is to create a tight arrangement that will not permit calls for boycotting the State of Israel to evade the Law simply by targeting institutions or areas. In order to achieve that purpose, while not extending the Law beyond its proper scope, the connection between the “institution” and the “area” to the State of Israel must be interpreted as a material connection that also extends to the nature of the boycott. Only a boycott against an “institution” or “area” that is part of a boycott against the State of Israel and derives from the connection of the institution or area to the State of Israel will fall within the compass of the Boycott Law. As opposed to this, a boycott of an institution or area that is not part of a boycott against the State of Israel will not fall within the scope of the Law’s definition.

            The practical result of this distinction is the application of the Boycott Law only to calls for a boycott against the State of Israel in its entirety or as such. Accordingly, a call to boycott one of the state’s institutions, which is not accompanied by a call for a comprehensive boycott of the State, would not fall within the compass of the Law. Similarly, calls for boycotting areas under the state’s control, including boycotting the Area, that are not accompanied by a call to impose a boycott on the State of Israel, will not fall within the Law’s definition. This result is also applicable to the interpretation of the phrase “a commitment not to purchase goods or services produced or supplied in Israel, by one of its institutions, or in an area under its control” in sec. 3 of the Law.

            This interpretation is consistent with the language of the Law. It is “dependent” upon the relationship of a connection between the State of Israel and its institutions or areas under its control. It is consistent with the plain meaning of the phrase “boycott against the State of Israel” in colloquial language (see: Barak, Statutory Interpretation, pp. 117-118, 587-589). This phrase is the Law’s linguistic center of gravity. It impacts all of the Law’s provisions, including the definition of the very term “boycott against the State of Israel” in sec. 1 of the Law. It shows that the main point of the Law is the prevention of a boycott against the State of Israel, and not a boycott against its institutions or areas under its control. This interpretation does not make reference to institutions and areas superfluous. Without such reference, some calls for boycotting a person for his connection of an Israeli institution or area under the state’s control as part of a call for a boycott of the entire state might evade the Law’s embrace. That would be the case, for example, where the person under discussion has a connection only to the institution or controlled area, but lacks a direct connection to the state.

            This interpretation is also consistent with the Law’s purpose. The Law’s main purpose, as its name testifies, is the prevention of harm to the State of Israel by means of a boycott. This purpose is clearly delineated by applying the Boycott Law to calls for boycotting the State of Israel. It is not entirely realized when a boycott of the Area is concerned. Calls for a boycott of the State of Israel are directed at the state as such. The state may defend itself against such boycotts. A boycott against the State of Israel, as such, discriminates against the residents of the state on the basis of their connection to the state. The state may prohibit such discrimination. However, a boycott of the Area is not directed at the state, as such, but against one manifestation of its policy. Prohibiting boycotts of the Area cannot be justified by a desire to prevent discrimination, as it would not represent a comprehensive prohibition of boycotting or discrimination on the basis of place of residence. And primarily, the future of the Area is a matter of heated public debate. The “objective purpose” of the Boycott Law, and the presumption in regard to its consistency with the Basic Laws, cannot tolerate an interpretation that “lowers” the Law to the level of political debate in a manner that would limit the available arsenal of expressions to one side of the debate alone. That purpose would not be consistent with an irrelevant infringement of the possibility of those holding a particular political view to obtain government funding or to participate in tenders, on the basis of considerations that are unrelated to the nature of the funded activity, and while placing a burden on the constitutional rights of the funded entities. That purpose is also inconsistent with creating a chilling effect that would act as a deterrent to voicing one particular view from among the competing political views.

47.       In addition, as we know, the purpose of a Law is derived both from the objective purpose noted above – in regard to the objectives and values that a legislative act is meant to realize in a democratic society – and from the subjective purpose – in regard to the objectives that the legislature sought to realize by means of the legislation. Thus, we learn a law’s subjective purpose from its language, legislative history, and the historical, social, and legal background at the time of its enactment (see, e.g: Barak, Statutory Interpretation, pp. 201-202; CA 8622/07 Rothman v. P.W.D. - National Roads Company of Israel Ltd. (published in Nevo) (May 14, 2012) para. 49 of the opinion of U. Vogelman J.; HCJ 10771/07 Gewirtzman v. National Insurance Institute (published in Nevo) (Feb. 1, 2010) paras. 56-59 of my opinion). In this case, the parliamentary history of the Law shows that the proposed interpretation would seem to contradict the positions held by some of the members of Knesset who were involved in its legislation, and is consistent with the positions held by others (see, e.g: Protocol of meeting no. 342 of the Constitution, Law and Justice Committee of the 18^th Knesset, 4-5, 25-27 (Feb. 15, 2011) Protocol of meeting no. 416 of the Constitution, Law and Justice Committee of the 18^th Knesset, 49, 61 (June 27, 2011); Protocol of session no. 259 of the 18^th Knesset, 167 (July 11, 2011)). However, legislative history is but one source that the interpreter may use to learn the legislative purpose. President Barak aptly observed in this regard:

We are not interested in the judgment of the members of the legislature, but rather in their legislative act…The data about the legislative purpose that can be discovered in the parliamentary history are not “binding”; they are not the final word for all investigation and examination; they do not override the purpose that arises from the language of the law or other sources…the relative weight of this source depends on its importance and its reliability relative to other sources [Barak, Statutory Interpretation, p. 372].

I am of the opinion that no great weight should be assigned to this interpretive source in this case. This, inter alia, because various views were expressed about the purposes of the Law in the committee meetings and in the plenum debate, and as President Barak goes on to state:

It is very difficult to separate “personal” opinions of members of the legislature about what is ideal, and “institutional” opinions about what is real. This is especially true of spontaneous responses expressed in the legislature in the absence of extensive research or reflection. But even “considered” responses are sometimes expressions of the subjective view of the speaker…The interpreter must be able to distinguish between the wheat and the chaff, between personal opinions of members of the legislature in regard to the meaning of the law, and objective opinions about its purpose. The weight to be given to the results of the examination will change in accordance with the reliability that can be attributed to the sources of that examination [ibid., p. 380, emphasis added – Y.D.].

            Thus, it would seem appropriate, in my view, to interpret the Law such that it would apply only to calls for boycotting the State of Israel in its entirety, but not to calls for boycotting the Area alone. Although this interpretive result contradicts the express position of some of the Law’s initiators, the subjective views of the members of Knesset who took part in the legislative process does not obligate the Court. Indeed, interpretation concerns the “analysis” of the law, and not the “psychoanalysis” of the legislature (the Sabah case, para. 26 of the opinion of Grunis P.; HCJ 246/81 Agudat Derekh Eretz v. Broadcasting Authority, IsrSC 35 (4) 1, 17 (1981), IsrSJ 8 21 [English trans: http://versa.cardozo.yu.edu/opinions/agudat-derekh-eretz-v-broadcasting-authority]). As noted, the position of one Knesset member or another, or even the view of those who proposed and initiated the Law, does not necessarily reflect the view of “the legislature”, which is a body composed of many members, and who represent the spectrum of political views of the state’s citizens. Thus we have the well-known approach according to which: “We must not seek to establish a Knesset Member's attitude towards a particular problem confronting us from the legislative history of an enactment. The solution of such problems is our responsibility, and ours alone” HCJ 428/86 Barzilai, Adv. v. Government of Israel, IsrSC 40 (3) 505 (1986) 593; IsrSJ 6 1 [http://elyon1.court.gov.il/files_eng/86/280/004/Z01/86004280.z01.pdf].  Along with the interpretive sources offered by the parliamentary history, we have such additional interpretive sources as the language of the law, its normative context, and the principles of the fundamental rights that stretch a “normative umbrella” above it. Justice A. Barak addressed this is HCJ 142/89 Laor Movement v. Knesset Speaker, IsrSC 44 (3) 529 (1990):

Legislative history, in general, and parliamentary history, in particular, are among the sources that we may turn to in seeking and discovering the legislative purpose. Nevertheless, legislative history should not be viewed as the end-all, and its overall weight in establishing the purpose and in interpreting the law is not significant. Indeed, the information that it provides about the law’s purpose must be integrated into the information about the law’s purpose that derives from the language of the law and other reliable sources, such as its structure, the legal system, and the various presumptions about the purpose of the law, and the overall sense of the matter. Moreover, a judge seeks information about the purpose of the law from the legislative history. He does not seek the interpretive understanding of the members of Knesset and how they understood a concept or term, or how they would solve the legal problem facing the judge … [ibid., p. 544].

            I am of the opinion that there is no alternative in the case before us but to find that, despite various statements made in the course of the legislative process, the language of the Law and its purposes, including its objective purpose, do not allow the Law’s application to boycotts directed solely at the Area.

48.       In conclusion, it only remains to address several matters raised in the opinion of my colleague Justice Melcer.

 

Gleanings

49.       Ripeness – My colleague Justice Melcer is of the opinion that the petitions – with the exception of the part concerning sec. 2(c) of the Law – are not ripe for decision. My colleague believes that the Petitioners’ claims should be examined in the “applied review” track, attendant to suits or petitions directed against the concrete application of the Law (para. 59 of his opinion). The ripeness doctrine has, indeed, been incorporated into Israeli constitutional law (see, e.g: HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance, (published in Nevo) (Jan. 5, 2012) paras. 26-33 of the opinion of M. Naor J. [English:  http://versa.cardozo.yu.edu/opinions/alumni-association-arab-orthodox-school-haifa-v-minister-finance] (hereinafter: the Alumni Association case); HCJ 7190/05 Lobel v. State of Israel (published in Nevo) (Jan. 18, 2006) para. 6 of the opinion of M. Naor J.; Elena Chachko, “On Ripeness and Constitutionality: HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance and HCJ 3803/11  Israeli Capital Markets Trustees Association v. State of Israel,” 43 Mishpatim (2013)). The ripeness doctrine permits the Court to refuse to hear a petition directed against a statute by reason of the fact that it has not been applied in practice, and therefore there are no “factual grounds” that would allow for an adequate evaluation of its harm or benefit. However, when the constitutional question raised is primarily legal, there is no justification for “waiting” until factual foundations have been laid, inasmuch as that foundation may not be relevant to the final disposition of the case. That is the case, for example, when “the Court is persuaded that any future application of it will lead to an infringement of a constitutional right or when the harm that will result from the law in the future is certain” (the Sabah case, para. 15 of the opinion of Grunis P.). Even when assembling a factual foundation may contribute to the final disposition of the dispute, there are a number of exceptions that justify addressing a petition on the merits despite that fact. One of those exceptions is when the law under scrutiny may have a chilling effect. By means of the chilling effect, the law infringes the violated right by its very existence. In addition, the chilling effect can create a vicious circle in which the Court refrains from addressing the law’s constitutionality in the absence of actual application, but the law is not applied due to the chilling effect, which deters – sometimes unlawfully – actions contrary to the law. President A. Grunis addressed this in the Sabah case:

The best known exception to addressing the constitutionality of a law even before it has been put into effect is the fear of a “chilling effect” … What we are referring to is situations in which allowing the law to remain in force may deter people and cause them to refrain from otherwise lawful conduct due to the fear of the enforcement of the law. In such cases, the very existence of the legal authority may violate constitutional rights, and therefore the Court’s review is required even before the law is applied. The chilling effect is cited in American case-law as an exception that justifies examining a matter even if it is not yet ripe. For the most part, the exception is applied to petitions in regard to the violation of freedom of speech … [ibid., para. 16 of the opinion of A. Grunis P.).

50.       An example of the application of the chilling-effect exception can be found in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). In that case, the United States Supreme Court reviewed a federal law that prohibited corporations from providing funding to campaigns for or against a candidate for election. The United States Supreme Court held that corporations could not comprehensively be forbidden to expend monies in that manner, as such a restriction was repugnant to the constitutional right to freedom of speech. One of the arguments of the respondents in the case was that the constitutional claims raised by Citizens United should be considered “as applied”. The Court rejected that argument. It held, inter alia, that postponing the hearing of the claims would lead to a chilling effect upon freedom of speech. The Court explained that substantial litigation of the law’s provisions could require a lengthy process. In the meantime, the right to freedom of speech might be violated as a result of the chilling effect, which might also result in potential petitioners not challenging the law. This effect is particularly problematic where political speech is involved, and where the restriction under review concerns speech in regard to elections. Justice Kennedy wrote:

[S]ubstantial time would be required to bring clarity to the application of the statutory provision on these points in order to avoid any chilling effect caused by some improper interpretation... Here, Citizens United decided to litigate its case to the end. Today, Citizens United finally learns, two years after the fact, whether it could have spoken during the 2008 Presidential primary--long after the opportunity to persuade primary voters has passed [ibid., pp. 333-334].

            These word are also appropriate in the case before us. As explained above, the Boycott Law may have a real chilling effect on freedom of political speech. Such a violation of freedom of expression exists whether or not the Law’s sanctions are actually put into effect. Denying the petition for lack of ripeness, and waiting for the law to be given effect in practice would allow this ongoing violation to continue. In practice, the chilling effect may even lead to extending the time that would pass until the “case-by-case” examination of the Law, or until enough data is collected to justify its review in the framework of a petition to this Court. The chilling effect deters potential speakers from calling for a boycott as defined by the Law in a manner that reduces the number of those who might bring the Law before the courts. In my opinion, the Boycott Law violates freedom of expression by its very enactment. Therefore, we should review its constitutionality now, and not wait, as my colleague proposes, for its review “indirectly” or “from the bottom up”.

51.       Comparative Law – My colleague Justice Melcer referred to a number of laws of different countries that treat of calls for boycott in one way or another.  Indeed, various countries have arrangements for limiting the imposition of boycotts in one way or another. Thus, for example, the American Export Administration Act, 50 USCS Appx (1977) (hereinafter: EAA) empowers the President to establish directives that would prohibit participating in a boycott declared by a foreign state against a friendly state. I do not believe that this legislation is relevant to our discussion. The purpose of the EAA, as presented by the state in its response to the petition, is the protection of American foreign policy. The EAA does not directly address “private” boycotts, and it appear not to directly treat of boycotts related to the specific policies of the friendly state, such as Israel’s policy in regard to the Area. As opposed to the arrangement in the EAA, the Boycott Law – particularly the arrangement in regard to the Area – does not exclusively concern Israeli foreign policy, but rather imposes restrictions on internal Israeli public discourse. My colleague also referred to the “anti-discrimination law” of various countries, including France and Germany. In my opinion, these, too, are irrelevant to the matter before us. Even if there is justification for prohibiting calls for boycott that comprise certain discriminatory aspects, as can be seen in those comparative law provisions, and even in Israeli anti-discrimination laws, there is no justification for doing so only in regard to a certain type of political positions.

52.       A comment on recourse to American law – In my opinion, I referred several times to doctrines and cases from American law. It should be noted in this regard that there are significant differences between our legal system and the American legal system in regard to the scope of protection granted to freedom of expression. As a rule, the protection granted to freedom of expression in the United States is broader. The constitutional balancing equations employed in the United States in cases of violation of freedom of speech are different from those that we employ, particularly in regard to content-related restrictions on freedom of speech (see, e.g.: United States v. Alvarez, 132 S. Ct. 2537, 2543-2544 (2012); United States v. Stevens, 130 S. Ct. 1577, 1584 (2010); Brown v. Entertainment Merchants Association, 131 S. Ct. 2729, 2733 (2011); Reichman, pp. 192-193; Aharon Barak, “The American Constitution and Israeli Law,” in Selected Essays, vol. 1, 385, 388-391 (2000)). In view of those differences, it should be clear that the American rules cannot be applied as such. However, the principles and methods of analysis that were presented are relevant to the matter before us. They allow us to examine the challenges that the American legal system confronted in regard to freedom of expression, and they can shed light on the relevant problems. Thus, for example, reference to American law elucidates the dangers attendant to content-based state intervention in the marketplace of expression. It focuses a spotlight on some of the relevant considerations for protection (or lack of protection) of coercive speech. It proposes a equilibrium point between freedom of expression and the state’s power to decide whom to fund, and sheds light on the various considerations relevant to invoking the ripeness doctrine. The decisions of the United States Supreme Court in these matters are, in my opinion, worthy of examination and study, even if we ultimately decide not to adopt them. In any case, the final decision is one “made in Israel”. It is founded upon Israeli legal principles, and upon the Israeli constitutional tradition. These Israeli principles – and only they – ground my above opinion.

53.       Public trust – The Boycott Law concerns one of the most heated and charged political issues in Israeli society. My conclusion is rooted in legal considerations. It derives from the supreme importance of freedom of political expression. However, despite its being a legal conclusion, our decision in regard to this petition will be of political significance. Leaving the Law intact, as written, will be celebrated by part of the public, while striking it down or restricting it will be welcomed by another part of the public. Every result may negatively affect public trust in the judiciary. We have no control over that. However, “the desire to ensure public trust in the judicial system does not mean that a judge must decide contrary to his conscience. Judges must know how to ignore the passing winds of the moment, which sometimes blow in one direction and sometimes in another, sometimes as a blessing and sometimes a curse” (CrimA 8080/12 State of Israel v. Olmert (published in Nevo) (July 6, 2014) para. 12 of my opinion). In this regard, we may return to the relevant insight of Justice M. Landau in HCJ 390/79 Dwiekat v. Government of Israel, IsrSC 34 (1) 1 (1979):

In this instance, we have appropriate sources for ruling and we have no need, and indeed we must not, when sitting in judgment, take our personal views as citizens of the country into account. Yet, there is still grave concern that the Court would appear to be abandoning its proper place and descending into the arena of public debate, and that its ruling will be applauded by some of the public and utterly, vehemently rejected by others. In this sense, I see myself here as one who’s duty is to rule in accordance with the law on any matter lawfully brought before the Court. It forces me, to rise above the disputes that divide the public, knowing full well in advance that the wider public will not note the legal argumentation but only the final conclusion, and that the appropriate status of the Court, as an institution, may be harmed. Alas, what are we to do when this is our role and our duty as judges [ibid., p. 4].

54.       In conclusion, if my opinion be heard, we would instruct that the Law be interpreted as stated in paras. 45-47 of my opinion, in order to avoid the severe result of striking down the Law as unconstitutional.

 

Justice N. Hendel

The Constitutional Discourse in this Case

1.         A constitutional petition may take many forms. At times, it concerns the boundary of a legal norm, and at times it may accentuate the importance of a particular legal value that may have been neglected. And sometimes a petition contends with a conflict created by the clash of two revered, fundamental values. Such a conflict may counterpose the one and the many, the individual and the public, as opponents in a constitutional contest. That is the case in the matter before us. It places freedom of political expression on one side, and Israeli society’s desire to protect itself against harmful activities that continually harass it, on the other.

2.         Freedom of expression is the lifeblood of democracy. In my view, it is a substantive, practical factor that distinguishes a democratic society from one that is not. It should come as no surprise that, already in the early days of the state,  freedom of expression was established as a fundamental constitutional principle (HCJ 73/53 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (1) 871, 878 (1953), IsrSJ 1 90 [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior] (hereinafter: the Kol Ha’am case). That case was decided long – some forty years – before the enactment of Basic Law: Human Dignity and Liberty. Judicial recognition of the singular importance of freedom of expression came into being decades before the modern constitutional discourse that now characterizes Israeli society and many others.

            Of course, freedom of expression is not an absolute right. It must be balanced and weighed opposite other rights and interest of independent importance, even if not necessarily of the same weight and power. I will address this below. Nevertheless, as I pointed out in the Further Hearing in the Ilana Dayan case:

The preeminent status of freedom of expression in the State of Israel cannot be questioned. As early as the Kol Ha’am case, freedom of expression was deemed a “supreme value” that “constitutes the pre-requisite to the realisation of almost all the other freedoms” (HCJ 75/73 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (1) 871, 878 (1953)). That is the first example of recognition of a constitutional right “ex nihilo”, as is only proper for the first days of creation [CFH 2121/12 A v. Dayan, (published in Nevo) para. 3 of my opinion].

And as my colleague Deputy President E. Rivlin wrote in the decision that was the subject of the Further Hearing:

This liberty, which is not second to none but which nothing precedes, was intended, first and foremost, to allow a person to express his personal identity. Freedom of expression allows every person to express his personal feelings and characteristics, to express his concerns, and thereby to develop and cultivate his identity […]. In that sense, freedom of expression is part of human autonomy, part of one’s right to self-definition, and part of one’s ability to give expression to one’s uniqueness. It is the right to self-fulfillment [CA 751/10 A v. Dayan (published in Nevo) (Feb. 8, 2012) para. 62].

            This is especially true in all that concerns freedom of political expression, that is: the individual’s right to express his opinions and views on various aspects of governance in a clear voice. In practice, the primary rationales grounding the recognition of freedom of expression are all the more pertinent in regard to freedom of political speech. In this regard, Justice Agranat’s word in the Kol Ha’am case are particularly apt:

The principle of freedom of expression is closely bound up with the democratic process. In an autocratic regime, the ruler is looked upon as a superman and as one who knows, therefore, what is good and what is bad for his subjects. Accordingly, it is forbidden openly to criticise the political acts of the ruler, and whoever desires to draw his attention to some mistake he has made has to do so by way of direct application to him, always showing an attitude of respect towards him. Meanwhile, whether the ruler has erred or not, no one is permitted to voice any criticism of him in public, since that is liable to injure his right to demand obedience […]. On the other hand, in a state with a democratic regime - that is, government by the “will of the people” - the “rulers” are looked upon as agents and representatives of the people who elected them, and the latter are entitled, therefore, at any time, to scrutinize their political acts, whether with the object of correcting those acts and making new arrangements in the state, or with the object of bringing about the immediate dismissal of the "rulers", or their replacement as a result of elections [p. 876 (English: para. “A”, per Agranat J.)].

And let us emphasize: Freedom of expression is not practically tested when we are concerned with the expression of views that are at the very heart of the consensus. The problem arises when a person wishes to express opinions that are somewhat – or even very – remote from society’s accepted views. Those are views that the majority may see as extreme, outrageous, and even harmful. “A strong, true democracy must ensure that the manner for confronting such opinions not be by way of prohibition of their dissemination from on high, but rather through free, open debate in which every member of society can arrive at his own opinion” (HCJ 399/85 MK Rabbi Meir Kahane v. Board of the Broadcasting Authority, IsrSC 41 (3) 255, 310 (July 27, 1987), per G. Bach J.). Thus we find that the Kol Ha’am decision stands tall when an individual voice confronts the nation on a political matter.

The great importance of freedom of political expression is premised upon a number of grounds.

First, the claim that freedom of expression aids in the exchange of opinions is of particular importance in the political arena. The most significant and influential normative arrangements in the political public are established in that forum.

            Second, freedom of expression aids in realizing the democratic component of majority decision. According to various conceptions, the value of the election process rises to the extent that the public votes intelligently, on the basis of a position grounded in familiarity with facts and various claims of the candidates. One might even say that the centrality of freedom of political expression derives precisely from the fact that there is no right answer to political questions. In this area, there is no examination of facts or desire to reach the absolute truth. Politics treats of questions that can and should be the subjects of debate. The hope in a democratic society is that the majority is right. But a 51% majority does not guarantee that the majority view is necessarily more intelligent than that of the minority. Therefore, the ideological “give and take”, the discourse of different views – including those that reside at the periphery – is necessary in the extreme. Freedom of expression is important not only on Election Day, but always, as the public debate continually influences the decision making of the leaders of the political branches.

This second ground for the great importance of freedom of political expression also comprises the third. The latter serves as a means for the constant monitoring of the activities and decisions of the various governmental agencies.

Fourth, according to certain approaches, the participation of individuals in the political process is of independent value. This derives from a recognition of their dignity and their role as social creatures with values. This ground stand on its own, and goes beyond the influence upon the decisions actually made (see: Re’em Segev, Freedom of Expression: Justifications and Restrictions, 124-148 (2008)).

On a more general level, freedom of political expression is protected not only because we are a democratic state, but also because we are a Jewish state. Thus from the earliest days of our existence. We are told that our Patriarch Abraham was called “Ivri” [“Hebrew”] because he maintained his opposition to the idolatrous regime: “And told Abram the Hebrew [ha-‘ivri] … Rabbi Judah said: The whole world was on one side [‘ever], and he was on the other side [‘ever]” (Genesis Rabba 48:8). The first holiday of the Jewish nation – in fact, its constitutive holiday – is Passover. It is a holiday that counterposes individual liberty and the slavery regime of the Egyptian Pharaoh. These points accentuate the centrality of freedom of political speech as integral to freedom of the individual confronted by the existing regime that limits his choice. The issue is not only the “marketplace of ideas”, but a person’s right to freedom of expression in opposition to the ruling political regime. The power of the individual to make his own decisions and express his views without society – even a democratic society – deciding for him in the public’s name.

I note these matters first, because the petitions before the Court require that we examine the borders of freedom of expression. The petitions all focus upon the constitutionality of the Boycott Law, while emphasizing different aspects. It would seem that our decision in this matter may depend upon the weight to be accorded to freedom of political expression.

3.         As the bill explains, the purpose of the Law is “to prevent harm caused by the phenomenon of imposing boycotts on various entities due to their connection to the State of Israel. The boycotts may harm commercial, cultural or academic activity that is the object of the boycott, or inflict serious loss thereto” (H.H. 373 (2.3.2011).

            It is clear that the Law’s initiators considered the importance of freedom of political speech. Thus, for example, the final version of the Law does not include a criminal sanction against a person calling for a boycott. Another example is that the Law is not directed at every person calling for a boycott, but only one who “knowingly publishes a public call for a boycott against the State of Israel” (hereinafter: the  “caller” or the “call for a boycott”). My colleague Justice Melcer also provided an excellent review of additional aspects of the values comprised by the Law, for example the desire to prevent discrimination on the basis of a connection to a country of origin (para. 32 of his opinion). Nevertheless, the matter in its entirety must be examined from the perspective of constitutional judicial review.

            The decision in this case is not an easy one. It raises legal, extra-legal and social questions. As judges, our role is, first and foremost, to examine the law as it is. In other words, the conflict –which must be evaluated and decided – arises in a concrete manner, and affects particular aspects of specific rights. It concerns a particular legal text. That text – the Boycott Law, in the matter before us – is the basis for that decision.

            The Law consists of a number of provisions. First, it defines the boycott (sec. 1), which is the cornerstone of the other provisions of the Law. That is followed by a number of sanctions that may apply to a person calling for a boycott under the established conditions. The sanctions can be divided into three categories: torts (sec. 2), prevention of participation in tenders (sec. 3), and denial of benefits (sec. 4). I will separately address each element in that order.

Definition of the Boycott

4.         Section 1 of the Law states:

In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm.      

            It should be noted that the definition comprises three elements: refraining from economic, cultural or academic ties; connection with the State of Israel, one of its institutions or an area under its control; economic, cultural or academic harm.

            As noted, the definition section focuses upon “boycott”. However, one cannot learn from that, alone, what action by an individual might lead to the imposition of the three sanctions. The answer to that may be found in the relevant sections, 2-4. Common to all of those is that the particular sanction – payment of damages, prevention from participating in a tender, or denial of benefits – will apply to one who knowingly publishes a public call for a boycott. To complete the picture, it should be noted that sections 3-4 also refer to one who committed to participate in a boycott. The emphasis is upon the commitment, and not on the participation. Either way, this means that in order to fall within the scope of the sanctions, the very call for participation in a boycott suffices, even in the absence of any actual participation. Participation in a boycott is not required in order to fall within the purview of the sanctions. A concrete examination of the Law reveals that it targets freedom of expression in the range of freedom of political expression – for example, the State as such, or even parts of it.  We thus see that the Law is intended to restrict the freedom of political expression. However, when we look at the call, we find that that we are not concerned with the highest degree of freedom of expression, which is the pure expression of an opinion or a position, or the publication of facts. The Law does not apply to an individual’s expression by which he, personally, imposes a boycott on Israel, as defined by the Law. The expression is calling for a boycott by another. But still, we are concerned with a “call”, which is clearly part of freedom of expression (on this point, see the para. 6 of opinion of my colleague Justice Y. Danziger, as well as the references to the articles by Theresa J. Lee and Prof. Nili Cohen). Moreover, we are not concerned with a call for the perpetration of a criminal offense or a civil tort. As noted, a boycott, itself, is not prohibited by the Boycott Law. Therefore, even if there are more “pure” expressions of freedom of political expression, we are still within its compass, with all that derives therefrom in terms of the recognition of the proper weight of the infringement. That is to say, the type of infringement and its importance are of significance in a democratic state.

            As noted, the right to freedom of expression stands at the highest level. I have elsewhere expressed my opinion that when the Court conducts judicial review, it is important to consider the location of the relevant right on the scale of rights. I believe that even if this is not the place to decide a hierarchic structure of rights, and even if that may not be desirable in a relative and proportionate constitutional system, it would be proper – even in accordance with the instructions of the legislature in sec. 8 of Basic Law: Human Dignity and Liberty – to consider the type of right being infringed, while establishing principles. That is also the case in the United States, where three levels of rights are customarily distinguished for the purpose of deciding the requisite level of judicial review. In short, one can summarize that the Rational Basis Test is employed in regard to an arbitrary governmental decision; discrimination on the basis of age or sex will be judicially reviewed through Intermediate Scrutiny; while racial discrimination – which is viewed as a particularly severe form of discrimination – will be subjected to Strict Scrutiny (see: HCJ 466/07 Galon v. Attorney General (published in Nevo) (Jan. 11, 2012), para. 4 of my opinion [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]).

            This is the required approach. To paraphrase George Orwell’s Animal Farm, one might say that “not all rights are equal; some rights are more equal than others”. This is all the more so when the Court must examine a law under the proportionality test, in both its broad and narrow senses. Clearly, this does not mean that due to the importance of freedom of expression, or even freedom of political expression, it will always prevail in any competition with another right. However, the status of freedom of expression does influence the constitutional analysis in the concrete case.

             Reference to American law may help sharpen the point. That system recognizes the restriction of freedom of expression in certain cases. However, the list of cases is very limited, and focuses primarily upon a situation in which one person’s freedom of expression causes harm to another. The leading case in this regard is Brandenburg v. Ohio, 395 U.S. 444 (1969), which established when certain expression crosses the line distinguishing protected speech and a criminal offense. It was held that there is a two-part test: direct incitement, and likelihood of imminent lawless action. A causal connection must be shown between the speech under review and the expected harm or unlawful conduct.

            There are, of course, Israeli laws that limit freedom of expression, such as the Prohibition of Defamation Law, 5725-1965, sec. 12 of the Civil Wrongs Ordinance [New Version], or sec. 122 of the Knesset Elections [Consolidated Version] Law, 5729-1969. The restriction in those laws was intended to prevent harm of a certain magnitude, for example, limiting freedom of speech that disgraces or humiliates another person. Here we are concerned with speech that may harm income, occupation, employment, and academic research.  But in the background, and not only there, we should again emphasize that a public call for a boycott will suffice to fall within the scope of the sanctions, even if the caller does no participate in the boycott. We point this out not so as to reject such a distinction a priori, but only to show that the Law, as drafted, was primarily intended to limit freedom of expression. That, in my opinion, provides a different perspective of the Boycott Law, as per its language. Just as the law depends upon the facts, so judicial review depends upon the legal text – upon what is says and what it does not say.

 

A Civil Wrong – Section 2

5.         The section, whose heading is “Civil Wrong”, states as follows:

(a) Anyone who knowingly publishes a public call for a boycott against the State of Israel, where according to the content and circumstances of the publication there is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility, commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him.

(b) In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.

(c) If the court find that a civil wrong, as defined by this law, was committed with malice, it may require the tortfeasor to pay damages that are independent of the actual damage caused (in this section – exemplary damages); in calculating the sum of exemplary damages, the court will consider, inter alia, the circumstances under which the wrong was carried out, its severity and its extent.

            In effect, sec. 2 comprises three different elements: creating a new tort treating of a call for imposing a boycott (ss. (a)); a determination in regard to a certain element of the tort of inducement of breach of contract (ss. (b)); establishing the possibility of awarding damages without proof of damage (ss. (c)). I will begin by stating that, in my opinion, section 2 in its entirety does not stand up to constitutional review, and should therefore be struck down. In order to understand that position, I will make it clear that I am willing to assume that the Law passes the three preliminary tests: by a law and for a proper purpose befitting the values of the State of Israel. I am also willing to assume that the Law passes the first two subtests of proportionality – that of a rational connection and of an alternative, less harmful means. Nevertheless, I am of the opinion that sec. 2, in its entirety, does not pass the third subtest of proportionality: proportionality stricto sensu. I will first examine subsections (a) and (c), which would seem to be more closely related.

6.         The elevated status of freedom of political expression requires a detailed examination of the innovation introduced by the Law, which infringes that right. At first glance, it would appear that sec. 2 of the Law makes it easier for a plaintiff seeking damages in two ways.

            First, damages can be awarded without proof of damage – subsection (c). It is true that this possibility is contingent upon the tort being committed with malice. However, this would not appear to be a sufficiently high bar. The term “malice” is not defined by the Law. It would seem that the legislative intent was to remove cases of negligence or cases in which there was awareness of the possibility of a boycott without intention to cause it (compare with the malice requirement in sec. 131 of the Tenant Protection Law [Consolidated Version], 5732-1972, which was interpreted as referring to an intentional act. See, e.g.: CA 774/80 Badawi Arslan v. Daad Fahoum, IsrSC 35 (3) 584 (1981); LCA 4740/02 Ibrahim Halil Alamad v. Muhammad Zaki Albudari (published in Nevo) (June 23, 2005)). Alternatively, it may be that the requirement refers to a particularly negative motive – a desire to cause harm, like the requirement of malice in the Civil Wrongs Ordinance (see: Israel Gilead, Tort Law: The Limits of Liability, 1160-1162(2012) (Hebrew) (hereinafter: Gilead); Izhak Englard, The Law of Civil Wrongs – The General Part, 2^nd ed., 130, 150 (Gad Tedeschi, ed.)  (1976) (Hebrew)). However, practically speaking, the action of calling for a boycott generally indicates – by its nature – the publisher’s intention that his call will lead to an actual boycott, which fulfils the requirement of a negative motive. That is true even if it is employed as a means for achieving another end, and not with the ultimate objective of harming those boycotted. Thus, the question of how hard it would be to prove the element of malice arises in all its force. It would appear, without making any definitive statement on the issue, that the answer is that it would not present any great difficulty.

            Second, prima facie, it would appear that, under the language of sec. 2(c), it would be possible to impose tort liability without proving some of the classic elements of a tort – a causal connection and causing damage – and that, prima facie, this would also be true under the language of sec. 2(a).  Liability could be imposed under the latter when, according to the content of the call and the circumstances of its publication, there “is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility”. In other words, there is no requirement of proof of causal connection between the call for a boycott and the damage in accordance with the balance of probabilities, but only proof of a reasonable possibility. It would be germane to ask whether lightning the burden of proof in a civil suit, while eroding and infringing freedom of political expression, is proportionate. It has the potential for excessively limiting freedom of political speech. That freedom requires constitutional protection. The legislature chose the sanction of tortious liability while abandoning the approach of criminal responsibility, and rightly so. However, one might argue that this two-pronged relaxing of the tort requirements makes the tort quasi-punitive.

            I find this disturbing, but I accept the solution proposed by my colleague Justice Melcer to be a legitimate interpretation.  His position is that sec. 2(c), treating of exemplary damages, should be struck down, and that the elements of the tort under sec. 2(a) be construed in a manner consistent with the elements of a tort as established by the Civil Wrongs Ordinance. In other words, in proving a tort under the Boycott Law, the plaintiff would be required to show both damage and a causal connection between the call and that damage he incurred. In my view, one might ask whether that proposed interpretation is necessarily what the legislature subjectively intended. However, the interpretation of sec. 2(a) proposed by my colleague is possible under the language of the Law (and there is even some support for it in the bill). It is the accepted rule that a construction that prevents the voiding of a law is preferable to one that renders it void. According to the proposed approach, the phrase “[according to] circumstances of the publication there is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility” is an additional condition.  In other words, it places an additional hurdle before proof of the tort. However, “Anyone who knowingly publishes a public call for a boycott … commits a civil wrong and the provisions of the Civil Wrongs Ordinance will apply to him”. In other words, the tests for the causal connection and the proof of damage derive from the Civil Wrongs Ordinance. That interpretation renders sec. 2(c), regarding the imposition of exemplary damages, void, while sec 2(a) – boycott as a tort – is preserved subject to the requirement of proof of a causal connection and damage as required under tort law.

            However, this is not the end of the road. In other words, while I accept the proposed construction, I do not believe that sec. 2(a) meets the requirements of constitutionality. My focus will now be upon the third test of proportionality – proportionality stricto sensu, harm versus benefit.

 

Section 2(a) – The Proportionality Stricto Sensu Test

7.         My conclusion that this section does not pass the proportionality stricto sensu test rests upon a number of tiers. First, there is the near-certainty test. My colleague Justice Melcer explained that an infringement of freedom of expression in order to protect a competing interest must meet the criterion of near certainty. Under this test, the call under discussion must have a high probability of infringing the protected interest (see: the Kol Ha’am case, pp. 887-889). But he argues that this presents no difficulty in in the present case. The reason for this is that having established the need for proof of a causal connection between the conduct and the damage, we are no longer concerned with a near certainty of damage, but rather with certainty. This clever argument appears logical. However, I am not sure that it is precise. The reason for this is that the factual causal connection test examines the relationship between the speech and the result ex post. It does not examine the a priori reasonableness of the connection. As opposed to this, the near certainty test is a substantive test that applies ex ante, at the time of the call for a boycott. It is intended to filter from the scope of liability those expressions that should not be prevented. The quasi-evidentiary test is meant to regulate conduct or speech in “real time”. The information collected thereafter is but hindsight.

            Consider, for example, a call for a boycott in a closed, small forum of students. It might “leak” out and actually lead to the boycotting of a large commercial company. Near certainty is absent at the moment of speaking, but there may be a causal connection. Indeed, the legal causal connection test is meant to address this. In its framework, the situation is examined at the time of the call itself. That is also true of the “reasonable possibility” test established under sec. 2(a) of the Law. But those tests are not of “near certainty”, but rather are more lenient tests. We thus find that the substantive requirement of near certainty need not be met in order to give rise to the “tort of calling for a boycott”. I am aware that my reservation is not entirely free of doubt, and it, too, is clever. I will, therefore, buttress my conclusion that the constitutional harm exceeds the benefit of retaining sec. 2(a) even without granting weight to this argument, although I believe it has merit.

            The second tier is that we are concerned with the creation of a new tort. The assumption is that in enacting the Law, and particularly sec. 2(a) – a tort of calling for a boycott -- the legislature intended an innovation. Inasmuch as this innovation infringes freedom of political speech, as earlier noted, this requires careful constitutional examination. That examination must attribute the proper weight to the infringement, on the one hand, and to the proper purpose of preventing harm to the State of Israel by means of a boycott, on the other hand. The innovative nature of the Law cannot be denied. As the bill stated:

This bill is intended to establish a new tort that would also apply to cases that do not fall within the scope of the said torts [of inducing breach of contract and negligence], and will make it possible for a person or other entity harmed as a result of a boycott imposed upon it due to its connection to the State to sue for his injury.

            In other words, the legislature did not wish to reiterate what already existed, but rather to break new ground.

8.         The third tier, and with the purpose of thus pinpointing the innovation, treats of the uniqueness of sec. 2(a) as opposed to secs. 3 and 4. The former provides a tool for an individual to sue another individual in tort for his call for a boycott. The latter concern administrative sanctions by the state. This distinction is very significant. Granting such a tool to an individual does not create a proportionate balance between the (proper) purpose and the infringement of freedom of political expression. The reason concerns the relative ease in filing and conducting the suit. Imagine that a person calls for a boycott as defined by the section. During the course of the following three months, there is a drop in the profits of the factories and stores in the boycotted area. That would be sufficient to ground filing a tort suit against the caller, which, prima facie, would meet the threshold requirements. After all, there is a call for a boycott, and injury. The plaintiff can attempt to prove the causal connection in regard to the entire loss: assuming a twenty-percent loss, it may be argued that the entire loss derived from the call. Alternatively, it may be argued that only part of the loss derived from the call – for example, fifty percent. In the latter example, the plaintiff would be able to claim that even though three was a recession during the relevant period, were it not for the call, the loss would have amounted only to fifteen percent. Such a suit could be brought by every factory, business and store in the area. Even a profitable factory would be able to argue that were it not for the call for a boycott, the profit would have been greater, and therefore it incurred damage.

            I am willing to assume that there will be suits in which the damage would be proven by means of the regular tests of tort law. However, many suits would become an instrument – a means for filing suits in order to create a new, harsh reality for various people and entities. The harm of such a situation would be inflicted even if the suit does not succeed. One may even assume that various lawyers will muster for this, also as part of an ideological struggle. Such suits will become a means for political “goring”, with the courts serving as the horns. The harsh result will be a chilling effect that will influence freedom of expression, particularly in the case of an individual defendant. He will have to evaluate (in every sense) his conduct before calling for a boycott, and this in relation to freedom of political speech. As Justice Danziger put it: “The presence of a chilling effect in this case is not at all speculative. The creation of a chilling effect is the primary means chosen by the legislature for achieving the Law’s purpose” (para. 29 of his opinion). And see the clear, comprehensive summary in his opinion, as well as the opinion of my colleague President (Emeritus) Grunis in HCJ 2311/11 Sabah v. Knesset (published in Nevo) (Sept. 17, 2014) para 16 of his opinion).

            This point highlights the difference between the tort under sec. 2, and the administrative sanction under secs. 3 and 4. The latter is exercised by the state, which is entrusted with protecting the interests of the entire general public and of specific groups. As such, it must act in accordance with the criteria of public and administrative law in regard to such matters as selective enforcement, establishing criteria and internal procedures, reasonableness, the rules of natural justice, and so forth. An individual is under no similar duty. This point is expressed both in Israeli and comparative law.

            In Israeli law, we can point to the arrangement under sec. 4 of the Prohibition of Defamation Law [19 L.S.I. 254]:

Defamation of a body of persons, or any group, other than a body corporate […] shall not be a ground for a civil action or private complaint.

            An individual cannot sue another individual for a publication defaming a public of which he is a member. He also cannot file a private complaint. This arrangement does not derive from the view that groups do not require protection of their good name, or under an assumption that the members of a group are not harmed by a publication that disparages or humiliates the group. Those are protected by a criminal prohibition. Why, then, is a member of the group prevented from making recourse to the courts in regard to the publication?

            There are several reasons for this. Among other things, there is a fear that such cases may have a chilling effect upon freedom of expression. Due to this fear, the ability of individuals to “flood” the publisher with civil suits is denied. This is so even in regard to a low degree of expression – “a public falsity” that disparages an entire public (see CA 8345/08 Ofer Ben Natan v. Muhammad Bakri (published in Nevo) (July 27, 2011) para. 8 of the opinion of Justice I. Amit). The proper balance between the conflicting values grants the state the power to institute proceedings. The assumption is that, from the outset, it will wield its power in an appropriate, balanced manner that will prevent a chilling effect and harm to freedom of expression. An additional reason is the view that the protection of a particular public – of the entire public – is a governmental rather than an individual interest. That interest should be protected by the authorities, and not be “privatized” and granted to individuals (ibid.; Khalid Ghanayim,  Mordechai Kremnitzer & Boaz Shnoor, Libel Law: De Lege Lata and De Lege Ferenda, 250 (2005) (Hebrew) (hereinafter: Libel Law).

            To return to the matter at hand, a call for a boycott differs from a “publication of a public falsehood”. There, we may be may be concerned with a false fact. Here, we are concerned with expression that is similar to an opinion. There, the publication may be of no public value. Here, we are concerned with political speech. We should learn from this that if the legislature exercised caution in regard to the less severe case, we should be exponentially more careful in regard to the more severe case. It would not be superfluous to recall that the subject of defaming the public arose in the debate on amending the Defamation Law. The possibility of establishing a civil tort was barely mentioned. As opposed to that, there was support for the view that even establishing a criminal offense would be extreme. Similar situations can be found throughout the world (see: Libel Law, at pp. 248-240).  Protecting the public interest – yes. But, at the same time, entrusting it to the authorities and not to the public. And this due to the care that must be exercised in regard to limiting freedom of expression. Let me put this differently. One of the defenses to a defamation suit is a plea of truth (sec. 14 of the Defamation Law). That defense cannot be sustained in reply to political speech because, as explained above, we are concerned with an opinion rather than a fact.

            As for comparative law, my colleagues Justice Melcer and Justice Danziger presented a broad comparative picture of legislation and case law. In my opinion, comparative law is of particular importance in this case. The reason is that the background of the Law includes acts for and against the boycotts, including boycotts against the State of Israel. It should come as no surprise that the bill’s Explanatory Notes refer to the American Export Administration Act of 1979 (hereinafter: EAA). However, in my opinion, even if we were to accept the comparative law analogies in this regard, they concur with and lend support to my position. The comparative examination reveals that the sanctions in the other legal systems are not between individuals, as in the case of a tort suit, but are granted to the state, for example, in the form of administrative sanctions. Consider, for example, the United States. The two primary pieces of legislation referred to by the Respondents are the EAA and the Ribicoff Amendment to the Tax Reform Act of 1976 (hereinafter: TRA). These pieces of legislation were enacted against the background of the Arab Boycott against the State of Israel, and were intended to help protect the interests of the State of Israel and the United States. In both laws one can find sanctions directed at anyone who participates in a boycott against a country that the United States does not boycott. Thus, in the framework of the amendment to the TRA, certain tax benefits are denied to anyone participating in a boycott (26 USC § 908). In addition, administrative sanctions can be imposed upon such a participant by virtue of sec. 11(c) of the EAA. The law does not comprise a section permitting a citizen who views himself as harmed by the boycott to file a civil suit. Additional laws that appear in the survey submitted to the Constitution Committee also do not establish calling for or participating in a boycott as a civil wrong (see: http://www.knesset.gov.il/mmm/data/pdf/m02861.pdf).

            According to the Boycott Law Bill, it is not the only legislation treating of calls for a boycott. According to that view, a suit can be filed for the torts of negligence or inducement of breach of contract. Even if we were to assume that to be wholly or partly correct in accordance with the circumstances, we are, in any case, concerned with exceptions that certainly do not allow for suits to the extent and in the circumstances permitted under the current language of section 2 of the Law.  That is true both for Israel and for other countries. Let us again consider the situation in the United States. Attempts to sue for calling for a boycott, even under existing tort causes of action, failed due to the importance of freedom of expression. My colleague Justice Danziger addressed the Caliborne case, in which a similar tort suit was denied, at some length. In that case, as noted, residents boycotted a group of merchants in order to influence governmental policy. As a result, those merchants suffered financial losses. As was held: “Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action”. And even if it were possible to present circumstances or an example in which such a suit might prevail – which would appear to be the position of my colleague Justice Melcer – that claim should not be accepted in its comprehensive form. The Supreme Court’s case law has recognized the conflict between opposing the boycott and the right to freedom of expression, and has preferred the latter over the former. To return to our legal system, the language of the section is broad – too broad. The criteria of the proportionality stricto sensu test are not met. So it would seem to be in the entire world, and so in the State of Israel.

            And note that I am not stating that we must follow in the footsteps of American law in regard to the judicial review of sec. 2. In the United States, the result derives from the force of the First Amendment to the Constitution, whereas in our legal system, the Law is examined in accordance with the constitutional test under sec. 8 of Basic Law: Human Dignity and Liberty. Of course, however, the status of freedom of political expression is recognized by this Court, and weight can be given to the American approach in that regard. From this perspective, both in principle and in practice, I am of the opinion that the harm is greater than the benefit of the Law. The section does not meet the test of proportionality stricto sensu.

9.         The fourth tier is of a practical nature. There is, in my opinion, a problem created in terms of judicial policy considerations. Sec. 2 of the Law requires that the court contend with additional factors as a trial court of first instance rather than an instance performing administrative review and examining the margin of proportionality. For example, the court must weigh the content of the call and the circumstances of its publication (sec. 2(a)), as well as the circumstances of the commission of the tort, its severity and its scope (sec. 2(c)). Experience shows that in quantifying various forms of damage, a court must get into the thick of things and perform various estimates. For example, in order to decide the fate of a private complaint before it, it will have to evaluate, compare and distinguish different cases and calls for boycotts of various scopes and types. In that regard, the judicial task differs from evaluating suffering or even libel, regarding which there are factual issues rather than disagreements in the political arena. There is a fear that the new Law will require – or, at least may drag – the courts examining tort suits – the Magistrates Court and the District Court – to delve into and decide purely political matters. In my opinion, it would be better that such tasks not be performed within their walls.

            Another aspect of this tier is the problematic nature of the Law from a tort-law perspective. The Law makes it possible for a large number of plaintiffs to sue for purely economic damage. Questions relating to proving the necessary causal connection were not clarified. It would seem that sec. 2 suffers from inherent ambiguity. Even if that does not lead to invalidation, the ambiguity carries weight in the constitutional review of freedom of political expression in a civil proceeding. In this regard, we should note the American doctrine of “void for vagueness” in regard to criminal offenses. Nevertheless, it carries weight in constitutional review of civil proceedings. Of course, if I were of the opinion that the section could survive constitutional review, then considerations of judicial policy – or more precisely, policy considerations in regard to the judicial task – would probably not tip the scales on their own. But, inasmuch as I do not believe that to be the case, it would be worthwhile to present the said problem. This information reinforce the possibility of a violation of freedom of political expression. The more fundamental the infringed right, and the more severe its ramifications, the greater the need for precision in its delineation. The language of sec. 2 does not meet that requirement.

            The fifth tier is the very statement that we are treating of a tort. This is related to the innovation in the enactment of sec. 2. The bill stated:

In order to prevent such damage, it is proposed to establish that knowing publication of a public call for the imposition of a boycott on any entity due to its connection to the State of Israel be deemed a tort to which the provisions of the Civil Wrongs Ordinance [New Version] will apply. In other words, it will be possible to seek damages for the damage caused by the tort … Even now, a person harmed as the result of such a boycott may sue in tort, in the appropriate circumstances, for the tort of inducement of breach of contract or the tort of negligence.

            Without setting anything in stone, I would say that I am not convinced that it would be possible, at present, to file a negligence suit, except, perhaps, in exceptional cases. A central element of that tort is the existence of a duty. Is a person normally subject to a duty not to call for a boycott? This is not comparable to calling for prohibited conduct like racism (cf. LCrimA 2533/10 State of Israel v. Michael Ben Chorin (published in Nevo) (Dec. 26, 2011) paras. 5-7). It is also not comparable to procuring a civil wrong under sec. 12 of the Civil Wrongs Ordinance. In the above examples, a person calls for the perpetration of an act that is, itself, an offence or a tort. Calling for a boycott, at least in some of situations, is a person’s basic right of conscience. There are people whose conscience will not permit them to purchase an automobile produced by a certain country. Others are upset by the very thought of patronizing certain stores that sell non-kosher products alongside kosher ones. They do not wish to empower those that they perceive as “offenders”. To each his choices, and to each his conscience. Such choices stand at the core of a person’s freedom to realize his values in his lifestyle. At times, a call for a boycott is a call to act in accordance with one’s conscience. Conscience may be the compass of freedom of expression, including the freedom of political expression. Various policy considerations may indeed justify prohibitions upon the imposing of boycotts, and more widely, calls for boycotts. It is not my intention to loosen all restraint. The weight on each side of the scales will decide.

10.       Looked at in its entirety, and for all the reasons stated, it is my opinion that a detailed examination of sec. 2(a) of the Boycott Law leads to the conclusion that the harm caused by the infringement of freedom of political speech exceeds the benefit accruing from the protection it affords to the purpose of the Boycott Law. I would again emphasize that the freedom of political speech does not grant comprehensive immunity. There are possible situations in which the call would justify its restriction by appropriate means. In that, sec. 2(a) – which establishes a civil wrong – differs from secs. 3-4 and their administrative sanctions. These section are consistent with the necessary balance required by proportionality stricto sensu, as I shall explain in greater detail.

 

Section 2(b) – Proportionality Stricto Sensu

11.       Section 2(b) establishes that a person calling for a boycott, as defined by the Law, does not act with sufficient justification in regard to the tort of causing a breach of contract. Does this meet the requirements of the proportionality stricto sensu test? Pursuant to the above, I am of the opinion that this section of the Boycott Law passes the other tests set out by the Limitation Clause, and therefore, I shall proceed to examine proportionality stricto sensu.

            The tort of causing a breach of contract is set forth in sec. 62 of the Civil Wrongs Ordinance [New Version] as follows:

Unlawfully Causing Breach of Contract

62. (a) Any person who knowingly and without sufficient justification causes any other person to break a legally binding contract with a third person commits a civil wrong against such third person; Provided that such third person will not recover compensation in respect of such civil wrong unless he has suffered pecuniary damage thereby.

            The rationale is clear – protecting performance of contracts. We cannot discount the possibility that a statement or commercial act may cause a breach of contract. Therefore, the legislature limited tortious liability by means of two primary liability filters: the first, a requirement of a mental element of subjective awareness that the conduct would cause a breach of conduct, and the second, the requirement of a lack of sufficient justification (and cf. Gilead, at p. 1168, fn. 53). Thus there is recognition of the complex – protection of contracts along with “sufficient justification”. The nature of the justification is not explicitly stated in the law. An examination of Israeli law, comparative law, and the legal literature reveals that we are concerned with a “safety-valve concept” [Ventilbegriffe; concetti volvola] in the scope of which concerns of justice and various interests may be considered (see: CA 406/59 Lindsay v. Scheiber, IsrSC 14 (3) 2422, 2427 (1960); Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 495-496, [1942] 1 All ER 142 at 175, HL, per Lord Porter). Not surprisingly, the opinion has been expressed that “this element is the most difficult to delimit”, and “it requires that the court exercise broad discretion” (Nili Cohen, Inducing Breach of Contract (The Law of Civil Wrongs – The Particular Torts, G. Tedeschi, ed., 207 (1986)) (Hebrew) (hereinafter: Cohen).

12.       Despite the complexity of the Law’s provisions and the subject, I would conclude that a call for a boycott for political reasons is constitutionally protected. The reasons given in regard to sec. 2(a) also hold in regard to the existing tort of causing breach of contract. Therefore, there cannot but be a similar result. I will clarify my position.

            The emphasis of this discussion will center upon the element of justification, which is the core of the amendment in the Boycott Law. As the language of the Law states: “In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.” In other words, the consideration of freedom of political speech by means of a call for a boycott, as defined by the Law, does not grant a person who causes a breach of contract a justification that would exempt that action from the compass of tortious liability.

            Several types of justification have been recognized in the case law in Israel and abroad. One type concerns causing a breach that is desirable, or by the exercise of a lawful right. One example is the case of conflicting contracts. The first buyer who insists upon his rights, justifiably causes a breach of contract with the second buyer, inasmuch as his right has priority (See Cohen, p. 219). Another example is the “necessity defense”, as in causing a person to breach an employment contract in order to save the life of another (see Cohen, pp. 212-218). Another type of defense may be available to a person causing a breach of contract even when the breach itself is not deemed justified or desirable. A person may have a justification if he acted in good faith (see: CA 3668/98 Best Buy Marketing Ltd. v. PDS Holdings Ltd, IsrSC 53 (3) 180, 189-190 (1999); Cohen, pp. 233-235). In other situations, a public interest can lead to an exemption from tortious liability. In CA Yosef Etzion v. Naftali Stein, IsrSC 45 (3) 554, 560-561 (1991), it was held that a lawyer has a defense of justification for giving advice to a client that causes a breach of contract. The reason for that is desire to prevent a chilling effect that would harm a lawyer’s ability to properly protect his client’s interests. Another example can be found in sec. 62 of the Civil Wrongs Ordinance itself, which establishes that “a strike or lockout will not be deemed to be a breach of contract”. That may be viewed as a sort of defense intended to protect the ability of workers to realize the freedom to strike (see: Ruth Ben-Israel, “Tort Liability for Strike Action,” 14 Iyunei Mishpat (Tel Aviv University Law Review) 149, 169-170 (1989) (Hebrew)). Does the protection of the freedom of political expression also serve as justification?

            In the United States, tortious interference with contractual relations, under sec. 766 of the Restatement of Torts (Second) (hereinafter: the Restatement), has been addressed in the context of political boycotts. This tort has been interpreted, inter alia, as including an action lacking justification (see sec. 767 of the Restatement). Whereas a boycott for economic reasons may fall within the scope of this tort, it was held that a political boycott is protected by the constitutional right to freedom of speech. In Environmental Planning & Information Council v. Superior Court, 36 Cal. 3d 188 (1984) (hereinafter: the EPIC case), the California court addressed this issue and concluded:

Most of the cases in which claims of tortious interference have been considered have involved either pure commercial relationships or union-management relationships. There is a paucity of authority in the application of common law principles to a situation such as this, in which a group organized for political purposes allegedly undertakes a consumer boycott to achieve its ends. What authority does exist in this arena strongly suggests, even apart from constitutional doctrine, that such action will not give rise to liability [p. 194].

            In other words, most cases of tortious interference in contracts are connected to purely economic relationships or labor relations. As opposed to this, the case law supports the conclusion that, even in the absence of constitutional doctrine, a politically motivated boycott does not create liability. The court arrived at this conclusion, inter alia, after surveying the relevant case law, including the Claiborne case. It would not be superfluous to quote Justice Stevens, delivering the opinion of the Court, whose words were considered there, and which are appropriate to the case before us, as well:

While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. This Court has recognized that expression on public issues “has always rested on the highest rung of the hierarchy of First Amendment values.” Carey v. Brown, 447 U.S. 455, 467. “[Speech] concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75. “There is a profound national commitment” to the principle that “debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 [p. 913].

            Freedom of political expression in public matters merits the greatest protection. Incidentally, we should note the reference to New York Times Co. v. Sullivan, 376 U.S. 254, 270, whose principles have been adopted in our legal system in the law of defamation (see: CA 323/98 Sharon v. Benziman, IsrSC 56 (3) 245, 266 (2002)). To return to the tension between causing a breach of contract and freedom of expression, the EPIC case held that that in the typical case of causing a breach of contract for commercial reasons, the court must balance the interests of the parties and of the public. However, where the “defendant’s activities constitute a ‘politically motivated boycott designed to force governmental and economic change,’” the Court is “precluded by the First Amendment itself from gauging the degree of constitutional protection by the content or subject matter of the speech: ‘[There] is an equality of status' in the field of ideas’” (ibid. at p. 197). In other words, when we are concerned with acts that constitute a political boycott intended to bring about a change in the policy of the authorities, the law will protect freedom of political speech. There is an equality of status in the field of ideas. Under this approach, the court will not decide by “grading”, so to speak, one political opinion as opposed to another. As may be recalled, the true test of freedom of political expression is not when it is in the consensus, or even near it, but when it is very far from it, and not merely by a stone’s throw.

            This is also true in regard to a call for a boycott as defined in the Boycott Law, and also when the call is intended to cause a breach of binding contracts, as for example, in the case of Cincinnati Arts Association v. Jones et al., 120 Ohio Misc. 2d 26; 2002-Ohio-5428. In that case, the defendants called for a boycott following the death of a person at the hands of the police. In the framework of that boycott, there was a call for artists to cancel their appearances in the city concerned. The court held that the call was constitutionally protected, and dismissed the tort suit filed by the promoters of the events that were cancelled.

13.       The result arrived at by the American courts should come as no surprise. The balance that we performed in the examination of sec. 2(a) of the Boycott Law also holds in regard to the examination of the constitutionality of sec. 2(b). Practically speaking, many calls for boycott concern existing contractual relations – calls for artists to cancel their appearances, calls for the media to cancel existing commercial ties, and so forth.

            True to my above approach, constitutional review is not conducted in light of the First Amendment of the United States Constitution. We are concerned with the proportionality test established under sec. 8 of Basic Law: Human Dignity and Liberty, in general, and at this stage, the proportionality test stricto sensu, in particular. From that standpoint, entrusting the power to impose sanctions for the expression of a political position in the hands of an individual is not proportionate. I will refer to the reasons given above in regard to the constitutional analysis of the tort established in sec. 2(a), including the chilling effect that derives from filing a suit by one individual against another. As stated, there is no effective “filter” that would prevent the filing of multiple, political tort suits in the various judicial instances. An after-the-fact dismissal of a suit by the court will not prevent the overall influence of the effect upon freedom of expression. It is a priori improper to conduct political debates in the courts. And it is also certainly undesirable, in terms of judicial policy, to allow such conflicts to be brought before the courts for judicial decision. It should again be emphasized that we are concerned, inter alia, with subjects that are at the heart of the political debate. This is as opposed to entrusting this sensitive matter in the hands of the government, which enforces the protection of the interests of the boycotted group while employing a filter from the start, as will be explained below. This allows for the achievement of a proportionate balance between the purpose and the means adopted to protect it. Moreover, judicial review can be conducted in advance, by examining the directives or criteria established by the authorities.

            One might raise objections to this approach. One possible argument is that it cannot definitively be stated that a politically motivated call for a boycott will always be immune to a claim of inducing breach of contract. “Justification” is a broad safety-valve concept. Within its bounds considerations of justice, personal interests and public interests are examined. The scope of judicial discretion is broad and flexible. Moreover, sec. 62(a) of the Civil Wrongs Ordinance comprises other elements – “knowingly” and “causal connection”. Each of the elements comprises a broad spectrum of situations. As for knowingly, in one case a person converses with another and asks him to breach a specific contract. In another case someone makes a general call for the breach of contracts in a particular field, knowing that people may respond to the call. The causal connection may also be complicated and difficult to untangle. Is it sufficient that the defendant presented convincing arguments in expressing his political position? Is procuring required? Is there a difference between a situation in which the caller for a boycott initiates the call, and one in which the party in breach asks his opinion? (See and compare: CA 123/50 Bauernfreud v. Dresner, IsrSC 5 (1) 1559, 1573 (1951), Cohen, pp 233-236).

            From these question we see that, even absent the condition of justification, it is possible that the tests of causal connection (“caused”) and mental element (“knowingly”), each independently erects challenging hurdles in the path of proving the tort of inducing breach of contract by means of a call for a boycott. The three terms have mutual influence. The terms “knowingly”, “causation”, and “justification” must be defined against the background of their mutual interaction. Moreover, Israeli legal experience shows that plaintiffs have not made broad recourse to this section on the basis of political stands. This, as opposed to commercial considerations. And we would again recall what was held in the American EPIC case, according to which the case law in this area strongly supports the thesis that, even without recourse to constitutional considerations, it is doubtful whether a call for a political boycott, by its nature, would result in tortious liability (the EPIC case, p. 194).

            Of course, these considerations are not primary, but are a helpful device for understanding the nature of the issue. We should not forget that according to the language of sec. 2(b), the Boycott Law enters the lion’s den of conditions for proving the tort of inducing a breach of contract. The position adopted is one sided – freedom of political expression in the form of a call for a boycott is never a justification. Even if we were to assume that, under certain circumstances, the justification would not be available to a person causing the breach, it would appear that the comprehensive result is not proportionate. We are, after all, concerned with the test of proportionality stricto sensu under sec. 8 of Basic Law: Human Dignity and Liberty. The assumption is that the section is intended for a proper purpose. However, a proper purpose does not ensure that the law is proportionate in the narrow sense. We should bear in mind that we are concerned with a suit filed by one individual against another. This situation reinforces the need to maintain the accepted principles of tort law, and not so sharply deviate therefrom. This is particularly so when the need to protect freedom of political speech is poised on the other side of the scales. Section 2, together with its subsections, is aimed at the person calling for a boycott and not the boycotter. A call for participation in a boycott focuses the debate in the field of freedom of expression. Freedom of political speech is center stage. The prohibition created under the Boycott Law treats not of the action but of the call. The rule is that it is easier to restrict the freedom of political speech when it is intended to promote an unlawful purpose. And at its most fundamental level, it would appear that the disproportionality of sec. 2 derives from the concrete form that it takes in regard to freedom of political expression: granting an individual a means for suing another individual on the basis of his position on a political issue.

            The end of a section: From the perspective of interpretive harmony, there is no room for drawing distinctions among the subsections of sec. 2 of the Boycott Law. In our view, even if some distinctions might be found among them, they would be distinctions without a constitutional difference. I therefore join my colleagues Justice Melcer and Justice Danziger, though each following his own approach. My conclusion is that sec. 2 – as drafted – is not proportionate, and it must be struck down in its entirety. On the scales of proportionality stricto sensu, the value of freedom of political expression must prevail, both in principle and in practice.  On the level of principle, a different outcome may inadvertently deprive freedom of political speech of its proper protection. Of course, I am aware that the enacting of the Law reflects the position of the majority of the Knesset that a call for a boycott of the State of Israel and its academic institutions, or part of its territory, is a severe matter that harms the state. Nevertheless, the real test of freedom of political speech is precisely when freedom of speech is “problematic” and may even anger. A defensive democracy must also protect its character by protecting freedom of speech. On the practical level, an approach that would not invalidate the Law might open a door. The majority will be left to decide, in accordance with its view, when to create a chilling effect by means of a civil suit against political positions. Such an approach is inappropriate to a democracy. I would therefore recommend to my colleagues that sec. 2 must be struck down.

 

Section 3 – Denying Participation in a Tender

14.       Common to sections 3 and 4 of the Law is the imposition of administrative sanctions. Section 3 treats of the precluding participation in tenders. Section 4 concerns provisions in regard to the denial of certain benefits, for example, denying tax incentives Just as there is a connection between the constitutional analysis of sections 2(a) and 2(b), there is a connection between sections 3 and 4. I will begin by examining sec. 3. This section, entitled “Directives restricting participation in tenders”, establishes as follows:

The Minister of Finance is authorized, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, to issue directives in regard to restricting the participation in a tender of anyone who knowingly published a public call for a boycott against the State of Israel, or who committed to participate in such a boycott, including a commitment not to purchase goods or services produced or supplied in Israel, by one of its institutions, or in an area under its control; in this section, a “tender” is defined as any tender that must be administered in accordance with the Mandatory Tenders Law, 5752-1992.

            Thus, a connection is created between a public call for imposing a boycott or a commitment to participate in a boycott and restricting the participation in a tender. I am of the opinion that, as opposed to sec. 2, this section clears the constitutional hurdle. The infringement is by a law; the purpose of preventing harm to the State of Israel by means of boycott – which appears in the Law’s title – is a proper purpose that befits the values of the State of Israel.

            As for proportionality stricto sensu, I believe that there is a rational connection between the means and the purpose. Moreover, there would not appear to be a less harmful means that would achieve the same purpose. That, bearing in mind the objective of giving real expression to the consequences of calling for a boycott or committing to participating in a boycott.

15.       As for the third subtest, I will say as follows. In general, a careful distinction should be drawn between sec. 2, which treats of a civil tort, and sec. 3, which treats of participation in a tender. Taking a broad view, this section differs from sec. 2 in two primary ways: the first is the character of the harm to the publisher or the person committing to participate in the boycott. The second is the identity of the entity that initiates the process.

            As for the first sense, both sections impose a restriction upon freedom of political speech. However, in my opinion, it is easier to restrict freedom of expression by means of restricting participation in a public tender than by creating a new tort or a sweeping principle concerning the tort of inducing breach of contract. By nature, a tender establishes conditions for participation. That does not mean that any condition may be imposed. However, in the matter at hand, there would appear to be a certain logic to an approach by which a person wishing to participate in a state-sponsored tender cannot oppose the state while enjoying absolute immunity.

            As for the second sense, I explained above the problematic nature of granting a legal permit to individuals to act against other individuals on the basis of political expression. For the same reasons, when the entity imposing restrictions upon the caller for a boycott is the state, there are mechanisms that make the sanction more proportionate. As noted, the state is subject to the principles of administrative and public law, including the principles of natural justice, fairness and reasonableness. These two considerations – the character of the infringement and the identity of the initiating party – join at the point where the process meets the criteria for a proportionate action. We thus find that the combination of the character of the infringement – a tender as opposed to a tort suit, and the identity of the party initiating the process – the state as opposed to an individual, points to the advantage of sec. 3 over sec. 2 of the Boycott Law in all that relates to proportionality stricto sensu.

            As I will explain in detail below, the balance inherent in sections 3 and 4 between the sanction and the act that invites it also meets the comparative-law test. For the moment, I will suffice in referring to a law of the State of New York that comprises a similar sanction in the context of boycotts. Section 139-h of the New York State Finance Law establishes that contracts with the state will include a clause in regard to any contractor that “has participated or is participating or shall participate in an international boycott”, where such participation is prohibited. A contract with an entity that meets that criterion is deemed void. On one hand, the clause does not concern one who calls for a boycott, but rather a participant or one who will participate in the future. On the other hand, the clause does not only prohibit participation in a tender, but establishes a mechanism that leads to the voiding of contracts that have already been signed.

16.       Nevertheless, I am of the opinion that two elements of sec. 3 may raise a constitutional problem: the first – the need for due process, and the second – the lack of directives or rules may lead to the absence of a rational relationship between the denial of participation and the call for boycott. I will explain.

            I will begin with the issue of due process. The Law authorizes the Minister of Finance, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, to issue directives in regard to participation in a tender. In this regard, account should be taken both of the infringement of freedom of political expression and the infringement of equality. I extensively discussed the importance of freedom of expression above. As for equality, the significance of the provision is that were it not for call for boycott, the bidder might have met the other threshold conditions of the tender.  In other words, he will only be prevented from participating due to the call for a boycott. It should be borne in mind that a public tender supports the principle of equality. It is, therefore, vital to ascertain whether there is a legal mechanism that allows such a bidder, whose bid was rejected for non-fulfillment of the conditions of sec. 3, to challenge the decision.

            It would seem that the answer to that is in the affirmative. The key to this conclusion is to be found in sec. 5(1) of the Administrative Affairs Courts Law, 5760-2000. That section concerns the Administrative Court’s jurisdiction over various matters. The section refers to Appendix 1, and sec. 5 of that Appendix addresses tenders. Therefore,  on the face of it, a person deprived of the possibility of participating in a tender on the basis of a call for a boycott has the right to bring the matter before the Administrative Court, and in accordance with the rules of procedure, even submit an appeal to this Court.

            The second problem concerns the specific provisions that will be established in regard to restricting the participation in a tender. It must be assured that the application of the section to a bidder will be rational. We would emphasize that we are not referring to the second test of proportionality – rational connection. In my opinion, as explained, sec. 3 passes this test. But here we are concerned with the application of the third subtest – harm versus benefit. In this regard we may ask if it is imaginable that, for example, anyone who calls for a boycott would automatically be prevented from participating in a tender. But one can even learn from the language of the Law that such is not the intention. Otherwise, how are we to understand the various levels of the mechanism for establishing directives for the purpose of making individual decisions – the involvement of three different authorities?

            It should again be emphasized that the decision is that of the Minister of Finance, subject to the consent of the Minister of Justice and the approval of the Knesset. This is a structured administrative process that may justify the belief that the decision will be made thoughtfully. Nevertheless, it would seem that it will be necessary to show a rational connection between the nature of the tender and the nature of the call for a boycott. I will present an example that is not intended as a basis for my decision but only to illustrate the complexity: The owner of a transportation company calls for a boycott – as defined by the Law – against the Judea and Samaria territories. Despite that conduct, he submits a bid in a tender for the transport of school children in Ariel. In another case, the tender is for the transport of school children in Tel Aviv, and the bidder calls for denying services to the residents of Judea and Samaria. It would appear that from the viewpoint of a rational connection, it would be easier to justify the first case as opposed to the second. This would seem to be the difference that must be taken into consideration. As noted, it is not my purpose to permit precluding participation in the tender in the first case, or to deny it in the second. But I do believe that we can expect some rational relationship between the nature of the tender and the nature of the call for a boycott.

17.       Any other result might intensify the infringement of freedom of political expression in an unjustifiable manner. And note that I am not defining what a “rational relationship” might be. But, clearly, this must be expressed in the directives that the Minister is required to establish.

            To allay any doubts, I would like to clarify the matter of the Minister’s duty to establish directives as a condition for restricting participation in tenders. Section 3 states: “The Minister of Finance is authorized… to issue directives…” I would address two points in this regard. First, there is no need in this context to address the linguistic difference between “directives”, “criteria” or “internal procedures”. In any case, criteria will have to be established, which will be published, and that will allow various entities to plan their steps accordingly. The Law itself says as much. A tripartite mechanism is established that requires the consent of the Minister of Justice, approval of the Constitution, Law and Justice Committee, and the establishing of the directives. We can learn from this that the Law requires the exercise of discretion. That discretion is “fortified” by the consent of the Minister of Justice and the approval of a Committee, as opposed to mere consultation with those entities whose concern is the field of law. Secondly, it is clear from the language of the Law that authority granted the Minister permits him to establish or not establish directives. He does not have authority to prevent participation in a tender without establishing directives. That is to say, the promulgation of procedural directives, as provided in the section, is a precondition to precluding participation in a tender. This interpretation is reinforced by the language of sec. 4, which expressly states that the Minister may exercise his authority under that section even without promulgating regulations. A similar provision in regard to directives does not appear in sec. 3. In any case, criteria that will accompany and preceed any decision are required for any decision by the Minister.

            Therefore, there is an infringement of freedom of political expression, but even if the case is liminal, it would appear that the legislature’s decision is within the boundaries of the constitutional margin.

17.       To summarize this chapter: There is a complex administrative mechanism for establishing the directives for restricting participation in a tender. In addition, there is a mechanism for judicial review. I am, therefore, not of the opinion that sec. 3 should be struck down. This view is based upon the nature of the sanction and the identity of the party initiating the proceeding. Additionally, the comparative-law review supports imposing sanctions of this type as a response to participating in a boycott and other activities associated with it. This matter is somewhat complex, and operates in two directions in all that relates to calling for a boycott. I will address this below. In any case, nothing in the conclusion not to void this section would prevent judicial review of the manner of its application. On the contrary, in the absence of directives at this stage, judicial review may be necessary. I believe that sec. 3 of the Law should be understood such that the directives that the Minister is meant to establish must reflect – in manner and in some level of detail – a rational relationship, as explained. It should be noted that in this matter, as opposed to sec. 2, I believe that we may take the path of constitutional interpretation – for example, the need for a rational relationship – rather than voiding the section. This difference derives from the fact that in regard to sec.3, we are at most concerned with a lacuna, whereas the language of sec. 2 is clear and does not leave room for alternative interpretation, in my view.

            Subject to the aforesaid, I would recommend that my colleagues deny the petitions to the extent that they concern sec. 3.

 

Section 4 – Denial of Benefits

18.       This section concerns “Regulations preventing Benefits”:

(a) The Minister of Finance, in consultation with the Minister of Justice, may decide that someone who knowingly published a public call for a boycott against the State of Israel or committed to participate in a boycott:

(1) Will not be deemed a public institution under clause 46 of the Income Tax Ordinance;

(2) Will not be eligible to receive monies from the Sports Betting Council under section 9 of the Regulation of Sports Betting Law, 5727-1967; exercise of the authority under this section requires the consent of the Minister of Culture and Sports;

(3) Will not be deemed a public institution under section 3A of the Foundations of the Budget Law. 5745-1985, regarding the receipt of support under any budget line item; exercise of the authority under this section requires the consent of the Minister appointed by the Government as responsible for said budgetary line, as stated in section 2 of the definition of  “person responsible for a budget line item”;

(4) Will not be eligible for guarantees under the State Guarantees Law, 5718-1958;

(5) Will not be eligible for benefits under the Encouragement of Capital Investment Law, 5719-1959, or under to the Encouragement of Research and Development in Industry Law, 5744-1984; exercise of the authority under this section requires the consent of the Minister of Industry, Commerce and Employment.

(b)        In exercising the authority according to subsection (a), the Minister of Finance will act in accordance with regulations that he will promulgate in this regard, with the consent of the Minister of Justice, and with the approval of the Knesset Constitution, Law and Justice Committee; however, if no such regulations have been promulgated, it will not detract from the authority under subsection (a).

            The heart of the matter is the denial of five benefits: tax credits for contributions; funding from the Sports Betting Council; support from the state budget; state guarantees; and benefits under the Encouragement of Capital Investment Law.

            For the reasons set out in regard to sec. 3. I am of the opinion that this section, as well, clears the first hurdles of constitutional review – “by a law” and for a proper purpose that befits the values of the state. It also passes the rational connection and the least harmful means tests. Our focus, then, is on the third subtest, and again the spotlight is upon the infringement of freedom of political speech. Section 4 is similar to sec. 3 in important ways. Both are distinguished from sec. 2 in the character of the sanction and the identity of the initiator of the process. I will make three comments in regard to sec. 4 that are intended to show that the problems related to sec. 4 are greater than, or at least different from the problems that characterize sec. 3.

            The first comment concerns the nature of the sanction. In my view, from a constitutional standpoint, it is easier to limit participation in a tender than to deny benefits established by law. A tender inherently includes a variety conditions. As a result, every tender creates group that is defined by the conditions of the tender as precluded from participation. As opposed to that, benefits are directed at known groups whose activity is constantly influenced by the benefits provided by law. Of course, the state is not required to grant benefits. But once it has decided to do so, that decision comprises an obligation to allocate those benefits in an equal manner. I shall put that that differently. What is common to sections 3 and 4 – denying benefits and limiting participation in tenders – is the allocation of resources, but in two different ways. A participant in a tender is interested in profiting from a framework established by the state. As opposed to this, the various benefits of sec. 4 derive from the public character of the organizations, or from the public interest in their activities. In general, the conduct of such organizations is more closely connected to the public benefits to which they are entitled in accordance with the existing legal criteria. Such harm to the expectations of such groups it more severe than the commercial and general harm of sec. 3 to entities interested in winning a public tender.

            But why do I believe that the Law clears the hurdle of proportionality despite this observation? According to my approach, the weight of the considerations stated in regard to sec.3 tilt the scales: the difference between a civil action for damages by an individual as opposed to a denial of benefits by governmental authorities. That serves to limit the harm to freedom of political expression and balance the scales of proportionality. Moreover, although the sanctions under sec. 4 are more severe than those under sec. 3, they have an “advantage” over them in another area. The benefits under discussion are intended to promote objectives that the state views positively by granting benefits or funding to organizations that work to realize them. If the organization also – or only – works to undermine those desired objectives – for example, economic prosperity -- then denying the benefit can contribute to their achievement. Such a rational connection does not necessarily exist between permitting participation in a tender and the realization of various objectives. In that regard, the administrative sanction is “external” to the tender and does not derive from its character. The overall result is that even if sec. 4 is more borderline than sec. 3 from the constitutional point of view of freedom of political speech, it meets the test of proportionality.

19.       A second comment. With a view to restraining the Minister of Finance, the Law requires that he establish regulations. This is a proper approach. The regulations provide context for the exercise of the Minister’s discretion. Nevertheless, the end of sec. 4(b) raise a problem – even if regulations are not established, it will not detract from the Minister’s authority to implement the Law. Section 4(b) requires that the Minister of Finance promulgate regulations, with the consent of the Minister of Justice and the approval of the Knesset Constitution Committee. In other words, the procedural mechanism we also find under sec. 3, except that here it concerns regulations rather than directives. The requirement of establishing regulations may clarify what needs to be clarified. But the end of sec. 4(b) – stating, as noted, that notwithstanding the requirement for regulations, the Minister can deny benefits even without establishing those regulations – remains.

            In my opinion, the possibility that the Minister might act in the absence of regulations, and without the consent of the Minister of Justice and the Constitution Committee is problematic where the sensitive issue of freedom of political expression is concerned. Moreover, it would hardly be an exaggeration to say that legislative experience shows that time – even a long time -- may elapse before regulations are promulgated. As long as the Law permits the Minister to exercise his authority under sec. 4 in the absence of regulations, the problem remains. On the other hand, this Court has not adopted an approach of making the implementation of a law contingent on the promulgation of regulations, except where the language of the law and its purpose show that it cannot be implemented in their absence (see: Itzhak Zamir, Administrative Authority, vol. 1, 209-210 (2^nd ed., 2010) (Hebrew); HCJ 28/94 Bezalel Zarfati v. Minister of Health, IsrSC 49 (3) 804, 815, 825 (1995)). In the present case, the Law expressly states that there is no requirement of establishing regulations. It would be far-reaching to prevent the possibility of implementing the Law for this alone, when the Law otherwise clears the constitutional hurdle.

            We know arrive at the third comment – the procedure for denying the benefit by the Minister of Finance.  Section 3 authorizes the Minister to issue directives, and conditions denying participation in a tender on their issuance. The directives must receive the consent of the Minister of Justice and the approval of the Constitution Committee. As opposed to this, sec. 4 grants the Minister of Finance himself the authority to deny a benefit, and not merely to establish directives. Moreover, in exercising that authority, he is required to consult with the Minister of Justice. To “consult”, without need for approval or consent. Even if this consultation is substantive and not formal, the discretion is that of the Minister of Finance alone. The mechanism falls upon his shoulders. This comment is particularly important in a situation in which the Minister might exercise his authority in the absence of regulations established with the consent of the Minister of Justice and the approval of the Constitution Committee. But this comment is also of importance even if the Minister were to act after the establishing of regulations. The reason for this is that the person responsible for making a legal decision is not one who fulfils an operative legal function. In any case, it is clear that this third comment is of greater weight if regulations are not promulgated.

            But if my conclusion is that the Law is proportionate, what are the consequences of the second and third comments? My answer to this is that it is important to point out the necessity for establishing regulations, to the extent possible. It is not clear why the Minister of Finance is given the broadest authority particularly in regard to the more “harmful” sec. 4. It may be that the legislature thought that the harm inflicted by sec. 3 is greater for the reason stated above or for other reasons. In any case, establishing regulations is needed even if not required. Moreover, the legislature did not establish how the Minister of Finance might exercise his authority in the absence of regulations. There is no linguistic basis for interpreting the Law as saying that the procedure established under sec. 3 – promulgating directives with the consent of the Minister of Justice and the approval of the Constitution Committee – is required. However, we can learn the nature of the requirement from those procedures – at the very least, the establishment of directives or procedures. The criteria that will be established will have to meet the rationality and reasonableness tests (see and compare HCJ 4540/00 Labar Abu Afash v. Minister of Health (published in Nevo) paras. 5-6 (May 14, 2006)). One might say that precisely because sec. 4 does not require the consent or approval of the Minister of Justice or the Constitution Committee, the rules to be established are of greater importance. In my opinion, serious consideration should, perhaps, be given to not implementing the Law until regulations have been promulgated. Although the Law allows for its implementation even without regulations, and while the legislature’s word should, of course, be respected, the matter is given to the discretion of the executive branch. What this means is that if regulations are not promulgated, the Court will have to exercise stricter scrutiny, not as an incentive for promulgating regulations at an earlier date, but rather in response to the situation that will be created prior to their promulgation. While the Minister of Finance indeed enjoys broad discretion, which is properly exercised in the context of taxation and benefits, we are here concerned with a restriction upon freedom of expression. One cannot exaggerate the care that must be exercised in this regard.

            An additional point is that of appropriate adjudicative procedures. The matter should properly be arranged expressly in the regulations, and without wishing to prejudice the issue, one might consider that the matter initially be addressed by a trial court, such as the District Court or the Administrative Affairs Court.

19.       To summarize, I am of the opinion that the petitions should be denied in regard to sections 3 and 4. However, section 3 is borderline, and section 4 even more so. I have explained my reasons for that. In my view, in order to meet the proportionality stricto sensu test, the mechanisms for establishing the criteria for the implementation of the sections must be put into operation in accordance with the interpretive guidelines that have been delineated. 

            In order to present the complete picture, recourse should be made to comparative law, both in regard to sections 3 and 4, as well as in regard to the entire Law.

 

More on Comparative Law

20.       We are concerned with a transnational legal issue. The issue is the right to freedom of political expression versus protecting the state against the imposition of a boycott upon it, or upon part of it, or upon its institutions. As we shall see, the “Made in Israel” version of the Boycott Law has unique characteristics that more directly and clearly affect freedom of political speech. Nevertheless, an examination of comparative law will be helpful in deciding this case. Over and above the fact that recourse to comparative law is accorded a place of honor in our legal system, such recourse appears especially justified in the case at bar. The reason for this is that the State of Israel is the object of a boycott in certain states, whereas other states have enacted laws in order to combat the phenomenon. My colleagues, and the various parties to the petition, dived deeply into the waters of American law. This was also given significant emphasis in the Explanatory Notes of the original bill (the Prohibition of Boycott Bill, 5770-2010, was presented to the Speaker of the Knesset on July 5, 2010. The Explanatory Notes can be found on the Knesset website: knesset.gov.il/privatelaw/data/18/2505.rtf). The Explanatory Notes begin by saying that “in the United States there is a similar law protecting its friends against third-party boycotts, with the basic assumption that a citizen or resident of the country should not call for a boycott against his own state or its allies … if the United States protects its friends by law, then a fortiori, Israel has a duty and right to protect itself and its citizens by law” (this part does not appear in the official Explanatory Notes). In view of the aforesaid, and considering the impressive American tradition of defending freedom of speech, and freedom of political speech in particular, it would, therefore, be useful to examine the American laws on point.

            As noted, the two primary American laws treating of boycotts are the Export Administration Act of 1979 (EAA), and the Ribicoff Amendment to the Tax Reform Act of 1976 (TRA). We will briefly review what is stated in those laws. Both laws relate to participation in a boycott (other than a boycott imposed by the United States), or the performance of acts connected to the imposing of such a boycott, the nature of which will be explained below (see para 8, above). By virtue of the EAA, criminal sanctions of imprisonment or fine can be imposed, as can various administrative sanctions, such as an administrative fine. By virtue of the amendment to the TRA, certain tax benefits can be denied. Additional laws have been enacted by various states. We have seen an example of that in the state of New York. As noted, sec. 9 of the New York STF establishes that contracts between the state and bodies that have participated or are participating or shall participate in a prohibited boycott are void. Several laws address this issue in the state of California. For example, sec. 16649 of the California Government Code includes a reference to the Arab League boycott of the State of Israel. Inter alia, various sanctions are imposed upon the use of state funds in the framework of contracts with companies participating in that boycott. The state of Florida prohibits, inter alia, the transfer of information requested for the purpose imposing a boycott. The possible sanctions include a fine or imprisonment (Florida, Statues, Title XXXIII §542).

            Comparing the Boycott Law and the various American laws is instructive. It will aid in clarifying what they share in common and in what they differ. This will sharpen the delicate balances that the Law strikes between the protected interest and the scope of its protection, and the extent of the harm to freedom of expression.

21.       The most salient difference is the absence of a civil tort of calling for a boycott in the American legislation. Those laws do not permit a party harmed by a boycott to initiate a civil suit. It should be emphasized that the legislation also relates to situations in which one company refuses to contract with another company within the United States (see, e.g., sec. 8(a)(1)(A) of the EAA: “Refusing… to do business with… any other person, pursuant to… a request from… the boycotting country”). The law does not recognize situations in which another person incurs damage as exceptions. As opposed to this difference, there is a striking similarity in the authority’s ability to impose sanctions that are comparable to those appearing in sections 3 and 4. The state’s right to act to protect its interests is recognized, even at the expense of restricting various forms of self-expression. Nevertheless, it is both proper and important that we emphasize the differences in this regard, as well.

            The emphasis of the Israeli Boycott Law is upon the call for a boycott. Sections 3 and 4 retain the prohibited call alongside the alternative of an undertaking to participate in a boycott. It is not clear whether this refers to a legally binding commitment, such as a contractual obligation. Moreover, it is unclear whether the phrase “who committed to participate in such a boycott” refers to present participation in a boycott, or even to a commitment to participate in a boycott the future. In either case, it would seem that the alternative of committing to participate in a boycott is shared in common by the Boycott Law and its overseas cousins. Thus, sec. 999(a)(3)(A) of U.S. Code 26 gives the following definition: “For purposes of this section, a person participates in or cooperates with an international boycott if he agrees as a condition of doing business… with… a company… to refrain from doing business with… companies of that country [which is the object of the boycott]”. In other words, a person who agrees to refrain from doing business with companies from a certain country as a condition to doing business with another company is considered as participating in a boycott. Thus also the alternative “…has participated or is participating or shall participate in an international boycott” in sec. 9 of the New York STF. It should come as no surprise that a commitment to participate in a boycott is commonly found in boycott legislation. We are more concerned with a (legal) act than a mere expression. It would seem no coincidence that the legislature established a requirement of a “commitment” as opposed to a general declaration or non-binding expression of desire.

            The alternative of calling for a boycott presents a different picture. There is not prohibition upon calling for a boycott. While some laws do refer to actions related to boycotts other than active participation, they do not reach the level of a “call”. For example, the alternatives in the EAA define the prohibited conduct as “refusing” or “requiring another person to refuse” (sec. 8). As we see, the section concerns a demand from a third party to participate in a boycott in the course of a transaction. Section 16649 of the Cal. Gov. Code addresses a party that expresses “Compliance with the Arab League's economic boycott of Israel”. Similar language can be found in other laws. One can also find restrictions concerning freedom of speech, or at least indirect, non-participatory support of a boycott in American law. Thus, for example, sections 8(a)(1)(D-E) of the EAA impose a prohibition upon providing information about persons or bodies where the information is intended to lead to boycotting. A similar alternative can be found in Florida: “It is an unlawful trust and an unlawful restraint of trade for any person… to… furnish information with regard to… a person’s… national origin… in order to comply with, further, or support a foreign boycott” (Florida, Statues, Title XXXIII §542.34). Nevertheless, there is a difference between providing information for the purpose of a boycott and calling for a boycott. Providing information is part of the boycott activity itself – in the sense of “aiding” or “participation in a common purpose”. As opposed to this, a call remains in the sphere of “procuring” – addressing another with the purpose of persuasion. Therefore, restrictions upon the latter directly infringe freedom of political expression. Nevertheless, one might say that the prohibition upon providing information – without participating in the boycott – reduces the distance between the two. Ultimately, the two laws are comparable for other reasons as well. For example, the Israeli law does not impose a criminal sanction, as opposed to the above-mentioned laws.

            And now to return to sections 3 and 4 of the Boycott Law. As I noted above, a comparative examination of these provisions is complex. As opposed to sec. 2, secs. 3 and 4 also extend to one who commits to participate in a boycott. This approach, including its sanctions, is consistent with the comparative law. The problem lies in the first alternative – calling for a boycott. I noted above my belief that whereas sec. 2 does not succeed in overcoming the constitutional hurdle, secs. 3 and 4 do. There are four reasons for this. The first consists of the reasons stated above in regard to the identity of the party initiating the process and the nature of the harm (see paras. 15 and 18 above). The second, although not a primary reason, is that while these sections do not establish a prohibition upon participating in a boycott, they do establish a prohibition upon committing to do so. This paves the way for a certain leniency as opposed to sec. 2. We should not ignore the fact that there are sanctions for participating in a boycott and for other actions, which is not the case in our system, and rightly so. Overall, the American law strikes various balances that decrease the distance between the United States and Israel.

            A third reason is that there are states, like France, that adopt a closer approach to calls for boycott (see, e.g., the survey presented to the Constitution Committee, para. 8 above, at pp. 12-13). Although we are speaking of legislation that prohibits discrimination on the basis of origin or nationality, and I am not sure that the two are necessarily congruent, it does carry some weight. Fourth, some weight must be given to the fact that the State of Israel is the object of a boycott in various countries. This influences the proportionality stricto sensu of secs. 3 and 4, which infringe freedom of political expression to a lesser degree than sec. 2. The test is one of benefit versus harm, and one cannot ignore the harm to the State of Israel as a result of these boycotts. This is also true when the boycott is directed at a particular, law-abiding public, which the state is duty-bound to protect. The above can serve to justify secs. 3 and 4 in the face of constitutional review, even if they are borderline, as is particularly the case in regard to sec. 4. We should recall the statement made by Prof. Mordechai Kremnitzer before the Constitution Committee: “if this bill were built along the lines of existing models in the world, I would not have a word to say on the constitutional level” (p. 28 of the protocol of the session of Feb. 15, 2011). That position falls upon open ears. Even if one may take the view that the balance achieved abroad differs from that appropriate to the Israeli system, there is a constitutional margin in this regard, and secs. 3 and 4 of the Israeli Law fall within its bounds, subject to the reservations expressed above.

            At the end of the day, section 3 is borderline. Section 4 pushes the limits. But both remain – even if just barely – on the constitutional side of the border. I have, therefore, added the requirement of a rational relationship in regard to the implementation of those provisions, and I emphasized the need for close review of the implementation of the Minister of Finance’s authority under sec. 4. For example, it would appear that the criteria to be established must take account, inter alia, of the nature of the call, its content, character and force.

            As opposed to that, all of the above reinforce my conclusion in all that regards sec.2 of the Law. Overall, that provision is deviant even in terms of comparative law, which should come as no surprise inasmuch as its danger greatly exceeds the relief that it provides.

22.       I shall now move from legislation to case law. My colleagues and I addressed the Claiborne case at length. My present purpose is not to reiterate, but rather to address the reservations expressed and the distinctions suggested. My colleague Justice Melcer expressed the opinion that two precedents erode that rule – the Holder case and Longshoremen’s case. I do not agree with him in all that concerns the interpretation and development of American law. In my opinion, that also arises from the cases themselves.

            In Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the plaintiffs sought to aid groups that were designated as terrorist organizations. Their claim was that the aid was intended solely for lawful purposes and to promote peace. The aid involved the study of various legal practices. The petition challenged a law that prohibited providing support to foreign terrorist organizations. The majority opinion of the Court held that the case concerned providing support for a terrorist organization, which was provided in the form of “speech”. Therefore, that speech was not protected under the First Amendment of the Constitution. The opinion of the Court does not refer to the Cliaborne rule, and that rule has neither been overturned nor eroded. Israel, too, has a criminal offense of providing support to a terrorist organization. Support by means of “political expression” is not protected. However, no analogy can drawn between this and calling for a boycott by peaceful means. The case of International Longshoremen's Association, AFL-CIO, v. Allied International, Inc., 456 U.S. 212 (1982) concerned stevedores who refused to handle cargoes from ships arriving from or destined for the Soviet Union, against the background of its invasion of Afghanistan. The Court held that the case concerned an illegal boycott prohibited by the National Labor Relations Act. This did not concern freedom of political expression, but rather conduct that did not amount to a political boycott, and it was certainly not a call for a boycott. Moreover, the context was conduct contrary to labor laws that directly addressed the subject. In other words, the relevant considerations concerned the special status of the labor union. Its power in relation to the employer is so great that it was held that the powers afforded it should not be extended to third parties in commercial relationships with the employer that are unrelated to the labor union. That is to say that no analogy can be drawn from this case to boycotting that is part of normal public discourse, and the related issue of freedom of political expression.

            The cited decisions do not, therefore, detract from the Claiborne rule. As opposed to this, Orloff does express a different opinion in his article cited by my colleague Justice Melcer (see Gordon M. Orloff, The Political Boycott: An Unprivileged Form of Expression, 1983 Duke L. J. 1076 (1983)). However, that view can be seen as an isolated opinion that was written about a year after the Claiborne decision. The author expressly states that he disagrees with it on the merits. But those reservations have not been adopted in practice. In the thirty years that have passed since the publication of that article, the courts of the United States have charted their course for the protection of freedom of speech. My colleague suggests that we see those two cases as proposing a different direction for the future. In my opinion, a different conclusion is indicated. In any case, the current case case law clearly disagrees with that view, as I shall explain below.

            Truth be told, the Claiborne case did not introduce a revolutionary innovation. For the purpose of illustration, let us consider the case of Missouri v. Nat’l Org. for Women, Inc., 620 F.2d 1301 (8th Cir. 1980). In that case, which preceded Claiborne, women’s groups boycotted states that had not ratified the Equal Rights Amendment. As a result, businesses in the state of Missouri were harmed. Their tort suit was denied on First Amendment grounds. The situation following Claiborne remains unchanged. The background of the dispute in Searle v. Johnson, 709 P.2d 328 (Utah 1985) was a call by the defendants for a tourism boycott of Uinitah County. Their purpose was to raise public awareness of the poor conditions and suffering of animals in the county dog pound. The court exempted the defendants from tortious liability in reliance upon Claiborne. While other cases did not expressly refer to the Claiborne rule, freedom of political speech was shielded against tortious liability (see, e.g., Hotel Saint George Assocs. v. Morgenstern, 819 F. Supp. 310 (S.D.N.Y. 1993); A Fisherman's Best v. Rec. Fishing Alliance, 310 F.3d 183 (2002)).

23.       Another decision that received significant attention was that of the European Court of Human Rights in Strasbourg in the matter of the mayor of Seclin (Willem v. France (application no. 10883/05), 10.12.2009). As may be recalled, the court denied the mayor’s appeal of his conviction for discrimination on national, racial and religious grounds. I will briefly refer to two point in this matter. The first is that the case concerned a sanction imposed by the state. We are not aware of the granting of damages in favor of any of the companies whose products gathered dust on supermarket shelves in Seclin. This result is, therefore, not at odds with the striking down of sec. 2, which establishes a civil tort.

            The second is the uniqueness of the judgment. We learn from the court’s reasoning that the conviction was grounded upon the combination of the defendant’s identity and the circumstances of the call for a boycott. Paragraph 32 of the decision emphasizes that “the fact that the applicant is the mayor is central to this case” (translation here and below are mine – N.H.). Paragraph 37 explains that “as mayor, the applicant has duties and responsibility. In particular, he is required to maintain neutrality…in municipal matters, in which he represents the public”. In addition, para. 36 refers to the special circumstances of the call: “Consideration must be given not only to the oral declaration of a boycott in the city council, but also to the announcement published on the municipal website. This announcement intensified the discriminatory character of the call for a boycott, and the use of controversial expressions in that regard”. Thus, it was the combination of circumstances that led to the finding that the conviction did not disproportionally infringe freedom of political expression. The call for a boycott defined in the Israeli Law does not apply solely to such circumstances, but encompasses every person or body without consideration of personal status or public function. Without wishing to express a definitive opinion on the matter,  it would seem that the question of how to deal with a call for a boycott of the state by an individual is different from the question of how to deal with a mayor who allocates public funds in contravention of the requirements of administrative law.

24.       Conclusion. The situation with which we are concerned is not simple. The State of Israel was unwillingly drawn into it even in the international arena. The conclusion I have reached – the striking down of sec. 2 and the approval of secs. 3 and 4, subject to certain reservations – gives what I believe to be a balanced, proportionate expression to all the conflicting values and interests. At the same time, it recognizes the legitimate interest of the state to defend itself and its communities. It does not leave the state vulnerable to the actions of those who seek to harm it or any particular pubic that it is duty bound to protect. It merely draws the boundaries within which the legislature may act without leading to a disproportionate result. We can summarize this as follows: The state is allowed to contend with the boycott phenomenon by means of appropriate administrative sanctions, whereas an individual cannot do so by means of a new tort against the freedom of political expression. And note that this is an integrated change. It is not merely “the state versus the individual”, but rather an administrative sanction depriving a benefit as opposed to exposure to a new kind of tort suit. This, in particular, when a call for a boycott is an element of that tort, while there is no prohibition upon participating in it.

            It can be said that this result creates a defensive democracy that defends itself against those who rise up against it, but that preserves the democratic character of society and the ideal of freedom of expression. This is an important element that distinguishes between a democratic state and one that is not. The meeting of real and ideal can make for a rocky path. That path, with all its prohibited entries and its permitted ones, is also subject to judicial review.  I would, therefore, recommend to my colleagues that we strike down sec. 2 in its entirety. As opposed to that, I believe that, in the context of this petition, we should not order the revocation of the other sections of the Law.

 

Deputy President E. Rubinstein:

Preface

1.         The Yom Kippur prayers begin with a declaration called Kol Nidre, for which the entire evening is referred to as the Kol Nidre service, and which concerns the revoking of vows, among them ostracism [ḥerem]:

“All vows, obligations, oaths, and ostracisms, restrictions or interdictions, or by any other name, which we may vow, or swear, or pledge, or whereby we may be bound … we do repent. May they be deemed absolved, forgiven, annulled, and void, and made of no effect; they shall not bind us nor have power over us. The vows shall not be reckoned vows…” What the Knesset sought to achieve in the Law that is the subject of this proceeding is, in short, a battle against ostracism, a malignant disease of which Israel is a victim. The focus of this petition is boycotts [ḥerem][4], not the freedom to use the term.

2.         I concur in the learned, comprehensive opinion of my colleague Justice H. Melcer, and would like but to add a few observations. I must begin on the level of principle. We are concerned with a central subject in the political history of the State of Israel and the region. This Court’s expertise in this regard is limited. We must, therefore, be particularly careful in considering whether constitutional intervention is appropriate. This Court decided not to intervene in the matter of the disengagement (HCJ 1661/05 Hof Azza Regional Council v. Knesset, IsrSC 59 (2) 481) in regard to the decision on the disengagement itself, as opposed to the extent of compensation for those displaced, first and foremost because it concerned a political matter, even though it involved infringement of basic – and not merely economic – rights of the Israeli residents of Gaza and northern Samaria who were forcibly evicted from their homes. The judgment stated (pp. 575-596) that the issue concerned a disagreement “that was of broad scope, pertaining to entire range of dangers and prospects related to the solution of the Israeli-Palestinian dispute. It is not at all possible to expect that this Court – and we may go as far as to say: any other court in the world – will decide these questions. The probability of the realization of the objectives of the disengagement plan rests at the heart of political, national and security activity. The Court cannot take any stand except in extreme, exceptional cases”. The matter before us concerns a delicate, sensitive situation in which the State of Israel finds itself hounded by boycotts by organizations like BDS (see the examination of the NGO Monitor website) that are not offended merely by settlement in Judea and Samaria, but by the very existence of the State of Israel, as my colleague Justice Melcer noted, and – in my opinion – the Court must not adopt an approach that may, God forbid, be viewed by a large part of the public as if “they join also unto our …” (Exodus 1:10). My colleague Justice Danziger addressed the issue of the Court’s duty, following the unforgettable words of Deputy President Landau in the Dwiekat case (HCJ 390/79 Dwiekat v. Government of Israel, IsrSC 34 (1) 1 (1979)). Indeed, at times, human rights must be defended even when that defense is unpopular. However, it seems to me that the Law under review represents a kind of cry and fear for the human rights of the citizens and residents of the State of Israel, and not only those residing in Judea and Samaria, and this carries great weight in light of what is occurring in many countries in their regard, as if to say, if someone comes to boycott and even destroy you, arise to combat him first.[5] That is the Law, that is its purpose, even if there may be other or additional means for defense, and it must be examined with a broad view and eyes open to reality. I respect the fear for freedom of expression. The right to freedom of expression is very broad in the State of Israel, but as we shall see below, the picture is complex, and the situation is not one sided.

 

A brief history

3.         My colleague Justice Melcer also addressed history (para. 23). We cannot ignore the sad facts, which have been forgotten by some with the passing years, that the Arab Boycott against the State of Israel began even before its establishment (in a 1946 decision by the Arab League imposing a boycott against the Jewish community in Palestine), was especially broadened in 1951, and has formed a particularly severe element of the pressure placed by the Arab states upon Israel over the course of many years. The boycott was run from a central office in Damascus, and operated against thousands of international firms and others that, as a result, refused to conduct business in Israel. Eventually, various states enacted laws against the boycott, particularly the United States, and the State of Israel itself fought with all its might against the boycott in various ways.

            It should be added that immediately following the Six Day War, on July 27, 1967, the military commander promulgated the Order concerning the Revocation of the Boycott Laws against Israel (Judea and Samaria) (No, 71) 5727-1967, which establishes (sec.2) that “all boycott laws against Israel are void” (sec. 1 enumerated those laws) (and see E. Zamir & E. Benvenisti, The Legal Status of Lands Acquired by Israelis before 1948 in the West Bank, Gaza Strip and East Jerusalem, (1993) 140 (Hebrew)). The peace agreements between Israel and Egypt – the Camp David Accords of Sept. 19, 1978 and the Peace Treaty of March 26, 1979 – included an obligation to normal relations between the two states, including “termination of economic boycotts and discriminatory barriers to the free movement of people and goods” (Camp David Accords, and art. 3(3) of the Peace Treaty). That is also the case in regard to the Peace Treaty between Israel and Jordan, in which art. 7(2)(a) includes the obligation “to remove all discriminatory barriers to normal economic relations, to terminate economic boycotts directed at each other, and to co-operate in terminating boycotts against either Party by third parties”. As a result of these, the boycott was significantly eased, but did not disappear (see E. Kaufman, “Analysis of the Possible Consequences of an Economic Boycott of Israel,” (Knesset Research and Information Center), presented to the Knesset Finance Committee on Dec. 31, 2014 (Hebrew); Haya Regev & Dr. Avigail Oren, The Arab Boycott (1995) (Hebrew)).

 

On the Boycott and Freedom of Expression

4.         At this point we should note, as does my colleague Justice Melcer, that even though our colleague Justice Danziger emphasizes the distinction between calling for boycotting Israel in general and calling for a boycott of products of the Jewish settlements, the attorneys for the Plaintiffs were not willing to state that they would retract their petition if the section concerning the territories were removed. In other words, even a boycott against the State of Israel, of the old sort that Israel – and other states, with the United States at the forefront – worked to combat, falls within the scope of freedom of expression. Woe unto such freedom of expression if its objectives be achieved. It might join – without drawing a comparison – Holocaust denial and antisemitic and racial slurs, which I do not believe should enjoy the protection of freedom of expression. We are not the United States, we are not obligated to an extreme interpretation of the First Amendment to the Constitution of the United States, and no one can truly claim that Israel does not enjoy exceptional freedom of expression. On Holocaust denial and its close relationship to the denial of the State of Israel, see Professor Elhanan Yakira’s instructive book, Post-Holocaust, Post-Zionism: Three Essays on Denial, Forgetting, and the Delegitimation of Israel, (Am Oved, 2006) pp. 40-53 [English: Cambridge, 2007]; and my essay “On Antisemitism” (Information Center, Ministry of Education and Culture, 1990), also published in Moshe Yegar, Yosef Guvrin & Arye Oded, eds., The Ministry of Foreign Affairs: The First Fifty Years (2002) 930, which treated of the Israeli government’s tracking of this subject.

5.         Therefore, I do not find any great difficulty in deciding this case along the lines of the overall approach of Justice Melcer’s opinion. In the broad context, if Israel’s enemies who seek to do it harm do not distinguish in this regard between “little” Israel and the territories it controls, and if the Petitioners, in their own right, were unwilling to do so, as arose in the hearing before us, why should we be making that distinction, with all due respect to the good intentions of my colleagues who support freedom of expression. One who has, like us, been scalded by boiling water, may also blow on cold water, and all the more so on boiling water.

6.         As my colleague Justice Melcer noted, freedom of expression is a two-way street. Indeed, calling for a political boycott of Israel is presented in the petitions as realizing that freedom of expression that is granted to all, and the legislation they argue against is, therefore, repugnant. My colleagues Justices Danziger and Hendel are fearful for freedom of speech, including that of those who call for boycotts, which explains their (different) opinions. But it is the call for boycott itself that may clearly silence the discourse and harm freedom of expression, such that those boycotted will be deprived of true expression for their positions in fear for their livelihoods and property, which is not to be taken lightly. Thus, because as opposed to other courses of action, boycotting is a means for imposing the boycotter’s view upon those who disagree, rather than persuading the other of its justice. This type of coercion may have severe consequences:

“The coercive power of a political boycott should not be underestimated. Merchants depend on sales for their livelihood; an effective boycott of their stores deprives them of their source of income. Although attempts to persuade individuals to act are usually protected by the first amendment, attempts to coerce individuals to act are not so immunized” (Gordon M. Orloff, “The Political Boycott – an Unprivileged Form of Expression,” D.Law.Jour. 1076, 1092 (1983)) (hereinafter: Orloff).

7.         Even American law, which is undeniably one of the most liberal legal systems in all that pertains to freedom of expression under the First Amendment of the United States Constitution, which is foundational to the American public existence, does not grant blanket permission to political boycotting. Thus, for example, some American courts distinguish between a political boycott intended to protect legally or constitutionally protected values, such as racial discrimination, and other political boycotts. The protection afforded freedom of expression is greater in regard to the former as opposed to the latter (see, e.g., Note, “Political Boycott and the First Amendment,” 91 Harv. L. Rev. 659, 661 (1977-1978); Isaiah Madison, “Mississippi's Secondary Boycott Statutes: Unconstitutional Deprivations of the Right to Engage in Peaceful Picketing and Boycotting,” 18 Howard L.J. 583, 593-594 (1973-1975)). In the Claiborne case, as well, although on its face, the United States Supreme Court appeared to broaden protection for political boycotts significantly, the case concerned a boycott in protest of racial discrimination, with the purpose of compelling the state and the commercial sector to grant equal rights to the African-American public. The Court emphasized that that fact justified the broad protection of the boycotters:

Petitioners sought to vindicate rights of equality and of freedom that lie at the heart of the Fourteenth Amendment itself. The right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself" (NAACP v. Claiborne Hardware Co., 458 U.S. 886, 914, per Justice Stevens (1982)).

8.         In addition, American federal law in the field of labor relations prohibits a secondary boycott, establishing, inter alia, that a labor union is prohibited from adopting a course of action intended to compel a person to refrain from commercial ties with another (Labor Management Relations Act of 1947, s. 8(b)(4)(B)). In the Allied case, it was held that the said prohibition also includes the possibility of a political boycott by a labor union – in that case, a boycott within the company in which the union operated, in order to express its opposition to the foreign policy of the Soviet Union and its invasion of Afghanistan. As a result, the union was found liable for the harm that it caused to the company in which it operated, owing to the political boycott it imposed. Of particular interest is the following statement in regard to the relationship between the First Amendment to the Constitution of the United States, which enshrines freedom of speech, and a political boycott:

It would seem even clearer that conduct [a political boycott – E.R] designed not to communicate but to coerce merits still less consideration under the First Amendment… There are many ways in which a union and its individual members may express their opposition to Russian foreign policy without infringing upon the rights of others (Int'l Longshoremen's Ass'n v. Allied Int'l, 456 U.S. 212, 226-227, per Justice Powell (1982)).

            Although this was stated in the concrete circumstances of labor law, as I will explain below, the same logic applies in the matter before us. I would further note that Justice Melcer rightly pointed out that Israeli law comprises restrictions upon freedom of expression, as in regard to defamation.

 

From the general to the particular

9.         My colleague Justice Melcer noted that in seeking to protect the State of Israel against those who seek to boycott it, the Boycott Law meets the tests of the Limitation Clause in that it is intended for a proper purpose, befits the values of the State of Israel as a Jewish and democratic state, and proportionately infringes freedom of expression. As I have already stated, I concur with that view, but in my opinion, although the Petitioners unreservedly insist upon their right to call for the imposition of a boycott against the State of Israel itself, we cannot ignore the fact that an additional purpose of the Law, which the Petitioners addressed at length, as did my colleague Justice Melcer, is the protection of businesses specifically operating in the areas of Judea and Samaria, such that a “boycott against the State of Israel” is defined under sec. 1 of the Law as one that includes a boycott against “an area under its control”, and those objecting to the Law are particularly opposed to that clause. It was not the Law’s central purpose at present – we do not know what the future may bring – to protect businesses in Tel Aviv, or the Negev or the Galilee, but rather to protect against boycotts of businesses in the Jewish settlements in Judea and Samaria, which are indeed suffering economically due to those calling to boycott them, at home and from abroad. In this regard, see the exchange in the Knesset Constitution, Law and Justice Committee from Feb. 15, 2011, between the committee chairman MK David Rotem and MK Dov Henin:

Chariman David Rotem: My dear sir, Dov Henin, this law is intended to protect the settlement that you call “illegal”, and I call “residence”.

Dov Henin: Then tell the truth.

Chairman David Rotem: On Jewish residence in Judea, Samaria, and the Gaza Strip (p. 27 of the protocol).

10.       Thus, in certain ways, the Law grants preference to the freedom of expression of one political group as opposed to another. For example, a person who – in theory – calls for a boycott of those who support returning areas of Judea and Samaria to the Palestinians in order to achieve peace would not be exposed to the tort sanction of the Law, whereas a person who calls for a boycott of a person who chose to reside in the Judea and Samaria area would be exposed to the tort sanction. Indeed, this creates an apparent infringement – creating a constitutional problem – of the freedom of expression afforded the former as opposed to the latter, although we should not exaggerate the extent of that infringement. In my view, as far as sec. 2(a) and sec. 2(b) are concerned, it is certainly a proportionate infringement, and as opposed to my colleagues Justices Danziger and Hendel, I believe that it meets the proportionality stricto sensu test. The Law restricts political expression in a very limited way, in that it its provisions reserve the tort sanction to one who calls for a boycott of another “solely because of their connection with the State of Israel … or an area under its control” (emphasis added – E.H.). Thus, on its face, a person calling for the boycott of a factory operating in the Judea and Samaria Area for reasons other than its connection to the Area, would not necessarily be exposed to the tort sanction under the Law, as, for example – legally speaking, and the example being theoretical – in the case of a call to boycott a factory operating improperly towards the local population.

11.       As opposed to this, the Law will help in providing tort protection for anyone who has chosen to act in a place that the state sees as permissible for Jewish settlement against those who harm them solely because they are located there. It would not be superfluous to note that settlement in the Judea and Samaria area over the years was not the policy of governments from one side of the political map, but rather all of Israel’s governments supported it in one way or another. These and those provided support, in the form of various incentives, to settlement in the Judea and Samaria area, as well as in Gaza, from the Six Day War and to this very day. And we should not forget that in the view of many of those calling for a boycott, even the Jewish neighborhoods in East Jerusalem fall within the scope of the boycott. It therefore seems very reasonable to me that a person who acted lawfully and in accordance with government policy be entitled to the legislature’s protection. Moreover, in addition to the examples presented by my colleague Justice Melcer, and those that I presented from American Law, above, we are not actually concerned with a boycott intended to defend a legal or constitutional right under Israeli law, but rather to attack the subjects of the boycott solely because of where they are located. And I would again emphasize that the law does not impose any restrictions upon boycotting a person or party for its opinions or actions. In other words, we continue to “respect” the desire of a person who does not wish to visit Israel or Judea and Samaria, or purchase their products. All that the Law seeks to do is to restrict those who call for a boycott “solely” due to a connection to the state or an area under its control, that and nothing more. That does not, in my opinion, involve that “silencing” of which the learned M. Kremnitzer and A. Fuchs have spoken (see Amir Fuchs, Dana Blander & Mordechai Kremnitzer, Anti-Democratic Legislation in the 18th Knesset (2015) and the material presented in their opinion at pp. 66-71 (Hebrew)).

12.       In the same vein, according to my approach the logic grounding the Allied case is applicable here, as well. The parties that the Law seeks to protect are not “punished” for their actions or views. They are punished solely as a means for influencing the policy of the State of Israel, primarily on the issue of the territories, by means of calling for a boycott against them, which is a hypocritically coercive means by its very nature. As was noted in the in the Allied case, when an individual seeks to impose his views upon another by the callous means of calling for a boycott against him, as opposed to persuasion, the protection of his right to freedom of expression will clearly be diminished a priori. To paraphrase what was stated in that case, there are many ways for the Petitioners to continue to express their political views – and an undeniably broad spectrum of possibilities is available to them in Israel – but without infringing the rights of those whose only sin is that they chose to reside and act in an area permitted them by the State of Israel. If any should nevertheless choose to call for a boycott of companies conducting business in the State of Israel or in an area under its control solely by reason of their connection with the state or the Area, they will be exposed to a tort action for damage caused. The limited restriction of their freedom of expression is meant to protect third parties harmed through no fault of their own, but rather due to a political boycott against a policy of the state:

In prohibiting or providing recovery for damages caused by secondary political boycotts the government is not seeking to ban certain ideas. It is attempting only to outlaw a mode of expression which by its nature injures third parties regardless of the ideas it happens to communicate (Orloff, at p. 1084).

            Indeed, why should a person who chose to live or act in the Area pay the price of the policies of successive Israeli governments by granting “free reign” to those who call for a boycott against them?

13.       The Petitioners further argue that the Law leads to a legal anomaly by creating a tort of calling for a boycott, while actual boycotting is legally permitted. I cannot accept that argument. In my view, and as my colleague Justice Melcer noted, this is similar to the situation in the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: the Prohibition of Discrimination Law). That law clearly distinguishes – in practice – between an individual’s conduct in the private domain and his conduct in the public domain. A person may decide, for personal reasons, that he does not wish to shop in a particular market because he is does not accept the seller’s sexual preference, or because he is of a different race, or does not share his religious beliefs. One may strongly criticize or object to that, but it remains that person’s privilege. However, the seller cannot act in that manner. He is required to sell without discriminating on the basis of sexual preference, racial origin, or religion, for example, on the basis of sec. 3(a) of the Prohibition of Discrimination Law (also see in this regard, F. Raday, “Privatising Human Rights and the Abuse of Power,” 23 Mishpatim (2004) (Hebrew) [English: 13 Canadian Journal of Law and Jurisprudence 103 (2000)]). The reason for this is not – of course – that the legislature wishes to encourage the former conduct, but rather because the individual’s freedom of conduct in the private domain is far broader than in the public domain, and a situation in which the enforcement and judicial authorities would enquire into a person’s intentions in not patronizing a particular establishment is problematic in a democratic society, not to mention the practical difficulty, and as M. Cohen-Elia noted in this regard:

The purpose of the accepted liberal distinction between the “public” and the “private” is to limit the areas in which the state may employ its coercive power in the public, political domain, and to allow citizens greater freedom in private spheres. The liberal demand that the state refrain from intervening in the private domain is essentially intended to realize the individual’s right to privacy, which is generally justified primarily by reason of autonomy. A person who enjoys privacy is autonomous, inasmuch as the right to privacy affords him a sense of security from governmental intrusion into those most intimate areas in which he forms the values and positions of his worldview (Moshe Cohen-Elia, “Liberty and Equality in the Prohibition of Discrimination in Products and Services Law,” 3 Alei Mishpat 15, 28 (2003) (Hebrew); and see: Barak Medina, “Economic Justifications of Antidiscrimination Laws,” 3 Aley Mishpat 37, 44-46 (2003) (Hebrew)).

            In my view, that is the difference between one who personally boycotts and one who calls for a boycott in this context. We cannot – and the Knesset’s attorney addressed this in the hearing before us – prevent a person from boycotting some entity or another, whatever his reasons, and whatever our opinions. The reasons for this are constitutional – the broad freedom granted an individual when he acts in the private domain, as well as evidentiary – the practical impossibility of knowing a person’s intentions in choosing not to buy a product from someone. Thus, in transitioning from boycotting to calling for a boycott, an individual largely removes himself form the private sphere and into the public sphere. Therefore, in my view, it is not at all unreasonable that the legislature would find it proper to impose greater obligations upon him for that conduct, including a prohibition upon calling for the boycott of a person or other entity by reason of its place of residence or activity, which as I and my colleague Justice Melcer noted, is discriminatory in nature.

 

Sections 3 and 4 of the Law

14.       We will now address sec. 3, which restricts the participation in a public tender of a person who calls for a boycott, subject to directives to be established by the Minister of Finance, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, and sec. 4, which restricts granting state benefits to a person calling for a boycott, subject to regulations to be promulgated by the Minister of Finance, with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee, and the decisions of the Minister of Finance accordingly. I will already state that I do not see any reason to declare them unconstitutional.

            First, as a preliminary comment, I am doubtful as to whether the constitutionality of these provisions should be addressed at this stage. As is well known, this Court will not lightly strike down a law enacted by the Knesset that, by its very nature, reflects the public will (HCJ 7111/95 Center for Local Government v. The Knesset, IsrSC 50(3) 485, 496 (1996); HCJ 3434/96 Dr. Menachem Hoffnung v. Knesset Speaker, Prof. Shevach Weiss, IsrSC 50(3) 57, 67 (1996); HCJ 8425/13 Eitan – Israeli Immigration Policy Center v. Government of Israel, (published in Nevo), para. 23 of the opinion of Vogelman J. (2014) [English: http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=54e607184]). In the matter before us, as long as the Minister has not established directives, has not promulgated regulations, and has not issued decisions, and needless to say, it is not yet clear what the nature of the above will be, how they will restrict participation in public tenders, and which benefits will be denied, there is no place for the exceptional intervention of this Court in the form of striking down a statutory provision. In effect, this is an a fortiori application of the ripeness doctrine, under which the Court must refrain from striking down a law when the constitutionality of the law is contingent upon the manner of its implementation in concrete circumstances which have not yet come into being (HCJ 2311/11 Sabah v. Knesset, (published in Nevo) paras. 11-23 of the opinion of Grunis P. (2014) (hereinafter: the Admissions Committees case); HCJ 8276/05 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Defense, (published in Nevo) para. 31 of the opinion of Barak P. [English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-defense];  and see: Elena Chachko, “On Ripeness and Constitutionality: HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance and HCJ 3803/11  Israeli Capital Markets Trustees Association v. State of Israel,” 43 Mishpatim 419 (2013) (hereinafter: Chachko)). In the matter before us, not only do we lack concrete circumstances in which the Law has been implemented, but at present it is not actually possible to implement these provisions (with the exception of sec. 4(b), which will be discussed below). Establishing directives and promulgating regulations is required for the legislation to proceed to the stage of implementation, and therefore the matter would seem unripe.

            Indeed, as my colleague Justice Melcer noted, a chilling effect has been recognized as possible grounds for the annulling of a law, even in the absence of ripeness (the Admissions Committees case, para 16; Chachko, at p. 446; and see Notes, “The Chilling Effect in Constitutional Law,” 69 Colum. L. Rev. 808 (1969)).  As I will explain below, this argument can be considered in regard to sec. 2(c) of the Law. However, I believe that the force of this argument is diminished in regard to secs. 3 and 4, as noted. The directives and regulations that might create a chilling effect have not yet been established, we do not know when they will be, if at all, and if and when they are established, what there scope might be. The idea that someone might choose to speak or not speak in a particular way on the basis of directives and regulations that do not exist is not, in my opinion, well founded. Therefore, I cannot agree with the opinion of Justice Danziger in this regard, according to which “the broad application of the administrative sanction creates a real danger of broad violation of political views” (para. 32 of his opinion). Such a sanction has not yet emerged – with the exception of the end of sec. 4(b), which will be addressed presently – and as noted, we cannot know what it may be and to what extent it may infringe anyone’s freedom of expression. I will go one step further: I do not think that the expression “chilling effect” is the end all. In my opinion, there are forms of expression for which “chilling” is appropriate. No one would deny that a call for violence is an example. No one would deny that shouting “fire” in a crowded theater is another. Therefore, the test is contingent upon the circumstances, and in my opinion, a call for racism – for example – is also such a case. All of these are “fighting words”.

            Nevertheless, as my colleague Justice Hendel emphasized, the end of sec. 4(b) of the Law permits the Minister to deny the benefits enumerated in sec. 4(a) even in the absence of appropriate regulations. I would concur with my colleague’s comment in that I agree that the regulations should be promulgated promptly so that matters may be appropriately clarified. However, the Law, as it presently stands, permits the Minister to act as stated, and therefore it is nevertheless necessary that we examine whether sec. 4 meets the tests for constitutionality. Over and above that need, we will also examine sec. 3 from a constitutional perspective.

15.       On the merits, I am of the opinion that sec. 3 and sec. 4 meet the tests of the Limitation Clause. In HCJ 10104/04 Peace Now – Shaal Educational Enterprises v. Ruth Yosef, Supervisor of Jewish Settlement in Judea and Samaria IsrSC 61(2) 93 (2006) (hereinafter: the Peace Now case), which treated of the use of public funds to oppose the Disengagement Plan, which was cited by Justice Melcer and Justice Danziger, the conclusion was as follows (p. 201):

(1)        By the majority opinion of President Barak and Justices Grunis and Rubinstein, and as opposed to the dissenting view of Deputy President (Emeritus) Cheshin and Justice Beinisch, that under the circumstances before the Court, a local authority may transfer funds to another entity or other entities in order to oppose the implementation of the Disengagement Plan;

(2)        By the majority opinion of President Barak, Deputy President (Emeritus) Cheshin, and Justices Beinisch and Grunis, and as opposed to the dissenting view of Justice Rubinstein, that in every case in which a local authority transfers monies to the opposition of the implementation of the Disengagement Plan, the state may set off from the funding of that council a sum equal to the amount of money that the authority transferred to another entity or other entities for the purpose of that campaign. Justice Rubinstein, dissenting, was of the opinion that monies for the campaign could be taken only from the municipal taxes of the residents of the authority, and in such a case, there should be no set off.

            Deputy President Cheshin stated, inter alia (p. 186):

…that we not decide that the local authority use the support granted to it by the state in order to oppose a plan initiated by the state. A person will not be permitted to bite the hand that feeds him.

            My colleague Justice Danziger is of the opinion that no analogy should be drawn between the Peace Now case and the matter before us, inasmuch as that case concerned statutory bodies, whereas the matter before us applies to all, including private bodies. I respectfully disagree. I am of the opinion that what was said in the Peace Now case applies a fortiori to the matter before us. Clearly, if the state is permitted to withhold funds from a public authority, which is an organic element of the state by its very nature, when it uses the monies to act against the state, then the state is also permitted to withhold benefits from private bodies when they do so, as “no entity that carries out activities has a vested right in the receipt of governmental support” HCJ 11020/05 Panim For Jewish Renaissance v. Minister of Education, Culture and Sport (published in Nevo) para. 10 of the opinion of Justice Arbel (2006); and see: HCJ 1438/98 Masorti Movement v. Minister of Religious Affairs, 53 (5) 337, 385 (1999); AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, (published in Nevo), para. 34 (2010) [http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-je....

            I will unequivocally state: in my opinion, the state would have to be the world’s greatest fool to grant benefits at its expense to private entities, or to contract with private entities, that call to boycott individuals or companies by reason of their connection to the state, one of its institutions, or areas under its control. It is like a victim giving his assailant a stick to hit him harder. In the words of Justice Barak: “A constitution is not a prescription for suicide, and civil rights are not a stage for national extinction” EA 2/84 Neiman v. Chairman of the Elections Committee, IsrSc 39 (2) 225, 311 (1985) [http://versa.cardozo.yu.edu/opinions/neiman-v-chairman-elections-committee], and with all due respect for pluralism and freedom of expression, I do not think that this requires granting funding and various benefits to, or that the state contract by means of public tenders with, those who act against state policy, and in effect, against the state itself, as if to thank those who spit upon you for the blessed rain. Even insanity requires some sense (see in this regard, D. Barak-Erez and G. Sapir, “The Anger and Insult Law,” Ha’aretz (July 18, 2011) (Hebrew); or to quote Justice Melcer, as if to “bite the hand that feeds them” (para. 46). And note that this is being stated in view of the said unique character of a call for a boycott – a coercive measure that may have far-reaching and even existential consequences – and in no way affects anyone’s ability to express criticism, protest, or attempt to convince of is rightness by means of the many means that a democratic regime puts at his disposal, without fear that the state might deprive him of benefits or refrain from contracting with him by reason of such criticism or protest. Therefore, like my colleagues Justice Melcer and Justice Hendel, and as opposed to the view of my colleague Justice Danziger, I am of the opinion that to the extent that sec. 3 and sec. 4 infringe the Petitioners’ freedom of expression, that infringement is proportionate and clearly meets the tests of constitutionality, as long as they are implemented in a proper, transparent manner. I find no need to elaborate on the additional tests, which my colleagues agree are met in this case, and I, of course, do not disagree.

Section 2(c)

16.       After all the preceding, how does sec. 2(c) differ? It would seem that it goes one step too far. The primary purpose of tort law is the restoration of the victim, to the extent possible, to his situation prior to the commission of the tort. This is achieved by awarding damages for the harm he incurred as a result of the tortious conduct (I. Englard, A Barak & M. Cheshin, The Law of Torts – The General Theory of Torts, 571-574 (G. Tedeschi ed.) (2^nd ed., 1977) (Hebrew)); I. Gilead, Tort Law: The Limits of Liability, vol. I, 78-79 (2002) (Hebrew) (hereinafter: Gilead). Damages without proof of damage – sometimes called statutory damages, or also punitive damages – are an exception. Their purpose is to express society’s condemnation of the tortfeasor’s conduct in severe cases by means intended to deter the tortfeasor, or others like him, from such tortious conduct, even in the absence of damage, or at least, where damage, or its extent, has not been proven (CA 140/00 Ettinger v. The Company for the Reconstruction and Development of the Jewish Quarter, IsrSC 58 (4) 486 (2004) paras. 73-9 [http://versa.cardozo.yu.edu/opinions/ettinger-estate-v-jewish-quarter-co... CA 9656/03 Estate of Marciano v. Zinger, (published in Nevo) (April 11, 2005) para 34; CA 89/04 Dr. Nudelman v. Scharansky (published in Nevo) (Aug. 4, 2008) para 45; Gilead, 44-44; T. Kremerman, “Ruling Damages with No Damage in the New Amendment to the Israeli Defamation Law,” 43 Mishpatim 899, 907-908 (Hebrew)). Thus, for example, over the years the legislature provided for the possibility of awarding damages without proof of damage in regard to sexual harassment or persecution (sec. 6(b) of the Prevention of Sexual Harassment Law, 5758-1998); discrimination in the providing of a service or product on the basis of religion, race or sexual inclination, etc. (sec. 5(b) of the Prohibition of Discrimination Law); and publishing anything likely to humiliate or debase a person due to his conduct, actions, religion, etc. (sec. 7A(b) and sec. 7A(c) of the Defamation Law, 5725-1965). Thus, we are concerned with conduct that is deemed improper by a broad social consensus, and that should be deterred even at the price of deviating from the basic principle of tort law that a victim should be compensated only for the damage incurred (and see the Explanatory Notes to the Prevention of Sexual Harassment (Amendment 8) (Damages without Proof of Harm) Bill, 5758-1998; and in regard to punitive damages, also see the sources cited by my colleague Justice Melcer in paras. 41-42 of his opinion).

17.       The matter would appear to be different in all that regards sec. 2(c). As noted, the main reason – but certainly not the only one – for the enactment of the Law is the protection of the residents of Judea and Samaria from the harm caused them by the actions of those who call to boycott them, which is a subject of public debate in Israel. This, as noted, is of significance in the context of damages without proof of damage and punitive damages (see, also, E. Rubinstein, “Punitive Damages – A View from the Bench,” in A. Barak, R. Sokol, O. Shaham (eds.), Orr Volume 97, 102-105 (2013)). Sections 2(a) and 2(b) are sufficient for achieving that purpose, and as stated, do not disproportionately infringe the Petitioners’ freedom of expression by imposing an obligation to compensate those harmed by their actions. Section 2(c) upsets this delicate balance. It significantly restricts the Petitioners’ freedom of expression by creating an intensified chilling effect, even for someone who, like myself, holds a more moderate view of the fear of chilling effects, while protecting the objects of the call for a boycott, even if they incur no damage. It would therefore appear that there is an alternative means that would serve the purpose that the Law’s intended purpose while infringing the Petitioners’ right to freedom of expression to a lesser extent. That is sufficient for determining that sec. 2(c) is unconstitutional.

Before Concluding

18.       Out of a love of Jewish law, I would add that while it does recognize the concept of boycott [ostracism] as a prerogative of the public, it is imposed for the purpose of facilitating societal life rather than its division, in order to prevent misconduct by means of an act that is not legally required or prohibited (see: HaEncyclopedia HaTalmudit, vol. 17, s.v. Ḥerem (Ḥaramei Tzibbur) 343 (Hebrew)). As Gideon Libson writes in his article “The Ban and Those under It: Tannaitic and Amoraic Perspectives,” Annual of the Institute for Jewish Law, vol. VI-VII (1979) 177–202 (Hebrew):

In our sources, we find not only a rejection of the ostracism of sages or a denial of facts that deprives an act of the justification for employing ostracism, but even apology for the use of ostracism and an explanation of its need. Thus, Rabban Gamaliel apologizes for ostracizing Rabbi Eliezer ben Hyrcanus, according to the Babylonian Talmudic tradition regarding the ostracizing of Rabbi Eliezer ben Hyrcanus: “Sovereign of the Universe! You clearly know that I have not acted for my honor, nor for the honor of my paternal house, but for your honor, so that divisiveness may not multiply in Israel.” We have before us various expressions of the sensitivity displayed by the Sages in regard to the ostracizing of their fellows: rejection of ostracism itself, denial of the facts that would ground its imposition, apology for its imposition. All of these express reticence and reservation in regard to the use of ostracism.

19.       As stated above, I concur in the opinion of my colleague Justice Melcer, according to which the Boycott Law meets the tests for constitutionality, with the exception of sec. 2(c) that would appear to infringe freedom of expression disproportionately, and which must, therefore, be struck down. I respect the differing views of my colleagues Justices Danziger and Hendel (which differ in their results). But in my opinion, the balance struck by my colleague Justice Melcer is more appropriate to the circumstances of the State of Israel. In conclusion: these lines are written on the eve of Passover. The Passover haggadah speaks of the Divine promise of the survival of the Jewish People in spite of its enemies – “It is this promise that has sustained our ancestors and us, for not just one enemy has arisen to destroy us; rather in every generation there are those who seek our destruction, but the Holy One, praised be He, saves us from their hands.” There is nothing wrong with Israel’s Knesset giving legal expression to the fight against those who would seek our destruction.

20.       After writing and distributing my opinion, I came across an article by Prof. Lawrence Summers, President Emeritus of Harvard University and Secretary of the Treasury under the Clinton administration, who also held other senior economic positions. The article is entitled “Academic Freedom and Antisemitism” (ISGAP Policy Paper Series No. 1, March 2015), and I would like to quote the abstract:

In the broader context of rising antisemitism on college campuses, the response of universities to proponents of Israeli boycotts, divestiture, and sanctions must unite the preservation of academic freedom with a clear and forceful condemnation of the vilification of Israel. During his tenure as president of Harvard, the author delivered a set of widely noticed remarks in which he described the calls for divestiture and boycott as “antisemitic in their effect if not their intent.” Refusing to frame his critique in more generic terms, the author instead drew attention to the way in which divestment advocates focused solely on Israeli universities and scholars. The more recent intensification of pressure for boycotts, divestment, and sanctions against Israel, as evident in the American Studies Association boycott, likewise calls for a morally clear rejection of the demonization of Israel. Rather than resorting to overly broad language that criticizes boycotts in general, uni­versities should specifically reject the singling out of Israel for persecution, and should take steps to dissociate themselves from any organizations or movements that do so. A zealous minority that utilizes the resources and prestige of the acad­emy to pursue antisemitic objectives poses a genuine threat to academic freedom. Protecting academic freedom demands that this threat be addressed directly.

            At the end of the article, Prof. Summers concludes (p. 10):

If zealous minorities, no matter how well intentioned, are able to hijack the prestige and resources of the academy in pursuit of objectives that are parochial and bigoted, why should the broader society refrain from seeking to set the academy’s agenda. The right to say, advocate, or propose anything must always be protected. But it must come with the right or even obligation of others to call out words and deeds that threaten the com­munity and the values of moral concern and rational inquiry for which it stands.

Simply stated: even freedom of expression has its limits. This, I believe, should be borne in mind, a fortiori, in the matter before us.

 

Justice I. Amit

1.         The strength of a state is the product, inter alia, of its standing among the nations of the world, the legitimacy of its existence and its actions, and its economic strength. Over the last years, the State of Israel has faced the three D’s: Demonization, Dehumanization, and Delegitimization, and the BDS (Boycott, Divestment, Sanctions) movement is the vanguard of these three (some recommend a different reading of the acronym BDS: Bigoted, Dishonest and Shameful, as suggested in Gabriel Noah & Asaf Romirowsky, “Anti-Semitic in Intent if not in Effect: Questions of Bigotry, Dishonesty and Shame,” in Cary Nelson & Gabriel Noah Brahm (eds.),  The Case Against Academic Boycotts of Israel 75, 80 (2015).

            However, the Israeli legislature was of the opinion that it lacked capacity to combat those who called for a boycott against Israel abroad, and therefore, the Prevention of Harm to the State of Israel by means of Boycott Law, 5771-2011 (hereinafter: the Prevention of Boycott Law, or the Law) is directed internally, at citizens and residents of the state who call for an academic-cultural-economic boycott against their own state.

            Does the Law withstand the “test of fire” of the Limitation Clause of the Basic Laws?

2.         My colleagues Justices H. Melcer, Y. Danziger and N. Hendel each set their own course, and I will begin by stating that I concur with the opinion of Justice Melcer according to which the Law passes – albeit with great difficulty – the proportionality test, with the exception of subsec. 2(c), which treats of punitive damages.

            I, too, am of the belief that the Law infringes freedom of political expression, which stands at the heart of freedom of expression. However, in my opinion, a close examination of the matter leads to the conclusion that although our subject is freedom of political expression, when a public call for boycott is concerned, we are not faced with a high level of freedom of expression, and the infringement is less than it initially appears. In view of the Law’s purpose to protect the rights of Israeli citizens to dignity and property – which are also rights of the first order – I believe that the Law meets the tests of the Limitation Clause, with the exception of subsec. 2(c).

            Inasmuch as my colleague Justice Melcer reviewed the elements of the Law, the background of its enactment, and the arguments of the parties in detail, I will not reiterate. I shall proceed as follows: I will begin with a preliminary remark and a remark in regard to comparative law, and then continue with the reasons grounding freedom of expression, and that a call for a boycott stands in contradiction to some of those rationales, which has consequences for the extent of the infringement of freedom of expression, I will address the second and third subtests in view of the purposes of the Law and the secondary harm to the objects of the boycott, I will consider the Law from the standpoint of tort law and in the context of the “chilling effect”, and I will conclude with a brief consideration of secs. 3 and 4 of the Law and the interpretation proposed by my colleague Justice Danziger.

 

Preliminary Remark

3.         The Law has prepared a “masked ball” for us, both in regard to the legislature and the Petitioners. I will explain.

            By its language and declared purpose, the Law is intended to protect the State of Israel against cultural-academic-economic boycotts. But the Knesset proceedings and the background of the Law reveal that its midwives were motivated by a desire to protect industries and institutions in the Area against internal and external boycotting, which is why the phrase “or an area under its control” was added to the definitions section (the bill was introduced at the height of a public debate that arose following a call to boycott the public auditorium in Ariel – see Amir Fuchs, Dana Blander & Mordechai Kremnitzer, Anti-Democratic Legislation in the 18th Knesset, 59 (Israel Democracy Institute, 2015)).

            For their part, the Petitioners made hay of the phrase “or an area under its control”. The Petitioners complained up and down their petitions that the Law infringes freedom of expression in regard to a subject that stands at the center of Israeli political debate. But in the course of the hearing, they removed their masks and showed their true colors.  With the exception of the Petitioners in HCJ 5392/11 (the Barkai petition), it turned out that the other Petitioners do not distinguish between the State of Israel and the Area. As far as the Petitioners are concerned, even a call to join the Arab Boycott that was imposed on Israel at the time, is a call that falls within the scope of freedom of expression that should not be restricted, such that their position would remain unchanged even if the legislature were to remove the phrase “or an area under its control” from the definition of “a boycott against the State of Israel”. In other words, it is not the protection of institutions, organizations and industries in the Area that keeps the Petitioners up at night, but the restriction of the very right to call for a boycott against the State of Israel for any reason whatsoever.

            With all due respect for the subjective intention of the legislators and the intentions of the Petitioners, as my colleague Justice Danziger pointed out, the business of this Court is analysis of the law and not psychoanalysis of the legislature. Therefore, even if the legislature primarily intended to combat the boycotting of industries and institutions in the Area, the law that it enacted was expressly intended to combat boycotts against the state, and it is in that light that we must examine its provisions.

On Comparative Law

4.         Before embarking upon an examination of the Law’s infringement of the constitutional right to freedom of expression, I will devote a few words to the use of comparative law in legal interpretation. The debate unfolding on these pages on the subject of freedom of expression and its infringement is bursting at the seams with references to foreign cases, particularly from American law. Indeed, no one would deny that the study of foreign law and cross-pollination is good and desirable. “It is appropriate for an interpreter to be open to the fundamental principles of enlightened legal systems ‘that form the world’s cultural view’” (Aharon Barak, Interpretation in Law – Constitutional Interpretation, 236 (1994) (hereinafter: Barak, Constitutional Interpretation). However, “the use of comparative law in our case — like in every case — must be made sensitively and carefully, after thorough examination as to whether the legal arrangements practiced in one country or another are compatible with the law in Israel and the reality of life with which we contend” (HCJ 7052/03 Adalah v. Minister of the Interior, IsrSC 61 (2) 202, 419 (2006) perm. Cheshin D.P. [English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]). As my colleague Justice Danziger noted, the protection afforded freedom of expression, in general, and freedom of political expression, in particular, is broader in the United States than the protection afforded freedom of expression in Israel. There are many reasons for this difference, and I will note one central reason, which is the constitutional text that is the source of the right.

            The right to freedom of expression in American constitutional law derives from the First Amendment to the Constitution, which states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

            The right to freedom of expression in the American Constitution thus comprises the right to freedom of the press, the right to assemble, and the right to petition for governmental relief. This special constitutional context led the United States Supreme Court to emphasize, for reasons that are at the foundation of freedom of expression, the reason of defense of the democratic regime (see: Eric Barendt, Freedom of Speech, 48 (2^nd ed., 2005), and see: Laurence H. Tribe, American Constitutional Law, 804 (2^nd ed., 1988) (hereinafter: Tribe)). This explains the centrality of freedom of political expression in the American constitutional system, as well as the severe requirements that American law has established for justifying an infringement of that right. In the United States, freedom of speech is directly connected to the freedom of political expression.

            As opposed to this, in Israeli constitutional law, freedom of expression is a right that is inferred and derived from the right to dignity in Basic Law: Human Dignity and Liberty, as a subsidiary of human dignity. This reflects the concept that “what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?” (CA 4463/94 Avi Hanania Golan v. Prison Service, IsrSC 50 (4) 136, 153 (1996) per Mazza J. [http://versa.cardozo.yu.edu/opinions/golan-v-prisons-service]). The source of Israeli freedom of expression is human dignity, and the core of Israeli freedom of expression is human dignity (Aharon Barak, Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, 730 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)] (hereinafter: Barak, Human Dignity); “the right under discussion – freedom of political expression – is, according to our juridical conception, closely and materially bound to human dignity”, HCJ 10203/03 Hamifkad Haleumi Ltd. v. Attroney General, IsrSC 62 (4) 715, 753 (2008) per Naor J. [http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]).

            The source of the right to freedom of expression, along with many additional reasons that I see no need to address, result in a different approach to freedom of expression in general, and freedom of political expression in particular, in the United States and the State of Israel, and to different balancing formulas (Barak, Constitutional Interpretation, p. 236).

            In American law, a finding that something is protected speech is often the end of the road, which is not the case in our legal system, with its various balances between freedom of expression and other conflicting values. It is, therefore, appropriate to learn from other countries that have liberal democratic legal systems and values similar to our own. Israel is not an island unto itself, and we should not adopt an approach according to which “we have nothing to gain in this regard from foreign fields” (HCJ 5771/93 Citrin v. Minister of Justice, IsrSC 48 (1) 661, 676 (1994) per Mazza J. in a different context). However, we should bear in mind that recourse to foreign law is an additional resource from among many interpretive resources, and “the status of comparative law is no different than a good book or a good article. Its bearing is determined by the quality of its rationale” (Barak, Human Dignity, 195 [English edition: p. 93]). Enrichment from such sources must, therefore, be approached with care, and with due consideration of the differences between the foreign system and our own.

            In conclusion, we can enjoy and be inspired by American law on the subject of freedom of expression, but we cannot entirely adopt it in the matter before us. Some say that boycotts are impressed upon the American DNA, as a nation whose founding fathers employed boycotting in their struggle for independence (Yaniv Meno, “Consumer Boycotts, the Ethical Weapon of the Consumers,” 15 Hamishpat 729, 756 (2010) (Hebrew) (hereinafter: Meno “Consumer Boycotts”)). However, it should be noted that while consumer boycotting is well-developed and protected in the United States, that is not the case in regard to political boycotting, despite, or perhaps because of the special place of freedom of expression in the United States. We do not make this “cautionary note” to derogate from the value and importance of freedom of expression in Israeli law, which I will address below.

 

The Reasons for the Right to Freedom of Expression

5.         It would be hard to exaggerate the importance of freedom of expression in general, and freedom of political expression in particular. Even prior to the enactment of Basic Law: Human Dignity and Liberty, this Court recognized the importance of this “supreme value” HCJ 73/53 Kol Ha’am Co. Ltd. v. Minister of the Interior, IsrSC 7 (2) 871, 878 (1953) [English:  http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior] (hereinafter: the Kol Ha’am case)). With the enactment of Basic Law: Human Dignity and Liberty, the right to freedom of expression won supra-legal constitutional status as a right derived from human dignity:

The case law has repeatedly established that freedom of expression forms an inseparable part of the right to dignity, inasmuch as freedom of expression is essential to personal development and the fulfillment of one’s human potential. We are the heirs to a longstanding legal tradition that views freedom of expression as a constitutional freedom that derives from the fundamental values of the State of Israel as a Jewish and democratic state. Freedom of expression and democracy have a reciprocal relationship – democracy is a necessary condition for freedom of expression, and freedom of expression gives democracy its meaning. It is not without reason that freedom of expression has been referred to as a “supreme value”, the “apple of democracy’s eye”… and other such expressions and idioms that have been coined, and praises that have been sung over the years in honor of “that giant that is called freedom of expression”… (my opinion in CA 751/10 A. v. Dr. Ilana Dayan-Orbach (published in Nevo) para. 4 (Feb. 8, 2012) (hereinafter: the Ilana Dayan case)).

6.         My colleagues addressed the reasons underlying freedom of expression, and I will only briefly mention them: freedom of expression is an end in and of itself, it is a part of human dignity and the right to autonomy that makes it possible to realize one’s potential and express one’s opinions; freedom of expression is a means for achieving social and democratic objectives, inasmuch as only the public can only form its opinions through free, open debate; freedom of expression serves to promote knowledge and uncover the truth in a competitive free marketplace of ideas and opinions, and the assumption is that the best opinion is the one that will survive, and the truth will conquer lies (see, e.g., the Ilana Dayan case, para 17, per Vogelman J., and the references there).

            Distilling the above shows that freedom of expression rests upon three primary, intertwined and integrated rationales: human self-fulfillment; exposing the truth; ensuring a democratic regime (and see: Barak, Human Dignity, 712-719 and references there). The cumulative force of those three reasons grants freedom of expression a place of honor in our liberal democratic conscience, and in our constitutional legal system. But note that not every form of expression corresponds with all three of those reasons. There are forms of expression that promote scientific or other “truths” that are unrelated to a democratic regime. There are forms of expression that express a person’s “credo”, but do not make any special contribution to the free marketplace of ideas. However, that neither adds nor detracts from the value of such forms of expression nor from the extent of their constitutional protection. Nevertheless, considering the rationales grounding freedom of expression helps us achieve a better understanding of what it is that we seek to protect in the framework of freedom of expression. Expression that is unconnected to any of those reasons, or that is only tenuously connected to one or another, may be granted different weight when we examine the proportionality of its infringement. It is at this juncture that we arrive at the Law before us.

The Prevention of Boycott Law and the Infringement of Freedom of Expression in light of the Rationales grounding Freedom of Expression

7.         The Prevention of Boycott Law establishes that “anyone who knowingly publishes a public call for a boycott against the State of Israel” commits a civil wrong (sec. 2 of the Law), and his right to participate in public tenders or receive benefits or funding from the state may be denied (secs. 3 and 4 of the Law). According to the Petitioners, the law infringes, inter alia, their right to freedom of expression because the Law “expropriates […] the right of a certain part of Israeli society to state its opinion in opposition to the lawfulness […] of actions performed by the Government of Israel and/or the State of Israel in the territories that were conquered […]” (para. 10 of the petition of the Petitioners in HCJ 5549/11). The Petitioners point out that imposing a boycott is an important democratic tool, and that “there are those who choose to boycott in obedience to the dictates of their conscience, which does not permit them to use a particular product […and] there are those who choose to boycott in order to apply pressure upon the object of the boycott so that it will change its course” (para. 18 of the petition in HCJ 5239/11). These arguments are, indeed, consistent with the reasons grounding freedom of expression. However, in my opinion, the provisions of the Law do not prevent the Petitioners from realizing their right to freedom of expression. I shall explain.

8.         I will begin in praise of the boycott. Boycotting is considered a tool for the voicing of non-violent opposition of a type that has the potential for initiating change in various areas, such as in the political and consumer areas. It can serve society’s weaker groups, and it  also realizes the right to assemble, such that it may be seen as one of the tools of the democratic process.

            As noted, no one disputes that the Law infringes the Petitioners’ right to freedom of expression. However, the Law does not apply to a person who publishes criticism of the State of Israel, its policy in the Area, or of entities or persons who support that policy. The law does not apply to a person who boycotts the State of Israel or an area under its control. As opposed to the impression that might be gained from reading the petitions, the Law does not prevent any person or entity from expressing a position on the question of continued Israeli control of the Area, and does not prevent anyone from boycotting a particular dairy or winery due to its connection to the State of Israel or the Area. The Law does not prohibit or in any way restrict expression against any particular institution or factory, and does not even prevent action to boycott, and therefore, a person can persuade another not to purchase goods from a particular factory. The Law only prohibits publishing a public call. A person can boycott and participate in a boycott, but cannot publicly call for a boycott, just as a person may hold racist views, but may not publish incitement to racism, and a person may identify with a terrorist or violent act, but may not call for or support such acts (see secs. 144B and 144D (2) of the Penal Law, 5737-1977 (hereinafter: the Penal Law)). A distinction should therefore be drawn between using words to express an opinion, and the use of words as a form of action. While we are, indeed, concerned with a call for a boycott, which American law would categorize as speech, as opposed to participation in a boycott, which is deemed as conduct, in my opinion, a call for a boycott – as a motivation to action – is not normal speech, but rather falls within the interstice between speech and conduct.

            The Law therefore applies solely to a publically calling for a boycott. It is through this lens that I will examine the question of whether a call for a boycott, as distinct from participation in a boycott, corresponds with the reasons grounding freedom of expression enumerated above, and if so, to what extent.

9.         Autonomy and self-fulfillment: Participation in a boycott involves an element of self-fulfillment. It can provide a feeling of inner satisfaction that is something of an end in itself (Meno, Consumer Boycotts, 750-751). But a call for a boycott, as a form of expression intended to motivate a specific action by another, is expression that is outwardly directed. The purpose of a call for boycott is to change the conduct of others – to cause part of the public to boycott, and to cause the objects of the boycott to change the conduct at which the boycott is directed. This aspect of a call to boycott is not at the core of the rationale of a person’s self-fulfillment and autonomy. As noted, the Law does not prohibit a person from obeying the dictates of his conscience and refrain from purchasing from a factory located in the Area, just as a person who objects to animal testing may refrain from using products produced on the basis of animal testing. Indeed, no one denies that the ability to motivate others and bring about a change of their conduct is part of a person’s “selfhood”, but infringing this rationale is less severe, considering that a person has many options at his disposal for expressing his opinion in the marketplace of ideas, and other possibilities for explaining and for persuading another of the justice of his cause. There are even those who are of the opinion that boycotting, and certainly cultural-academic boycotting, should be the last arrow – if it is there at all – in the quiver of a person who believes in freedom of expression. The Law can also not be said to infringe the dictates of a person’s conscience. Conscience is threatened when a person is required and actively compelled to act against the principles in which he believes. Restricting a person from calling others or preventing others to act in a manner that he conceives to be improper is not an infringement of conscience (Daniel Statman & Gidi Sapir, State and Religion in Israel, 120 (2014) (Hebrew)).

            In conclusion, while the Law does infringe the reason of fulfillment of selfhood underlying freedom of expression, that infringement is not as great as us claimed by the Petitioners.

10.       Exposing the Truth and Defending Democracy: A call for a boycott is a form of expression intended to motivate a specific action (boycott) by others, as opposed to expression that concerns persuasion, study and the stating an opinion. As opposed to the Petitioners’ claim, the right of part of society to have its say has not been “expropriated”, and they may express their opinion aloud, even and especially on subjects that are the subject of debate, like the state’s control of the Area. The Law does not contradict the statement that “debate on public issues should be uninhibited, robust, and wide-open” (New York Times v. Sullivan 376 U.S. 254, 270 (1964) per Brennan J.) (hereinafter: the Sullivan case). Therefore, it would appear that the Law does not substantially infringe the first reason grounding freedom of expression – exposing the truth.

11.       But the Petitioners argue that restricting the ability to call publically for boycotting deprives them of a key tool in the democratic toolbox of freedom of expression.

            It cannot be denied that a boycott can serve to bring pressure to bear upon various bodies and, in the short or long term, bring about dramatic change. However, it is hard to conceive of a call for boycotting as serving the “exposure of the truth”, which is also of consequence in regard to the motive of defending democracy, and as will be explained, the two motives are closely related.

            Freedom of expression protects democracy in two primary ways. The first is closely tied to the principle of exposing the truth and the free marketplace of ideas. “Only by considering ‘all’ points of view and a free exchange of ‘all’ opinions is that ‘truth’ likely to be arrived at” (Kol Ha’am, p. 877, per Agranat J. (emphasis original – I.A.)). Without freedom of expression, we cannot know what is good for us, we cannot persuade others of the rightness of our ideas, and we cannot arrive at wise decisions and chart our course. The second way that freedom of expression protects democracy is in providing a safe, agreed platform for expressing disagreements and attenuating public tensions (see Barak, Human Dignity, 716). Indeed, “thanks to freedom of expression, social pressure can be vented in words rather than deed” (HCJ 399/85 Kahane v. Broadcasting Authority, IsrSC 41 (3) 255, 276 (1987)). Freedom of expression primarily concerns speech rather than actions. Freedom of expression primarily concerns the expression of opinions through discourse, and not through coercion.

12.       Boycott is an exceptional tool in the freedom-of-expression toolbox. It is intended to impose change through harmful means. Rather than debate and discuss conflicting views, a boycott is intended to oppose a particular policy by silencing other opinions, whether by economic means or through cultural and academic ostracism. Rather than respect the opinion of others and grant them a place in the free marketplace of ideas, a person calling for a boycott denies the legitimacy of those holding opposing views, and banishes them.

            My colleague Justice Danziger holds the view that boycotting is an effective democratic tool, and he marshalled support from the legal literature, as follows (para. 7 of his opinion):

While a successful boycott may appear to drown out another position, the remedy is not to silence the boycott but instead for those on the other side to endeavor to make themselves “louder” (Theresa J. Lee, “Democratizing the Economic Sphere: A Case for the Political Boycott,” 115 W. Va. L. Rev. 531, 550 (2012)).

            I cannot agree with that statement, neither in terms of the free marketplace of ideas, nor in regard to the protection of democracy. It would seem that in the learned author’s marketplace of ideas, opinions are measured in decibels rather than their merits. The sellers in the author’s market do not try to persuade buyers, but rather to drown out the competition. But democracy is not a shouting match. It is a forum for discourse, for sharing opinions, and for patient, tolerant attention to differing views.

            Bearing in mind the rationale of the free marketplace of ideas as a means for exposing the truth – a rationale that undergirds our adulation of freedom of expression – there is something Orwellian to the Petitioners’ argument that the Law restricts freedom of expression. An academic-cultural boycott muzzles expression in the plain meaning of the term. Granting a monopoly to one stand in the marketplace of ideas is the absolute antithesis of freedom of expression and the idea of a free marketplace of opinions. The cultural-academic boycott of Israel is intended to paralyze and silence political expression, impose one opinion and one “truth” (on the “facts” that guide the BDS movement, see Ben-Dror Yemini, The Industry of Lies (2014) (Hebrew); and Cary Nelson & Gabriel Noah Brahm (eds.), The Case against Academic Boycotts of Israel (2015)). Against this light, the Boycott Law appears to promote freedom of expression, and defend it against those who would seek to restrict it. Voltaire was ready to fight for an opponent’s freedom of expression, but surely would not have been willing to shed his own last drop of blood to defend that opponent’s right to silence him. The academic-cultural boycott is largely symbolic. It is a crude device that targets the entire academic community and the institution itself, without distinction, and as such, in flagrant contradiction of academic freedom, and it is worthy only of contempt (for an in-depth argument against academic boycotts, see Martha Nussbaum, “Against Academic Boycotts,” in Cary Nelson & Gabriel Noah Brahm (eds.), The Case Against Academic Boycotts of Israel 39 (2015)).

            From this perspective, it is somewhat naïve to compare political and consumer boycotts. We conceive of freedom of political expression as more exalted than the freedom of commercial-consumer expression. In view of that very importance of political expression, a consumer boycott of a factory that exploits child labor or the environment – which is essentially an economic boycott – is unlike a boycott intended to silence another political opinion, including a cultural-academic boycott. It is the supreme value of freedom of expression that justifies placing restrictions upon calls for boycott that are intended to silence the expression of the other.

13.       As we see, boycott is an aggressive device in the democratic toolbox, whose legitimacy in extreme cases does not derive from reasons based upon freedom of expression. Similarly, the right to strike is a democratic tool, but the case law has rejected its forceful use. Thus, in HCJ 525/84 Hativ v. National Labour Court IsrSC 40(1) 673 (1986) (hereinafter: the Hativ case), this Court addressed the issue of political strikes, and rejected the plaintiffs’ argument that it was a legitimate democratic device:

The political strike — which attempts to force an act or an omission on government authorities that they would not have tolerated had it not been for the strike — raises many constitutional and social problems: in a democratic regime, this opens the gates for strikers to impose their will on democratically elected institutions, and to direct processes by means of the coercive power of organizations outside the government and even of minority groups who in practice have such coercive power. There may be countries where a national electric power cut, including for electricity being supplied to hospitals and nurseries, can compel the legislator to enact any legislation required of him. But there is no doubt that, together with the collapse of morality, this also harms most seriously the functioning of democracy as such (ibid., at p. 703).

            This is also true, by analogy, of the coercive force of an economic-academic-cultural boycott.

            In summary, the Prevention of Boycott Law infringes freedom of expression primarily in terms of autonomy and fulfillment of “selfhood”, but does so with less force than may appear at first glance. I shall now address the second stage of constitutional review: whether the Law meets the conditions of the Limitation Clause.

The Limitation Clause

14.       In order to decide whether a law that infringes constitutional rights meets the conditions of the Limitation Clause, we must examine the whether the arrangement established by the law falls within the “margin of proportionality”. This margin delineates the boundaries of legislative discretion. The Court does not examine whether the arrangement established by the law is optimal, or whether the Court would have chosen that arrangement were it the legislature. It is common knowledge that the Court will not replace the legislature’s discretion with its own, and “will not place itself in the authority’s shoes to select the appropriate alternative from among the possible choices”  (HCJ 6304/09 Lahav – Bureau of Organizations of Self-Employed  v. Attorney General (published in Nevo) para. 113, per A. Procaccia J. (Sept. 2, 2010)). The legislature is granted the power to choose among the possible alternatives in the “margin of limitation”, and the Court will show judicial restraint – although not judicial torpidity – in regard to the legislature’s choice (HCJ 1715/97 97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 389 (1997) per Barak P.).

            We must, therefore, exercise restraint in navigating the Limitation Clause. We will not annul a provision of a law merely because we are uncomfortable with it, as long as that law falls within the margin of proportionality. Even if we do not find the form and concept of the law to be attractive, this Court is not a plastic surgeon who erases wrinkles and removes fat upon request. It is, of course, good for a law to be attractive, balanced and optimal, but it is solely required to meet the conditions of the Limitation Clause. As my colleague Justice Melcer emphasized in his opinion, we are concerned with the constitutionality of the law, and not with the legislature’s wisdom in equating a winery in the Area with one in the territory of the State of Israel. “The Court must determine the constitutionality of the law, not its wisdom. The question is not whether the law is good, efficient, or just. The question is whether the law is constitutional” (CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village IsrSC 49 (4) 221, 438 (1995), IsLR 1995 (2) [English: http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... and see HCJ 8425/13 Eitan – Israeli Immigration Policy Center v. Government of Israel (published in Nevo) (Sept. 22, 2014), para. 1 of the opinion of Grunis P. [English: http://www.refworld.org/cgi-in/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=54e607184]).

15.       My colleagues Justices Melcer, Danziger and Hendel examined the Law under the proportionality tests, and I, too, am of the opinion that the Law is consistent with the values of the State of Israel as a Jewish and democratic state, that it is intended for a proper purpose, and that there is a rational connection between the Law and its purpose. On the issue of the matter of the third subtest of proportionality – proportionality stricto sensu – I concur in the opinion of my colleague Justice Melcer.

Proportionality Stricto Sensu

16.       In examining the proportionality of the infringement of a right (stricto sensu), we balance the benefit of realizing the law’s purpose against the harm it poses to the right. We place the benefit and the probability of achieving it on the positive side of the scales, and balance it against the importance of the right, and the severity and probability of its violation on the negative side of the scales (see: Aharon Barak, Proportionality in Law 438-445 (2010) (Hebrew)).

17.       On the negative side, I would note our point of departure that the Law infringes the fundamental right of freedom of expression. To that we must add the Law’s chilling effect, which I will address below. However, in examining the infringement of freedom of expression, we do not consider the harm in abstract terms, but rather in terms of the concrete context of its circumstances (Barak, Proportionality 440). We earlier noted that a call for a boycott of Israel does not “correspond” with the reasons undergirding freedom of expression, and that infringing the possibility for publically calling for a boycott – as opposed to participating in a boycott – as one of the tools available in a democratic system, is not a significant violation.

18.       On the positive side, I would point to my colleagues’ opinions that addressed the purposes of the Law in preventing harm to the State of Israel by means of boycott, and the protection of its citizens form economic, cultural and academic harm. These objectives concern constitutional rights of the citizens of Israel, like the right to freedom of expression, the right to property, the right to freedom of occupation, the right to equality, and the right to human dignity, some of which the state is obligated to defend (sec. 4 of the Basic Law states: “All persons are entitled to protection of their life, body and dignity”).

            An academic or cultural boycott of Israel infringes the freedom of expression of every individual connected with the institutions that are the objects of the boycott. It harms the ability for a lecturer in a boycotted academic institution to participate in academic discourse, it harms the ability of an actor in boycotted theater to express his “selfhood” by means of stage performance. A boycott against Israel harms the property rights of the boycotted individuals and companies, their vocation and freedom of occupation. The matter is clear, and I see no need to elaborate.

19.       A public call to boycott a person due to his connection to the State of Israel violates the core of human dignity by exploiting that person as a means for achieving a political end (HCJ 10843/04 Hotline for Migrant Workers v. Government of Israel, IsrSC 62 (3) 117, 147 (2007) per E. Levy J. [http://versa.cardozo.yu.edu/opinions/hotline-migrant-workers-v-governmen.... This conception, referred to as the “object formula” in philosophical and legal literature, views a specific person as a means or an object for achieving the goals of another, and seriously violates the dignity of that person (on the object formula, see Barak, Human Dignity, 64, 254, 453).

            We have noted that a boycott is intended to pressure the object of the boycott in order to cause him to change his ways. Boycotting a clothing manufacturer for violating the rights of workers is intended to cause that manufacturer to change its ways and treat it workers properly. Boycotting a bus company that discriminates against blacks is intended to cause that company to change its ways and treat all of its customers properly. Such is not the case in regard to the boycott against the State of Israel, which is intended to apply pressure to the objects of the boycott – persons with a connection to the State of Israel – in order that they might, in turn, apply pressure upon a third party (the state) in order that the state will change its ways. When A calls for a Boycott of B for the racist opinions he disseminates among his students, there is an identity between the purpose of the boycott and its object. Those who call for a boycott of the State of Israel take aim at the State of Israel and its policies, but the individuals who are the objects of the boycott are the ones who pay the price, and serve solely as a means for achieving the ends of those who call for the boycott. That constitutes a severe violation of the dignity of the objects of the boycott, who are discriminated against, through no fault of their own, as victims of a secondary boycott.

Secondary Boycotts

20.       A secondary boycott inflicts harm upon a party that is not directly connected to the reason underlying the call for a boycott, and who is not always able to respond to the boycotters’ demands for a change of general political policy (in the consumer-economic sphere, a distinction is customarily drawn between a direct, first-order boycott, such as when a manufacturer refuses to supply a product to a particular distributer, and a secondary boycott, in which a business refuses to purchase a product from a particular manufacturer who continues to supply the product to a boycotted competitor – Yitzchak Amit, “Prohibition of Unfair Competition Bill,” 23 HaPraklit 223, 231 (1996) (Hebrew) (hereinafter: “Prohibition of Unfair Competition”)).

            The United States Supreme Court addressed this in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (hereinafter: the Claiborne case), mentioned by my colleague Justice Hendel as a decision that recognized the constitutional protection of political boycotting as free speech, which stated: “Secondary boycotts and picketing by labor unions may be prohibited, as part of ‘Congress’ striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife’” (p. 912). The Court cited the case of International Longshoremen's Association v. Allied International, Inc., 456 U.S. 212, 222-223 (1982) (hereinafter: the Longshoremen case), to which my colleague Justice Hendel referred. In that case, American stevedores refused to unload cargo from the Soviet Union in protest its invasion of Afghanistan. The Supreme Court held that the boycott was secondary and political, and therefore prohibited by law.

            There would appear to be two differences between the matters discussed in Claiborne and Longshoremen that explain the different conclusion arrived at by the Court, and which are of consequence in the matter before us. First, the former case addressed a consumer boycott for racially discriminatory conduct that was aimed directly at the employer (although some of the demands were directed at the state), whereas the Longshoremen case concerned a purely secondary boycott in the sense that the victim was not the Soviet government, but rather third-party merchants. Second, the cause of action in Claiborne was a common-law tort, whereas the secondary boycott in Longshoremen was prohibited by an express statute – sec. 8(b)(4) of the National Labor Relations Act – that provides:

8(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organization or its agents:

—

 (4)

—

(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is

—

(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees […]

            This section was examined in light of the First Amendment of the United States Constitution on several occasions, and was not found to be constitutionally repugnant to freedom of speech. In the Longshoremen case, Justice Powell even wrote: “Application of 8(b)(4) to the ILA's activity in this case will not infringe upon the First Amendment rights of the ILA and its members. We have consistently rejected the claim that secondary picketing by labor unions in violation of 8(b)(4) is protected activity under the First Amendment. […] It would seem even clearer that conduct designed not to communicate but to coerce merits still less consideration under the First Amendment” (ibid., 226). The import of these distinctions for the case before us, in which we are concerned with the constitutionality of an express statutory provision prohibiting secondary boycotts, should, I believe, be self-evident (for a comparison of the Claiborne and Longshoremen cases, and a critique of the Supreme Court’s decision in Claiborne, see: Gordon M. Orloff, “The Political Boycott: An Unprivileged Form of Expression,” Duke L. J. 1076, 1089 (1983)).

            The parallel drawn in Claiborne between a secondary boycott and a political boycott, as cited above, is not accidental. In both situations, the direct victim is not a party to the dispute, but rather someone “caught in the crossfire” between the party choosing to employ economic power to bring about political change by deviating from the democratic highroad and the state. This problematic aspect of political boycotts has long been recognized by the case law, and it has been held that one who employs his coercive power to influence political policy indirectly is not entitled to the protection of the law (see: the Hativ case; HCJ 1074/93 Attorney General v. National Labor Court, IsrSC 49 (2) 485 (1995) [English: http://versa.cardozo.yu.edu/opinions/attorney-general-v-national-labour-... HCJ 1181/03 Bar-Ilan University v. National Labor Court (published in Nevo) (April 28, 2011) [English: http://versa.cardozo.yu.edu/opinions/bar-ilan-university-v-national-labo... (hereinafter: the Bar-Ilan case)). The accepted view is that a purely political boycott does not enjoy the protections of the freedom to strike against an employer (on the distinctions between an economic boycott and a political boycott, also see: Ruth Ben-Israel, “Strikes as Reflected in Public Law: Strikes, Political Strikes and Human Rights,” Berenson Commemorative Volume, vol. III, 111 (2007) (Hebrew); Michal Shaked, “A Theory of Prohibition of the Political Strike,” 7 Yearbook of Labor Law,  185 (1999) (Hebrew); Frances Raday, “Political Strikes and Fundamental Change in the Economic Model of Labor Law,” 2 HaMishpat 159 (1994) (Hebrew). For a comparative survey of the law prohibiting political strikes, see: Haim Berenson & Assaf Berenson, “Sympathy Strike – Its Status and Proportionality,” Berenson Commemorative Volume, vol. II, 763 (2000) (Hebrew)). American judge Learned Hand addressed this in stating: “The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it” (International Bhd. of Elec. Workers v. NLRB, 181F.2d 34, 37 (2d Cir. 1950)).

21.       We can draw an analogy to our case from the inapplicability of the usual defenses of the right to strike to political strikes. A call for a secondary boycott is a form of expression intended to coerce the authority to adopt decisions in an extra-democratic manner, while secondarily harming third parties who are the objects of the boycott. Therefore, a call for such a boycott is not a form of expression over which Olympian freedom of expression will fully spread its aegis.

            The realization of the purposes of preventing harm to the State of Israel and the protection of the constitutional rights of the objects of the boycott as against a moderate violation of one of the grounds freedom of expression that is achieved by the unpopular means of a call for a boycott, should be given weight in the framework of the balancing required under the third subtest of proportionality.

22.       The Prevention of Boycott Law stands on three operative legs: a tort – sec. 2 of the Law – non-participation in public tenders – sec. 3 of the Law, and withholding State benefits and support – sec. 4 of the Law. Against this background, I will turn to an examination of the tort.

Section 2 of the Law – The Civil Wrong

23.       Like the tort of defamation, the tort established under the Prevention of Boycott Law is one that restricts expression. The tort is distinctive in transferring the issue to the civil-law arena, and thus “privatizing” the fight against calls for boycott. Section 2 of the Law creates a new tort, and it is therefore appropriate to address the tort from the tort-law perspective. That perspective will aid us in evaluating whether the provision meets the proportionality tests.

24.       I will begin by reminding the reader of the wording of the tort:

                        Boycott – Civil Wrong:

2.         (a) Anyone who knowingly publishes a public call for a boycott against the State of Israel, where according to the content and circumstances of the publication there is a reasonable possibility that the call will lead to a boycott, and the publisher was aware of that possibility, commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him.

(b) In regards to section 62(A) of the Civil Wrongs Ordinance [New Version], anyone who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be deemed as having acted with sufficient justification.

(c) If the court find that a civil wrong, as defined by this law, was committed with malice, it may require the tortfeasor to pay damages that are independent of the actual damage caused (in this section – exemplary damages); in calculating the sum of exemplary damages, the court will consider, inter alia, the circumstances under which the wrong was carried out, its severity and its extent.

 

            The section, in its current wording, suffers from a lack of clarity and ambiguity that impede an evaluation of the scope and implementation of the tort. I harbored some uncertainty as to whether that should lead to a conclusion that the petition should be dismissed for lack of ripeness in regard to the tort, due to its abstract nature and the absence of a clear set of facts that could be addressed in examining the elements of the tort. In any case, my colleague Justice Melcer discussed the primary problems raised by the tort at some length, and skillfully suggested an interpretation that resolves a major part of the difficulties, while leaving an examination of arguments concerning implementation for such time that they may arise (para. 58 of his opinion). That being said, I shall briefly address the main points, and conclude with an examination of whether the defects and flaws that I shall enumerate would justify annulling the tort in its entirety, as recommended by my colleague Justice Hendel.

25.       As a rule, torts are thought of as a closed list, to which various statutes contribute new torts such as consumer protection, violation of privacy, defamation, and so forth. We have before us a new particular tort that, at first sight, would appear to address a tort of conduct rather than result. But a more in-depth examination shows it to be a tort intended to protect against pure economic loss, that is, harm expressed in financial loss without any physical harm to the person or to property (on the reticence of Anglo-American law to impose liability for the negligent infliction of pure economic loss, see Ariel Porat, Tort Law, vol. I, 223-230 (2013) (Hebrew) (hereinafter: Porat). As opposed to this, pure economic loss is not foreign to Israeli law. On the contrary, denying liability for purely economic harm is the exception (see: Israel Gilead, Tort Law: The Limits of Liability, vol. II, 806 (2012) (Hebrew) (hereinafter: Gilead, Limits of Liability)). By its wording, the tort before us demonstrates some of the characteristic problems of a tort that concerns pure economic loss, such as increased litigation, over deterrence, causal connection, the nature of the victim (direct or indirect), etc. (on the policy considerations and the various categories of pure economic loss, see Tamar Gidron, “The Non Liability of a Bank (in England) and the (Potential) Liability of the State (in Israel): Pure Economic Loss in Light of Recent Developments - A Comparative Analysis and Evaluation,” 50 HaPraklit 95 (2008) (Hebrew) [English: https://www.researchgate.net/publication/228141641_The_Non_Liability_of_a_Bank_in_England_and_the_Potential_Liability_of_the_State_in_Israel_Pure_Economic_Loss_in_Light_of_Recent_Developments_-_A_Comparative_Analysis_and_Evaluation]; Tamar Gidron, “The Duty of Care in the Tort of Negligence and Pure Economic Loss,” 42 HaPraklit 126 (1995) (Hebrew). On pure economic losses incurred by a secondary plaintiff as a result of harm to the primary victim, see Ronen Perry, Economic Ricochets: Pure Economic Losses deriving from Tortious Harm to the Person or Property of a Third Party or Ownerless Property (2002) (Hebrew)).

26.       Expanding the plaintiff pool: According to the plain language of the section, any Israeli citizen can join a dispute in which he has no personal interest, and sue a person who called for a boycott against some bank that has a branch in Judea and Samaria. That would appear to be so in light of the tort’s wording “…commits a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] will apply to him”. In other words, the tort would appear to apply to the tortfeasor-defendant rather than the victim-complainant. We may arrive at this conclusion through a comparison of other particular torts external to the Civil Wrongs Ordinance, such as sec. 31 of the Consumer Protection Law, 5741-1981, which establishes: “Any act or omission in violation of Chapters … shall be treated like a wrong under the Civil Wrongs Ordinance [New Version]” (and see similar wording in sec. 31B of the Protection of Privacy Law, 5741-1981 – “… shall be a wrong under the Civil Wrongs Ordinance [New Version]”, and sec. 11 of the Commercial Torts Law, 5759-1999 (hereinafter: the Commercial Torts Law) “… is a tortious act, and the Civil Wrongs Ordinance [New Version] shall apply …”). It might be argued that the fact that the same language was not adopted in sec. 2(a) of the Law shows that the Law applies the Civil Wrongs Ordinance to the tortfeasor-defendant rather than the plaintiff, such that a person might join a fight that is not his own.

            My colleague Justice Melcer addressed this problem in his opinion, and concluded that we should not parse the language, and I concur with that conclusion, which is based upon the legislative intent and the Law’s Explanatory Notes that state that the Law is intended to allow a suit by one who is harmed as a result of a boycott.

            In any case, even according to that construction granting a cause of action only to one actually harmed by the call for a boycott, we are concerned with a tort that expands the potential plaintiff pool.

27.       Causal connection: One of the inherent problems of pure economic loss is that of the causal connection between the tortious conduct of the tortfeasor and the infliction of the pure economic loss. Policy considerations justify caution in awarding damages for pure economic loss, and one of the proposed solutions in this regard is not to suffice with the normal burden of proof required under tort law (Porat, p. 230, fn. 443).

            My colleague Justice Melcer concluded that the near-certainty test could be applied, and in his opinion, the plaintiff would also be subject to an additional burden above and beyond the regular burden of proof. However, based upon the language of the tort, it would appear that no causal connection at all need be shown between the call for a boycott and the harm resulting from the boycott. Rather, “a reasonable possibility that the call will lead to a boycott” would suffice. According to the plain meaning, the plaintiff need prove, only at the level of probability, the potential of the imposition of a boycott, while the requisite causal connection between the call for a boycott and the imposition of the boycott, as opposed to a causal connection between the call for a boycott and the damage incurred as a result of the boycott (compare to the language of sec. 144D2(a) of the Penal Law, concerning the publication of incitement to violence or terror, which refers to a person publishing a call to commit an act of violence or terror “and because of the inciting publication's contents and the circumstances under which it was made public there is a real possibility that it will result in acts of violence or terror …”).

            Here, too, I am willing to concur with my colleague Justice Melcer, and read a requirement of a causal connection to the damage into the tort, as this Court did in regard to the consumer tort of  deception mentioned by my colleague (CFH 5712/01 Barazani v. Bezeq Israeli Telecommunications Company Ltd., IsrSC 57 (6)  385 (2003) (hereinafter: the Barazani case). If the legislature, cognizant of the Barazani rule, was of the view that there is no need of proving a causal connection to the damage, we would expect that it would have been stated expressly (compare sec. 1144B(b) of the Penal Law, concerning publication of incitement to racism, which states that “it does not matter whether or not the publication did cause racism...”). Having recognized the need for proof of damage, as will be explained in the next paragraph, the question of the probability that the damage will result would appear to become irrelevant, as it has already been realized. But that is not the case. The purpose of the tort is deterrence. It is a tort intended to direct an individual’s conduct in real time – at the time of the publication of the call for a boycott, when the content of the call is examined in terms of the probability that it will lead to the imposition of a boycott (that will later result in damage). And note: the legislature chose the reasonable possibility test, rather than a real possibility or near certainty test. Bearing in mind that we are concerned with a type of political expression, this low threshold has a chilling effect, and I will not deny that on that basis I seriously considered following the approach of my colleague Justice Hendel, who was of the opinion that the tort should be annulled in its entirety. However, in light of the special nature of a call for a boycott in the arsenal of means and forms of expression, which we addressed above, and in view of the moderating construction proposed above, I have concluded that the tort passes the third test of proportionality, if just barely (the legislature refrained from including a criminal sanction in the law, which would have raised the question of the appropriate test with full force).

            Clearly, it is not easy to prove a causal connection in regard to a tort of pure economic loss with a large plaintiff pool. Thus, there may be many reasons for a particular reduction in the sales of a factory operating in area threatened with a boycott, and in order to estimate the loss, the element of the call for a boycott must be isolated from among all the reasons. As opposed to this, a plaintiff might argue that when there is an “ambiguous reason”, in terms of the number of possible reasons for the harm, the plaintiff’s evidentiary burden is to prove the relative weight of the boycott among the total number of possibilities (the chances for the success of such an argument are not high, inasmuch as ambiguous causality is currently recognized in the framework of only three doctrines – loss of chance, inherent evidential damage, and recurring distortion – Guy Shani, “Loss of Chance, Evidential Damage and Recurring Distortion: Points of Concurrence and Sites of Conflict among the Models for Resolving the Ambiguous Causation Problem,” in A. Grunis, E. Rivlin & M. Karayanni (eds.), Shlomo Levin Book: Essays in Honour of Justice Shlomo Levin 395 (2013) (Hebrew)).

28.       Damage: The question of the causal connection is related to the requirement of damage. It might be argued that applying the Civil Wrongs Ordinance to the tort does not necessarily imply that the requirement of proving damage be read into the tort. There are torts in the Civil Wrongs Ordinance, like assault and false imprisonment (secs. 23 and 26 of the Ordinance), in which damage does not constitute an element of the tort. When the legislature wished to establish damage as an element of a tort, it did so expressly. For example, the tort of negligence (sec. 35 of the Ordinance) states: “Any person who causes damage to any person by his negligence commits a civil wrong”. In the torts of trespass to immovable property and trespass to movable property (secs. 29 and 31 of the Ordinance), the legislature took care to state: “Provided that no plaintiff will recover compensation in respect of trespass to immovable/immovable property unless he has suffered pecuniary damage thereby”.

            In this matter, as well, I am willing to accept the conclusion of my colleague Justice Melcer that the legislature did not waive the requirement of damage, by analogy to the consumer tort under the Barazani rule. I would also draw an analogy to the provisions of the Commercial Torts Law, in which the legislature details a list of specific torts (passing off, false description, unfair interference) by reference to the Civil Wrongs Ordinance, and regarding which it is self-evident that damage is an element of the torts. To this we may add the position of the Plaintiffs and the Explanatory Notes of the Law according to which the Law was intended to compensate the objects of the boycott for damage. In light of all the above, I am of the opinion that the tort of calling for a boycott can easily be construed to comprise an element of damage.

            My colleague also bases his conclusion in regard to the damage requirement upon the fact that sec. 2(c) of the Law does not require damage where the tort is perpetrated with malice. From this he infers that damage is required under subsec. (a). In theory, punitive damage can be awarded even in the absence of damage, where the legislature seeks to punish and compensate for malicious conduct. However, normally, punitive damages are awarded for torts that involve damage, and the punitive award goes beyond the damage. Subsection 2(c) of the Law permits the court to impose punitive damages that are not contingent upon damage, but that does not necessarily imply that the legislature waived the demand for damage. On the contrary, one of the considerations in awarding punitive damages – alongside the tortfeasor’s malicious conduct – is the damage caused by that tortious conduct, which I will address presently (and see: Israel Gilead, “Comments on the Tort Provisions in the Proposed New Civil Code,” 36 Mishpatim 761, 811 (2007) (Hebrew) (hereinafter: Gilead, “Comments on Tort Provisions”), in which the author distinguishes between compensation for damages the extent of which is unknown, and “situations of compensation that is not for damage, such as punitive damages”. From this one might conclude that the author is of the opinion that punitive damages are awarded even in the absence of any damage. However, that would not appear to be the author’s view, and see: Gilead, Limits of Liability, vol. I, 221, where the author notes as self-evident that, as a rule, “punitive damages” are awarded in situations of intentional causing of damage).

29.       The mental element – the difference between ss. 2(a) and ss. 2(c): In subsection (a), the legislature refers to one who “knowingly” publishes a call for a boycott, where the publisher is “aware” of the reasonable possibility that the call will lead to a boycott, whereas subsection (2) refers to committing the tort with “malice”.

            How are we to understand the term “knowingly”? In this regard, I am hesitant to draw an analogy form criminal law to tort law. The term “knowingly” alludes to a subjective, intellectual knowledge, while the term “malice” alludes to an emotional attitude towards the result. While that may be so in theory, in practice it is difficult to avoid associating an element of intent to the term “knowingly”. For example, the tort of assault, under sec. 23 of the Civil Wrongs Ordinance, which is one of strict liability, is defined as follows: “Assault consists of intentionally applying force of any kind … to the person of another”. The drafters of the new Israeli Civil Code chose to replace the term “intentionally” in the tort of assault with the term “knowingly”, as can be seen from Part IV, Chap. I, sec. 388 of the Civil Law Bill, 5771-2011 (hereinafter: the Civil Code):

Assault it the knowing use of direct or indirect force against the person without his consent, or a real threat to use such force.

            In the tort of unlawfully causing breach of contract, under sec. 62(a) of the Civil Wrongs Ordinance, the legislature employs the same term – “Any person who knowingly and without sufficient justification causes any other person to break a legally binding contract with a third person” – where the term “knowingly” is understood, in practice, to mean intent (Nili Cohen, Inducing Breach of Contract (1986) (Hebrew). The author is of the opinion that the mental element required under the tort is no less than required under English law, which also initially speaks of malice, and then of intention or causation accompanied by intention and knowledge). Similarly, sec 7A(a) of the Civil Wrongs Ordinance grants immunity from tortious liability to a public servant, except for “action knowingly committed with the intent to cause damage or carelessness of the possibility of causing said damage”. In other words, the legislature reserved the term “knowingly” to the mental element of intention to cause damage, as opposed to indifference/carelessness/willful disregard/recklessness to the realization of the result.

            If we interpret the term “knowingly” in subsection (a) as intention to cause damage, then the question of the difference between “knowingly” in subsection (a) and “malice” in subsection (c) automatically arises. I would note that the element of malice is mentioned in regard to two torts in the Civil Wrongs Ordinance – that of “injurious falsehood” under sec. 58, concerning “the publication maliciously by any person of a false statement”, and the tort of “malicious prosecution” under sec. 60, concerning “actually and maliciously … instituting or pursuing” frivolous proceedings. The tort of malicious prosecution was left out of the Civil Code (along with the tort of fraud requiring an element of intent), and the tort of injurious falsehood has, in any case, become irrelevant and has been replaced by the tort of “false description” under sec. 2 of the Commercial Torts Law, which does not require malice (Gilead, Limits of Liability, vol. II, p 1168, fn. 53).

            The term “malice” is ambiguous. It is not clear whether it refers to intentional causing of damage arising from an improper motive, or to any intentional causing of damage, whether even carelessness would be deemed malice (Gilead, “Comments on Tort Provisions” 810), or whether only damage deriving from an intention to harm another is “malice”, as opposed to “intent” to cause damage that is not motivated by a desire to inflict harm upon another (ibid., 1160-1661). The term “malice” indeed suggests a higher level of moral culpability, a desire to inflict harm upon another, and I am, therefore, willing to assume that the legislature sought to distinguish between “malice” and “knowing”, with the latter indicating a lesser mental element. But it is hard to imagine a call for a boycott being carried out negligently, recklessly or carelessly, and not intentionally. In the normal course of events, a person who calls for a boycott does so with direct intention, such that it is unclear what difference there might be between doing so “knowingly” or “with malice”. There is, therefore, a fear that every call for a boycott may automatically fall within the compass of subsec. (3), which allows for punitive damages. The exception would thus become the rule, along with an attendant “excess” chilling effect, which I will address below. For this reason, as well, I concur with my colleague Justice Melcer that subsec. (3) should be annulled. In other words, in order to fall within the scope of the tort of calling for a boycott against Israel, the call must reflect an “intention”, “desire” or “purpose” of achieving a result. This interpretation is consistent with the deterrent purpose of the tort, deterrence being one of the recognized purposes of tort law.

30.       A specific tort and a framework tort: The specific torts enumerated in the Civil Wrongs Ordinance or elsewhere do not detract from the scope of incidence of the tort of negligence, by which liability can be imposed even in situations addressed by a specific tort requiring a mental element or actus reus. A prime example is the “circumvention” of the malice requirement in the tort of malicious prosecution (CA 243/83 Jerusalem Municipality v. Gordon, IsrSC 39 (1) 113 (1985)). Above, we arrived at the conclusion that the tort under subsec. (a) should be understood as requiring a mental element of intent or desire to achieve a result, like the requirement of “malice” in subsec. (c) of the Law. Can this mental element be circumvented by means of the tort of negligence? And what consequences might flow from the possibility of employing the new tort as a basis for the framework tort of breach of statutory duty? These are questions lacking clear answers at this stage.

31.       Defenses: Will the defenses provide by the Civil Wrongs Ordinance apply? For example, would the defense of contributory fault, under sec. 68 of the Civil Wrongs Ordinance, or the defense of “conduct of plaintiff”, under sec. 65 of the Civil Wrongs Ordinance, apply?

65. Where a defendant has caused damage by his fault, but his fault was brought about by the conduct of the plaintiff, the court may exempt him from liability to pay compensation or may reduce the amount of compensation payable, as the Court may think just.

            I fear that raising such claims by a defendant in an action for the boycott tort might drag the courts, against their will, into the political arena – a fear addressed at length by my colleague Justice Hendel. As opposed to this, just as the legislature barred the justification defense in subsec. 2(b) in regard to sec. 62(a) of the Civil Wrongs Ordinance, it would also be possible to deny the above defenses by analogy. Thus, for example, a defendant’s claim of contributory fault against the plaintiff, by reason of his erecting his factory in the Area, or for prominently printing on the label that his product was “made in Israel”, or such like, would be denied.

32.       Remedies: The Civil Wrongs Ordinance grants both damages and injunctive relief (sec. 72 of the Ordinance). Consequently, it would be possible, under sec. 2 of the Law, to request preliminary relief in the form of an injunction preventing a person to call for a boycott, which would be deemed “prior restraint” and an ever more serious infringement of freedom of expression. My colleague Justice Melcer addressed this in his opinion, and I am willing to concur with his conclusion that the Court will refrain from granting preliminary injunctive relief in light of the case law regarding prior restraint of expression. I would note that in the more than twenty years that have passed since the adoption of Basic Law: Human Dignity and Liberty, the case law has not deviated from the rule established in CA 214/89 Avneri v. Shapira, IsrSC 43 (3) 840 (1989) (and see LCA 10771/04 Reshet Communications and Productions (1992) Ltd. v. Professor Ettinger, IsrSC 59 (3) 308, 319 (2004) (between marginal letters E-F) per Beinisch J.).

33.       Joint tortfeasors: In order for a call for a boycott to be effective, it must be published, and  thus in subsec. (a): “Anyone who knowingly publishes a public call for a boycott against the State of Israel …”. Might the application of the Civil Wrongs Ordinance also lead to imputing liability as joint tortfeasors to broadcast media that publish the call? In my opinion, it would not. Had the legislature so desired, it should have said so explicitly, as it did in sec. 11 of the Defamation (Prohibition) Law, 5725-1965 [19 L.S.I. 254; amended 21 L.S.I. 132, 38 L.S.I. 176] (hereinafter: the Defamation Law), which imposes liability upon “… the editor of the communication medium and the person who actually decided upon the publication of the matter, and civil liability shall be borne also by the person responsible for the communication medium”.

34.       Private Enforcement: Section 4 of the Defamation Law establishes:

                        Defamation of a Group

                        4.         Defamation of a body of persons, or any group, other than a body corporate, shall be treated in like manner as the defamation of a body corporate, provided that it shall not be a ground for a civil action or private complaint. An information for an offence under this section shall only be filed by, or with the consent of, the Attorney General.

In the Defamation Law, the legislature chose to deny an individual’s right to bring civil action, preferring to grant the state power to bring criminal action. I was disturbed by this central point raised by my colleague Justice Hendel. The tort of calling for a boycott represents a kind of “privatization” of tort law by providing that individuals initiate actions that would seem to be within the state’s province, as is attested by the Law’s title: “Prevention of Harm to the State of Israel by means of Boycott Law”. This, as opposed to the approach adopted under sec. 4 of the Defamation Law.

            However, several distinctions can be drawn between the tort of defamation of a public and that of a call for a boycott, which I will briefly address: Section 4 of the Defamation Law raises a question of interpretation in regard to the terms “public” and “body of persons”, and in regard to the identification of the injured group and the injured members of that group. Recognizing an individual right to sue in regard to statements made about a group would result in a broad “chilling effect” upon freedom of expression, bearing in mind that, in most cases, such statements about a “public” or “group” consist of criticism or the expression of an opinion concerning social phenomena or matters of public interest. In the case of a false statement about a public, the harm is “diluted” and dispersed among all the members of the group, such that the power of the false statement is mitigated by the size of the group. And most importantly, when we are concerned with a false statement about a group, it is not the individual who should bear the burden of defending the public, and therefore, “privatization” of the right to sue by granting it to individuals would be inappropriate (see the matter concerning the film “Jenin-Jenin” in CA 8345/08 Ofer Ben-Natan v. Muhammad Bakri [published in Nevo] (July 27, 2011)).

            That is not the case in regard to a call for a boycott against Israel, which may be either a general call or a specific call for the boycott of particular enterprises, institutions or products that are connected with Israel. The harm is not inflicted solely upon the state, but rather, as we have already noted, the direct harm is incurred by the individual, the business whose sales are affected, the academic who is denied a research grant, or the ballet company whose performance is cancelled as the result of a call for a boycott. We might make an analogy to the tort of “unfair interference” under sec. 3 of the Commercial Torts Law, under which: “A business shall not unfairly prevent or burden the access of customers, employees or agents to the business, goods or services of another business”. One form of unfair interference is the imposition of a boycott by one business against another (Amit, “Prohibition of Unfair Competition,” p. 231). From this perspective, calling for an economic boycott against a particular enterprise is equivalent to unfairly preventing or burdening access to the business, and inasmuch as it is the business that is harmed by the call, it should be permitted the right to sue. This can justify the distinction between sec. 4 of the Defamation Law and sec. 2 of the Boycott Law that allows a person or private body to bring suit in tort for a call to boycott.

35.       Interim summary: From the perspective of tort law, the specific tort of calling for a boycott raises a number of issues as a result of the ambiguous language adopted by the legislature in defining the tort. But ambiguity and questions of interpretation do not justify annulling a law on constitutional grounds. This was addressed by my colleague Justice Melcer, who chose not to await the coming of Elijah the Prophet to provide the answers to unresolved questions, but rather suggested interpretive solutions for some of the problems raised above, while adopting a reserved approach to the elements of the tort.

            For the above reasons, I have decided not to join Justice Hendel’s dissent that would annul the entire tort of calling for a boycott. Rather, I concur with the view of my colleague Justice Melcer that sec. 2(c) of the Law be annulled, as I shall explain below.

Section 2(c) of the Law – Exemplary Damages

36.       Section 2(c) of the Law permits the court to impose “damages that are independent of the actual damage caused (in this section – exemplary damages)” upon a person maliciously calling for a boycott against Israel. The intention is to punitive damages, and three distinctions should be drawn in this regard: regular damages (monetary and non-monetary), damages without proof of damage, and exemplary (punitive) damages.

            Two principle reasons may be adduced to justify the imposing of damages without proof of damage: the absence of the possibility of proving the precise extent of the damage caused by the tort, and the desire to deter potential tortfeasors (CA 3559/02 Toto Zahav Subscribers Club v. Sports Betting Board, IsrSC 59 (1) 873, 903 (2005) (hereinafter: the Toto Zahav case)). The Israeli legislature allows the imposing of damages without proof of damage when the damage is inherent to the tort or the injurious act, and there is a high probability of concurrence of both of the above conditions, as for example: sec. 7A of the Defamation (Prohibition) Law, 5725-1965; sec. 10 (a) of the Employment (Equal Opportunities) Law, 5748-1988; sec. 6 (b) of the Prevention of Sexual Harassment Law, 5758-1998; sec. 13 (a) of the Commercial Torts Law, 5759-1999; and sec. 56 (a) of the Copyright Law, 5768-2007. Both of the conditions are met in regard to the tort of “calling for a boycott”.  Due to the difficulty in proving the causal connection between the call for a boycott and the resultant damage incurred by the boycotted party, and due to the difficulty in precisely quantifying the damage, it can be argued that not permitting the court to impose damages without proof of damage arising from the tort, would lessen the Law’s deterrent value and prevent the Law from achieving its purpose.

            However, the legislature did not establish “damages without proving damage” in the Law, but rather employed the term “exemplary damages”, with the intent of punitive damages. That is precisely the term currently employed in sec. 461 of the Civil Code Bill, titled “Exemplary Damages”, which states that “the court may award the victim damages that are not contingent upon damage, if it find that the violation was perpetrated with malice” (for laws establishing exemplary damages, see: sec. 33K (b) (1) of the Collective Agreements Law, 5741-1981; sec. 26A (b) (1) of the Wage Protection Law, 5718-1958; sec. 31A of the Consumer Protection Law, 5741-1981; sec. 30A (j) (1) of the Telecommunications (Bezeq and Broadcasts) Law, 5742-1982; sec. 3 (a) (1) of the Protection of Employees (Exposure of Offences, of Unethical Conduct and of Improper Administration) Law, 5757-1997; sec. 5 (b) (2) of the Notice to Employee (Terms of Employment, Vetting Procedures and Hiring Process) Law, 5762-2002; sec. 4 (b) (1) of the Right to Work while Seated Law, 5767-2007; sec. 11 (a) of the Aviation Services (Compensation and Assistance for Flight Cancellation or Change of Conditions) Law, 5772-2012). (I would note that all of these laws establish a ceiling for damages). Punitive damages, as a type of retribution from the tortfeasor, is not among the primary purposes of tort law (Gilead, Limits of Liability, vol. I, 224), and it constitutes an exception to the principle of restitutio ad integrum underlying tort law. Punitive damages are intended to achieve two objectives: punishment and deterrence (CA 140/00 Estate of Ettinger v. The Company for the Reconstruction and Development of the Jewish Quarter in the Old City of Jerusalem Ltd., IsrSC 58 (4) 486, 564 (2004) per Rivlin J. [http://versa.cardozo.yu.edu/opinions/ettinger-estate-v-jewish-quarter-co... (hereinafter: the Ettinger case). Punitive damages are not common in our legal system, and are viewed as “exceptionally exceptional” to the usual remedial damages in cases that are particularly egregious (see, for example: CA 2570/07 Lam v. Hadassah Medical Organization [published in Nevo], para. 5 and the citations there (Jan. 29, 2009); LCA 9670/07 Plonit v. Ploni [published in Nevo], paras. 24 and 26 per Rubinstein J, and the opinion of Danziger J (July 6, 2009)). Punitive damages are intended to express society’s condemnation and extreme revulsion in regard to the tort, and not without reason it concerns violent crimes or heinous sexual offenses (CA 4576/08 Ben-Zvi v. Hiss [published in Nevo], para. 45, per Rivlin J. (July 7, 2011)).

            The punitive aspect of the damages requires that some moral blame attach to the tortfeasor’s conduct, which is expressed in a mental element of malice that reflects contempt for the victim’s right. There are those who are of the opinion that punitive damages are justified in only three primary situations: when the tort is committed with intent/malice; when the damage is the result of conduct that has no redeeming social value; and when the tort causes catastrophic damage and the tort is shameful in terms of its result (Orr Karsin, “The Doctrine of Punitive Damages in Israeli Law – A Re-examination,” 29 Mehkerey Mishpat 571, 582-583, 640-644 (hereinafter: Karsin); and on exemplary damages, see, e.g: Amos Herman, Introduction to Tort Law 413 (2006). On calls for exemplary damages as a means for restoring mutual respect to individuals in society, see: Avihay Dorfman, “What is the Point of the Tort Remedy?” 55 Am. J. Juris. 105, 140 (2010)).

            Exemplary damages are an accepted, recognized tool of tort law in the common-law world (see: A. Burrows, “Damages,” in Michael A Jones (ed.), Clerk & Lindsell on Torts, 1965 (20th ed., 2010); W.V.H Rogers, Winfield & Jolowicz on Tort, 948 (12th ed., 2006). For the recommendation of the English Law Commission to expand the use of exemplary damages, see: Law Commission, Aggravated, Exemplary and Restitutionary Damages, Law Com. ([247] (1997)). For a similar recommendation for the expansion of the circumstances that would justify imposing punitive damages in Israeli law, see Karsin, above).

37.       We have already noted that, in practice, under the current wording of the Law, every call for a boycott against Israel, as defined by the Law, would fall within the scope of sec. 2(c), and would expose the defendant to the possibility of punitive damages, with all the special characteristics of such damages. At the bottom line, the punitive character of sec 2(c) places the defendant in a worse situation than would a criminal sanction, first, due to the lower evidentiary burden in civil cases, second, because civil law does not afford a defendant the defenses available in criminal law, and third, because a criminal procedure is instituted by the state, while a civil tort action can be initiated by anyone.

If that were not enough to explain why sec. 2(c) should be annulled, I would add that the absence of a cap on exemplary damages (as opposed to the situation in the other laws cited above that place a limit on exemplary damages), further intensifies the “chilling effect”, which I will address below.

The Chilling Effect

38.       At times, the legislature adopts legal arrangements that infringe an individual’s freedom of expression, but with a proper purpose, as in the case of prohibiting the publication of defamatory material (see: the Sullivan case), or a  law prohibiting publications that may incite to violence (see: Winters v. New York 333 U.S. 507 (1948); and see Tribe, p. 863). These arrangements infringe an individual’s freedom of expression, but the infringement does not present a constitutional problem as long as it is proportionate. However, an arrangement intended to restrict certain forms of expression may have a deterrent effect that extends beyond the scope of the conduct targeted by the sanction, and deter other forms of expression that are beyond the legislature’s original intent. For example, a law that imposes a civil or criminal sanction for publishing defamatory statements may deter people from expressing their opinions in fear of the publication being deemed defamation.

            The chilling-effect doctrine was developed in the United States in the context of the restriction of constitutional rights (such as freedom of assembly, Law Students Research Council v. Wadmond, 401 U.S. 154 (1971); freedom of movement, Thompson v. Shapiro, 270 F. Supp. 331, 336 (D. Conn. 1967); due process, Bankers Life & Casualty Co. v. Crenshaw 486 U.S. 71 (1988), Colautti v. Franklin, 439 U.S. 379 (1979), Berger v. New York, 388 U.S. 41 (1967); privacy, Lankford v. Gelston 364 F.2d 197 (4th Cir. 1966)), and especially in the context of the First Amendment right to freedom of speech. “A chilling effect occurs when individuals seeking to engage in activity protected by the first amendment are deterred from doing so by governmental regulation not specifically directed at that protected activity” (Fredrick Schauer, “Fear, Risk, and the First Amendment: Unraveling the Chilling Effect,” 58 B.U.L. Rev. 685, 693 (1978) (hereinafter: Schauer). As noted, the chilling-effect doctrine concerns unintentional deterrence, that is, a deterrent effect that exceeds the scope of expression intended by the legislature, and thus allows for the striking down of the entire arrangement due to the unintended deterrence (“the chilling effect”).

            In an ideal world, the question of the chilling effect would not arise. The legislature would adopt an arrangement that would limit certain forms of expression in a proportionate manner, and anyone who would deviate from that arrangement established by law would expose himself to a civil or criminal sanction. But in practice, it is not possible to ascertain in advance what forms of expression will be caught up in the net of the arrangement established by the law, and which will fall outside the scope of that arrangement. An arrangement may be drafted in a vague manner, such that an individual seeking to adapt his conduct will not be able to know with certainty whether some expression falls within the ambit of the arrangement. Or an arrangement may be entirely clear but overbroad, such that it also applies to forms of expression that the legislature did not intend, and whose infringement deviates from the scope of proportionality (see: Schauer, p. 698; Tribe, p. 1030). One of the early cases in the development of the chilling-effect doctrine, Walker v. City of Birmingham, 388 U.S. 307, 342 (1967) concerned an order prohibiting parades and demonstrations supporting the rights of blacks in the city of Birmingham, Alabama. Justice Brennan noted:

We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the “chilling effect” upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.

There is almost no legal arrangement that is unaffected by a chilling-effect halo, inasmuch as reality is almost never absolutely clear (Schauer, p. 700), and uncertainty is inherent to the interpretation of the legal arrangement. Therefore, in order to strike down an arrangement by reason of its inherent chilling effect, that effect must be substantial, and not some negligible chilling (see: Tribe, p. 1024). “Overbreadth […] must not only be real, but substantial as well, judged in relation to the statutes' plainly legitimate sweep” (Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).

39.       In the matter before us, sec. 2(c) indeed “chills” freedom of expression by means of over-deterrence and punishment of a call for “a boycott against the State of Israel” as defined by the Law. We have addressed the vagueness of the wording of the tort, and inter alia, the mental element of intent that it requires, as well as the possibility that every call for a boycott might be ensnared in the net of sec. 2(c). The ambiguity in regard to the scope of the tort, in and of itself, raises a fear of an “excess” chilling effect upon freedom of expression. This fear is particularly forceful in regard to subsec. (c), which permits the awarding of exemplary damages without any criteria and without any cap. The combined effect of the ambiguity of the tort and a sanction that is unrestricted in any direction doubles and triples the halo of the Law’s attendant chilling effect in the form of over-deterrence. Inasmuch as we are concerned with tort law, and inasmuch as the primary purpose grounding the tort is deterrence, we would recall that maximal knowledge is a precondition to effective deterrence. A tortfeasor who despises risks that present unquantifiable “price” cannot carry out a loss-benefit calculation in choosing his conduct and words, such that he is subject to absolute deterrence, or over-deterrence at the very least, and such deterrence presents a particularly strong “chilling effect” (see: John C. Coffee, Jr., “Paradigms Lost: The Blurring of the Criminal and Civil Law Models and What Can Be Done About It,” 101 Yale L.J. 1875, 1882 (1992)).

            This, too, must be taken into account in subjecting the section to the crucible of the second subtest of proportionality. Fixing defined damages in the absence of proof of damage as opposed to exemplary damages, or capped exemplary damages, as established in other laws, might have served to blunt somewhat the extent of the infringement. But as currently drafted, the marginal benefit of the arrangement established under sec. 2(c) of the Law is smaller than the infringement of freedom of expression, in view of the uncertainty and ambiguity of the boycott tort together with the severe chilling effect that derives from the uncertainty in regard to the scope of exemplary damages.

40.       Interim Summary:  Considering that the mental element of intent is inherent to a call for boycott, such that there is a fear that every call for a boycott would fall within the ambit of sec. 2(c) of the Law and place the defendant at risk of punitive damages; considering that punitive damages is a stepchild of the normal purposes of tort law, and to date, has only been awarded in exceptional, outrageous cases that engender contempt and revulsion; considering that a call for boycott falls within the scope of freedom of expression, and realizes some of the rationales of freedom of expression, such that it cannot be said that a call for boycott is of no social benefit; considering the centrality of freedom of expression; and considering that uncapped punitive damages may lead to absolute deterrence, and at the very least, to a broad chilling effect in the sense of over-deterrence – considering all of the above, sec. 2(c) does not pass the third subtest of proportionality. At the bottom line, I therefore concur with the opinion of my colleague Justice Melcer that the harm caused by sec. 2(c) of the Law to freedom of expression exceeds what is required.

Sections 3 and 4 of the Law – Restricting Participation in Public Tenders, Tax Benefits and Subsidies

41.       My colleagues are unanimous in the view that secs. 3 and 4 meet the criteria of the Limitation Clause, and I concur.

            At first glance, one might be struck by the shamelessness, and even hypocrisy of a person who calls for a boycott of the state – and thus harms the state economy and the livelihood and employment of others – knocking at the state’s door asking to enjoy state benefits and subsidies. There is even something of the absurd in the Petitioners’ suggestion that the state treasury bear the costs of the harm inflicted by the boycott upon private entities, that is, that the state should directly subsidize the call for boycotting it. In general, harm to the state economy, and harm to the property of a citizen or resident of the state, as such, is viewed as a serious matter, such that it should come as no surprise that sec. 13 of the Penal Law, 5737-1977 establishes extraterritorial jurisdiction in regard to such offences:

                        Offenses against the State or against the Jewish people

13. (a) Israel penal laws shall apply to foreign offenses against –

(4) State property, its economy and its transportation and communication links with other countries;

                        (b) Israel penal laws shall also apply to foreign offenses against –

(1) the life, body, health, freedom or property of an Israel citizen, an Israel resident or a public servant, in his capacity as such;

            (Hanan Melcer, “The I.D.F. as the Army of a Jewish and Democratic State,” in Law and the Man, Festschrift for Amnon Rubinstein, 347, 354 (2012)).

42.       As my colleague Justice Melcer noted, a person does not have a vested right to receive a benefit or subsidy from the state, and when the state grants a subsidy or benefit, it must examine whether the receiving entity serves the public with the monies it receives. Thus, when the state grants an entity a tax advantage by defining it as a “public institution” for the purposes of sec. 46 of the Income Tax Ordinance, it recognizes that entity as one fulfilling an important public function that is worthy of public funding. It is difficult to imagine that the public would participate in funding an entity that calls for harming the public, and as noted, a call to boycott a person solely due to his connection to the State of Israel constitutes a serious violation of that person’s rights, and even a violation of our democratic system. “Recognition of a body as a ‘public institution’ reduces the state’s revenues from taxes, and is equivalent to increasing the state’s expenses by means of distributing funds. Recognition of a ‘public institution’, and thus recognition of a ‘public purpose’ as well, must be carried out in a reasonable, relevant manner, while strictly maintaining equality” (HCJ 637/89 A Constitution for the State of Israel v. Minister of Finance, IsrSC 46 (I) 191, 200 (1992); and also see: HCJ 10893/08 Vipassana Association v. Minister of Finance, [published in Nevo], para 29 (Aug. 23, 2012)). My colleague Justice Danziger is of the opinion that the state is not permitted to discriminate among entities on the basis of their political statements. I, of course, agree. But the Law does not claim to deny a benefit or subsidy by reason of political expression, and not even for political boycott, but rather for a public call for boycott – a call intended to motivate others to harm others on the basis of their connection to the state. Thus, a particular theater may decide that it is unwilling to stage its productions in one of the auditoriums in one of the settlements in the Area without fear that sec. 4 of the Law might apply to it.

            A part of that “reasonableness and relevance”, the state may, and indeed must, distinguish between entities that contribute to the public and entities that seek to harm the public or a particular group that is part of that public. For example, in 1970, the American Internal Revenue Service (IRS) decided not to grant tax exemptions to educational institutions that maintained a discriminatory policy toward black students. As a result of that decision, the definition of “charitable organization” was changed in the tax regulations, such that it applied to non-discriminatory educational institutions. Bob Jones University, a religious university that, for religious reasons, maintained a policy that discriminated against blacks, lost certain tax exemptions, and petitioned on the basis of the claim that the IRS lacked the authority to amend the definition of a “charitable institution” as it had, and that the amendment had violated the institution’s right to freedom of religion. In Bob Jones University v. United States, 461 U.S. 574, 591 (1983), Chief Justice Burger held: “The institution's purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred”. That is all the more the case when the reason for harming that group is the connection of the group’s members to the state itself.

43.       Nevertheless, I do not believe that the time is ripe to decide that the provisions of secs. 3 and 4 of the Law are necessarily constitutional (and obviously they do not render the responsible minister “immune” from judicial review in exercising his authority under these provisions). In my view, this would require that we examine the application of the Law’s provisions and the minister’s exercise of authority in regard to a concrete set of circumstances, when the appropriate case arises. This brings me back to the ripeness doctrine to which I referred at the outset of my examination of sec. 2 of the Law (para. 24, above), and connects me to the end of the opinion of Justice Melcer. Inasmuch as the matter has already been addressed by him, I will be brief.

44.       Sections 3 and 4 of the Law grant the Minister of Finance powers, while establishing a mechanism for their exercise. Thus, sec. 3 provides that the decision of the Minister of Finance in regard to restricting participation in a tender must be made “with the consent of the Minister of Justice and the approval of the Knesset Constitution, Law and Justice Committee”, while sec. 4(a) of the Law provides that a decision by the Minister of Finance to deny benefits must be made “in consultation with the Minister of Justice”, and in some of the cases, also requires the consent of the responsible minister (the Minister of Culture and Sport (sec. 4(a)(2)); the minister appointed by the Government as responsible for relevant budgetary line (sec. 4(a)(3)); and the Minister of Industry, Commerce and Employment (sec. 4(a)(5)).

            We should also bear in mind that sec. 4(b) of the Law, which provides that the exercise of the Minister of Finance’s authority under sec. 4(a) must be “in accordance with regulations that he will promulgate in this regard, with the consent of the Minister of Justice, and with the approval of the Knesset Constitution, Law and Justice Committee” (and I am not unaware of the provision at the end of sec. 4(b) that not promulgating such regulations will not detract from the authority granted under sec. 4(a) of the Law).

45.       Thus we find that while the powers established under secs. 3 and 4 are granted to the Minister of Finance, before he may exercise those powers he must obtain the consent of the relevant organs and confer with them, and it would also be appropriate that he do so after promulgating regulations. In any case, even if the provisions of secs. 3 and 4 of the Law remain in force, that would not necessarily mean that the powers granted under those provisions will be exercised in the near future, and it is conceivable that they may never be exercised.

            This point recently formed the basis for this Court’s decision in HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance, (Jan. 5, 2012) (published in Nevo) [English:  http://versa.cardozo.yu.edu/opinions/alumni-association-arab-orthodox-school-haifa-v-minister-finance] (hereinafter: the Alumni Association case), in which the ripeness doctrine was expressly invoked. There would appear to be certain similarities between the circumstances of that case and the matter at bar. Both raised the problem of the tension between freedom of (political) expression and economic sanctions that might infringe it in all its force, and the issue of ripeness arose in both.

46.       As may be recalled, the Alumni Association case focused upon a provision of the Foundations of the Budget (Amendment no. 40) Law, 5771-2011. That provision granted the Minister of Finance the power to decrease the budget allotted by the state to a budgeted or supported body in a number of situations, such as when that body expended monies in regard to marking the day of the establishment of the state as a day or mourning. Similar to secs. 3 and 4 of the Boycott Law, the relevant provisions of the Foundations of the Budget Law comprised a mechanism for exercising the authority granted therein (a mechanism that included obtaining the consent of the responsible minister, holding a hearing for the relevant body, obtaining an opinion from the legal adviser of the Ministry of Finance, and obtaining a recommendation from a professional team in regard to the scope of the relevant expenditure and the consequences of the budget decrease).

            Ultimately, this Court denied the petition on the grounds that the case was not yet ripe for decision, or in the words of Justice Naor:

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, 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, at para. 6. See also HCJ 3248/09 Sari v. Minister of Justice, at para. 3; HCJ 6972/07 Lakser v. Minister of Finance, 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 Alumni Association case, para. 29].

            In my opinion, applying the ripeness doctrine in the case before us – as it was applied in the Alumni Association case – leads to a similar result in regard to secs. 3 and 4, and deciding the Petitioners’ constitutional arguments requires that we wait for petitions directed against a concrete decision by the Minister of Finance, on an appropriate factual basis. As Justice Naor noted, “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 … 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” (ibid., para. 32 of her opinion). As stated, this I true for the case before us, as well.

47.       And note: secs. 3 and 4 of the Law differ in this regard from the tort established under sec. 2 of the Law. Whereas the implementation of the provisions established in secs. 3 and 4 are contingent upon the Minister of Finance’s choice to exercise his authority, obtain the consent of the relevant ministers, and confer with them (and to promulgate regulations, as well), sec. 2 of the Law permits any person who deems himself harmed by a call for a boycott to initiate a tort suit, the submission of which is not subject to the rules of administrative law or any review mechanism, but entirely contingent upon the desire of the plaintiff. Hence the severe infringement of freedom of expression posed by sec. 2 of the Law, which, if allowed to stand, has the potential for creating a real chilling effect, and which must, therefore, be struck down (on the two-stage evaluation of the ripeness of a petition, and on the recognition of the need to proceed with its examination where a chilling effect may be created, see HCJ 2311/11 Sabah v. Knesset (published in Nevo), paras. 16-17, per Grunis P. (Sept. 17, 2014); on the doctrine of partial ripeness, which draws a distinction between different arguments directed at different provisions, some of which may be ripe while others not, see ibid., paras. 3-8, per Hendel J, and para. 3, per Naor J.).

            I therefore concur with the opinion of my colleague Justice Melcer that, for the present, the issue of the constitutionality of secs. 3 and 4 of the Law must wait until a specific petition challenges a concrete decision by the Minister of Finance on the basis of concrete facts.

 

“Or an area under its control” – The Opinion of my Colleague Justice Danziger

48.       I began my opinion with the “masked ball” presented to us by the Law, with the above phrase at its center, as part of the definition of “boycott against the State of Israel”, which would appear to have been the primary concern of the Law’s initiators, and was the focus of the Petitioners’ attack on the Law. For the reader’s convenience, here is that definition:

In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, one of its institutions or an area under its control, such that it may cause economic, cultural or academic harm.

            Those words [“an area under its control”] address an issue that is at the heart of an Israeli political debate, and it is not surprising that the Petitioners’ arrows centered on the claim that the Law intervenes in political speech in such a highly charged issue among the Israeli public. My colleague Justice Danziger proposed a creative interpretation in an attempt to square the circle, in employing – in practice, although not in law – a sort of “blue pencil” for the phrase, such that, according to his approach, only a call for a boycott of Israel per se, only a boycott of an institution or area deriving from their connection to the state, as part of a boycott of the state per se, would fall within the scope of the definition. In support of that view, my colleague presented a call for a boycott of a person due to his connection to a public institution involved in animal experimentation as an example of a call that might fall within the scope of the Law, inasmuch as that institution is connected to the state. But that fear is unwarranted in light of the requirement that the call for a boycott be “solely because of their connection with the State of Israel, one of its institutions or an area under its control”. The word “solely” means that the only reason for the boycott – and it would not be sufficient that it be the dominant reason among others – be the connection to the state. Therefore, if the reason for the boycott derives from environmental harm or animal experimentation, the boycott would not fall within the scope of the definition.

            The construction proposed by my colleague deviates, in my opinion, from the plain meaning. Indeed, the phrase “boycott against the State of Israel” shows that the primary concern of the Law is preventing a boycott of Israel, and the legislature established “anyone who knowingly publishes a public call for a boycott against the State of Israel …”, and defined what would constitute a boycott against the State of Israel by an accepted legislative technique (compare, for example, the definition of “road accident” in the Compensation for Victims of Road Accidents Law, 5735-1975, as “an occurrence in which bodily damage is caused to a person as a result of the use of a motor vehicle”, and thereafter defines what  would constitute use of a motor vehicle). On the main point, my colleague acknowledges that the state may defend itself against boycotts, but bodies, institutions and people stand behind the state. According to my colleague’s approach, a call to boycott a particular bank because it has a branch in the Area, or a call to boycott an Israeli university because of a scientific experiment it conducted in the Area, or because its academic staff did not adequately express solidarity with universities in the Area, would not fall within the scope of the tort. Such a result would eviscerate the tort.

            For this reason, and despite the weighty reasons raised by my colleagues Justice Danziger and Justice Vogelman, at the end of the day I have chosen to prefer the approach of my colleague Justice Melcer, rather than the effective nullification of the loaded words “an area under its control”.

 

Summary and Conclusion

49.       The Law serves a proper purpose, although there is no denying that it causes “collateral damage” in restricting and chilling one of the tools in the democratic arsenal in an area at the core of Israeli political debate.

            At the bottom line, I find that the Law can pass the proportionality filter – even if not easily – inter alia, for the following reasons:

(-)        The Law does not prohibit the expression of an opinion concerning the state or the Area, and does not prohibit participating in a boycott, but only prohibits a public call for a boycott, which is an act in the interstice between expression and conduct.

(-)        While calling for a boycott is one of the tools in democracy’s toolbox, it is a coercive tool, and as such, it does not enjoy the full protection afforded to freedom of expression.

(-)        A call for a boycott does not meet or correspond with most of the reasons grounding freedom of expression.

(-)        A call for a boycott infringes the constitutional rights of the objects of the secondary boycott, and inflicts direct harm upon them.

(-)        The narrow construction given to the civil wrong in sec. 2 of the Law, including the demand for a causal connection and damage, together with the annulment of sec. 2(c) of the Law.

(-)        Lastly, taking a comprehensive overview: The United States has legislation prohibiting or restricting a boycott of Israel. The European courts, including the Court for Human Rights, are willing to recognize that calling for a boycott of Israel constitutes a criminal offense, such that Israel, all the more so, may decide that a call by its own residents and citizens for a boycott against their own state and country of origin is a civil wrong.

 

Justice U. Vogelman:

            I have read the comprehensive opinions of my colleagues, and in my opinion, the appropriate constitutional relief should be a declaration annulling sec. 2(c) of the Law, as well as the erasure of the phrase “or an area under its control” in sec, 1 of the Boycott Law (in the spirit of the proposal of my colleague Justice Y. Danziger). In addition, in my opinion, upholding the Law requires that it be construed as applying solely to such cases in which the only reason for the call for “deliberately refraining from economic, cultural or academic ties with another person or body” is its connection to the State of Israel or one of its institutions. These are the reasons grounding my conclusion.

1.         The Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Law or the Boycott Law) establishes three arrangements that, each in its own way, infringe constitutional rights, primarily the right to freedom of expression. The first – a civil wrong that would apply to “anyone who knowingly publishes a public call for a boycott against the State of Israel” (sec. 2 of the Law); the second – restricting the participation in a public tender “of anyone who knowingly published a public call for a boycott against the State of Israel, or who committed to participate in such a boycott” (sec. 3 of the Law); the third – provisions denying various benefits from the state treasury to “someone who knowingly published a public call for a boycott against the State of Israel or committed to participate in a boycott” (sec. 4 of the Law). The question before us is whether these arrangement pass constitutional review. In view of the reasons addressed by my colleague Justice Danziger (para. 49 of his opinion), I, too, am of the view that the Petitions are ripe for decision.

2.         As we know, every expression is protected in the framework of the constitutional right to freedom of expression (see, for example, HCJ 4804/94 Station Film Co. Ltd. v. Film Review Board, IsrSC 50 (5) 661 (1997) [English trans: http://versa.cardozo.yu.edu/opinions/station-film-co-v-film-review-board]; HCJ 316/03 Bakri v. Israel Film Council, IsrSC 58 (1) 249, 270 (2003) [English: http://versa.cardozo.yu.edu/opinions/bakri-v-israel-film-council]; CA 9462/04 Mordov v. Yediot Aharonot Ltd., IsrSC 60 (4) 13, 26 (2005), but we have a deeply entrenched rule that political expression enjoys particularly broad constitutional protection, as such expression enables the very existence of political debate, and is an indispensable condition of democracy (HCJ 869/92 Zvili v. Chairman of the Central Elections Committee, IsrSC 46 (2) 692, 703 (1992); HCJ 6226/01 Indor v. Mayor of Jerusalem, IsrSC 57 (2) 167, 164 (2003); HCJ 10203/03 Hamifkad Haleumi Ltd. v. Attorney General, IsrSC 62 (4) 715, 761 (2008) [English: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]. Among the forms of expression that fall within the scope of the Boycott Law are expressions concerning calling for a boycott of the Judea and Samaria area (hereinafter: the Area). Calling for a boycott of the Area is pure political expression. My colleague Justice Y. Danziger addressed at some length the fact that the subject of Israel’s belligerent occupation of the Area has been the subject of political debate among various sectors of the Israeli public for decades. Indeed, the question of the Area’s future and the status of its residents has been defined as “the cardinal question of Israeli public debate”, that has disrupted the system of internal alliances and understandings that existed on issues of state, society and economy, and has led “to the creation of a party system whose primary variable for defining the left-right continuum, and for the creation of political alliances is the moral stand on the question of the future of the administered territories” Menachem Hofnung, Israel - Security Needs vs. the Rule of Law, 282-283, 2^nd ed. (1991) (Hebrew)).

3.         This debate, in and of itself, does not arouse a constitutional problem. The constitutional problem is in the Law (see and compare: HCJ 1661/05 Hof Azza Regional Council v. The Knesset, IsrSC 59 (2) 481, 543 (2005)). The Law infringes freedom of political expression. The Law may silence political expression concerning the Area. The very enactment of the Law places a dilemma before a person seeking to express himself: if he should choose as he wishes, he will be exposed to the sanctions provided by the Law.  If he refrains from expressing his opinions due to the “chilling effect”, the Law will do its job, and expression will be prevented. What is the appropriate scope of protection in this regard? My colleague Justice Melcer is of the opinion that because calls for a boycott of the State of Israel, as defined by the Law, “are not actually interested in political decisions on the basis of free will, but seek to impose views”, “the protection granted to freedom of expression can be somewhat restricted” (paras. 30 and 30(A) of his opinion, emphasis original, and see para 6 of the opinion of my colleague Deputy President Rubinstein). I do not concur with that view. Indeed, a boycott can apply pressure, and such pressure may lead the person boycotted to change his position. But applying pressure is not the same as coercion. Repeated demonstrations in front of a person’s office can also pressure him to do something. Would we therefore argue that a demonstration is “coercive expression”? After all, the boycotted person (or one who is the object of a demonstration) can stick to his position and refuse to change his conduct. No one prevents him from doing so. In any case, as my colleague Justice Danziger notes, a call for a boycott is consistent with the purposes of freedom of expression (para. 7 of his opinion). Freedom of expression is not meant to protect only accepted views. Its primary importance is precisely in defending the ability to express and hear opinions that deviate from the social consensus and that grate on the public ear (HCJ 6126/94 Szenes v. Broadcasting Authority, IsrSC 53 (3) 817, 838-839 (1999) [English: http://versa.cardozo.yu.edu/opinions/szenes-v-matar]. As we pointed out in another affair: “We must again reiterate and again recall that the primary purpose of freedom of expression is to guarantee protection particularly for extreme expression that gives rise to dispute and even disgust. Pleasantries that are pleasing to the ear, pleasurable to watch and easy to digest do not require the protection of freedom of expression” (LCA 10520/03 Ben Gvir v. Dankner, (published in Nevo) para 33 (Nov. 12, 2006); CA 4534/02 Schocken Chain Ltd. v. Herzikowitz, IsrSC 58 (3) 558, 573 (2004)). As the power of the interest, so the power of the defense (see and compare: AAA 3782/12 Tel Aviv-Jaffa District Police Commander v. Israel Internet Association, (published in Nevo) para. 10 of my opinion (March 24, 2013) [English: http://versa.cardozo.yu.edu/opinions/tel-aviv-jaffa-district-commander-v-israel-internet-association]).

4.         Do the provisions of the Boycott Law infringe freedom of expression? The Boycott Law does not prohibit calling for a boycott of the Area in the sense that such a call would constitute a criminal offense. Nevertheless, the Law establishes economic sanctions that can be imposed upon a person making such a call. The infringement of freedom of expression is thus carried out by placing a burden upon the possibility for expression, inasmuch as a person may be liable in tort for his call, and he may even risk not being able to participate in a public tender or being denied various benefits granted by the state. Each of the responses established by the Law imposes a significant burden upon anyone seeking to realize his right to expression. A person who chooses to continue to call for a boycott of the Area risks economic harm and the loss of possible employment through winning a public tender published by the authorities. These are significant consequences:

Such a result has the effect of “shutting mouths” that has no place in a democratic regime, as what is the message of such silencing? The very knowledge that expressing an unpopular opinion may eventually have consequences in an area that is professionally related, even in regard to the awarding of a prize, is inconsistent with a culture of freedom of expression in a democratic regime [HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education, (published in Nevo) para. 10 (April 17, 2008)].

5.         Freedom of expression is not only infringed by the expected reaction to a case of calling for a boycott (both by another individual who may sue the person calling for a boycott, and by the state). The very fact that the legislature chose to create specific arrangements in regard to the said expression gives rise to an infringement of freedom of expression. A legislative act has a known declarative effect. Laws are intended to direct behavior. Most law-abiding citizens will choose to act in a manner consistent with the law’s provisions (compare the significance attached to the repeal of the Penal Law’s prohibition upon homosexual acts, despite the preexisting policy not to enforce it: Yifat Bitton, “The Effect of Basic-Law: Human Dignity and Liberty on the Legal Rights of Homosexual Couples,” 2 Kiryat Hamishpat L. Rev. 401, 403-404 (2001) (Hebrew)).

6.         My colleagues discussed at length the purposes that the right to freedom of expression is intended to realize, and there is no need to repeat that discussion. For our purposes, I would only emphasize that the restrictions that the Law imposes upon a call for a boycott of the Area infringe each of those purposes. As for the purpose of uncovering the truth, the Law’s restrictions prevent public debate, and do not allow for fair competition among differing ideological views. A person seeking to boycott can not display his “wares” in the marketplace of ideas, and others cannot be exposed to his position, or reinforce or change their own position through discourse. Mill addressed this as follows:

But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race […] those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they [those who oppose the opinion – U.V.] lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. (John Stuart Mill, On Liberty, chap. 2; and see: HCJ 399/85 Kahane v. Managing Board of the Israeli Broadcasting Authority,  IsrSC 41 (3) 255, 273 (1987)).

7.         Along with that, restricting political expression, and in the matter before us – indirectly – the act of boycotting the Area, which is a non-violent response to a particular policy, also infringes the democratic process. My colleague Justice Danziger correctly pointed out: “The exchange of opinions and ideas in the free marketplace of speech is a condition of the possibility of changing the government. It is vital to preventing tyranny of the majority” (para. 4 of his opinion). Moreover, the Law does not, indeed, prohibit the act of boycotting itself. A person may continue to express his political dissent. However, the Law harms the possibility of a person disseminating his views and making them heard by others (who may be persuaded that their views are mistaken), as well as the possibility for others to respond and decide how they wish to act. The Law chills expression. Freedom of expression is also an essential part of an individual’s right – the listener as well as the speaker – to realize his autonomy. That is a person’s ability to tell the story of his life, to state opinions, and express his worldview. That autonomy is part of the human dignity enjoyed by all, and is a condition for spiritual and intellectual development (see and compare: HCJ 8425/13 Eitan – Israeli Immigration Policy Center v. Government of Israel, (published in Nevo), para. 121 (Sept. 22, 2014) [English: http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=54e607184]).

8.         In light of all the above, I concur with the conclusion of my colleague Justice Y. Danziger – for his own reasons – that in all that concerns expressions related to the Area, the infringement of expression does not meet the tests of the Limitation Clause. My colleague is of the opinion that this problem can be resolved through interpretation. He proposes that we read the law such that “Only a boycott against an ‘institution’ or ‘area’ that is part of a boycott against the State of Israel and derives from the connection of the institution or area to the State of Israel will fall within the compass of the Boycott Law. As opposed to this, a boycott of an institution or area that is not part of a boycott against the State of Israel will not fall within the scope of the Law’s definition” (para 46 of his opinion). Indeed, as a rule, a construction that upholds the law should be preferred to annulling it. “[…] the law still expresses the intent of the sovereign, which is the people, and therefore it is the law that goes before the camp, of which the Court is also a part” HCJ 7111/95 Center for Local Government v. The Knesset, IsrSC 50(3) 485, 496 (1996)). However, in the absence of an appropriate linguistic foothold, the appropriate relief, in my view, is the erasure of the phrase “or an area under its control” from the Boycott Law, in a manner that would separate the invalid part of the Law from the healthy, valid one (see and compare: HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 59 (4) 241, 267-268 (2004) [English trans: http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housing]).

9.         We are, therefore, left with the question of the constitutionality of a call for a boycott against the State of Israel or one of its institutions. Would it be constitutional that such a call give rise to a civil wrong, and prevent participation in a public tender and a restriction upon receiving state subsidies?

10.       In my opinion, an interpretive path can be found that would preserve the validity of the Law (which, of course, is preferable to striking it down). Before addressing that proposed interpretive path, I would like to clarify one matter. My colleague Justice Melcer noted: “Boycott shares characteristics of unlawful discrimination” (para. 33(A) of his opinion). I only agree with that statement in part. Not every boycott comprises characteristics similar to unlawful discrimination. I will demonstrate this with an example: In one type of boycott, A wishes to boycott B because he is a member of a minority. In another type of boycott, A wishes to boycott B, who is a member of a minority, because B does not pay his employees fair wages. Do both types of boycott comprise characteristics similar to unlawful discrimination? The answer is no. A boycott of the first type is like that form of “generic” discrimination that is at the “hard core” of discrimination, which derives solely from a characteristic of a person’s identity (for example, his religion, ethnicity or gender). Such discrimination has been described as  “mortally wounding human dignity” (HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [1998] IsrSC 52(3) 630, 658-659 (1998); AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64 (2) 1, 41-41 (2010) [English: http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality]). The prohibition of such discrimination is anchored in various areas of law (see, for example, sec. 1A(a) of the Equal Rights for Women Law, 5711-1951; sec. 2(a) of the Equal Opportunity in Employment Law, 5748-1988; sec. 3(a) of the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000; and see: Aharon Barak, Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, 685-688 (2014)). As opposed to that, a boycott of the second type does not express unlawful discrimination. It expresses a critical view of B’s conduct, rather than of B himself.

11.       In my opinion, an interpretation that would preserve the validity of the Boycott Law would lead to the conclusion that the Law applies only to boycotts of the first type, viz., boycotts directed against the State of Israel or one of its institutions as such. I shall explain. Section 1 of the Boycott Law, the “definition” section of the Law (worded in accordance with the constitutional approach that I propose), would read as follows:

                        Definition:

1.         In this law, "a boycott against the State of Israel" means – deliberately refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, [or] one of its institutions, such that it may cause economic, cultural or academic harm.

12.       What, then, is a boycott according to this section? A boycott under this section is the refraining from (or termination of) one of the relationships listed in the Law (economic, cultural or academic ties) with someone for one reason alone: due to its connection to the State of Israel or one of its institutions. The emphasis in this regard is one the word “solely” in the definition: “refraining from economic, cultural or academic ties with another person or body solely because of its connection with the State of Israel, [or] one of its institutions, such that it may cause economic, cultural or academic harm”. What does “solely” normally mean? It means “for this, and only for this”. If a person does not buy merchandise “solely” because of its price, that means that if its price were different, he would buy it; if a person does not wear an item of clothing “solely” because of its color, it means that were its color different, he would wear it, etc. Adding the word “solely” removes from the Law’s incidence a person who intentionally calls for refraining from the connections listed in the law for “mixed reasons”: both due to the connection to the state and for other reasons – for example, the policy of the State of Israel in regard to some other matter.

13.       This is an important distinction. Whereas “mixed” expression expresses a critical view of the state’s policy (or one of its institutions) in a particular area, the other form of expression (that is “solely” due to the connection of one of these) is criticism regarding the very existence of the State of Israel (or one of its institutions). For example, a person declares: “Do not buy ‘made in Israel’ products. Israel’s policy in the Judea and Samaria area is wrong”. What would that person do if Israel were to change its policy in the Area? He would no longer call for avoiding Israeli products. In other words, that person does not seek to boycott the State of Israel as such. If Israel’s control of the Area were brought to an end, that person would no longer call for a boycott. When the caller does not call for a boycott due to the connection to the State of Israel (or one of its institutions per se, but calls for a boycott, for example, due to the policy of the authorities in regard to the Area, the caller is not calling for a boycott “solely” due to the connection to the State of Israel or one of its institutions, but rather expresses a critical view of the state’s conduct. His conduct does not, therefore, fall within the purview of the Law. As opposed to this, if a person were to call for a boycott of a body or person solely due to the connection to Israel – for example, if a person were to call for a boycott of Israeli businesses because they are Israeli businesses, and for that reason alone, such that some change in circumstance, whether political or otherwise, would not change his position – that call, which is essentially similar to a discriminatory call, would fall within the scope of the Boycott Law. It would seem that that was what my colleague Justice Danziger intended in saying that the practical result of his proposed interpretation of the Law is “the application of the Boycott Law only to calls for a boycott against the State of Israel in its entirety or as such” (emphasis added – U.V.). I would add that this position is consistent with the manner in which the Law’s purpose was presented by the Knesset. The Knesset emphasized that “combatting discrimination directed at a citizen of Israel as such, is a proper purpose”, and explained that this purpose is consistent with the various provisions regarding the prohibition of discrimination in Israeli legislation.

14.       I would emphasize: My colleagues Deputy President E. Rubinstein and Justice I. Amit also stressed the importance of the word “solely” in interpreting the Law. However, there would seem to be a difference in our interpretive approaches. My colleagues presented examples of boycotts for reasons that are not “the connection to the Area”. My colleague Deputy President E. Rubinstein addressed a case of “a call to boycott a factory operating improperly towards the local population (referring to a factory operating in the Area; para. 10 of his opinion). My colleague Justice I. Amit explained that “if the reason for the boycott derives from environmental harm or animal experimentation, the boycott would not fall within the scope of the definition” (para. 48 of his opinion). While it is clear that those examples would not fall within the scope of the Boycott Law, in my view, they do not exhaust the situations that should be removed from the purview of the Law. As earlier stated, in my opinion, even when the call for a boycott is a “mixed” critical call, the Law should not apply.

15.       Having arrived at the interpretive conclusion that the Law “catches” only expression that is essentially very similar to discriminatory statements, and subject to the change proposed in regard to sec. 1 of the Law, it cannot be said that this Law, by which the state seeks to contend with such forms of expression by creating a civil wrong (sec. 2 of the Law) or by means of the distribution of its resources (secs. 3 and 4 of the Law) does not meet the requirements of the Limitation  Clause (also see paras. 36-37, 46 of the opinion of my colleague Justice Y. Danziger, which point out that the restrictions established there are an expression of “defensive democracy”). I would add that this conclusion also derives from the fact that I concur with the opinion of my colleague Justice H. Melcer in regard to the application of the Civil Wrongs Ordinance to the boycott tort and the interpretation he proposes for sec. 2 of the Law, and therefore, for the reasons addressed by my colleague, I am of the opinion that there is no alternative to striking down sec. 2(c) of the Law.

            In conclusion, subject to the annulling of sec. 2(c) of the Law and the erasure of the phrase “or an area under its control”, and subject to the interpretation according to which the Boycott Law would apply only when the sole reason for the call for “deliberately refraining from economic, cultural or academic ties with another person or body” is its connection to the State of Israel or one of its institutions, I find no reason to fully annul the Law that is the subject of this case.

 

President M. Naor:

1.         I share the view of my colleague Justice H. Melcer and of my colleagues who concurred in his opinion. That being the case, my comments will be brief.

2.         Freedom of political expression enjoys enhanced protection. My colleagues have already addressed this, and there is no need for me to elaborate. Indeed, every person in Israel can express his views in regard to what is referred to by the Law as “an area under its [the state’s] control”. Every person can publically call for a withdrawal from what he views as “occupied territories”, while others may call for the extension of Israeli law, jurisdiction and administration over the entire area of “Judea and Samaria”. Both, and all the hues between them, are views that one may express without fear in a democratic state.

3.         Although a call for a boycott also falls within the scope of freedom of political expression, it is a special type of expression. Our colleague Justice Y. Danziger described it well in this case, in saying: “Calling for a boycott is not merely the expression of an opinion. Calling for a boycott is a call to action (or, more precisely, to refrain from performing an action) – the imposition of a boycott. The boycott action harms the objects of the boycott. That harm may not be worthy of the protection of freedom of expression. Thus, clearly, a call for a boycott that would prevent the provision of products or services to publics on the basis of race or for racist motives would be deemed wrong” (para. 38 of his opinion). At the same time, under certain circumstances, a call for a boycott may be deemed a non-violent means of protest, intended to encourage others to take action that the law does not prohibit. Clearly, freedom of expression does not merely comprise the possibility of stating an opinion or providing information, but also allows taking such actions as demonstrating and striking, and permits a person to harness others to such actions.

4.         In light of the above, the Boycott Law does, indeed, infringe freedom of political expression. However, even the freedom of political expression may be infringed if the conditions of the Limitation Clause, by which constitutional review is conducted, are met. As my colleague Justice Melcer noted, we are not called upon to examine the wisdom of a law in the course of judicial review, but only its constitutionality. It would appear that many of my colleagues do not dispute that the state may adopt proportionate measures to prevent harm to itself by a call to boycott. The State of Israel finds itself defending itself against boycotts in the international arena, and its attempts to defend against the various harms that may be caused as a result is a proper purpose. At the bottom line, our disagreement concerns the proportionality of the provisions of the Law under review in the petitions before us. I will return to this disagreement further on. In my opinion, there is no reason to intervene in the legislature’s decision not to distinguish between a call for a boycott of the state and a call for a boycott due to a connection to an area under the state’s control. We should bear in mind that the prohibition in regard to the Area applies solely to a call for a boycott due to the connection to an area under the state’s control. A classic example of this is a call to boycott the products of an industrial enterprise for the sole reason that it is located in the Area. Such a call may lead to the imposition of the Law’s sanctions. As opposed to that, if, for example, a factory located in an area under the state’s control were to discriminate between Jews and Arabs, and the call for a boycott was premised upon that, it would not incur the imposition of the Law’s sanctions. In my opinion, that would also be the case if the factory were located in an illegal settlement of the type that has been or that must be evacuated in accordance with the decisions of this Court due to its location on the private land of Palestinian residents. In my opinion, calling for a boycott of such a factory because the settlement was built illegally would not lead to the imposition of the Law’s sanctions. That would not be a call for a boycott due to a connection to the Area, but rather due to unlawful conduct. However, a call for a boycott solely due to a factory having a connection with an area under state control falls within the scope of “a boycott against the State of Israel”, as defined by the Law.

            In my opinion, as noted, there are no grounds for intervening in the legislature’s decision not to distinguish between a connection to the Area and a connection to the state. Ultimately, the calls for a boycott of the state are often tied and linked to the matter of the state’s connection to an area under its control. The close relationship between a boycott of the state and a boycott of the area held by it is attested to by the approach of most of the Petitioners, who made it clear that they insist upon the repeal of the sanctions for a call for a boycott of the state. I also believe that the analogy made by my colleague Deputy President E. Rubinstein to our non-intervention in the question of the disengagement from the Gaza Strip (HCJ 1661/05 Hof Azza Regional Council v. The Knesset, IsrSC 59 (2) 481(2005)) is apt. The views of the Israeli public on the relationship between the state and the Area are not merely those of extremes. There is broad spectrum of views among the public. There are those who, apparently like the Petitioners, are of the view that the state should leave the Area, while others are of the view that the Area should be made an indivisible part of the state, while others would say that they would like to hold on to the Area, but that it is not possible, and still others would say that the state should wait and continue to hold the Area as a bargaining chip in the framework of a political settlement. In my opinion, we should stay out of that political debate in all that relates to the Area, while recognizing that in the margin of discretion granted to the legislature, there are no grounds for the Court to prevent it from defending against a boycott not only of the state itself, but also of enterprises and institutions erected in the rea with the consent of the state, and at times, with its encouragement, as part of the Government’s overall policy, and that of the Governments that preceded it. The law-abiding residents of the Area are entitled to the state’s defense of their property and income.

5.         As for the question of proportionality, I fully concur with my colleagues who found that secs. 3 and 4 of the Law establish a proportionate arrangement, while making it clear that it will be possible to attack the arrangements that will be made, if they be made, under those sections. As for sec. 2(c), like my colleagues, I am of the opinion that the section does not meet the proportionality tests. I deliberated in regard to the other provisions of sec. 2 of the Law, primarily concerning the question raised by my colleague Justice N. Hendel on the matter of leaving enforcement in the hands of individuals rather than the state. However, the construction of the section proposed by my colleague Justice H. Melcer limits its scope to the necessary minimum, and it is better to interpret it as he does than to annul it.

6.         I therefore concur in the opinion of Justice H. Melcer and those who joined him.

 

President (Emeritus) A. Grunis:

1.         I have read the various opinions of my colleagues. The opinions reflect a broad spectrum of views concerning the constitutionality of the Prevention of Harm to the State of Israel by means of Boycott Law, 5771-2011 (hereinafter: the Law). My opinion on the matter is like that of my colleague Justice H. Melcer, who presented his view in thorough detail. I will, therefore, only add brief observations.

2.         A point that I believe should be emphasized, and which justifies striking down sec. 2(c) of the Law alone, concerns the effect of a boycott. Indeed, “the boycott silences the discourse” (Amnon Rubinstein& Isaac Pasha, Academic Flaws: Freedom and Responsibility in Israeli Higher Education 118 (2014) (Hebrew)). The fear of a “boycott against the State of Israel” (as defined in sec. 1 of the Law) may result in reducing the discourse on the future disposition of the Judea and Samaria area. While a call for a boycott, including, of course, a public call, falls within the scope of freedom of expression, the fear of the harm inflicted by the boycott may, itself, harm freedom of expression. A person who holds a view that differs from that of one calling for a boycott may fear that if he makes his views on the political debate known, he may find himself or his business boycotted. In other words, the view of my dissenting colleagues leads to a paradoxical situation: the freedom of expression of the person calling for a boycott may infringe the freedom of expression of a person holding a different view. In other words, freedom of expression may become a means for silencing the other. For this reason, as well, secs. 2(a) and 2(b) of the Law pass the constitutional tests, even if just barely, at this stage, prior to the implementation of the Law and in the absence of concrete facts.

3.         However, and due to the fear of infringing freedom of expression, if and when a tort action is brought on the basis of sec. 2(a) of the Law, or if another proceeding is instituted in regard to the implementation of the Law, it may be expected that, against the background of the factual background of a concrete case, the Court may construe the Law very narrowly. This, in order to mitigate any possible violation of the right to freedom of expression of a person claimed to have made a public call for a boycott against Israel.

4. As stated, I concur in the opinion of my colleague Justice H. Melcer.

 

Justice S. Joubran:

1.         The law before us, the Prevention of Harm to the State of Israel by means of Boycott Law, 5771-2011 (hereinafter: the Law), raises a number of complex legal issues. My colleagues discussed these issues in broad detail, including various references to the history of the institution of boycotts in general, and the legislative history of boycott law in particular, drawing upon far-reaching comparisons, and examining the principles of tort law. My colleagues did so while separately evaluating the civil wrong under sec. 2 of the Law and the administrative sanctions established under secs. 3 and 4 of the Law. At the end of day, the opinions of my colleagues present a number of approaches: President (Emeritus) A. Grunis, President M. Naor, and Justices E. Rubinstein, H. Melcer and I. Amit are of the opinion that only sec. 2(c) should be struck down, and that the Law’s remaining provisions should be upheld, while for the present, the question of the constitutionality of secs. 3 and 4 should await the submission of specific petitions against them. My colleague Justice N. Hendel is of the opinion that sec. 2 should be annulled in its entirety, but concurs in upholding secs. 3 and 4 of the Law for the present. My colleague Justice Y. Danziger is of the opinion that sec. 2(c) should be annulled, and that the infringement of freedom of political expression can be mitigated by means of interpretation in regard to a call for a boycott of a person due to his connection to an area under the control of the state. And lastly, my colleague Justice U. Vogelman concurs with the spirit of Justice Y. Danziger’s interpretation, but is of the opinion that we should make recourse to the “blue pencil” rule in this regard, and accordingly strike out the phrase “an area under its control” in sec. 1 of the Law. According to his approach, as well, sec. 2(c) of the Law must be annulled, and secs. 3 and 4 upheld. For my part, I would note that my opinion is as that of my colleagues Justices Y. Danziger and U. Vogelman in all that relates to a call for a boycott against a person or other entity by reason of its connection to the Area under the control of the state, as I shall explain.

2.         Like my colleagues, I, too, am of the opinion that sec. 2(c) of the Law must be annulled. Moreover, like my colleagues Justices Y. Danziger and U. Vogelman, I am of the opinion that a distinction must be drawn between a call for a boycott of a person due to his connection to the State of Israel and a call for a boycott of a person due to his connection to an area under the state’s control. In my view, the approach that should be adopted is that of my colleague Justice Y. Danziger in regard to the expressions related to the connection to “an area under its control”. As my colleague noted, the relationship between the “State of Israel” and the institutions and areas mentioned in the definition in sec. 1 of the Law is one of belonging. The requirement of belonging must relevantly connect the boycott of the state to the boycott of the institution or the Area. Therefore, only a boycott of an institution or of an area because of a boycott of the state in its entirety should fall within the scope of this definition. The practical outcome of this distinction is the application of the Law solely to calls for a boycott of the State of Israel in its entirety and as such (and see, in depth, paras. 45-47 of the opinion of my colleague Justice Y. Danziger). As opposed to this, my colleague Justice U. Vogelman chose to strike out the phrase “an area under its control” from the language of the Law, rather than preferring an interpretive path.

3.         As for the administrative sanctions established under secs. 3 and 4 of the Law, like my colleagues, I, too, am of the opinion that they meet the conditions of the Limitation Clause, and that at this stage – before the Minister of Finance has exercised his authority to implement the provisions of the Law – there are no grounds for their annulment.

4.         Therefore, in my opinion, sec. 2(c) of the Law should be struck down, and sec. 1 should be construed in the spirit of the interpretation proposed by my colleague Justice Y. Danziger in regard to areas under the control of the State.

 

 

The Court therefore unanimously holds that section 2(c) of the Prevention of Harm to the State of Israel by means of Boycott Law, 5771-2011, be annulled, and to deny the petitions in all that regards sections 3 and 4 of the Law. In addition, by a majority decision of President (Emeritus) A. Grunis, President M. Naor, Deputy President E. Rubinstein, and Justices H. Melcer and I. Amit, to deny the petitions in regard to sections 2(a) and 2(b) of the Law, contrary to the dissenting opinions of Justices Y. Danziger and S. Joubran and the separate opinion of Justice N. Hendel and the separate opinion of Justice U. Vogelman.

Given this 26^th of Nissan 5775 (April 15, 2015).

 

Before the Supreme Court sitting as High Court of Justice

HCJ 4797/07

 

Before:                                    The Honorable Chief Justice (ret.) A. Grunis

                                    The Honorable Chief Justice M. Naor

                                    The Honorable Deputy Chief Justice E. Rubinstein

 

The Petitioner:             Association for Civil Rights in Israel

                                                                v.

The Respondents:       1. Airports Authority

                                    2. General Security Services

                                    3. Ministry of Transportation

 

Petition for the granting of an order nisi.

 

Date of hearing:          1 Kislev 5775 (Nov. 23, 2014)

 

For the Petitioner:       Auni Bana, Adv., Dan Yakir, Adv.

For the Respondents:  Chani Ofek, Adv.

 

Facts:   The petition concerned the security procedures for screening Israeli citizens at Israeli airports. The Petitioner’s primary claim was that Israel’s Arab citizens are generally subjected to stricter security checks than Israel’s Jewish citizens. The Petitioner argued that employing ethnicity as a criterion for the rigorousness of airport security screening of Israeli citizens is fundamentally unacceptable. The petition was submitted in 2007, but the decision was delayed in light of changes that the Respondents implemented in the security procedures, primarily comprising the introduction of new technology for the inspection of checked baggage, which was the subject of main concern of the passengers, as well as additional steps adopted to reduce distinctions among passengers in the security procedures. In light of those developments, the Respondents argued that the petition should be dismissed. In their view, the claims in regard to the security procedures in place at the time the petition was submitted were no longer relevant, while the claims advanced in regard to the new procedures were not yet ripe for decision. The Petitioner demanded that Court decide upon the fundamental issue it had raised, and advanced additional claims in regard to the changes that had been adopted.

Held:   The High Court of Justice (per Chief Justice (ret.) A. Grunis, Chief Justice M. Naor and Deputy Chief Justice E. Rubinstein concurring) dismissed the petition for the following reasons:

The Respondents had made considerable progress towards increasing equality in the security procedures. It was clear that significant efforts were being devoted to the implementation of technological solutions that would reduce, to the extent possible, the differences in the security procedures applied to different passengers, and significantly limiting the public element that formerly characterized the screening of certain passengers, while maintaining the appropriate level of security that is indisputably required in regard to air transport. It is only natural that such changes require time, and are dependent upon the cooperation of many parties. Under the circumstances, the Court ruled that the petition had exhausted itself. The authorities should be permitted to complete their work and collect data in regard to the effect of the changes that had been made before subjecting the fundamental question to judicial review. In this regard, the Court emphasized that achieving the correct balance between the need for air transport security and the reasonable functioning of the airports, and the protection of individual rights is an especially difficult task, particularly in Israel’s current security situation. It should also be borne in mind that a terrorist attack upon an airplane could result in the loss of many lives.

If, in the future, the Petitioner finds that the changes instituted have not brought about the desired result, and that the distinction – particularly the public distinction – among Israeli citizens persists in the airports, the Court’s gates will remain open. That will also be the case if the implementation of the planned changes in the airports does not proceed at a reasonable pace, in accordance with the timetable presented by the Respondents.

The petition was therefore dismissed without prejudice. In light of the important contribution of the petition to advancing the changes in the field of security procedures in Israeli airports, the Respondents were ordered to pay the Petitioner’s costs in the amount of NIS 30,000.

 

Judgment

Chief Justice (ret.) A. Grunis:

1.         The subject of this petition, which was submitted in 2007, is the security procedures for screening Israeli citizens in Israeli airports. The Petitioner’s main claim is that Arab citizens of Israel are generally subjected to more intensive inspection than Jewish citizens of Israel. In the opinion of the Petitioner, employing ethnicity as a criterion for deciding the extent of the screening to which citizens are subjected at the airports is fundamentally flawed.

2.         The Petitioner is the Association for Civil Rights. Respondent 1 is the Israeli Airports Authority. Respondent 2 is the General Security Service, which advises the Airport Authority in the field of security. Respondent 3 is the Ministry of Transport. On March 3, 2011, an order nisi was granted, ordering the Respondents to show cause as to why security screening for all citizens at the airports should not be carried out in accordance with equal, relevant and uniform criteria (D. Beinisch, CJ, E. Rivlin, DCJ, and M. Naor, J). On May 23, 2011, the Minister of Defense signed a security-interest immunity certificate in accordance with sec. 44 of the Evidence Law [New Version], 5731-1971, in regard to the details of the procedures and guidelines for security screening at the airports. Information in regard to the details of the procedures was presented to us at various stages in the proceedings. The information was presented ex parte due to its sensitivity and the danger to state security posed by its disclosure.

3.         In the course of the proceedings, we learned that, in 2006, the General Security Service and the Airports Authority began a broad administrative examination of the security-inspection procedures. In the course of that process, changes were adopted in regard to the screening of Israeli citizens in Ben Gurion Airport (hereinafter: Ben Gurion) in order to reduce the differential aspect of the inspections, i.e., to promote uniformity in the security procedures applied to all Israeli citizens. The primary change relates to the procedure for screening baggage intended for the airplane's baggage hold (hereinafter also: checked baggage), which was the subject of most passenger complaints. A new technological system was developed (Hold Baggage Screening – HBS) that allows for the inspection of all the checked baggage in a separate, non-public area, without the presence of the passengers, and its direct transfer to the baggage hold. The inspection by the new technology is performed at various security levels in accordance with threat levels. In addition to the plans regarding the new technology, other changes were introduced at Ben Gurion in 2008, such as changes in the security procedures at the vehicle entrances to the airport and at the terminal entrances. In their answer to the order nisi, the Respondents claimed that the new security procedures will serve to alleviate the sense of discomfort and humiliation attendant to the rigorous inspection of a passenger’s baggage in the main passengers’ hall, the detaining of the passenger and the conducting of public screening in the presence of other passengers waiting in line. They added that they intended to begin operating the HBS system in the course of 2013, subject to operational exigencies. It should be noted that the Respondents presented more optimistic timetables in earlier responses. The Respondents further emphasized that there is no uniform, strict level of screening for all Israeli Arab citizens. They maintained that, in practice, most of that population undergoes quick, simple screening, and the planned changes will help to further simplify the procedure. Moreover, the Respondents explained that the level of screening is not based upon a single criterion, but rather upon a mix of criteria, based upon empirical data and professional threat assessment that indicate the potential threat level posed by a particular passenger.

4.         In light of the significant change expected in the screening procedures, this Court (D. Beinisch, CJ, E. Rivlin, DCJ, and M. Naor, J) decided to postpone its decision on the fundamental issues raised by the petition, in order to allow time for the integration of the new system and the gathering of data in regard to the effect of the changes upon the security screening procedures. The Court decided to leave the petition pending, and the Respondents were ordered to submit an updated response in six months. The decision stated, inter alia:

“The application of a security profile to an Israel citizen in a manner that would justify conducting stricter security screening, even without concrete information in regard to that citizen, raises significant problems. We are doubtful whether the use of a security profile that is based upon sweeping, general characteristics, and that relies upon a passenger’s being a member of a specific ethnic group as a sole characteristic, is legitimate. […] Indeed, although a person does not have a vested right not to be subjected to security screening at the airport, it is a person’s right that such screening be applied equally, based upon equal, uniform criteria. No one doubts that since the phenomenon of widespread, intensive terrorist attacks began, many countries are confronted by the question of the legitimacy of profiling potential threats through tagging that is based upon origin or ethnicity. Such tagging, of course, raises particular difficulties when we are concerned with citizens whose equal rights must be respected. Even in the instant case, although high-level screening is not applied to all the Arab citizens of the state, the existence of sweeping, general criteria for threat assessment – to the extent that those are indeed the factual circumstances, and we are not ruling on that – raises a problem that justifies a more in-depth examination on the basis of the relevant data” (para. 5 of the decision).

5.         On Nov. 22, 2012, the Respondents informed the Court that the integration of the HBS system at Ben Gurion was proceeding, despite operational difficulties. They estimated that the technology would become operational in accordance with the timetable that was presented to the Court, that is, already in the course of 2013. The Respondents emphasized that the Airports Authority is prepared, in principle, to introduce the technology into the security procedures of the domestic airports, as well, subject to exigencies. Thus, they stated, an advanced technological system was put in place in the Eilat airport in the second half of 2011, which makes it possible to inspect checked baggage behind the scenes and without the involvement of the passengers. They are also trying to implement the screening procedure, as far as possible, in Ben Gurion, although there are differences in this regard between the two airports. At the Uvda airport, which serves only international flights, there is a uniformly strict screening procedure for all passengers, most of whom are foreign nationals. Both the Eilat airport and the Uvda airport are scheduled for relocation to a new site in Timna, where the new screening procedure being implemented in Ben Gurion will be fully adopted. As opposed to that, the Haifa airport and Tel Aviv’s Sde Dov airport present significant infrastructure problems. Nevertheless, advanced technological systems have been installed at the terminal entrance for the inspection of both carry-on and checked baggage. It should be noted that there is an intention, in principle, to relocate Sde Dov. The Respondents further informed the Court that, in addition to the technological changes, the operation of the “Security Center” (“Mokdan”) will be expanded. The purpose of the Security Center is to provide security services to foreign business travelers, and guests of government ministries and Israeli companies, in order to simplify the process for them. The data of the Security Center are shared with the domestic airports and the Israeli carriers flying to Israel. According to the Respondents, this service has significantly reduced friction with sensitive populations in the security screening process.

6.         On Sept. 18, 2013, the Respondents submitted an updated affidavit. In that affidavit, the director of Ben Gurion informed us of a delay in the timetable for integrating the HBS technology, and therefore the implementation of the new security procedures would only begin in March 2014, at the earliest. According to him, the reason for the delay was that the foreign companies involved in the project had not met their commitments. The Respondents emphasized that as soon as they became aware of the delay, a number of steps were taken to mitigate it. According to the Respondents, the Airports Authority made the necessary changes required of it in Ben Gurion in terms of construction and infrastructure, as well as the recruitment and training of manpower, and it was, therefore, prepared, in principle, to incorporate the system on the intended date, had a working system been supplied by the foreign companies. In accordance with the amended timetable presented by the Respondents, examinations and other actions in preparation for the full implementation of the system in Ben Gurion will be carried out between March and July of 2014. The running-in stage of the system will begin in July 2014, and six months later, the system will be fully transferred from the foreign companies to the Airports Authority. The Respondents emphasized that further delays were possible due to the complexity of the integration process and the possibility of unforeseen developments.

7.         In an additional notice, dated Nov. 14, 2014, the Respondents updated the Court that due to recent developments in the integration of the HBS system, it appeared that the system would indeed be fully operational in March 2014, and that it would be finally transferred to the Airports Authority in December. The Respondents explained that the HBS system would be put into use only in Terminal 3 in Ben Gurion, and not in Terminal 1. Terminal 1 was designated to serve domestic flights, after the opening of Terminal 3, but in 2011, it was decided that it would also serve low-cost international flights. The Respondents further noted that, as of 2014, a project will commence for the introduction of a system like HBS in Terminal 1, and that the expected timetable for this is two years, subject to operational exigencies. That estimate was later amended, and the current projection for the introduction of the system in Terminal 1 is 2017. The Respondents emphasized that the changes made in Ben Gurion in regard to the vehicle entrances and the entrances to the terminals will also apply to Terminal 1.

8.         On Dec. 20, 2013, a hearing was held on the response to the petition before a three-judge panel (A. Grunis, CJ, and M. Naor and E. Arbel, JJ). At the end of the hearing, it was decided that it was not yet time to rule upon the petition, in light of the progress in integrating the changes in the security system in Ben Gurion, despite the delays. The Respondents were ordered to submit an update by April 30, 2014. Accordingly, in notices dated April 28, 2014 and November 2, 2014, the Respondents confirmed that the HBS system began operation in Terminal 3 of Ben Gurion as of March 2014. According to the Respondents, there is a possibility of limited recourse to the “old” screening procedure in cases of breakdowns and due to operational needs. The Respondents noted that the initial experience gained from operating the system was positive, and that it appeared that the system allowed for the required level of screening from a security perspective, while mitigating the attendant intrusion of strict screening of passengers in public. They reiterated that they intend to introduce the new technology in Terminal 1. In addition, The Respondents provided other details concerning additional steps taken, in addition to the installing of the HBS, to reduce the differences between passengers in the screening procedures. Thus, they stated, advanced screening devices had been purchased that would reduce the need for the physical examination of passengers. They added that such gates had been purchased for Ben Gurion, and an additional purchase was planned for the Eilat airport.

9.         In light of the above developments, the position of the Respondents is that the petition should be dismissed. In their view, the claims made in regard to the security screening procedures in place at the time the petition was submitted are no longer relevant, while the claims regarding the current changes are not yet ripe for a decision. The Respondents are of the opinion that they should be allowed time to evaluate the effects of the changes upon passenger screening procedures. However, the Respondents expressed their commitment to continuing their efforts to reduce the offense caused to individuals by security screening procedures in the airports. According to the Respondents: “The treatment of the broad issue raised by the petition is over but not completed. The Respondents are committed to continue and persist in implementing technological solutions, while diminishing the injury caused by public exposure and the character of strict security screening” (see para. 4 of the Respondents’ notice of April 28, 2014).

10.       The position of the Petitioner has consistently been that the question raised by the petition concerns the lawfulness of the use of the criterion of ethnicity as a basis for adopting differential screening methods for a specific group of Israeli citizens. In its view, this is a fundamental question. The problem in the very distinction on the basis of ethnicity will not be resolved, it argues, even if all the changes in the security procedures detailed above are fully implemented. The Plaintiff argues that even the Respondent admits that the technological and other changes will not lead to uniformity in the security procedures, and at most, they will lessen the discomfort felt by Arab citizens in the airports. The Petitioner also criticizes the HBS system itself. In its view, it is unclear what criteria are employed for deciding whether to carry out a physical inspection of hand luggage that has been scanned by the new system. According to the Petitioner, the changes adopted do not address other elements of screening that discriminate against Arab citizens, such as the inspection of the hand luggage of passengers, their pre-check-in questioning in Israel and on flights of Israeli carriers flying to Israel. In addition, the Petitioner complains of the recurring delays in the date for the planned implementation of the HBS system in Ben Gurion, and that as far as Terminal 1 and the other domestic airports are concerned, there are only intentions for future implementation of the new technology. The Petitioner also argues that it is unclear what contribution the Security Center – which provides services to government ministries and companies – makes to advancing equality between Arab and Jewish citizens of Israel in the security screening process. In addition, the Petitioner emphasizes that introducing screening devices that perform full-body scans raises significant problems, in and of itself, due to the infringement of privacy attendant to their use.

11.       On Nov. 23, 2014, another hearing was held before this Court. In the course of that ex parte hearing, we were presented with classified information in regard to the changes made in the security screening procedures. In light of that information, and in light of all the developments made over the years that this petition has been pending, we are under the impression that the Respondents have gone a long way in increasing equality in the screening process. It is clear that significant efforts have been made to implement technological solutions that will limit differences in the screening process, to the extent possible, while maintaining an appropriate level of security, which is indisputably required in the field of air transport. By their very nature, such changes demand time, and are contingent upon the cooperation of many parties. As noted, the HBS technology is currently operating in Terminal 1 of Ben Gurion, which is the main hub of Israel’s air transport. That technology enables the examination of checked baggage without a need for the passenger’s presence, and while significantly reducing the public exposure that formerly characterized the screening of certain passengers. A similar system is planned for Terminal 1. While the screening process is not identical for all passengers, and some baggage undergoes greater scrutiny, the distinction is based upon technological indicators. Although recourse to the “old” screening process may occur in cases of breakdowns, that possibility is reserved for exceptional cases in which the need may arise in order to ensure the proper functioning of Ben Gurion. Changes have also been made in the domestic airports, which include the introduction of new technologies. Some of those airports are slated for relocation, and according to the Respondents, the screening procedures currently employed in Terminal 3 will be implemented at the new locations. In addition to the changes in the system for screening checked baggage, scanning gates will be employed to reduce the need for the physical inspection of passengers. Those changes are in addition to earlier technological changes in the screening procedures at the vehicle entrance of Ben Gurion and at the entrances to the passenger terminal.

12.       Under these circumstances, we are of the opinion that, at present, the petition has exhausted itself (and compare: HCJ 2467/05 Gorenberg v. Director of the IDF and Defense Establishment Archives (Jan. 13, 2010); HCJ 1254/10 Anonymous v. Population, Immigration and Border Crossing Authority – Ministry of the Interior (April 4, 2012); HCJ 3091/99 Association for Civil Rights in Israel v. Knesset (May 8, 2012)). The Petitioner’s claims in regard to the screening procedures prior to the introduction of the HBS system and the other changes have been rendered superfluous. Looking to the future, it is as yet too early to evaluate the effect of those changes upon the extent of harm to individual rights involved in the screening process. We must wait and see whether the significant changes introduced will, indeed, help reduce expressions of distinction among different groups of Israeli citizens in the airport screening process. We should note that the case before us is not one in which the authorities have sat on their hands and refrained from correcting a situation that poses an unnecessary infringement of individual rights. The Respondents are aware of their responsibility to address this issue, and expressed their intention to implement and initiate additional changes in the screening process, which are intended to contend with the problems raised in the petition. We are of the opinion that the authorities should be permitted to complete their work and collect data in regard to the effect of the changes that have been implemented, before subjecting the fundamental questions to judicial review.

13.       We are aware of the Petitioner’s stance that any distinction between Israeli citizens that is based upon ethnicity – even if it is “behind the scenes” and not visible – infringes human dignity, equality, freedom of movement and privacy. As opposed to that, the alternative of strict, uniform screening of all passengers also raises significant problems, and according to the Respondents, such screening cannot be implemented without causing extreme harm to the proper functioning of the airports and to the effectiveness of security screening. Finding the appropriate balance between the need for the security of air transport and the reasonable functioning of the airports, and protecting individual rights is a particularly difficult task. We must bear in mind that an act of terrorism carried out against an airplane may result in the loss of many lives. Israel is not the only country faced with this challenge, although it cannot be denied that it also faces certain unique problems due to the nature of the security threats with which it must contend. For the reasons stated above, we are not ruling upon the fundamental issue at this time. If, in the future, the Petitioner finds that the changes instituted have not brought about the desired result, and that the distinction – particularly the public distinction – among Israeli citizens persists in the airports, the Court’s gates will remain open. That will also be the case if the implementation of the planned changes in the airports does not proceed at a reasonable pace, in accordance with the timetable presented by the Respondents.

14.       The petition is, therefore, dismissed without prejudice. In light of the important contribution of the petition to advancing the changes in the field of security procedures in Israeli airports, the Respondents will pay the Petitioner’s costs in the amount of NIS 30,000.

 

                                                                                                            Chief Justice (ret.)

Chief Justice M. Naor:

I concur.

                                                                                                            Chief Justice

 

Deputy Chief Justice E. Rubinstein:

1.         I concur in the opinion of my colleague the former Chief Justice. We are concerned with one of the most sensitive subjects in the relationship between the state and its Arab citizens, as my colleague observed in para. 13. The situation in which the State of Israel finds itself requires a very delicate balance. On the one hand, in addressing security screening, we are treating of human dignity as such, and to say more would be superfluous. On the other hand, the heavy burden placed upon the security authorities by the security situation that surrounds us cannot be ignored. This is nothing new. In Mapp 6763/06 Khiat v. Airports Authority (2006), I had the opportunity to state (at para. 10):

“We are concerned with a sensitive matter. It is doubtful whether there is another nation that is called upon to make such a delicate balance between the need for equality for all the citizens of the state – not merely in words but in action – and security needs that none, including the petitioners, dispute. The subject of the security screening of Israel’s Arab citizens in various places – one of a collection of subjects that require fair and balanced treatment – arises from time to time over the years. In a lecture that I delivered at the Faculty of Law in Jerusalem on May 25, 2002, when I was still serving as Attorney General, I noted – in the midst of terror – that ‘I am personally conducting a constant dialog with the security services in regard to security screening, in order to prevent unnecessary harm to the human dignity of Arabs, even in times of stress. I do not relent on that subject, even at this time’ (“The State and Israeli Arabs: The Struggle for Equality in the Framework of an Agonized Jewish and Democratic State” (In Memory of Justice Haim Cohn), 3 Kiryat Mishpat 107, 112 (5763) (Hebrew), reprinted in my book Paths of Governance and Law, 293, 298 (Hebrew)). I believe that awareness of this subject, in the instant case in which we are concerned with the airports, as well, has already penetrated to some degree, and has found a place in the public agencies, as it should.”

2.         Indeed, as my colleague has shown, the Respondents are striving to improve screening in this regard in various ways. The Respondents should be encouraged in every way to continue in those efforts to the extent possible. As a Jewish and democratic state, we should be particularly sensitive. As stated, I concur with my colleague.

                                                                                                Deputy Chief Justice

 

Decided as stated in the opinion of Chief Justice (ret.) A. Grunis.

Given this 19^th day of Adar 5775 (March 3, 2015).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Decided in the majority opinion of President Barak, against the opinion of Justice

 

M. Cheshin.

 

Today, 16 Av 5762 (July 25, 2002)

 

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

 

                                                                                                                          HCJ 5771/12

 

Before:                                    The Honorable President A. Grunis

                                    The Honorable Deputy President M. Naor

                                    The Honorable Justice (Ret.) E. Arbel

The Honorable Justice E. Rubinstein

The Honorable Justice S. Joubran

The Honorable Justice E. Hayut

The Honorable Justice H. Melcer

           

 

The Petitioners:

 

1. Liat Moshe
2. Dana Glisko

 

 

                                    versus

 

The Respondents:

 

1. The Board for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child), 5756-1996
2. The Ministry of Health
3. Knesset of Israel

                                   

                                    Response to Order Nisi

 

Date of sessions:         8th Tishrei 5773; September 24, 2012

                                    5th Kislev 5773; November 19, 2012

                                    18th Iyar 5773; April 28, 2013

                                    14th Elul 5773; August 20, 2013

 

Adv. Yehuda Resler; Adv. Amir Rosencrantz

                                    on behalf of the Petitioners

 

Adv. Nahi Ben Or; Adv. Dana Briskman

                                    on behalf of the First and Second Respondents

 

Adv. Gur Blai

                                    on behalf of the Third Respondent

 

Justice A. Hayut

The Petitioners are a couple who wish to bring offspring into the world by fertilizing an egg taken from the body of the First Petitioner and implanted in the womb of the Second Petitioner, who will carry the pregnancy and give birth. The Ministry of Health rejected their requests for the necessary authorizations to execute this and therefore filed the petition, which in its amended form challenges different provisions in the Embryo Carrying Agreements Law (Approval  of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the Eggs Donation Law 5770-2010 (Hereinafter: the Eggs Donation Law.)

                  After two hearings in the petition that were held before a panel of three Justices, an  order nisi was issued for the amended petition and it was decided that the hearing for the Respondents’ response would be held before an extended panel. The extended panel heard two hearings and after the second hearing, held on August 20, 2013, a decision rejecting the petition was given without reasons. This was done in order to permit the petitioners to plan their steps and to decide whether to accept the partial solution proposed by the Respondents – which I detail below – and because of the concern that the passing of time may adversely impact the chances of success for the medical procedure that could be done under such proposal (among others, due to the age of the First Petitioner, who is about forty one years old.) Therefore, on September 1, 2013 a decision without reasons that rejects the petition by a majority of the panel (President A. Grunis, Deputy President M. Naor, Justice E. Rubinstein and Justice S. Joubran) and against the dissenting position of Justice E. Arbel, Justice H. Melcer and my own was handed down. Below are detailed the reasons at the base of my dissenting opinion, as noted.

The Factual Background

1. The First Petitioner, Liat Moshe (hereinafter: Liat) was born in 1972 and serves as an officer in the IDF at the rank of Lieutenant Colonel. The Second Petitioner, Dana Glisko (hereinafter: Dana) was born in 1983 and the two have been living together as a couple for about ten years. They even signed a “prenuptial agreement” and a “common law marriage agreement” and drafted mutual wills. Since 2007 the two have attempted to bring a child into the world. For this purpose, during the years 2007-2008 Liat underwent artificial inseminations and hormone treatments, but these have been unsuccessful. Similarly, treatments Liat underwent in 2008-2012 for in vitro fertilization of eggs extracted from her body and then implanted have sadly failed as well.  Medical tests on Liat have not diagnosed a cause for the failure of the many fertilization treatments she had underwent, and the reason may be that her uterus may be unable to carry a pregnancy. Such repeated failures have not weakened Liat’s spirit and she wishes with all her might to bring a child into the world from her own eggs. As a last resort, the couple has tried to bring a child into the world by extracting an egg from Liat’s body, fertilizing it and implanting it in Dana’s uterus, so that Dana would carry the pregnancy and give birth. In such a way, the two emphasize, the child would be “genetically and physically connected to them both.”
2. Only it quickly became clear to the couple that realizing their wish to bring a child into the world in the described method may implicate them and the treating physician, who would perform the necessary medical procedure, in illegal conduct and a criminal sanction. In February 2012, Liat wrote to the Ministry of Health’s Legal Advisor and requested to permit her to donate eggs to her partner, Dana, after their in vitro fertilization. This request relied on earlier decisions by the Ministry of Health that permitted such medical procedure in the past and paved the way, at least in one case, for eggs donations between a female couple. On February 26, 2012 the Ministry of Health’s Legal Advisor, Advocate M. Hivner-Harel, that the procedure requested by the couple is contrary to the Eggs Donation Law, which was passed in 2010, because according to this law eggs donation may be approved only for a woman who may not become pregnant with her own eggs due to a medical problem, or who has a different medical problem that justifies using eggs that are not hers in order to have a child (a condition established in section 11 of the Law.) in this case, Dana – who is intended to receive the eggs donation from Liat – does not suffer, as far as we know, from a medical problem and thus their request is denied.

Liat and Dana did not give up and turned to the national supervisor for surrogacy issues in the Ministry of Health and requested to be permitted to undergo a procedure where Dana would serve as surrogate and carry an embryo from Liat’s fertilized eggs. This request came after in May 2012 the recommendations of the public committee formed by the Ministry of Health to examine legislative regulation of the issue of fertilization and birth in Israel, headed by Professor Shlomo Mor Yossef (hereinafter: the Mor Yossef Committee) were published. The Mor Yossef Committee report concerns, among others, the issue of surrogacy in Israel. Among the Committee’s recommendation was the recommendation to expand the circle of those eligible to undergo a procedure of bringing an offspring into the world via surrogacy that would include also “a single woman who has a medical problem that prevents carrying a pregnancy.” This request by Liat was also denied for the reason that the Surrogacy Law in its current language only permits “intended parents” (defined in section 1 of the law as “a man and a woman who are a couple”) to enter an agreement for embryo carrying with a “carrying mother” whose relationship with the child is severed after the birth. The national supervisor for surrogacy added in her response that a team appointed by the Ministry of Health to explore and implement the Mor Yossef Committee recommendations had yet to complete its work and therefore it was impossible at the time to accept Liat’s request. In light of this and in light of Liat’s age (who at the time had already turned forty years old) – this petition was filed.

The Legal Framework

3.  In their amended petition, the couple relies on two alternative legal paths. First, an interpretation of the Surrogacy Law, or judicial intervention in its provisions on a constitutional basis, that would allow the requested procedure through surrogacy where by Dana would serve as the “carrying mother” for Liat’s fertilized eggs. The second – judicial intervention on a constitutional basis in the Eggs Donation Law and striking down some of its provisions that bar Liat’s eggs donation to Dana. Before we detail the parties’ arguments and the different developments that occurred since the petition was submitted we briefly present the arrangements established in each of the above laws and the obstacles they each present to the couple when they wish to undergo the desired procedure.
4. The Surrogacy Law was passed in 1996 following a report by a public professional committee headed by District Court Judge (Ret.) Shaul Aloni, which in 1994 recommended to permit entering into agreements for carrying embryo  in Israel while regulating the issue in primary legislation. In 1995, before the Law was passed, this Court struck down regulations 11 and 13 of the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: the Fertilization Regulations,) which prohibited implanting a fertilized egg in a woman who would not be the child’s mother as well as prohibited the implantation of an egg taken from a donor unless it was fertilized with the sperm of the woman’s husband (see: HCJ 5087/94, Zebro v. The Minister of Health (July 17, 1995); for detailed discussion of the background for the Law’s legislations, see HCJ 2458/01, New Family v. The Committee for Approval of Embryo Carrying Agreements, The Ministry of Health, IsrSC 57(1) 419, 431-35 (2002) (hereinafter: the New Family case; see also the Embryo Carrying Agreements Bill (Approving Agreements and Status of the Child), 5756-1996, Bills 2456.) as reflected from the explanatory notes  of the Bill, the Surrogacy Law was designed to permit agreements for carrying embryo in Israel “under certain conditions and in a supervised manner.” According to section 1 of the Surrogacy Law, an agreement for carrying an embryo  is made between “intended parents” – who are defined in section 1 as “a man and a woman who are a couple” – and a “carrying mother” who agrees to become pregnant through the implantation of a fertilized egg in her body and to carry a pregnancy for the intended parents. Under section 2 of the Surrogacy Law, the implantation of a fertilized egg in order to impregnate a carrying mother in order to give the child to the intended parents is contingent upon the existence of several conjunctive conditions, including the drafting of a written agreement between the intended parents and the carrying mother, the approval of the agreement by the approving board mentioned in section 3 of the Law, and meeting several additional threshold conditions such as the lack of familial relationships between one of the intended parents and the carrying mother (see HCJ 625/10, Jane Doe v. The Board for Approval of Embryo Carrying Agreements under the Agreements Act, paras. 12-16 (July 26, 2011)). As a rule – except for exceptional cases where the carrying mother wishes to withdraw her  embryo carrying agreement and keep the child under the circumstances detailed in section 13 of the Surrogacy Law – the carrying mother gives the child to the intended parents after the birth, and after a parenting order is issued, they are considered the child’s parents “for all intents and purposes” (section 12 of the surrogacy Law.)

Section 7 of the Surrogacy Law, titled “Performing an Embryo Carrying Agreement” prohibits performing a surrogacy procedure outside of the path and conditions established by the law, as follows:

“An in vitro fertilization and implantation of a fertilized egg shall not be performed except for at a recognized department and on the basis of an agreement for carrying an embryo , which was approved as detailed.”

Section 19(a) of the Surrogacy Law adds a criminal provision whereby anyone implanting a fertilized egg in order to impregnate a carrying mother with the purpose of giving the child not according to the provisions of the law is punishable by one year imprisonment. Therefore the Surrogacy Law creates an arrangement for how agreements for carrying embryo in Israel must be entered into and performed, and under its provisions as detailed above a surrogacy procedure that is inconsistent with its detailed directions cannot be done in Israel (see the New Family case, 438-39.)

5. The Eggs Donation Law, which was passed in 2010, about 14 years after the Surrogacy Law was passed, was designed to “regulate the different aspects involved in extracting and donating eggs in Israel, and the use of such eggs” (see the explanatory notes to the Eggs Donation Bill, 5767-2007, Government Bills 289.) Until the law was passed the possibility to donate eggs in Israel was regulated in the Fertilization Regulations. According to those, it was possible to extract eggs only from a woman who was under medical treatment due to infertility problems if the supervising physician determined that extracting the eggs would advance her treatment. In light of this restriction on the pool of donors, Israel saw a dire shortage of eggs for donation and women who required eggs donation were required to travel to far away countries in order to receive a donation there. The Fertilization Regulations even set various restrictions on the possibility of women to receive eggs donation. For instance, the regulations established that a single woman would not be implanted with a fertilized egg unless the egg is hers and a report from a social worker to support her wishes has been secured. The Eggs Donation Law was meant to expand the circle of donor women to include – alongside the “treated” women (women requiring medical care involved in extracting eggs from their bodies for their own use, and intending the remaining eggs for donation) – also “volunteer donors,” who do not undergo fertilization treatments or other treatments involving extracting eggs from their bodies. Additionally, the Law lifted the restriction on receiving eggs donation that the Fertilization Regulations imposed upon single women.

At the background of the law’s legislation was a painful incident where a doctor was convicted in disciplinary proceedings for a high dosage of hormones he gave women to whom he provided fertility treatments in order to produce a high number of eggs and intend them for treating other women’s infertility. This was done without securing the consent of these women or notifying them (see: the Mor Yossef Committee Report, p. 38; Smadar Kanyun, Eggs Donation – Social, Ethical and Legal Aspects, Medicine and Law 35, 145, 164 (2006); minutes of the 17^th Knesset’s Labor, Welfare and Health Committee meeting, dated February 18, 2008, p. 2.) One of the purposes the law was designed to achieve, aside from expanding the circle of donor women, was then responding to the concern over the trade in eggs and over the exploitation and disrespect for women’s bodies (see minutes of the 17^th Knesset’s Labor, Welfare and Health Committee meeting, dated March 4, 2008, p. 10-12.) therefore the law established various restrictions as to the maximum number of donations that may be received from the same woman and as to the frequency of extraction of eggs from her body; duties regarding the information that must be given to the donating woman and securing her consent for performing procedures in the eggs extracted from her body; and a prohibition on trade in eggs (see articles A and B of the Eggs Donation Law.) Additionally, section 4 of the Eggs Donation Law establishes the exclusivity of the law’s provisions, as such:

“(a) One shall not perform an eggs extraction from a donor, lab treatment of the eggs, allocation of eggs for implantation or research, or implantation of eggs, but according to this law’s provisions.

(b) The provisions of sub-section (a) shall not apply to the extraction of eggs from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of performing an agreement for carrying embryo according to the Agreements Law.”

Therefore, a procedure of extracting eggs from a donor woman and implanting them in the woman who receive the donation is subject to the provisions of the Eggs Donation Law and performing this inconsistently with these provisions is prohibited unless it is done under an agreement for carrying embryo that was entered into according to the Surrogacy Law.

6. Section 12 of the Eggs Donation Law requires the authorization of a special approving board of six members (hereinafter: the approving board) in order to extract eggs from a “volunteer donor.” The approving board is charged with examining the request of a volunteer donor in order to ensure that the intended procedure meets all the conditions detailed in section 12(f) of the Act, and they are:

“(1) The donor is a resident of Israel who is over the age of 21 but is not yet 35;

(2) The donor is not legally incompetent, under guardianship, under arrest or incarcerated;

(3) The donor had signed, before the approving board, a form as instructed by the administration, which includes the information form and her consent to extracting the eggs for their implantation;

(4) The approving board is satisfied that the donor’s consent is given with a sound mind, out of free will, and not out of family, social, economic or other pressure; and in regard to a donor who intended in advance the eggs extracted from her body to a specific recipient – that her consent was given not for financial reward or any other reward, directly or indirectly, from the recipient or her representative; and it may summon for such purposes the recipient, should the eggs be intended to a particular recipient, or any other person as it sees fit.”

In this context the petitioners are seemingly already faced with an obstacle because Liat – the intended donor – was born in 1972 where section 12(f)(1) of the law sets an age limit. However in light of the medical difficulties Liat faced and the many treatments she went through, she may be considered a “treated donor” whose eggs are extracted from her body in the course of medical treatments conducted for her own benefit. Therefore, and under the provision of section 15 of the Eggs Donation law, she is not required to secure the authorization of the approving board for the extraction of her eggs and is thus not subject to such age restrictions.

7. The main relevant restriction here is the restriction on a receiving woman established in section 11 of the Eggs Donation Law. Under this section, only a woman who suffers from a medical condition that prevents her from being impregnated with the eggs in her body or from a medical condition that justifies using another woman’s eggs in order to have a child, may apply to receive an eggs donation. This section stipulates as follows:

“Once a treating physician discovers that a patient who is a resident of Israel who is over the age of 18 but is not yet 54 years old, is incapable of becoming pregnant with eggs in her body due to a medical condition, or that she has another medical condition that justifies using the eggs of another woman in order to have a child, including by implanting the eggs in a carrying mother under the Agreements Law, the physician shall notify the patient that she may apply for an eggs donation. Such an application shall be submitted with the supervising doctor according to the form instructed by the Administration.”

This provision seemingly prevents the petitioning couple to realize their wishes, as it stipulates that in order to receive an eggs donation the receiving woman must present a medical need for the donation, whereas in our case, Dana – the intended recipient – does not suffer, as far as we know, from any medical condition that prevents her from becoming pregnant with the eggs in her body or that justifies using another woman’s eggs to have a child. Liat – who wishes to donate her eggs – is the one who suffers from a medical condition that prevents her from becoming pregnant with the eggs in her body. Section 13 of the law adds the condition that the implantation of the eggs in the receiving woman’s body must be approved by the “supervising doctor” as defined in the law. Under this section the supervising doctor must make sure that, among others, the receiving woman indeed does suffer from a medical condition that justifies the implantation of the eggs in her uterus (section 13(e)(2)). Additionally, the doctor must receive confirmation from the database established under the law that the conditions set in section 13(e)(3), which include the condition that the donor is of the same religion as the recipient and is not her family member and that the donor is not married, are met.

8. To this list of restrictions the provision in section 4(a) of the Eggs Donation Law must be added. This provision mandates, as discussed, the exclusivity of this law’s provisions whereby any procedure of extracting eggs from a donor, lab treatment of the eggs, allocating them and implanting them would be performed only under the provisions of the Law. Section 5 of the Eggs Donation Law adds a prohibition of taking out eggs that have been extracted in Israel – whether they are fertilized or not – for their implantation aboard, unless this was approved by a statutory exceptions committee and the intended implantation is in the body of the woman from whom the eggs were extracted. This section prevents the Petitioners to take eggs extracted from Liat’s body out of Israel to be implanted in Dana’s uterus. Additionally to all this, section 6(b) of the law mandates:

“An implantation of eggs shall not be performed but in the body of the recipient or the body of a carrying mother who entered into an agreement for carrying an embryo with the recipient according to the Agreements Law.”

Similarly to the Surrogacy Law, the legal arrangement established in the Eggs Donation Law, which we detailed above, is also supported by criminal provisions that establish criminal sanctions for an offense under the law’s provisions. Thus, for instance, performing an eggs implantation in a woman in violation of section 6(b) of the Act constitutes an offense punishable with six months incarceration or a fine (see section 41(b)(4) of the Eggs Donation Law.)

9. Still, Title C in Chapter C of the Eggs Donation Law authorizes the Minister of Health to convene a committee for exceptional cases, which would comprise of two doctors, a psychologist, a social worker, an attorney, and a clergy person (hereinafter: the exceptions committee.) The committee is charged with examining the approval of a procedure for eggs donation in particular cases which do not meet the conditions established by the Law. However, the authority of the exceptions committee is narrow and limited to permitting procedures in one of the four case as detailed in section 20(a) of the law:

(-) Approving extraction, allocation or implantation of eggs from a donor who designates, in advance, the eggs extracted from her body to a particular recipient. (section 20(a)(1));

(-) Approving extraction, allocation or implantation of eggs from a married donor (section 20(a)(2));

(-) Approving extraction, allocation or implantation of eggs from a donor who is not a member of the recipient’s religion (section 20(a)(3));

(-) Approving to take eggs outside of Israel in order to be implanted in the body of the woman from whom they were extracted (section 20(a)(4)).

The recipient woman or the “supervising physician” (as the latter is defined in the Eggs Donation Law) may approach the exceptions committee, and under section 21(c) of the law the committee may consider the factors detailed in section 22 of the law, which are:

1. The exceptions committee may approve the extraction, allocation of eggs for implantation or the implantation of eggs, when the recipient intends in advance the eggs extracted from her body to a particular recipient, when it is persuaded that the following has been met, as appropriate under the circumstances:

1. In terms of a donor who intends in advance the eggs extracted from her body to a particular recipient who is her family member – that there are religious reasons that justify such eggs donation.
2. In terms of a donor who intends in advance the eggs extracted from her body to a particular recipient who is not her family member – that there are religious or social reasons that justify such eggs donation.

2. The exceptions committee may approve the extraction, allocation of eggs for implantation or implantation of eggs when the donor is married, when it is satisfied that the following has been met, as appropriate under the circumstances:

1. In terms of a married donor who intends in advance the eggs extracted from her body to a particular recipient – that there are religious reasons that justify such eggs donation.
2. In terms of a married donor who does not intend in advance the eggs extracted from her body to a particular recipient – that the eggs extraction is required for their implantation in a particular recipient who, due to a shortage in suitable eggs from donors who are not married, cannot receive an eggs donation but for from a donor who is married.

3. The Exceptions committee may approve the extraction, allocation of eggs for implantation or extraction of eggs when the recipient is not a member of the donor’s religious and when the eggs have not intended in advance by the donor for a particular recipient, when the committee is satisfied that the recipient’s religion prohibits her from receiving a donation from a woman who is a member of her religion or due to a shortage of eggs from donors of her religion.
4. The exceptions committee may approve the taking of eggs extracted in Israel from a patient’s body for their implantation out of Israel, when it is satisfied that the eggs are intended to be implanted in her body and when there is justification for approving the implantation outside of Israel.

The provisions quoted above clearly express that the authority of the exceptions committee is limited to an exhausted list of the four cases detailed. They also clearly reflect that the matter of the Petitioners is not among these cases and thus approaching the exceptions committee would not be to their benefit. Given all this, the Ministry of Health’s legal advisor believed that the eggs donation route which they wished to take was not available to the Petitioners, which resulted in her response that:

“[…] According to the law, an eggs donation may only be approved for a woman who cannot become pregnant by her own eggs or who has another medical condition that justifies using the eggs of another woman in order to have a child.

According to your letter, your partner, Ms. Glisko, has no medical condition that justifies receiving an eggs donation. Therefore, regretfully, your request may not be approved.”

Developments Since The Petition Was Filed

10. In the amended petition, submitted on October 3, 2012, the Petitioners requested permission to execute their wishes, whether by striking down different provisions of the Surrogacy Law and the Eggs Donation Law or by interpreting the provisions of these statutes differently than the interpretation of the Ministry of Health. After holding a hearing for the amended petition on November 19, 2012 before a panel of three justices, an  order nisi was issued:

“Based on the petition brought before this Court today, the Court issues an order nisi for the Respondents and instructs them to present themselves and justify:

1. Why the Court should not order that the definition of ‘intended parents’ as in section 1 of the Embryo Carrying Agreements Law(Approval of  the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Law) be struck down for unconstitutionality, and why the Court should not instruct the approving board as established by section 3 of the Law to discuss the Petitioners’ request to approve an agreement for carrying embryo on its merits;
2. Why the surrogacy arrangement established by the Law should not be interpreted to include also an arrangement where there is no obligation for disconnecting the ‘carrying mother’ and the child, and/or that it would be possible to perform in vitro fertilization and implantation of a fertilized egg outside of an agreement for carrying embryo between ‘intended parents’ and a ‘carrying mother,’ as defined in section 1 of the Law;
3. Why the Petitioners should not be permitted to perform a procedure of egg donation such that the First Petitioner would donate an egg to the Second Petitioner in order for it to be implanted in her uterus and fertilized according to the provisions of the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law);
4. Why the Court should not order that the exception in section 11 of the Eggs Donation Law, which restrict the possibility of Eggs Donation to cases where the recipient cannot become pregnant with her own eggs due to a medical condition, is struck down for being unconstitutional;
5. Why the language of section 11 of the Eggs Donation Law should not be amended so that the words ‘in a carrying mother’ be struck out of it.”

At the same time, and in an attempt to find a practical resolution for the Petitioners’ problem the Attorney General has been requested to notify the Court its position as to the legal procedures under the Eggs Donation Law that may be taken against the Petitioners or any medical professional, were they to perform in Israel any medical procedures in order to execute the medical process they wish to perform. It was also decided that as long as the Attorney General’s position is that under the circumstances such legal proceedings should not be initiated, there will be no longer a need for a response on behalf of the Respondents to the order nisi that was issued, and that should there be a need to hold a hearing in the response to the order nisi after the Attorney General’s position is received, it would be held before an expanded panel.

11. The Attorney General’s notice from December 26, 2012 stated that there is no possibility of declaring in advance that no legal proceedings would be initiated in terms of the described actions, which as to his understanding are not permitted under the Eggs Donation Law or the Surrogacy Law. The Attorney General explained his position as such: “There is an inherent difficulty to notifying in advance, in a notice that constitutes a pre-ruling of sorts that the general prosecution would refrain from enforcing the law on statutorily prohibited acts.” Thus the First and Second Respondents (hereinafter, jointly: the State) and the Third Respondents (hereinafter: the Knesset) filed response papers in the Petitions, and on April 28, 2013 a first hearing in the objections to the order nisi was held before an extended panel of seven Justices. During the hearing, the State’s lawyer noted that from the State’s perspective there is no restriction on the procedure of extracting Liat’s eggs, fertilizing them and freezing them but that until the necessary statutory amendments are passed they cannot be used to be implanted in Dana, as requested in the Petition (see page 6 of the hearing record dated April 28, 2013, l. 24-35.) The State’s lawyer also noted that the implementation team appointed by the Ministry of Health to examine the recommendations of the Mor Yossef Committee (hereinafter: the implementation team) is expected to complete its work soon and that after that the Minister of Health would consider the possibility of submitting statutory amendment proposals that may resolve the problem the Petitioners face. At the end of the hearing it was decided that the Respondents would submit update notices and on June 30, 2013 the State updated the Court that the implementation team was expected within several days to submit to the Minister of Health a document summarizing its work and that practical steps, including statutory amendments, were expected – according to the assessment of professional bodies – to be brought for discussion before the Knesset’s Labor, Welfare and Health Committee within six months. In an additional notice the State submitted on August 14, 2013 it stated that on July 21, 2013 the Ministry of Health issued a protocol for “taking sperm, eggs or fertilized eggs out from Israel” (hereinafter: the protocol) whose operative meaning, to the extent concerns us, is that the Petitioners would be able, subject to the authorization of the exceptions committee, to follow the route requested – that is to perform the implantation of Liat’s fertilized eggs in Dana’s womb – but to do so outside of Israel. As a result, and in order to flesh out the Petitioners’ position regarding the proposal raised, an additional hearing was held before the extended panel on August 20, 2013, but the Petitioners insisted that they wished to be able to perform the entire medical procedure in Israel. The Petitioners noted in this context the financial burden involved in performing the medical procedure out of Israel; the concern that performing the medical procedure out of Israel would reduce its prospects of success; as well as noted the various restrictions related to the fact that Liat is an officer in the IDF.

As all of the attempts to find a practical solution for the problem raised by the petition have failed, we were required to rule on the arguments the parties called upon us to do, and as noted on September 1, 2013 a judgment without reasons which rejects the petition by a majority was handed down.

 

 

The Parties’ Arguments

12.  The Petitioners argue that the arrangements established in the Surrogacy Law and the Eggs Donation Law, which bar them from performing the medical procedure where Liat’s fertilized eggs would be implanted in Dana’s body are arrangements that violate Liat’s right to be a genetic parent and which discriminate against her and Dana compared to other couples. In this context, the Petitioners raise arguments on a constitutional level and on an interpretive level challenging the provisions of the laws mentioned above, and in essence they argue that there is no public interest that must be protected and that justifies barring them from the possibility of conducting the medical procedure which they wish to go through.

To the extent that the petition concerns the Surrogacy Law, the Petitioners argue that the definition of the term “intended parents” in this law as “a man and a woman who are a couple,” is discriminatory and unconstitutional because it does not recognize same sex couples or single people as intended parents for purposes of surrogacy in Israel. The Petitioners rely here on a decision from 2002 in the New Family case, where it was noted that the definition of “intended parents” in the Surrogacy Law violates the principle of equality because it denies a woman who does not have a male partner the possibility to be an “intended mother.” The Petitioners argue that although in the New Family case the Court refrained from striking down the arrangements in the Surrogacy Law, but they believe this was only because the Surrogacy Law was a new statute at the time and because the experience necessary for its way of implementation was yet to be amassed. The Petitioners additionally argue that in the years that passed since the Surrogacy Law was enacted there have been developments in the willingness to recognize “nontraditional families” including same sex families raising children. They claim there is no relevant justification for differentiating between such families and heterosexual couples in terms of surrogacy procedures in Israel. The Petitioners add that the holding in New Family as to the unjustified discrimination created by the Surrogacy Law, creates an estoppel by record in our matter. In relying on the Mor Yossef Committee report, the Petitioners also argue that this report includes a recommendation to expand the circle of those eligible to conduct surrogacy procedures to include unmarried women or women who cannot carry a pregnancy due to a medical condition, and they argue that Liat falls under this recommendation. The Petitioners further argue that many of the concerns involved in the surrogacy process, including the surrogate’s distress after the birth and the concern over her exploitation, do not exist in this case since Dana – who is to serve as surrogate – is the “other half of the family unit into which the child would be brought.” The Petitioners add that striking down the definition of “intended parents” in section 1 of the Surrogacy Law would allow applying the law’s provisions to them, and this although the connection between surrogate carrying the pregnancy and the child would not be severed after birth. In this context the Petitioners note that the Surrogacy Law does not establish a requirement of disconnection between the surrogate and the child and that the separation required is from the “intended parents” and the “carrying mother” is a “secondary aspect” which serves a “secondary purpose” that is irrelevant to their extraordinary case.

As to the Eggs Donation Law, the Petitioners claim that this law was designed to regulate eggs donation while protecting the dignity, rights, and health of the donor woman and the recipient woman and to prevent trade in  eggs. The Petitioners emphasize that the eggs donation in their desired route is not expected to infringe upon any public interests or rights that the law was meant to protect. They also emphasize the case law whereby the State must not intervene in intimate events such as the decision whether and how to bring children into the world. The Petitioners add that the medical procedure they wish to undergo is the only one that ensures Liat can realize her right to parenthood in a way that allows for a genetic relationship with the child, and according to them since there is available suitable technology that enables her to realize that right on one hand and on the other there are no weighty considerations that justify it, they should not be barred from the option they wish to pursue. The Petitioners argue that the requirement of section 11 for the recipient woman’s “medical need” violates their right to parenthood and is inconsistent with the legal state that existed before the Eggs Donation Law was passed, whereby a female couple was permitted to donate eggs to one another. In this context, the Petitioners rely on Attorney General M. Mazuz’s guidelines from 2009 on the issue of eggs donation between a female couple (hereinafter: the Attorney General’s guidelines,) where it was noted that the eggs donation between a female couple must not be seen as an act that is violates the public policy and it must be permitted where appropriate. The Petitioners note that had they wished to do the opposite – that is, to extract Dana’s eggs, fertilize them and implant them in Liat’s uterus – the restriction in section 11 of the Eggs Donation Law would not have been an obstacle because, as noted, Liat suffers from a medical condition that prevents her from becoming pregnant and carrying a pregnancy with her own eggs. Therefore, in their view, their unique situation warrants a remedy that compels the statutory exceptions committee to discuss their request and to approve it. The Petitioners further argue that the Eggs Donation Law must be interpreted in a way that permits them to perform the desired procedure, or alternatively to strike down the exception in section 11 of the Eggs Donation Law. Moreover, the Petitioners maintain that, at the very least, the term “in a carrying mother” which appears in section 11 of the Eggs Donation Law must be deleted from the text, as – under their reading – it limits the implementation of the law’s provision in their case because it folds into it the discriminatory definition of “intended parents” from the Surrogacy Law.

13. The State argues, on the other hand, that though the sincerity of the Petitioners’ desires to realize their right to parenthood in the particular way they wish to follow, the Petition must be denied for lack of cause to intervene in the manner in which the relevant statutory provisions have been interpreted, as well as a lack of constitutional cause to strike down any of them. The State emphasized in its arguments that the Petitioners claims were made generally and that they did not point out to the specific constitutional rights that they maintain have been violated by the laws at the center of this Petition. Further, the State argues that the Petitioners have not proven the existence of an infringement at the core of the right to parenthood and have not shown why they should be permitted to exercise this right particularly in the one and only manner they desire and not in any other way.

That State also maintains that the procedure the Petitioners wish to perform attempts to create a new arrangement of what it terms as “genetic biological co-parenting” that does not at all fit the surrogacy institution as regulated in the Surrogacy Law, and thus the provisions of the Surrogacy Law cannot be applied to it. In this context, the State argues that at the foundation of the arrangements established by the Surrogacy Law is the separation between “the intended parents” and the “carrying mother” who enter into an agreement to carry embryo, as well as severing the relationship between the birthing woman and the child after the birth. However, the State further argues, Dana – who will serve as the carrying mother, according to the Petitioners’ request – is one of the intended mothers and there is no anticipated severing of the relationship between her and the child after the birth. The State claims that recognizing a surrogacy route under these circumstances may open the door for recognizing the surrogate as the mother of the child for all intents and purposes, which threatens the system of balances established in the Surrogacy Law and might harm in the future the child’s best interest and other interests. The State adds that the basic premise of the Surrogacy Law regarding the separation and severance as mentioned were at the basis of the opinion in New Family as well as at the basis of the Mor Yossef Committee’s recommendations, and thus the Petitioners cannot rely on these sources for supporting their position. The State maintains that even should the term “intended parents” be struck out of the Surrogacy Law for being unconstitutional, this would not assist the Petitioners, because their matter does not fall under the Surrogacy Law’s provisions to begin with. Beyond the necessary scope, the State argues that the proposal to change the term “intended parents” in the Surrogacy Law is now under consideration of the relevant bodies in the executive authority in preparation of bringing it before the Knesset. The State believes that completing the work of the implementation team and the legislature’s expected consideration of the amending the Surrogacy Law also support a restrained approach from the Court in terms of intervening in the provisions of the Surrogacy Law at this time.

As for the arguments raised about the constitutionality of the Eggs Donation Law, the State maintains that this is a relatively new statute – enacted in 2010 – and thus the Mor Yossef Commission also refrained from directly considering its provisions. The State adds that there should be no intervention in the limit established in section 11, which conditions egg donation upon the recipient’s medical need. This condition, according to the State, is worthy, reasonable and proportional and reflects the view that “an egg is not a ‘commodity’ – it cannot be traded, and considerations of autonomy and free will, in their ordinary sense, do not apply to it.” The State emphasizes that the “medical need” is a relevant characteristic of the Eggs Donation Law which is meant to protect the woman’s health, to ensure the child’s best interest, and to prevent the possibility that the mechanism of eggs donation would be used, for instance, due to the parents’ desire to have a “high-quality” child in the genetic sense. Therefore the State believes that should we hold that the arrangement in section 11 of the Law infringements upon any fundamental right, then this infringement meets the requirements of the Limitations Clause and it should not be struck down. The State further argues that the Petitioners’ request to require the exceptions committee to consider their matter is contrary to sections 20-22 of the Eggs Donation Law, which limits the discretion of the exceptions committee to limited cases and this is not one of them. The State also argues that accepting this argument would lead to a significant expansion of the exceptions committee’s authorities, against the instructions of the law provisions and against the legislature’s purpose that explicitly avoided granting the exceptions committee more extensive authorities, though according to the bill such a proposal was before it. The State further maintains that the Attorney General’s guideline from 2009 was issued under different circumstances than those arising in this case, and in any event, with the legislation of the Eggs Donation Law a comprehensive legislative response was provided to the issue of the eggs donation, which should not be strayed from. Furthermore the State argues that striking out the words “in a carrying mother” from section 11 of the Eggs Donation Law would not be of assistance to the petitioners and it may create uncertainty as to the possibility of women who received an eggs donation to implant them in a surrogate. Finally, the State claims that this case raises complex precedential issues in the area of fertilization and birth and as such it is best left to the Legislature, who is charged with developing clear rules according to social standards and broad policy considerations.

14. The Knesset, which was joined to the Petition in its amended version, concentrated its response on the constitutional arguments that the Petitioners raise and joined the State’s position in noting that these claims were made by the Petitioners in general and without meaningful substantiation; that the issue of fertilization and birth is a sensitive and complex issue that is best regulated by the Legislature; and that providing a singular solution to the Petitioners’ plight may threaten the stability of the comprehensive arrangement established in the relevant laws. Like the State, the Knesset, too, believes that there is no place to consider the arguments by the Petitioners in terms of the Surrogacy Law because the medical procedure they wish to perform does not fall under surrogacy and thus their arguments in this context – even were they to be accepted – to assist them. Furthermore, the Knesset argues that the Court should not currently intervene in the Surrogacy Law’s provisions because recommendations as to their amendments are on the Government’s agenda in preparation of bringing them before the Knesset.

In the Knesset’s approach, the constitutional protection at the base of the right to parenthood goes to the core of the right – that is the ability to bring children into the world – rather than in realizing the right in a particular way. Therefore, the Knesset argues that a healthy woman like Dana, who is able to realize her parenthood by using her own eggs, cannot be viewed as a holder of a constitutional right to receive an eggs donation in order to be pregnant by another woman’s eggs. The Knesset adds that although there is no “moral objection” to the route which the Petitioners wish to follow, the concern about striking down section 11 of the Law stems from the mere risk in the Court’s intervention in primary legislation in a way that may harm the system of balances between the branches of government in general and the delicate balances involved in the issue of eggs donation in particular. It was also argued that the restriction in section 11 of the Eggs Donation Law does not violate the right to equality, because it creates a reasonable and logical distinction that achieves the purpose of the law that is providing a solution to the recipient woman’s fertilization problems. In any event, the Knesset believes that the purpose of the requirement for medical justification established in section 11 is worthy and consistent with other legislative arrangements in the area of fertilization and birth; that this is a relatively limited restriction that requires that the recipient have some medical condition that warrants the use of another woman’s eggs in order to have a child (rather than specifically a medical condition that prevents her from becoming pregnant by her own eggs); and that the restriction goes to the fringes of the right to parent rather than its core. The Knesset argues further that the section that authorizes the exceptions committee to exercise the provisions of the Eggs Donation Law is not a “blanket section” but a limited section that accurately defines the scope of the committee’s powers. In this contest the Knesset emphasizes that the Eggs Donation Bill originally included a broader exceptions section which was eliminated. In light of all this, the Knesset believes that the order nisi must be revoked and that the petition must be denied.

Discussion

15. The case before us raises human concerns of the highest order, and it again highlights the existing gap between technological advances and the welcome existing medical abilities in the area of fertilization and birth – which enable couples and single people around the world to realize their hearts’ desires and bring children into the world – and between the slow development of the law which trails behind them attempting to establish proper rules for their regulation (on the law’s trailing behind scientific advances and changing social perceptions, see in similar context: HCJ 5785/03, Gadvan v. The State of Israel, The Ministry of Health, IsrSC 58(1) 29, 34 (2003); HCJ 4077/12, Jane Doe v. The Ministry of Health , para. 2 of Justice E. Rubinstein’s judgment and paras. 33-32 of Justice D. Barak-Erez’s judgment (February 5, 2013) (hereinafter: the Jane Doe case); the New Family case, p. 459-60; HCJ 566/11, Magad v. The Ministry of Interior, para. 4 of Justice E. Arbel’s judgment (January 28, 2014) (hereinafter: the Magad case); see also and compare CFH 6407/01, Zahav Channels and Partners v. Tele Event Ltd., IsrSC 58(6) 6, 22-28 (2004); CA 9183/09, The Football Association Premier League Limited v. John Doe, para. 6 of Justice N. Hendel’s judgment (May 13, 2012); LCA 3810/06, I. Dory and Chicovski Construction and Investments Ltd. v. Goldstein, IsrSC 62(3) 175, 196 (2007); Dan Shinman, A Defense Attorney’s View of the Reliance Defense, The Or Book – A Collection of Essays in Honor of Justice Theodore Or 507, 510-12 (Aharon Barak, Ron Sokol and Oded Shaham, Eds., 2013.))

From the outset, I will then say that the complex case before us, underscores the need that modern pieces of legislation that wish to comprehensively regulate such central aspects of people’s lives such as the issue of fertilization and birth, and that when they establish a blanket criminal prohibition against conduct that is inconsistent with them,  also include a built in mechanism that allows the competent authority designated to do so under the arrangement, to examine and approve on a case by case instances that are exceptional and out of the ordinary. This is because reality often surpasses the imagination and the goal to provide a complete, comprehensive and rigid solution in legislation that inherently cannot fully anticipate all the possible variations in the regulated context, may turn positive and law abiding people into criminals, without this serving any public interest and without it advancing the realization of the purpose that stands at the foundation of the discussed statutory arrangement.

16. Liat’s desire to bring a child into the world from her own eggs has not diminished even after the difficult fertilization treatments she had gone through for years. Liat wishes, therefore, to take the last step that may enable her, hopefully, to bring a child who would carry her genetic background into the world. This route is using her eggs through their extraction, fertilization and implantation in Dana’s body, her partner for about a decade. This is a process that involves a complex medical procedure, which is mostly to take place in the bodies of the partners who desire it. The Respondents confirmed in their arguments that the procedure they wish to perform does not elicit any “moral objection.” Still, it is currently prohibited under both the Surrogacy Law and the Eggs Donation Law that even set a criminal sanction to those violating such prohibition. In other words, the extraction of Liat’s eggs, their fertilization and their implantation in Dana’s body is caught in the net of the prohibitions included in the above statutes and may implicate all the people involved (including the attending physician) in criminal offense, only because of the broad and extensive language of these provisions and without an actual violation in the case at hand of any interest which these statutes are designed to protect.

Under these circumstances, it is appropriate to grant the Petitioners any of the remedies they seek?

The Surrogacy Law

17. In their amended petition, the Petitioners wished to find a solution within the institution of surrogacy or alternatively through eggs donation. From the reasons detailed below, I believe that the legal discussion ought to center around the Eggs Donation Law, both because it is clearly the piece of legislation that bars the Petitioners from executing their plan, and because the surrogacy path inherently is unsuitable for their matter.

The obstacle facing the Petitioners in terms of surrogacy is twofold: first, the Petitioners (either of them and both of them together) do not meet the definition of “intended parents” as established in the Surrogacy Law and thus are not eligible to take this route in Israel. Second, it is seriously doubtful whether under the circumstances surrogacy fits their wishes.

The definition established in section 1 of the Surrogacy Law, whereby “intended parents” are: “A woman and a man who are a couple” raises considerable constitutional difficulties, some of which this Court discussed in New Family case (see the position of then Justice M. Cheshin, which was joined by most of the members of the extended panel adjudicating that petition.) The Court noted that this definition unjustifiably discriminated against “single” women compared to a man and a woman who are a couple (there, p. 455-56.) And yet, I see no reason to address in further detail the constitutionality of this definition because it seem that currently real steps are being taken in order to change it, including as a result of the criticism over the Law’s provisions expressed in the decision given in the New Family case (for a critique of the Court’s unwillingness to strike down this definition as early as 2002 in New Family, see Dafna Haker, Beyond ‘Old Maid’ and ‘Sex and the City’: Singlehood as an Important Option for Women and Its Treatment in Israeli Law, Iyunei Mishpat 28, 903, 941-43 (2005); see also HCJ 1078/10, Pinkas v. The Board for Approval of Embryo Carrying Agreements , (June 28, 2010) where the Petitioners withdrew their petition challenging this definition in light of the convening of the Mor Yosef Committee.) As has already been noted, in May 2012 the recommendations of the Mor Yosef Committee, which was appointed by the Director General of the Ministry of Health, were published. The recommendations include a concrete proposal to change the definition of the term “intended parents” to also include an unmarried woman who has a medical condition that prevents her from carrying a pregnancy. Additionally, the commission recommended establishing another route for surrogacy in Israel, which would afford access to surrogacy to men without female partners as well. As reflected from the State’s arguments, the Mor Yosef Committee’s recommendations were passed onto an implementation team established for such purposes in the Ministry of Health, and the fruits of the implementation team’s labor were recently submitted to the Minister of Health in order to process them into a bill for amending the legislation that would be brought before the Knesset. It should also be noted that the 18^th Knesset is also considering the Agreements for Carrying Embryo Bill (Amendment – Intended Parents), 5772-2012 (P/18/4266), which aims to amend the definition of the term “intended parents” to include also “a woman and a woman or a man and a man” (for additional recent developments on this issue see the Memorandum regarding the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child) (Amendment – Definition of Intended Parents and Executing Agreements out of Israel), 5774-2014, which was approved by the Committee of Ministers for Legislative Matters on March 2, 2014). In light of these developments, it seems that to the extent that the Petitioners are faced with obstacles due to the existing definition of “intended parents” in the Surrogacy Law, the Legislature must be allowed to exhaust the legislative processes and we must refrain at this point from judicial intervention in the Surrogacy Law’s provisions (on the self-restraint that binds the Court when asked to intervene in ongoing legislative processes, see and compare: CFH 5161/03, E.S.T Projects and Human Resources Management Ltd. v. The State of Israel, IsrSC 60(2) 196, 206 (2005); HCJ 761/86, Miaari v. The Speaker of the Knesset,  IsrSC 42(4) 868, 873-74 (1989)).

18. However, as noted, even had the Surrogacy Law’s definition of “intended parents” been amended – whether by legislation or by judicial intervention – I seriously doubt whether the institution of surrogacy is the appropriate pate to execute and realize the process which the Petitioners seek (see: Ruth Zafran, There Are Also Two Mothers – The Definition of Motherhood for A Child Born to Same-Sex Female Couples, Din U’Dvarim 3 351, 366-67 (2008) (hereinafter: Zafarn)). This is because as opposed to the well-known and acceptable path of surrogacy which the Surrogacy Law also lays out according to which the relationship between the surrogate and the child is severed upon birth, in our matter Dana (the “carrying mother”) is expected to continue and raise the child alongside Liat (the “intended mother”) as she is, as the Petitioners put it, “the other half of the family unit into which the child would be brought.” The State and the Knesset emphasized in their arguments that the issue of severing the parenting link between the surrogate (as the “carrying mother”) and the child after birth is a central aspect of the arrangements established by the Surrogacy Law. I accept their approach that without this severance it would be incorrect to see the route the Petitioners wish to take as a surrogacy process. Though the Surrogacy Law regulates the exceptional cases where the court may approve the surrogate’s withdrawal from the surrogacy agreement into which she had entered, while establishing her status as mother and guardian over the child (see section 13 of the Law,) but these cases are irrelevant to our matter, which to begin with does not fit any of the characteristics of the institution of surrogacy, in light of the Petitioner’s declared intentions to raise the child together in the family unit they started.

As I have found that the surrogacy path is not the right path to examine the Petitioners’ claims, this means that should my opinion be heard, the Petition ought to be denied in terms of section 1 and 2 of the issued order nisi.

The Eggs Donation Law

19. The Eggs Donation Law creates different obstacles for the Petitioners. Under section 11 of the Law, a woman who has a medical condition that prevents her from becoming pregnant with the eggs in her body or any other medical condition that justifies using the eggs of another woman in order to have a child is entitled to submit a request to receive an eggs donation. The Eggs Donation Law also stipulates that a child born as a result of an egg donation would be the child of the recipient mother for all intents and purposes, and that the donor woman would have none of the authorities granted parents vis-à-vis their children (section 42 of the Law.) Therefore a woman needing an eggs donation is, as a general rule, a woman who cannot become pregnant by her own eggs because of fertility difficulties or a woman who fears passing on a genetic defect to her children (see Zafran, p. 362.) The woman who donates the eggs does not take, as a general rule, any part of raising the child carried by the recipient woman.

In our case, the Petitioners wish to use a “donation” due to a medical condition that the donating woman (Liat) has, rather than the recipient woman (Dana). This is coupled by the fact that they are a couple who wishes to raise together the child whom they bring into the world together, so that it has genetic ties to one of them and biological ties to the other. As we can see, Dana and Liat do not meet the requirements in the Eggs Donation Law and thus the prohibition in section 4(a) of the Eggs Donation Law, which mandates that “no one shall perform the extraction of eggs from a donor […] or the implantation of eggs, unless according to the provisions of this Law” applies to them, along with the criminal sanction set in section 41 of the Law which can be expected by anyone violating the Law’s provisions.

The Background for The Eggs Donation Law’s Legislation

20. As noted above, the case before us is not the first case where the Ministry of Health was requested to allow a female couple to bring a child into the world via egg donation from one female partner to the other. Indeed, in July 2006, T.Z. and N.Z., a female couple, approached the legal advisor of the Ministry of Health with a request to approve a medical procedure whereby the eggs of one of them (T.Z.) be extracted, fertilized and implanted in the uterus of the other (N.Z.) who has reproductive difficulties (the facts of the case were detailed in FA (Tel Aviv) 60320/07, T.Z. v. The Attorney General – State Attorney, District of Tel Aviv (March 4, 2012) (hereinafter: the T.Z. case,) where the court discussed a motion to establish the legal motherhood of the egg donor.) The case took place before the legislation of the Eggs Donation Law, and therefore the relevant legislative framework for examining the request was mainly the Fertilization  Regulations and regulation 4 there (in its version then) which prohibited extracting eggs from a woman who is not undergoing medical treatment for fertility difficulties. Despite such prohibition, as described in the decision in T.Z., the couple’s request was accepted by attorney Hibner-Harel, as following:

“We do not see any bar for performing the medical procedure mentioned in your letter. The Regulations require that egg be extracted from a woman who is undergoing medical treatment for infertility, however considering that you and your partner are a family unit – I believe it is sufficient that the fertility treatments are a result of a fertility difficulty of both of you, even if it is not the woman from whom the egg is extracted” (there, paras. 3 and 26.)

Therefore, the Ministry of Health has accepted the request from the female couple to extract eggs from T.Z. even though she did not go through fertility treatments because it considered the couple a family unit and thus was satisfied by the fact that one of them had fertility difficulties. As a result of this position of the Ministry of Health, in that case the necessary medical procedure was performed in September 2006 and in June 2007 the minor D.Z. was born. The case received wide publicity (see Zafran, p. 352) and consequently in July 2008 and April 2009 two additional requests were received by the legal advisor of the Ministry of Health from female couples who wished to be permitted to donate egg to one another. In light of the issue’s sensitivity it was decided to bring it to then Attorney General M. Mazuz and in a discussion held in the matter on September 6, 2009 the Attorney General decided that “where a donation between a female couple is concerned […] this must not be seen as an act that violates public policy, and the donation must be permitted” (see document dated November 24, 2009, entitled “Discussion Summary – Eggs Donation between Female Partners,” Annexure R/4 of the State’s response dated November 12, 2012.) Still, and given that regulation 4 of the Fertilization Regulations establishes an exclusive procedure for extracting eggs, it was decided that it was impossible to permit extracting egg from a woman who does not meet the requirements of the regulation – that is, that is not under medical treatment for fertility difficulties. The Attorney General added that the current legal situation is unsatisfactory and that there are additional circumstances that would justify eggs donation that are out of the regulation’s scope. The Attorney General also noted that the Eggs Donation Bill, which was already being contemplated, must be advanced.

21. Prior to the legislation of the Eggs Donation Law, then, at least one case of an egg donation between women partners was permitted, and this was since the Ministry of Health considering the couple a family unit that merited accepting their request in light of the circumstances of their shared lives. In addition the Attorney General noted that such donation must not be seen as an infringement of the public policy, and called upon the legislature to make an effort to advance the Eggs Donation Bill and through it resolve such cases as well. And indeed, after the Eggs Donation Bill 5767-2007 had passed in the Knesset at first reading, the Knesset’s Labor, Welfare and Health Committee took its time between 2008-2010 and poured over different proposed languages for the provisions. The Bill included, among others, different conditions which only when they are met it was possible to receive an eggs donation. They included presenting a “medical need” by the recipient; expanding the circle of donors to include also “volunteer donors” not receiving fertility treatments; and establishing the exceptions committee authorized to approve donations even if certain conditions detailed in the law were not met. On the latter, section 18 of the Bill stipulates:

“Approval in Exceptional Cases:

18. When any condition of the conditions for approving the extraction of eggs, approving the allocation of eggs or approving the implantation of eggs under sections 12, 14 or 16, respectively, are not met but the supervising physician believes there are exceptional and unique circumstances that merit the approval even without that particular condition, the physician may approach the exceptions committee with a request to secure such approval.”

And section 21 of the Bill, which addresses the exceptions committee’s authorities and the scope of its discretion, instructs generally as follows:

“Approval by the Exceptions Committee

21. […]

(e) The exceptions committee may approve the extraction of eggs, allocation of eggs or implantation of eggs, per the request of a supervising physician under section 18, should it believe that under the circumstances there are exceptional and unique reasons to justify doing so.”

The explanatory notes to the Bill addressed these sections and noted that they were designed to allow the exceptions committee to consider an eggs donation even with the different conditions detailed in the law are not met “in cases that justify doing so and that are impossible to anticipate in advance, and without this requiring an amendment to the law.” The Ministry of Health’s legal advisor, Adv. M. Hibner-Harel had even explained the need for sections 18 and 21(e) above to the members of the sub-committee that was convened in order to supervise the Bill’s advancement, saying that:

“[…] I would like there to be some section for an exit strategy. There are things in life that I don’t anticipate today. I would like to qualify this exit section. I’m not here to climb mountains or to start revolutions, but I need a section because of the problems I see in the course of my position, because of problems that we did not anticipate in the legislation and then I have do diverge from the law and from the courts notes, but we do it because it must be done” (see minutes of meeting Labor, Welfare and Health Sub-Committee for Supervising the Eggs Donation Bill, 5769-2008, dated November 3, 2008, p. 47.)

Some of the members of the sub-committee expressed their concern that these sections would make circumventing the other conditions in the law possible, and after discussing the necessity of the above “basket sections” the mentioned  sub-committee members decided to remove them from the Bill noting that “this could be left to the courts.” This followed comments by Rabbi Dr. Mordechai Halperin, representative of the Ministry of Health’s Bioethics Committee, who told the committee members that:

“It is better to remove section 18 and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is explicitly in violation of the law” (there, p. 50-51.)

And in the exchange between the sub-committee chair, Member of Knesset A. Eldad and Rabbi Halperin, it was also said:

“Chair Aryeh Eldad: The court cannot act in violation of the law. Maybe we should add here a basket provision that authorizes the court to act as an exception of an exception.

[…]

Mordechai Halperin: But this does not to be written. The court does this anyway, regardless of a basket section. So we do not need it.” (There, p. 49.)

22. This puzzling and mistaken reasoning is that lead to the removal of the said “basket” sections from the Bill and as a result the Eggs Donation Law, which was passed in 2010, was left without a flexible route to allow considering exceptions from the law’s requirements in the unique cases that may not be anticipated in advance, including, for instance, a case such as the one before us where the recipient has no “medical need” for the eggs donation but there are other reasons that justify permitting the donation. The language of the law in the version that passed allows the exceptions committee limited authority that was restricted only to the cases detailed in section 20(a) of the law and only when the conditions detailed in section 22 of the law are met for each of those instances. The Petitioners’ case is not among those detailed there and thus they cannot find a solution in turning to the exceptions committee.

Do the law’s provisions in their current state violate the constitutional rights of the Petitioners to an extent that merits judicial intervention?

The Eggs Donation Law’s Violation of Constitutional Rights

23. Since the legislation of Basic Law: Human Dignity and Liberty in 1992, Israeli law had identified a string of basic rights from the right to dignity, including: the right to equality, to autonomy, to family life, to parenting and to free expression. Do the provisions of the Eggs Donation Law infringe upon the Petitioners’ basic right to dignity and its derivative rights? This is the first question that must be examined in order to exercise judicial review over the law’s constitutionality. To the extent that we find the answer to be in the affirmative, we must continue and examine whether this infringement meets the requirements of the Limitations Clause of section 8 of Basic Law: Human Dignity and Liberty, and which outlines the scope of protection granted to these basic rights, as relative rights. Finally, to the extent that we may find the infringement by the Eggs Donation Law upon the Petitioners’ basic rights to violate the Limitations Clause the consequences of this unconstitutionality must explored, along with ways to cure it (for the three step constitutional analysis and the relativity of constitutional rights, see HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset, IsrSC 61(1) 619, 669-670 (2006); HCJ 7052/03, Adalla – Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Interior, IsrSC 61(2) 202, 281-82 (2006) (hereinafter: the Adalla case); HCJ 10662/04, Hassan v. the National Insurance Institute of Israel, para. 24 of President D. Beinisch’s judgment (February 28, 2012) (hereinafter: the Hassan case); HCJ 7146/12, Adam v. The Knesset, paras. 68-69 of Justice E. Arbel’s judgment (September 16, 2013); Aharon Barak, Proportionality in Law – the Infringement of a Constitutional Right and its Limits, 51-53, 56-57 (2010) (hereinafter: Barak, Proportionality)).
24. The Eggs Donation Law prohibits, as discussed, the Petitioners by criminal sanctions from performing egg extraction from Liat’s body and implant that same egg in Dana’s uterus after it has been fertilized. Does this amount to a violation of the Petitioners’ constitutional rights?

The right to autonomy which encompasses one’s right over their body is at the “hard core” of the constitutional right to dignity (see CLA 1412/94, The Hadassah Medical Organization Ein Kerem v. Gilad, IsrSC 49(2) 516, 525 (1995); CA 2781/93, Daaka v. “Carmel” Hospital, Haifa, IsrSC 53(4) 526, 571 (1999) (hereinafter: the Daaka case); CA 10064/02, “Migdal” Insurance Company Ltd. v. Abu Hana, 60(3) 13, 48 (2005); CA 4576/08, Ben-Zvi v. Hiss, para. 25 of Deputy President E. Rivlin’s judgment (July 7, 2011); CA 10085/08, Tnuvah – Co-operational Center v. Estate of Raabi, para. 33 (December 4, 2011); CA 1303/09, Kadosh v. Bikur Holim Hospital, para. 31 (March 5, 2012.)) So, for instance, in Daaka it was decided that the basic right to autonomy over one’s body means that the patient’s informed consent is necessary in order to perform any medical treatment on them, and as Justice T. Or wrote there:

“This right of a person to determine their life and fate holds within it all the central aspects of their life – where they may live; what may be their occupation; who they may live with; what they may believe. It is central to the existence of each and every individual in society. It expresses the recognition of each and every individual’s value as a world unto themselves. It is essential to each individual’s self-determination in the sense that the entirety of our choices defines our personality and our life […]

An individual’s right to autonomy is not exhausted  in this narrow sense, of the possibility to choose. It also includes another aspect – a physical one – of the right to autonomy which goes to one’s right to be left alone […] This right means, among others, that every person must be free of intervention in their body without their consent” (there, p. 570-71.)

Justice H. Ben-Ito discussed the autonomy a woman has over her body in terms of intimate decisions involving reproduction and birth, in CA 413/80, Jane Dow v. John Doe, IsrSC 35(3) 57, 81 (1981), as follows:

“Impregnation, pregnancy and birth are intimate events, which are wholly within the private sphere; the State cannot intervene in this area unless there are weighty considerations stemming from the need to protect an individual right or a serious public interest” (and see also CA 1326/09, Hamer v. Amit, para. 71 of Deputy President E. Rivlin’s judgment (May 28, 2012.)

Regulating the area of eggs donation in legislation that establishes what may or may not be done with a woman’s eggs, therefore, on its face infringes a woman’s autonomy to determine what may be done with her body. From the donor’s perspective, this is an intervention in her ability to realize her wishes to donate an egg to another woman. From the recipient’s perspective this is an intervention in her ability to receive in her uterus a fertilized egg and to carry the resulting pregnancy. The law infringes, then, upon the liberty of these two women to choose how they lead their lives free of any external intervention in decisions involving their bodies (see Meir Shamgar, Issues of fertilization and Birth, Hapraclit 39 21, 27, 31-32 (1989)). However, one’s autonomy over their body and the liberty to make decisions involving the body are not absolute rights, and as any other right they must be balanced against conflicting rights or limited in some instances. Therefore, as to the extent that infringing upon the Petitioners’ autonomy is concerned, it is necessary to go on and examine whether this infringement meets the requirements of the Limitations Clause.

25. An additional right is infringed under the circumstances  and it is also a derivative of the constitutional right to dignity. It is the Petitioners’ right to a family life and to designing their family unit as they choose (see CA 5587/93, Nahmani v. Nahmani, IsrSC 49(1) 485, 499 (1995); CA 7155/96, John Doe v. The Attorney General, IsrSC 51(1) 160, 175 (1997); the Adalla case p. 296, 400, 465, 474, 496-97, 523; HCJ 466/07, MK Zehava Galon – Meretz-Yahad v. The Attorney General, para. 10 of Justice E. Rubinstein’s judgment (January 11, 2012); Yaniv Ron-El, The Limits of Fertility Freedom from a Liberal Perspective: the Case of Selecting the Child’s Sex, Iyunei Mishpat 32 391, 451 (2010) (hereinafter: Ron-El)). Justice A. Procaccia discussed the right to family life in HCJ 7444/03, Dakka v. The Minister of Interior, (February 22, 2010) saying:

“One’s right to family is one of the foundations of human existence. Its realization is required for fulfillment and purpose in life. It is a condition to one’s self-realization and their ability to tie their life to their partner and to their children in true partnership of fate. It reflects the essence of one’s being and the realization of their heart’s desires. The right to family is located at the top of the list of human rights. Taking away from this right is possible only where it conflicts an opposing value of special force and importance” (there, para. 15.)

The Petitioners wish to have a child together and to expand their family unit. Such a meaningful decision by a couple that goes to having children expresses in full force not only the Petitioners right to autonomy but also their right to family life. In this case the right to family life encompasses an additional important right, which is the right to parenthood (see CA 451/88, Does v. The State of Israel, IsrSC 44(1) 330, 337 (1990); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 719 (1996) (hereinafter: the Nahmani case); HCJ 2245/06, Dovrin v. Israel Prison Service, para. 12 (June 13, 2006); The Jane Doe case, paras 26-27 of Justice E. Rubinstein’s judgment; The Magad case, para. 41 of Deputy President M. Naor’s judgment; Pinhas Shifman Family Law in Israel vol. 2 139 (1989); Yossi Green In Vitro Fertilization From A Consent Perspective 66 (1995) (hereinafter: Green.))

There are those who consider the right to parenthood to be the meaning of life, but even if this approach is not universally accepted, it seems the right to parenthood cannot be overstated (see Vardit Rabitzki, The Right to Parenthood in the Age of Technological Fertilization, Dilemmas in Medical Ethics 137, 145-147 (Rephael Cohen-Almagor, ed. 2002) (hereinafter: Rabitzki); on the “reproductive freedom” included within the right to parenthood, see Shulamit Almog and Ariel Bendor, Reproductive Freedom as a Basic Right, A Different Kind of Pregnancy 115, 116-17 (Shulamit Almog and Avinoam Ben Zeev, eds. 1996) (hereinafter: Almog and Bendor); the right to parenthood is also mentioned in section 16 of the United Nations’ Universal Declaration of Human Rights from 1948 (“Men and women of full age, without any limitations due to race, nationality or religion, have the right to marry and to found a family”) as well as in other declarations or treaties, see: Almog and Bendor, p. 117; Rabitzki, p. 137-38; the Adalla case p. 470-73.) Indeed, the desire for parenthood follows humans since the dawn of history and scholar P. Shifman notes that while in the past the ability to bring children into the world was in the hands of fate, one of the characteristics of the modern age is that fulfilling such desire is subject to a large extent to one’s choice and free will (see P. Shifman, On the New Family: Notes to Start A Discussion, Iyunei Mishpat 28 643, 661 (2005)).

Professor D. Barak-Erez discussed the statues of the right to parenthood, noting:

“The right to parenthood is an independent right, rather than a reflection of autonomy of free will. Realizing the option of parenthood is not just a possible way of life, but it is also rooted in human existence. Some may find it to be a cure for loneliness; others may use it to cope with awareness of death […] The choice of parenthood is not just a choice about a way of life – it has weight beyond this in human existence. It expresses a fundamental existential need. In addition, the decision to become a parent also solidifies self-realization, particularly in modern society that emphasizes self-realization as a value. However the right to parenthood does not only stem from self-realization. The right to life is an independent fundamental right, rather than merely a derivative of the autonomy of will, and so is the right to parenthood.” (Daphne Barak-Erez, On Symmetry and Neutrality: Following the Nahmani cases, Iyunei Mishpat 20 197, 199-200 (1996)).

In her emotional arguments before us, Liat expressed her desire to be a parent and to have a child who carries her genetic code, as well as the grave pain and frustration she experiences after years of unsuccessful fertilization treatments. All this led Liat to conclude that she will likely be unable to fulfill her wishes unless implanting her fertilized eggs in the uterus of another woman who would carry the pregnancy would become possible. The natural choice for this is of course her partner, Dana, who expressed her wishes to take part in the process as someone interested in expanding their common family unit in this way. In this sense the obstacles mounted by the Eggs Donation Law infringe Liat’s right to parenthood, whereas it seems this is a different level of infringement in terms of Dana’s right to parenthood.

26. Indeed, the case law and literature discussed the facets of the right to parenthood and have distinguished between the core of the right – such as the “practical ability to bring children into the world” – and facets that are at the periphery of the right – such as “one’s ability to choose how to exercise their natural right” (see the Jane Doe case, paras. 27-32 of Justice E. Rubinstein’s judgment and para. 11 of Justice D. Barak-Erez’s judgment; see also Ruth Zafran, The Range of Legitimacy in Choosing the Genetic Characteristics of the Child by the Parents – Choosing the Sex of the Child for Social Reasons as a Case Study” Mishpat V’Asakim 6 451, 460-61 (2007); Green, p. 68-69; Almog and Bendor, p. 118.) Categorizing each case along this distinction influences the force of the infringed right and the way the right to parenthood must be balanced against other rights and interests that relate to, for instance, the potential child’s best interest, the public interest, and the different requirements by the bodies participating in the reproductive process such as sperm donors, egg donors, doctors and treating institutions (see Rabitzki, p. 151-59). In this context, for example, in the Jane Doe case it was held that a woman’s wishes to bring children into the world who would all have the same genetic father by once more using the sperm donation of the same donor she used for her first child is not in the core of the right to parenthood and it must be balanced against the refusal of that same anonymous donor for additional uses of his sperm and against his right not to be a parent.

Therefore, the arrangement established in Eggs Donation Law which restricts extraction and implantation of eggs and prohibits through criminal prohibition performing these acts unless they meet the requirements in the law, infringes the Petitioners’ constitutional rights to autonomy, family life and parenting. As a result we must continue and examine whether this infringement meets the requirements of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty.

The Eggs Donations Law and the Requirements of the Limitations Clause

27. The Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty sets four conjunctive requirements that must be met in order to justify infringing upon a constitutional right that is protected by the Basic Law. The infringement must be done through legislation (or by explicit authorization in legislation); the law must fit the values of the State of Israel; it must be for a worthy purpose ; and the infringement of the right must be to extent not greater than necessary. In our case, there is no dispute that the infringement of the Petitioners’ rights is done through legislation – the Eggs Donation Law, and to the extent that this law is concerned the Petitioners have not argued in terms of its fit with the values of the State of Israel. It is possible, then, to focus the discussion in terms of the Limitations Clause on the question of the worthiness of the law’s purpose and the proportionality of its arrangements.

Worthy Purpose

28. Section 1 of the law states:

“The purpose of this law  is to regulate eggs donation for the purposes of reproduction and birth, while achieving maximum protection for the dignity, rights and health of the donor woman and the recipient woman, as well as to regulate the use of eggs for research purposes, all while protecting women.”

In stating so the law informs that it is designed to regulate the use of technology for extraction and implantation of eggs primarily for the purposes of reproduction, but also for the purposes of research. This purpose is of course worthy and welcome. It advances an important social causes and facilitates the realization of many women’s basic, natural and understandable desire for a child while using advance technologies developed in this field and that allow overcoming medical conditions and bringing children into the world (see minutes from meeting of the 17^th Knesset's Labor, Welfare and Health Committee, dated February 18, 2008, p. 5.) Still, it is important to remember that the legislative arrangement regarding eggs donation, like other legislative arrangements (see and compare: the Organ Implantation Law, 5768-2008) trails behind the technological advances that were achieved and have been implemented in medicine for many years before the law was legislated. The need for an arrangement was born, therefore, in order to establish what was and was not to be permitted in this complex and sensitive area in order for it not to remain open for exploitation by different bodies. This explains the emphasis at the end of section 1 that the law was meant to “regulate eggs donation for the purposes of reproduction and birth, while achieving maximum protection for the dignity, rights and health of the donor woman and the recipient woman (emphasis added.)”

Examining the purpose of the law must focus then on the rationales behind its various restrictions and prohibitions. The premise that must guide us in this examination is similar in its essence to the premise that then Justice M. Cheshin outlined in the New Family case when he discussed the Surrogacy Law:

“A main aspect of this human need – the need to exist and to survive – in a woman’s desire, a desire to the end, for a fruit of her womb, a child that is a flesh of her flesh. Previously, man knew only one way to realize this wish, and this is how the family unit was created. Currently, when technology may assist people where nature fails it, a material rationale is required in order to bar a woman from using this technology” (there, p. 447.)

In other words, the force of the reasons and rationales necessary to limit birth with the assistance of technology must essentially be on par with the force of the reasons and rationales required to limit natural reproduction (see Rabitzki, p. 149-51.)

Reviewing the restrictions and prohibitions established in the Eggs Donation Law indicates that they were meant, generally, to ensure the protection of the health of women involved in the process as well as the health of the child. The law was also intended to prevent trade in eggs and exploitation of women (see, for instance, section 12 and 14 of the Eggs Donation Law which set age limits for a “volunteer donor”, restrictions on the number of eggs that may be extracted each time and on the frequency of the extraction process; see also the prohibition on trading and mediations eggs established in section 8 and 9 of the law.) The restriction in section 11 whereby the eligibility for an eggs donation under the law is contingent upon the recipient being “unable due to a medical condition to become pregnant with the eggs in her body, or has another medical problem justifying using another woman’s eggs in order to have a child” was designed to prevent using fertilization and implantation technology for purposes which the legislature considers, and rightly so, as antisocial. This was discussed by scholar Ruth Zafran who noted that the condition in terms of the necessary medical condition of the recipient was meant to prevent using the eggs for eugenics reasons – that is, experimenting with “improving” the genes of the offspring (see Zafran, p. 362.) The resulting conclusion is that the arrangement established by the Legislature in the Eggs Donation Law was for a worthy purpose. Therefore we must further examine whether the means taken by the Legislature to achieve the law’s purposes are proportional.

The Proportionality of the Arrangement in the Eggs Donation Law.

29. The proportionality issue may be examined under three sub tests established by the case law. They are: the existence of a rational link between the chosen means and the desired end; a lack of a least restrictive alternative; and proportionality between the benefit achieved by the statute and its different arrangements and the harm caused by its virtue (see, out of many: HCJ 1715/97, Israel Investment Managers Guild v. The Minister of Finance, IsrSC 51(4) 367, 385-86 (1997); HCJ 3648/97, Stamka v. The Minister of Interior, IsrSC 53(2) 728, 776 (1999) (hereinafter: the Stamka case); HCJ 1661/05, Gaza Beach Regional Council v. Knesset of Israel, IsrSC 59(2) 481, 549-550 (2005) and the many sources there; HCJ 2442/11, Stanger v. Speaker of the Knesset, paras. 41-42 of President A. Grunis’ judgment (June 26, 2013); Barak, Proportionality, p. 169-72.)

The rational connection test is designed to detect the existence of the probability that the means chosen by the statutes would indeed lead to achieving the end for which it was enacted. Under this test it is not necessary that the statute ensures fully achieving that end, but it must point to a real link to accomplishing it. In my view, regulating the issue of eggs donation in Israel while imposing different limitations and prohibitions on the possibility to donate and receive eggs, including a criminal prohibition designed to deter and enforce these restrictions, may lead to achieving the purposes of the statute, as we described them above. The fact that as a result of a statute’s broad language the possibility of an eggs donation is prohibited even in cases that the law did not attempt to prevent, such as this case, cannot in and of itself sever the rational link between the prohibition and the purpose the law was meant to achieve (Barak, Proportionality, p. 376-78, 411-12.) The matter of the arrangement’s proportionality in light of the fact that its restrictions catch in their net cases where there is no concern for harming any of the interests the law wishes to protect, should therefore be explored under the second sub test which poses the question whether there is an alternative means to achieving the law’s purpose in a manner that is less restrictive.

30. Indeed, the tight knit net the law casts caught even the Petitioning couple’s heart desire, though it is undisputed that it carries no moral flaws and though it is universally clear that it does not harm any other individual or any of the social and public interests which the law wishes to protect. The Respondents raised many good reasons to justify the conditions and restrictions set by the Eggs Donation Law, but they cannot point even to one meaningful reason to justify preventing the Petitioners from going ahead with the extraction, fertilization and implantation procedure they wish to perform, apart from the fact that the law – due to is broad and expansive language – prohibits doing so. It should be emphasized that since we are concerned with the elimination of the Petitioners’ basic rights, the prohibition in the law is that which requires justification (see New Family, p. 444-45, 448-49) and given the force of the infringed rights and their nature as “negative rights” whose exercise does not impose on the state any duties (see Ravitzki, p. 141; Ron-El, p. 445-448), it seem the strength of the justification for the expansive means chosen, must meet a higher bar.
31. I am afraid that the fact that the Eggs Donation Law (as opposed to its Bill) does not authorize the exceptions committee it forms the general power to examine exceptional and unusual cases leads to the conclusion that the means established by the arrangements included in the law to realize the worthy purposes for which it was enacted, are disproportional and rigid and may cause – as was the case here – arbitrary harm to women whose right to use relevant assisted reproductive technology in order to have a child the law never intended to infringe.

The need to set an exceptions mechanism to allow the examination of particular cases that were impossible to anticipate in advance, particularly where the Legislature established an extensive arrangement that infringes upon basic rights, was discussed by this Court, among others, when analyzing the second sub test of the proportionality requirement in the Adalla case (and see also: HCJ 2150/07, Head of Beit Sirah Village Council v. The Minister of Defense, para. 5 of Justice E. E. Levi judgment (December 29, 2009); HCJ 10533/04, Weis v. The Minister of Interior, para. 43 (June 28, 2011); the Hassan case, para. 68 of President D. Beinisch’s judgment.) And in the words of President A. Barak:

“The exceptions mechanism may reduce the law’s infringement of rights, without compromising the achievement of the worthy purpose. Therefore, creating such a mechanism is an obvious outcome of the second sub test which addresses identifying a less restrictive alternative. Indeed, just as it is the duty of any administrative authority to exercise judgment on a case by case basis and to recognize the exceptions to the established rules and instructions when circumstances call for doing so […] so is it the duty of the Legislature, when setting an arrangement whose outcome is broad infringement of rights, to consider the establishment of an exceptions mechanism that would allow resolution in special cases when the circumstances justify it.” (The Adalla case, p. 329; see also Barak, Proportionality, p. 407-09.)

Although President A. Barak remained in the minority in Adalla, but it seems that on this particular issue, Deputy President (Ret.) M. Cheshin was of the same opinion as Barak (there, p. 455.) Then Justice M. Cheshin’s words as to the exceptions mechanism’s necessity from a different case are apt here as well:

“A policy lacking exceptions is like an engine without oil for lubrication. Just as the latter will burn out soon and stop operating, so is the fate of the policy.” (The Stamka case, p. 794.)

32. The Eggs Donation Law does include a mechanism to examine exceptions, but as was explained in detail above, the authority of this committee is limited and restricted to only four sets of circumstances, as detailed in sections 20 and 22 of the law. In my view this limited and narrow mechanism is insufficient because it does not at all resolve the unjustified infringement on the basic rights of women – such as the Petitioners or others – in those cases where they cannot all be anticipated in advance and do not fall under one of these four sets of circumstances.

To summarize so far – the law in its current version infringes disproportionately upon the rights of the Petitioners and other women whose circumstances are unusual and warrant resolution, and thus because of the limited and unsatisfactory mechanism the law sets to examine and approve exceptional cases. In the absence of a more flexible mechanism to explore exceptional cases that may not be anticipated in advance, the law is flawed for a lack of a proportional means, which is less restrictive on basic rights.

33. In light of this conclusion, there is no longer any need to discuss the third sub test – the narrow proportionality test. In this context I will note, beyond the necessary scope, that expanding the circle of donors, preventing the trade in eggs, and protecting the health of donating and receiving women certainly are important purposes that highly benefit society. Still, the harm incidentally caused to the Petitioners and other women like them whose right to form their family unit and exercise the most meaningful choices in their life are compromised by the law, cannot be justified. This is particularly in the absence of a social or public interest whose protection justifies such infringement, and given the fact that realizing their rights to autonomy, to family life and to parenthood as they wish to does not infringe in any way upon the rights of any other person. The fact that in this case Liat has no other actual way to have a child to bear her genetic code – other than the method the couple wishes to pursue – only serves to emphasize and exacerbate the unjustified harm to them (compare with the Jane Doe case, para. 6 of Justice D. Barak-Erez’s judgment.) Indeed the biological genetic link between a parent and child is not the end all be all. Of no less significance (and often of more) “ingredient” to building and shaping the relationship between parents and children is the emotional connection and commitment to the child’s well-being and upbringing (see and compare CFH 6211/13, The Attorney General – The Ministry of Welfare and Social Services v. Jane Doe, paras. 27-28 of Deputy President M. Naor judgment (December 23, 2013); the Magad case, para. 14 of Justice S. Joubran’s judgment.) Still, and as already noted, there must be real and meaningful justification to denying a person the possibility to exercise the right to parenthood in a way that includes blood ties between them and the child. In our case it has not been argued, and in any event, it has not been proven that the added value achieved through the blanket prohibition in the Eggs Donation Law is greater than benefit achieved had the law included a mechanism for individual examination of exceptional cases. It cannot be denied – tight prohibitions that have defined in general and all-encompassing provisions present advantages. They facilitate efficiency and efficacy in enforcing the law. However, the main disadvantage of general and extensive language of statutory provisions is the inability to anticipate in advance all those situations that would be caught in the wide and tight net of the prohibition. Therefore, once the legislature chose to cast this tight knit net it must at the same time also establish what Justice M. Cheshin called in Stamka “oil for lubrication.” In other words, there must be a flexible mechanism that would allow resolution in exceptional cases that justify not applying the prohibition in the law. In this case, and as we are concerned with the Eggs Donations Law, which addresses one of the most sensitive and meaningful issues in human society, the importance of such flexible mechanism that would allow the exceptions committee to perform its function in an appropriate manner cannot be overrated. Sadly, such a mechanism did not find its way into the Eggs Donation Law.

To complete the picture, I will note that in later stages of the adjudication before us, and in an honest effort to find a practical solution, among others, to the Petitioners’ problem, the State presented the “Taking of Semen, Eggs or Fertilized Eggs out of Israel” protocol accepted in July 2013. This protocol somewhat opens the door in the strict and extensive prohibition against implanting eggs in violation of the law as established by the Legislature in the Egg Donations Law. Under the protocol it may have been possible, seemingly, to permit the Petitioners to take eggs extracted from Liat’s body out from Israel in order for them to be implanted in Dana’s uterus abroad. Only this partial solution is not a real response to the constitutional difficulties created by the law. It does not permit the implantation to be done in Israel. It places a serious financial burden on the petitioners because of the requirement to perform the implantation overseas and all that may be involved in this, and according to the Petitioners, it also reduced the prospects of the procedure’s success. Therefore, following this protocol is of some solution to the Petitioners’ concrete plight, but it is only a partial fix which forces the Petitioners and others in their situation to leave for overseas in order to find a remedy for their troubles there, without any real justification.

34. Therefore, the legislative arrangement in the Eggs Donations Law includes conditions to perform the extraction and implantation of eggs in Israel and a blanket prohibition against performing these procedures where such conditions are not met. This is without granting the exceptions committee the sufficiently flexible authority to consider individual exceptional cases that justify diverging from the provisions of the law. This arrangement is unconstitutional because it infringes the basic rights of the Petitioners in a way that is consistent with the requirements of the Limitations Clause. The criminal prohibition established in section 41 of the Eggs Donation Law exacerbates the law’s violation of these rights because it paints the human desire to have a child in criminal colors, and this without any obvious reason or justification.

In light of all this, we must consider the outcomes of unconstitutionality – that is the question of relief.

The Outcomes of Unconstitutionality

35. Finding that the Eggs Donation Law unconstitutionally violates the Petitioners’ basic rights and those of others like them, does not necessarily mean that the law must be struck down. When we come to decide which constitutional relief is appropriate, we must strive as much as possible for a fit between that relief and the harm to be cured. As professor A. Barak wrote in his book about interpretation in the law “the nature of the relief is related to the nature of the harm and the reason it is unconstitutional” (Aharon Barak, Interpretation in the Law, Vol. 3 – Constitutional Interpretation, 732, 767-68 (1994) (hereinafter: Barak, Interpretation in the Law.) Once we have held that arrangements established in the Eggs Donation Law are for a worthy purpose but infringe upon the Petitioners’ rights to an extent more than is necessary, we must continue and examine whether there are appropriate means to relieve the infringement or mitigate it without the Court having to strike down the law or any part of it (as to the careful manner in which the Court is required to act before striking down a statute, see HCJ 7111/95, The Center for Local Government v. The Knesset, IsrSC 50(3) 485, 496 (1996); HCJ 2605/05, The Academic Center for Law and Business v. Minister of Finance, IsrSC 63(2) 545, 592-94 (2009.)) In our case, there is no reason to strike down the entire Eggs Donation Law, or even to strike down section 4(a) of the law which prohibits performing extraction and implantation of eggs in violation of the law, because such a move would create a significant “statutory void” which would leave the area of eggs donation unregulated and would cause more harm than good. Striking down section 11 of the Eggs Donation Law, all of it or part of it, would also fail to achieve the outcome desired by the Petitioners because that would mean removing an essential and justified requirement, generally, in terms of the necessity of a recipient’s woman medical need as a prerequisite for receiving an eggs donation without resolving the problem of many others who face additional rigid restrictions set by the law. Under the circumstances, I believe that the appropriate solution can be found in the mechanism of the exceptions committee. Were my opinion be heard, we shall read into the Eggs Donation Law an additional sub section, that would follow section 20(a)(4), whereby the exceptions committee would be authorized to approve an eggs donation “where it believes that under the circumstances there are special and exceptional circumstances that justify doing so.”
36. This remedy, of “reading into the statute” is well known in the Israeli and foreign case law and literature, and it aims to read into the unconstitutional statutory arrangement provisions that would remove the flaw and alleviate the need for striking down the statute (see Barak, Interpretation in the Law, p. 763.) So, for instance, this remedy is designed to address situations where the statutory provision grants benefits to members of one group, but does not grant that same benefit to members of a different group that is entitled to the same rights. In this situation the blanket striking down of the benefit due to its infringement upon equality would not be the appropriate remedy, because this would undermine the worthy purpose of the statute while harming the members of the group that lawfully enjoy the existing benefit. Therefore courts in the United States and in Canada have developed an appropriate remedy that would expand the scope of the existing arrangement and thus remove the unconstitutional harm it includes, while preserving the statute and protecting the purposes it is meant to achieve (for a comprehensive comparative review see: Barak, Interpretation in the Law, p. 759-65; Imanuel Gross, Constitutional Remedies, Mishpat U’Mimshal 4 433, 458-59 (1998) (hereinafter: Gross); Igal Marzel, Suspending Invalidity Declaration, Mishpat U’Mimshal 9 39, 62-63 (2005)). In that way, American courts have recognized the possibility of “extension” – the possibility to extend the scope of the statute where appropriate to do so as a constitutional remedy that is preferable to striking down the statute (see Welsh v. United States, 398 U.S. 333, 361 (1970), where Justice Harlen, in a dissenting opinion, first proposed the doctrine which became precedent later in Califano v. Westcott, 443 U.S. 76, 79 (1979); see also Ruth Bader Ginsburg, Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation, 28 Clev. St. L. Rev. 301 (1979); Evan H. Caminker, A Norm-Based Remedial Model for Under Inclusive Statutes, 95 Yale L. J. 1185 (1986)). The Canadian Supreme Court similarly developed the Reading In doctrine which means reading provisions into the statute that negate its unconstitutionality (see Schachter v. Canada, [1992] 2 S.C.R. 679; see also Vriend v. Alberta [1998] 1 S.C.R. 493; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers [2013] S.C.C. 62). The Canadian Court has held, however, that the court would not opt for the remedy of reading into the arrangement while intervening in the statute’s framework in every case, and that in order to read in the court must consider, among others, the scope of the necessary extension, whether the extension is simple to execute, the budgetary cost of extension and whether it preserves the basic fabric of the statute (see Schachter, p. 19-21.)
37. The reading in doctrine has been absorbed into Israeli law. It was first raised in HCJ 721/94, El Al Israel Airlines v. Danilovitz, IsrSC 48(5) 749, 767-69 (1994), where the Court noted, though it was unnecessary for purposes of the decision, that this remedy should have been used on the constitutional level because it advances the purpose underlying the statutory arrangement and alleviates the need to strike down the legislation (id., p. 769.) The case in which this Court found it appropriate to apply the doctrine was HCJ 8300/02, Nasser v. The Government of Israel (May 22, 2012,) where the Court considered a mechanism of tax benefits established by section 11 (b) of the Income Tax Ordinance [New Version], which detailed a particular list of localities whose residents were entitled to reductions in income tax payments. This list of localities, for the most part, was not defined by any particular criteria and the entitlement for the tax benefit was granted through explicitly noting the names of the localities in the said section. Once it held that the list of localities detailed in section 11(b) of the Ordinance was discriminatory, the Court ordered that the appropriate constitutional remedy would be granting the same benefits to the residents of three Arab and Druze localities that were discriminated against in comparison to the Jewish residents in the nearby localities. The Court then read into the Ordinance the names of the additional localities noting that this move is not inconsistent with the exceptions established in comparative law (see there, paras. 57-59 of President (Ret.) D. Beinisch’s judgment; for other cases where the possible use of the Reading In doctrine was discussed, see HCJ 3809/08, The Association of Civil Rights in Israel v. The Israel Police, para. 15 of President (Ret.) D. Beinisch’s judgment (May 28, 2012); HCJ 3734/11, Davidian v. The Knesset of Israel, para. 59 (August 15, 2012.)) In the New Family case, too, where the constitutionality of the Surrogacy Law’s narrow definition of “intended parents” was discussed, Deputy President S. Levin noted that “the Petitioners [wish] to expand the small opening created by the law in order to resolve the plight of several tens of couples and expand it based on the principle of equality. This technique is permitted through the principles of constitutional interpretation of reading in, but we do not apply it in cases where it deals a complex issue that its consequences are unclear and where by nature warrant regulation by the Legislature (see New Family, p. 468.)
38. In my opinion, the constitutional remedy appropriate in this case is, again, reading a sub-section into section 20(a), as proposed in paragraph 35 above, whereby the exceptions committee would be granted, in addition to the limited powers it currently has, the general and flexible authority to approve an eggs donation where it finds “there are special and exceptional reasons that justify doing so.” This remedy leaves the entirety of the arrangements in the law as they are. It preserves the “fabric of the legislation” and does not at all compromise the worthy purposes that the legislature wished to realized through the law. It removes the unconstitutionality of the law’s arrangements by allowing, alongside the blanket criminal prohibition in the law, a flexible mechanism that is not bound only to the four case detailed in section 20(a)(1)-(4), and it permits individual examination of cases where the donating or recipient women do not meet (one or more) of the conditions set by the law, but where there may still be special and exceptional reasons that justify approving the donation (for justifying the application of the reading in doctrine, particularly in order to develop exceptions to criminal responsibility, see Gross p. 466-67.) Reading this arrangement into the law does not involve, as I understand, additional budgetary costs, and as discussed, in the proposed version it is intended to cover only unique and exceptional cases that merit it. Nor does the proposed addition pose a significant change to the law’s provisions and it is merely a specific extension of the narrow opening left by the legislature when limiting the exceptions committee to the four cases detailed in section 20(a) of the law.

It is important to recall – and I discussed this above in paragraph 21 – that the Bill included an exception clause in the very same language that I propose to read into the law, but it was removed from the final version of the law that was passed after Rabbi Halperin noted to the members of the sub-committee that discussed the Bill, that the section is redundant and that petitioners that do not fall under sections 20(a)(1)-(4) (as marked in the law’s final version) that would turn to courts in their distress and present to them special and exceptional circumstances would be granted remedies there. And as Rabbi Halperin said there:

“It is better to remove section 18 and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is explicitly in violation of the law” (Minutes of meeting of the Sub Committee of the Labor, Welfare and Health Committee for Supervising the Eggs Donation Bill 2008, dated November 3, 2008, p. 50-51.)

These things by Rabbi Halperin are unfounded, with all due respect, and they are which ultimately led to removing the general exceptions clause that initially was included in the Bill from the final version that was passed. This caused the final version to be unconstitutional and in order to remedy this flaw I propose reinstating the section that was removed, particularly because it is abundantly clear that removing it was rooted in reasons that are mistaken on their face.

Before concluding, I will note that the State’s argument that the Eggs Donation Law is a new statute legislated about three years ago and therefore, similarly to the approach the Court took in New Family, intervention in its provisions should be avoided and its application and consequent developments that would follow incrementally should be permitted to take their course, has not escaped me. Indeed in New Family the Court believed that though it was found that the Petitioner was unconstitutionally discriminated against there was no place to intervene in the Surrogacy Law because this was “a new and complex issue, and issue with many unknowns that we have yet to experience to the fullest.” Instead of intervening in the legislation, the Court therefore opted in that case to call upon the Legislature to contemplate the plight of single women as petitioners and weightily consider applying the law to them. I do not believe that such a move fits the case before us. Since the legislation of the Surrogacy Law about 18 years have passed and still to this day a resolution has yet to be found for petitioners such as the petitioner in New Family, though recently and as detailed above, a certain glimmer of hope has been created in this context. Such long wait for action by the legislature requires those whose basic rights have been infringed upon as a result of the current version of the law to hold their breath. Given the nature and substance of these infringed rights, and given the medical procedure required for eggs donations, which must attribute significant – even determinative – weight to the “ticking” of the biological clock, I do not believe that it is proper to adopt here the path walked by this Court in New Family.

Conclusion

39. Had my opinion been heard, we would make the order nisi permanent and hold that the Eggs Donation Law disproportionately violates the Petitioners’ constitutional rights to autonomy over their bodies, to family life and to parenthood. We would further find that in order to cure this violation we must read into the provisions of the Eggs Donation Law an additional section – section 20(a)(5) – that would authorize the exceptions committee formed under the law to approve the extraction of eggs, their allocation and their implantation in the body of a recipient woman, should the committee be satisfied that under the circumstances there are special and exceptional reasons that justify doing so. We would also find that the Petitioners be permitted to come before the exceptions committee and seek its approval according to such section to perform the extraction of Liat’s eggs, their fertilization and implantation in Dana’s uterus in order to make it possible for them to bring into their family unit a child that would have a genetic link to Liat and a biological link to Dana, as all of Liat’s attempts over the years to become pregnant herself have been unsuccessful. As my opinion remains in the dissent, I see no need to expand about the consequences of section 42(c) of the law for the status of Liat as the child’s mother, had the donation been permitted. But it seems that to the extent we are concerned with approval that excepts the procedure from the law not just for Liat’s inability to become pregnant herself, but also because of the characteristics of the family unit created by Liat and Dana as a couple, it would have been possible to find a reasonable and proper solution on this issue as well.

                                                                        Justice

Justice E. Arbel (Ret.)

“And Rachel saw that she did not bear a child with Jacob, and Rachel was envious of her sister and said to Jacob ‘Give me sons, or I shall die.’” (Genesis 30, 1.)

1. Our issue in this case concerns the desire for a child, which we hear with an open heart and a forthcoming spirit and try to realize it if only it were possible.

After having read the comprehensive and impressive judgment by my colleague, Justice E. Hayut, I join wholeheartedly with the outcome whereby the Petition must be accepted. However, I intend to propose an additional but different way to reach this outcome, and will detail it below. Since the chain of events and the parties’ arguments were presented at length in my colleague’s opinion, I can begin at the stage of discussion and decision.

Introduction

2. As my colleague Justice E. Hayut noted, in recent years we witness significant scientific and technological advances in birth and reproductive techniques. These developments open the door to many people, women, couples and families for many additional possibilities to bring children into the world and realize their desires to become parents. All the while our time is also characterized by social developments that create new types of families that were not acceptable in the past. The combination of technological and social advances presents a real challenge for the law, which is constantly required to face unique situations that were not previously known (see HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 2 of justice Rubinstein’s judgment (February 5, 2013) (hereinafter: the Sperm Bank case); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 694 (1996) (hereinafter: the Nahmani case); Pinhas Shiffman, On the New Family: Introductory Notes, Iyunei Mishpat 28, 643 (2005) (hereinafter: Shiffman)). The Expectation is that the Legislature regulates the use of different reproductive techniques. The main difficulty is caused by the great gap between the time it takes to legislate and legally regulate the use of each reproductive technique and the rate of technological advances (see Ruth Zafran, There Can Be Two Mothers – The Definition of Motherhood to A Child Born of A Same Sex Couple, Din U’Dvarim 3 351, 397 (2008) hereinafter: Zafarn – There Can Be Two Mothers.); Ruth Zafran, The Family in the Genetic Age - the Definition of Parenthood under the Circumstances of Artificial Reproduction as a Case Study, Din U’Dvarim 2 223, 230 (2006) (hereinafter: Zafarn – The Family in the Genetic Age.)) This gap leads to situations where the knowledge and technological capabilities to turn people into parents exist, but cannot be permitted to be used without legal and legislative regulation, even when the State has no general objection to realizing parenthood in this way by this couple. This is also our case here. Before us are two women, a couple, where the implantation of one’s eggs in the other’s uterus may realize their wishes and desires to parenthood. The technological route exists. The State declared it had no general objection to this move, and it should be noted that in the past the State did in fact permit women partners to perform this procedure. Still, the State now argues that there is nothing in the law to regulate the desired procedure, and thus executing the technological possibility cannot be permitted.
3. In my view, this Court has a role in bridging this gap, at least in part. Indeed the Court does not act as a substitute for the Legislature. And obviously the Court must accept and apply the legislative arrangements in place, as long as there is no constitutional reason to intervene in them. However, the Court can assist those who approach it in two ways. One is through the tool of purposive interpretation of legislation. Interpreting an existing legislative arrangement in the field of reproduction and birth must consider the basic human desire of singles and couples to realize their right to parenthood and to have a child. Of course, this purposive interpretation would only be possible when some anchor is found in the language to lay down the foundation for the interpretation and when the considerations and interests existing in the matter justify such interpretation. Another tool at the Court’s disposal is finding normative solutions to situations that have yet to be regulated in legislation (see Nahmani). Because of the issue’s sensitivity and the severe harm to couples and singles who cannot realize their right to parenthood merely due to the Legislature taking its time in forming a legislative arrangement, I believe that the Court must roll up its sleeves and find resolutions for the interim period before the proper arrangements are completed by the Legislature. This in the acceptable manner of developing the law and according to the Foundations of Law 5740-1980 (and see in this regard the different positions by the Justices in Nahmani, p. 694, 719, 723, 756.) there is no dispute that at a later stage the Legislature may form a different legal arrangement than that arrived at by the case law. It is its duty and its authority. And thus summarized Deputy President M. Cheshin:

“It is true: courts have forever been required to handle gaps formed between yesterday’s legislation and jurisprudence and today’s life phenomena. The law and legislation are always the law and legislation of yesterday and their progress is slow to advance, it is careful and calculated. Whereas reality, it changes and flows constantly, often at warp speed. So are the reality and the disputes that arise against its backdrop…

Only that for the most part the law is wise to adapt to changing reality, and even as a gap is formed between the language of the law and reality we take the interpretive tools in our hands and use them to catch up and have the law cover the advances of reality…

And indeed, courts have always done so, and do what they can – within the boundaries of language – to cast the written law’s net over phenomena coming into the world after the law’s enactment, and this even when at the time of legislation the legislature could not have anticipated the existence of such phenomena. The court’s first duty is to effect justice between the litigants that come before it, and in performing this duty the court must do whatever possible within the confines of the existing law even if the solution at which it arrives is not the best solution” (CFH 6407/01, Arutzei Zahav and Co. v. Tele Event Ltd., IsrSC 58(6) 6, 23-24 (2004)).

4. Two statutes must be examined in the matter before us: one is the Embryo Carrying Agreements  Law (the Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and the other is the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law.) But before I turn to reviewing these statutes, their interpretation and their ramifications for the case at hand, I wish to discuss two important principles that will influence the interpretive process: the right to parenthood and the principle of equality.

The Right to Parenthood

If only I had a son! A little child,

With black curls and smart.

To hold his hand and walk slowly

Along the garden’s paths

A little. Child.

…

I will be bitter as our Mother Rachel.

I will pray as Hannah in Shiloh.

I will wait

For him.

5. A woman’s (or man’s) desire to a child of their own is a common and deep sentiment rooted in human existence and deriving from the desire for self-realization since the dawn of time to this day. It was expressed in the Tanach repeatedly, books and songs were written about it (one of the best known is “Akarah” – “barren” or “infertile”, eds. note – by the poet Rachel.) the desire to have and hold a child of one’s own body is a fundamental and natural desire that is common to humanity in its entirety. Whatever the explanation for it – biological, psychological or other – most people have a significant, strong and deep wish to become parents. Indeed people go to great lengths and make huge investments – financial, physical and emotional – and are willing to suffer greatly in order to realize their desire for a child even when it is impossible in the natural sense. And in the words of Deputy President M. Cheshin in HCJ 2458/01, New Family v. the Committee for Approving Agreements for Carrying Embryo, Ministry of Health, IsrSC 57(1) 419, 445 (2002) (hereinafter: the New Family case)):

“The core of the issue is the heart’s desire for a child, that deep, primordial emotional need to parenthood that burns in the woman’s soul and does not expire. The core of the issue is the human’s survival instinct and need for continuation, if you will. The need and desire to parenthood is inherent to humans.”

And Justice Dorner expressed this in Nahmani as following, on page 714:

“In human society, one of the strong expressions for the desire, without whose realization, many cannot see themselves as fully free, is the desire to be a parent. This is not merely a natural, biological need. We are concerned with choices that in human society signify one’s individuality and uniqueness. ‘Any man who has no children is seen as dead’ said Rabbi Yehoshua Ben Levi (Nedarim, 64, 2.) And indeed, for both man and woman, most people see having offspring an existential need that gives meaning to their lives.”

(see also Daphne Barak-Erez, On Symmetry and Neutrality: After The Nahmani Case, Iyunei Mishpat 20 197, 200-01 (1996); Shiffman, p. 664.)

The emotional need to become parents received legal recognition through the right to parenthood. It appears that in the State of Israel there is particular sensitivity to this right, in light of Israeli society’s approach to the value of family and the value of having children as central and weighty values (see New Family, p. 466.)

6. The right to parenthood, therefore, is generally recognized in Israeli law, both in terms of one’s reproductive freedom and in terms of the right to realize the relationship with the child (see Zafran – There Can Be Two Mothers, p. 381-82; the Sperm Bank case, para. 26 of Justice Rubinstein’s judgment.) “Every person has the right to parenthood and the right to raise and inculcate a child” (HCJ 11437/05, Kav La’Oved v. Ministry of Interior, para. 38 of Justice Procaccia’s judgment (April 13, 2011.)) Different aspects of the right to parenthood were even enshrined as a constitutional right in Basic Law: Human Dignity and Liberty. Though a comprehensive and exhaustive discussion of the range of the aspects and entire scope of this important and meaningful right has yet to take place, it is in any event clear that the practical possibility to bring children into the world is at the core of the right to parenthood, and thus the State may not infringe on these possibilities without weighty reasons (see 2245/06, Dovrin v. The Prison Service, para. 15 of Justice Procaccia’s judgment (June 13, 2006) (hereinafter: the Dovrin case.)) The Court distinguished between two levels of the right to parenthood, in terms of reproductive and birth freedoms, with the first level being the possibility to exercise one’s reproductive abilities and become a parent, whereas the second level goes to the way in which one’s natural right to become a parent is realized. This level, it was said there, is in the periphery of the right to parenthood and it protects values such as the right to privacy, the right to autonomy and the like (see the Sperm Bank case, para. 29 of Justice Rubinstein’s judgment.) Beyond the scope necessary for a decision in our case, I will comment that in my view this case falls under the first level of the right to parenthood rather than the second level, as the State attempts to argue. It is no wonder that for the First Petitioner realizing her right to parenthood is by having a child who carries her genetic code. It seems to me that this desire, which is indeed a natural and understandable human desire, warrants recognition within the core of the right to parenthood, even if today, in the modern age, a genetic relationship is not the end all be all (see the Sperm Bank case, paras. 43-45 of Justice Rubinstein’s judgment; Zafran – the Family in the Genetic Age, p. 233 onward; Shiffman, p. 668.) therefore the State’s proposal to turn the tables – so that the Second Petitioner’s eggs be extracted and implanted in the First Petitioner’s uterus is not “comparable” in terms of the ranking of rights to the First Petitioner’s request to extract eggs from her and implant them in the Second Petitioner’s uterus (see Nahmani, p. 753, and compare with the Sperm Bank case.) and this is true even without considering the probability, which is closer to a near certainty, as to the physical, medical inability of the First Petitioner to carry a pregnancy in her uterus.
7. The right to parenthood was recognized by this Court in the context of using artificial reproductive techniques (see the Sperm Bank case, para. 6 of Justice Barak-Erez’s judgment and the references there) as well. The current times have opened many avenues for hope to bring a genetic child into the world for those who cannot have children. There are also the possibilities for adopting non biological children. These possibilities repeatedly inspire dilemmas that involve the development of the right to parenthood and exploring its place within the existing legislative framework. Of course, this is not an absolute right. Often times, examining reproductive techniques raises questions of morality and conflict between rights. Thus, for instance, when there is concern for harm to surrogate mothers or women who wish to donate eggs. In these cases, balance is of course required between the different rights and the conflicting interests. In any event, the importance of the right to parenthood and its high status among rights must influence the interpretation of statutes that address the relevant field. It is usually the primary goal of these statutes and thus it must be respected within the purposeful interpretation of the legislation on the matter.

The Principle of Equality

8. Discrimination is the unequal treatment of equals, when there is no relevant difference between them. We cannot ignore the fact that the case before us involves a same sex couple. A reality was created where heterosexual couples are able to use a variety of methods in order to become pregnant and bring a child into the world – from the natural method, through use of eggs donation, surrogacy agreements and the like. On the other hand, same sex couples are limited in the ways they can bring children into the world, both for biological reasons and for legal reasons (see judgment by Justice Joubran in HCJ 566/11, Mamat-Magad v. The Minister of Interior (January 28, 2014.)) Indeed there may be cases where it could be argued that there is indeed a relevant difference resulting from the biological difference (such as the need of male couples to use surrogacy arrangements even when neither of them has a medical condition, which can raise the concern of over use of the method of surrogate women, when arguments are made about the harm, medical injuries or exploitation of these women or some of them. see in this regard the recommendations by the public committee for examining the legislative arrangement of fertility and reproduction in Israel, 2012 (the Mor-Yosef Report) p. 57-62; in a different context, see regarding the consideration of the role of existing social attitudes in the best interest of the child: CA 10280/01, Yarus-Hakak v. The Attorney General, IsrSC 59(5) 64, 107 (2005) (hereinafter: the Yarus-Hakak case)). Still, in many cases it was impossible to point out to such a relevant difference. The social reality is that there are many same sex couples now. Indeed, this is an issue that is not yet a social consensus, but we cannot nevertheless ignore from the reality as it exists both as a matter of fact and a matter of law (see the New Family case, p. 450-51; and see also Zafran – There Can Be Two Mothers, p. 380; HCJ 273/97, The Association for Protecting Individual Rights v. The Minister of Education, Culture and Sport, IsrSC 51(5) 822 (1997); Hanan Goldschmit, The Missed Identification Card of the Israeli Family – The Legal Consequences of Case Law Regarding Adoption by Same Sex Couples, HaMishpat 7, 217, 237 (2012); Shiffman, p. 645.) Many same sex couples raise children, whether through arrangements permitted out of Israel, or through arrangements permitting having children in Israel itself (such as a sperm donation for a female couple.) It should still be emphasized that the Court does not purport here in this context to go into questions about the status of same sex couples and to decide on the value based discussion taking place on the matter (see, the Yarus-Haka case, p. 114; HCJ 3045/05, Ben-Ari v. Director of the Population Administrator, para. 22 of President Barak’s judgment (November 21, 2006) (hereinafter: the Ben Ari case.)) Nor do I propose in this opinion to decide on the question of same sex couples’ constitutional right to have equal access to artificial reproductive techniques as heterosexual couples (see AAA 343/09, The Jerusalem Open House for Pride and Tolerance v. The Municipality of Jerusalem, para. 40 (September 14, 2010) (hereinafter: The Open House case.)) Still, to the extent that we are concerned with the interpretation of a legislative arrangement, or the lack of any arrangement at all, we must assume that any legislative arrangement would be interpreted or established to fit the principle of equality and prevent discrimination on the basis of sexual orientation, as long as there is not explicit instruction from the Legislature to the contrary (see also, Ifat Biton, The Influence of Basic Law: Human Dignity and Liberty on the Status of Same Sex Couples, Kiryat HaMishpat 2 401 (2002); Michal Tamir (Itzhaki), The Right to Equality of Homosexuals and Lesbians, HaPraclit 45 94, (2000-2001)).
9. The above approach also fits the existing legislative arrangements that indicated the Legislature’s negative view of discrimination on the basis of sexual orientation. Some of these arrangements were added to legislation in recent years and can teach us about the present view of the Legislature in the matter. Thus, for example, it was established that in certain cases one who has committed an offense motivated by animus based on sexual orientation they are punishable at double the penalty set for that same offense (section 144F of the Penal Law 5737-1977.) An employer is prohibited from discriminating between its employees or candidates for employment on the basis of their sexual orientation (section 2(1) of the Equal Opportunities in Employment Law 5748-1988). Similarly it is prohibited to discriminate in public accommodations, supplying products or access to public services because of sexual orientation (section 3(a) of the Prohibition of Discrimination in Products, services and Entrance to Entertainment Establishments and Public Places Law 5761-2000). Caretakers and medical institutions may not discrimination between patients based on their sexual orientation (section 4(a) of the Patient’s Rights Law 5756-1996.) It was additionally legislated that committees for admission to community towns cannot refuse a candidate for reasons of sexual orientation (section 6C of the Cooperative Associations Ordinance.) Those obligated to run tenders are prohibited from discriminating among candidates because of their sexual orientation (section 2(b) of the Tender Obligations Law 5752-1992). And this is only a partial list.
10. Courts, too, throughout all their levels, when coming to interpret legislative arrangements contemplated the principle of equality between heterosexuals and homosexuals, both as single people and as couples. In one case, President Barak reviewed a long list of judgments where it was held that homosexual couples are granted rights under specific statutes and arrangements (see, the Ben Ari case, para. 19 of President Barak’s judgment, and see also The Open House case, para. 54.) It should be noted that in the matter of Ben Ari, the State itself declared that it recognized that the shared life of a homosexual couple constitutes “a social unit with some legal implications.” Since that review, this list expanded to include additional judgments walking in the same direction (see, for instance, CA (Nazareth) 3245/03, A.M. v. The Attorney General in the Custodian General, (November 11, 2004); AP (Tel Aviv Yaffo) 1255/05, Garcia v. The Ministry of Interior (August 17, 2008.) And indeed it was held:

“The law in Israel regarding the LGBT community and its members reflects the changes that took place over the years in Israeli society. The position of Israeli society is that the law must be indifferent to sexual orientation, just as it must be indifferent to other traits in one’s identity or a group – such as age, race, nationality, sex and others. Similarly there is a wide agreement that members of the LGBT community must not be restricted or discriminated against. This position is also expressed both in the case law and in the legislation that prohibits discrimination on the basis of sexual orientation…” (The Open House case, para. 54.)

It was even noted that “it seems these are no longer ‘islands’ of rights, but a comprehensive constitutional concept of a right not to be discriminated against because of sexual orientation.” (The Open House case, para. 56.)

Without addressing the constitutional issue or establishing a new status, it appears then that legislative arrangements must be interpreted to conform with the principle of equality that requires the equal treatment of same sex couples.

Fertilization Treatments

11. For the purposes of the discussion before us, a woman’s fertility difficulties may be schematically divided into two categories: the first is difficulties related to the woman’s eggs that make it impossible to use them for having a child. The second is a medical difficulty to carry a pregnancy. Therefore, there may be four potential situations: a woman with healthy eggs who is able to carry a pregnancy and give birth, a woman with healthy eggs but who is unable to carry a pregnancy; a woman with unhealthy eggs who is able to carry a pregnancy and a woman with unhealthy eggs who is unable to carry a pregnancy. These distinctions will be helpful below as we interpret the legislative arrangements in effect in the field of reproductive techniques.

The Agreements for Carrying Embryo Law

12. As my colleague, Justice E. Hayut, noted, the Surrogacy Law was enacted in Israel in 1996 as a result of the work of a public committee headed by Judge (Ret.) Shaul Aloni that was set up to explore the issue. The law was first to regulate couples’ assistance from  a surrogate in order to have a child. Under the law, the surrogacy procedure involves the implantation of a fertilized egg in order to impregnate the carrying mother so that she can give the child born as a result to the intended parents (see section 2 of the Surrogacy Law.) The fertilized egg would be, under the Surrogacy Law, an egg that is not from the surrogate. In other words, the egg may be from the intended mother who solicits the surrogacy, or from a donor that is not the intended mother or the carrying mother (see section 2(4) of the Surrogacy Law; section 11 of the Eggs Donation Law.) The sperm fertilizing the egg must be from the intended father (section 2(4) of the Surrogacy Law.) During the surrogacy process the fertilized egg is implanted in the uterus of the surrogate woman who in effect has not genetic relationship to the fertilized egg. After birth, the surrogate is supposed to give the child to the intended parents (see New Family, p. 429.) The Surrogacy Law includes many arrangements regarding the procedure, including the conditions for entering into agreements with a surrogate, the conditions for approving an agreement between the intended parents and the surrogate, the status of the child after birth and so on. It should also be noted that the intended parents are defined by the Surrogacy Law as “a man and a woman who are a couple and who enter into an agreement with a carrying mother in order to have a child” (section 1 of the Surrogacy Law.)

It is important to emphasize that the Surrogacy Law does not address the stage of in vitro fertilization, which is regulated by the People’s Health Regulations (In Vitro Fertilization) 5747-1987 (hereinafter: the People’s Health Regulations.) The law only addresses the stage after fertilized eggs have been created, when the couple seeks the approval of an agreement to implant the eggs with a surrogate (see New Family, p. 435.)

13. As the State argues, the Surrogacy Law is irrelevant to the matter before us and does not apply to it. The law clearly distinguishes between the surrogate mother and the intended parents. As mentioned, after the birth no legal link is meant to exist between the surrogate mother and the child. The physical handing over of the child into the custody of the intended parents must be done as soon as possible after the birth. The welfare administrator is the child’s guardian until the intended parents are granted a parenting order. The request of a surrogate mother to renege on the agreement with the intended parents and to keep the child would not, as a general rule, be approved unless by a court and under circumstances that justify it while considering the child’s best interest (see chapter C of the Surrogacy Law.) In the case before us, the Petitioners request that the Second Petitioner serve both as a surrogate mother and as an intended mother. This situation is not included in the Surrogacy Law and is beyond its purpose and provisions. The arrangements covered by the Surrogacy Law have nothing to do with the procedure the Petitioners wish to perform. The conclusion is that this law does not apply to the case at hand and does not at all assist in regulating it.

The Eggs Donation Law

14. The second statute related to the issue, which the parties address, is the Eggs Donation Law, enacted in 2010. This law came to resolve the difficulties caused by a shortage of eggs for donation in Israel, a fact that created obstacles to many women requiring fertility treatments where the eggs in their bodies could not be used for these treatments. As emphasized in the explanatory notes  to the law, the law’s main concern is to regulate the eggs donation in Israel for purposes of having a child, as well as for purposes of research (see the Eggs Donation Bill, 5767- 2007, Bills 292 (hereinafter: the Bill.)) the law concerns two phases in the donation process – the phase of receiving the donation and its designation, and the stage after the birth of the child born as a result of the donation (see the explanatory notes to the Bill, p. 292.) The State argues that the law does not permit the First Petitioner to donate eggs to the Second Petitioner, because under section 11 of the law, the recipient in whose body the egg is implanted must have a medical condition that justifies using the eggs of another woman. The Second Petitioner does not meet this definition because she has not medical condition, as detailed at length in my colleague’s judgment. Indeed, these things cannot be disputed. Moreover, I do not believe we must intervene in the medical condition requirement of section 11 of the law. Still, this is not the end of our road, because in my opinion the Eggs Donation Law is not at all relevant to our matter, does not regulate it, and in fact is silent about it without creating a negative arrangement for this case. I shall clarify my position.
15. The Eggs Donation Law, as its name indicated, was designed to regulate the donation of eggs in Israel for women, who due to a medical condition, need to use another woman’s eggs in order to have a child (this alongside the research purposes regulated in the law that are irrelevant to our case.) Should we return to the schematic distinction we articulated above (para. 11) then the law applies to two categories of women: the one is the woman with unhealthy eggs who can carry a pregnancy and the other is the woman with unhealthy eggs who cannot carry a pregnancy. In the first case, the woman can use the assistance of an egg donation under the Eggs Donation Law, an egg that would then be implanted in her own uterus. In the second case the woman is assisted by both the Eggs Donation Law and the Surrogacy Law, when the egg received from the donor is fertilized and implanted in the uterus of a surrogate mother.

The law, however, according to is purpose and provisions, does not concern the case that do not involve an egg donation. The meaning of donation in this context is the giving of an egg to another woman in order for that woman to use the egg, fertilize it and become the mother of the child born out of the fertilized egg. The meaning of donation includes the giving of something to someone, rather to the donor themselves. Therefore, this is different from someone who extracts eggs in order to become herself the mother of the child born out of those fertilized eggs. In such a case it cannot be said that this is a donation, and thus the Eggs Donation Law would not apply to such circumstances. Such, for instance, is a woman who extracts eggs in order to fertilize the eggs, return them into her uterus and become the child’s mother. In such a case that is not a donation, because the egg is intended to turn the egg owner into the future child’s mother. Indeed, such a case is not covered by the Eggs Donation Law and the People’s Health Regulations in terms of in vitro fertilization would instead apply. Similarly, as well, the Eggs Donation Law does not apply to cases of egg extracted from a woman in order to fertilize them and implant them in the uterus of a surrogate (see section 4(b) of the Eggs Donation Law.) This, too, is not a donation, because the owner of the egg intends to be the mother of the child born from the fertilized egg (see the explanatory notes to the Bill, p. 295, which clarify that in this case the extraction of the eggs is not done for the purposes of donation.) Similarly, a woman who extracts eggs in order to implant them in her partner’s uterus intends to be the mother of the child born of the fertilized egg and to raise that child. Here too it cannot be said that there is a donor and a recipient, and thus the Eggs Donation Law is irrelevant to it. One cannot donate something to himself because then it would not consider a donation. I should not that the use of the term “mother” in this context refers to the social role and the woman’s subjective intent rather than to the legal determination regarding who shall be registered and recognized as the child’s mother (see on this point Zafran – There Can Be Two Mothers. In any event, I will note that the registration of two women as mothers of a child was made possible through adoption in Israel or abroad: see the Yarus-Hakak case as well as HCJ 1779/99, Jane Doe v. The Minister of Interior, IsrSC 54(2) 368 (2000); and through a parenting order: FA (Tel Aviv) 60320/07, T.Z. v. The Attorney General, State Attorney – District of Tel Aviv  (March 4, 2012) (hereinafter: the T.Z. case.))

16. The Act’s sections must be read and understood in light of the above, and according to this purpose. Indeed, the law wishes to make its provisions exclusive and limit the use of eggs donation to comport with its provisions alone. Section 4 of the Egg Donation Law stipulates as follows:

“4. Exclusivity of the Law’s Provisions:

(a) One shall not perform an eggs extraction from a donor, lab treatment of the eggs, allocation of eggs for implantation or research, or implantation of eggs, but according to this law’s provisions.

(b) The provisions of sub-section (a) shall not apply to the extraction of eggs from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of performing an agreement for carrying embryo according to the Agreements Law.”

Additionally, section 6(b) of the Eggs Donation Law mandates that:

“6. Restrictions on the Extraction and Implantation of Eggs

(a) No one shall perform medical treatment on a volunteer donor in order to prepare eggs for extraction to be implanted, unless after securing the approval of the eggs’ extraction from the donor’s body according to section 12.

(b)An implantation of eggs shall not be performed but in the body of the recipient or the body of a carrying mother who entered into an agreement for carrying embryo with the recipient according to the Agreements Law.”

17. These sections must be read, as noted, in light of the purpose of the Eggs Donation Law and in the context of its other sections. They must therefore be understood as excluding the law’s provisions to any case in terms of eggs donation, that is cases where a woman gives her eggs to another person in order for that person, rather than the donor herself would become the parent of the child born from the donated egg and would be the person raising that child. This interpretation is consistent with the language of the law, its provisions, and its purpose. An alternative interpretation, a more comprehensive one, which requires the application of the law’s provision to any extraction and implantation of any egg, would have led to an absurd outcome where in vitro fertilizations would be impossible for women whose eggs are completely healthy, and who wish to extract those eggs and implant them in their uterus in order to become mothers of the child, because then section 11 of the Eggs Donation Law would not apply to them. Certainly, such interpretation cannot be accepted.

The conclusion that the matter at hand, where the First Petitioner wishes to extract her own healthy eggs, fertilize them, and implant them in her partner’s uterus, without requiring a donation but in order for the First Petitioner to raise herself the child that would be born (along with the Second Petitioner, who would give birth to the child) – such a case is not included in the Eggs Donation Law and the law does not create a negative arrangement in its regard.

 

Interim Conclusion

18. Our conclusion is that a case where a woman wishes to extract eggs in order to fertilize them and implant them in her partner’s uterus, with both women serving as mothers to the child (at least “mothers” in the social sense and in terms of their intent to raise the child together), falls neither under the Surrogacy Law nor the Eggs Donation Law. This case is neither regulated by either of these laws nor prohibited by them. But we are still left with the question which statutory arrangement does cover this case? In my view, the answer to this is simple. Since neither of these statutes applies to this case, the arrangement that would apply is the same as that which applied until now, at least according to the position of the State and the Attorney General. This arrangement combines the norms established by the People’s Health Regulations, and the authorization created by the absence of any legal regulation in the matter. I shall explain.

The People’s Health Regulations

19. The People’s Health Regulations of 1987 regulate the conditions for in vitro fertilizations. Section 2 prohibits the extraction of eggs, their fertilization, freezing or implantation unless done in a recognized hospital unit and according to the Regulations’ mandates. Section 2A details instructions for eggs extracted and fertilized out of Israel. Sections 3 and 4 stipulate as follows:

“3. Exclusivity of Purpose of Egg Extraction

The Extraction of eggs will be done only for the purpose of in vitro fertilization and its implantation after fertilization.

4. Restricting the Extraction of Eggs

Eggs shall be extracted only from a woman who meets one of the following conditions:

(1) She is undergoing fertility treatments and a supervising physician has determined that the eggs extraction would advance her treatment.”

These Regulations have regulated the matter of eggs donations before the Eggs Donation Law was legislated. It should be noted that today eggs donation, as understood according to our interpretation above, cannot be done unless according to these Regulations or the arrangements of the Eggs Donation Law.

20. As for the implantation of a woman’s eggs in her partner, the Regulations do not explicitly address this situation, but in my view their arrangements may be applied to it without difficulty, and indeed this was done in the past (see, for example, the T.Z. case.) Extracting the egg will be done only from a woman who is undergoing fertility treatments, and only for the purpose of implanting them after their fertilization (section 3 and 4 of the People’s Health Regulations.) The egg would be fertilized by the sperm of a donor and implanted in the partner’s uterus, in the absence of any prohibition in the Regulations and where the Surrogacy Law does not apply as the birth mother is also one of the intended mothers. And indeed, an instruction by the Attorney General from November 30, 2009 in terms of eggs donations between female partners establishes as follows:

“Following a discussion recently held by the Attorney General on the issue of eggs donations between female couples, the Attorney General instructed the Ministry of Health that the donation of an egg extracted from a woman under the In Vitro Fertilization Regulations (in the course of fertility treatments that she is undergoing) must not prohibited or restricted, unless under circumstances where there is concern that doing so would violate the public policy, such as where there is concern that this is done in exploitation or for the purposes of trade eggs.

Accordingly, the Attorney General instructs that as a general rule, the donation of an egg extracted from a woman in a lawful procedure under these Regulations, and that is intended for her female partner, with whom she shares a common household, must not be prohibited or restricted. Such donation must not be seen as an act that violates the public policies.

The discussion in the matter was convened following several requests received by the Ministry of Health to approve the donation and implantation of egg donated by a woman to her  female partner. At the end of the discussion the Attorney General decided, among others, as following:

• The legal point of departure is that imposing restriction by the State on eggs donations requires an authorization under law. Therefore, since the only restriction in the Regulations on our matter is that the extraction of eggs must be in the course of medical treatment due to the donor’s fertility difficulties and only when the extraction is to advance her treatment, then once the eggs have been extracted under these circumstances the Regulations include no lawful anchor for prohibiting their use as a donation to another woman.
• Still, the use of eggs may be prohibited, even when extracted according to the procedure established by the Regulations, where this violates the "public policy," such as when it is done to exploit or for the purposes of trade eggs.
• Where a donation between female partners is concerned, such as the case involving the request to the Ministry of Health, this cannot be viewed as a case that violates public policies, and the donation must be approved.
• The Attorney General emphasized, as was previously made clear in terms of other issues concerning the rights of same sex couples, that this position should not be seen as the creation or recognition of a new family status. Matters of status must be determined and regulated by the Legislature.

...”

And indeed, under this instruction, the implantation of a woman’s eggs in her female partner was made possible where the former is undergoing fertility treatments. This instruction by the Attorney General is proper and correct, and in my view, still in effect in light of my conclusion that there is no other legislative arrangement that applies or prohibits the situation before us.

21. It should be noted that in the course of the petitions that have previously submitted the difficulty in establishing meaningful and sensitive regulations in terms of reproductive techniques in regulations rather than in primary legislation were acknowledged. So, for instance, a petition was submitted to challenged regulations 11 and 13 of the People’s Health Regulations, which effectively lifted the prohibition against using a surrogate mother in Israel in order to bring a child into the world, and impose restrictions on the implantation of eggs from a donor. The State agreed to striking down these Regulations. I will further note that voiding the regulations was stayed for a certain period of time that would enable the issue’s regulation in primary legislation (see HCJ 5087/94, Zabro v. The Minister of Health (July 17, 1995); and HCJ 1237/91, Nahmani v. The Minister of Health (unreported,) where the State ultimately permitted the Nahmani couple to perform in vitro fertilization in Israel in order to implant it in the body of a surrogate abroad.) In an additional petition section 8(b) of the People’s Health Regulations, which distinguished between the requirements in terms of implanting an egg in a married woman and the requirements in terms of implanting an egg in a single woman, was challenged. With the State’s consent, this regulation, too, was struck down and it was held that a single, egalitarian arrangement would apply (see HCJ 998/96, Yarus-Hakak v. The Director General of the Ministry of Health (February 11, 1997.)) In the Sperm Bank case, the Court’s harsh criticism was expressed over the issue of sperm donations and the sperm bank is not regulated in primary legislation (the Sperm Bank case, para. 38 of Justice Rubinstein’s judgment, para. 33 of Justice Barak-Erez’s judgment.)
22. Therefore, the general approach of this Court has been that the use of artificial reproductive techniques must be regulated in primary legislation. Certainly this takes stronger force in terms of issues that have not been regulated at all, in primary or secondary legislation. Still, it seems the Court’s general approach has also been to permit the use of artificial reproductive technologies as long as there is no primary legislative arrangement prohibiting so, and where the rights of no third party or other considerable interests are infringed. “Nowadays, when technology may assist people where nature has failed them, a determinative consideration is necessary in order to prevent a woman from using that technology” (New Family, p. 447.) And Justice Procaccia emphasized this in terms of a prisoner’s right to perform artificial fertilization with his partner:

“The premise of the petition is that in order for a competent authority to permit a prisoner to perform a procedure of artificial fertilization with his partner, explicit authorization in a statute is required and without it, such permission is outside of the powers granted to it by law. This premise is fundamentally mistaken, and it turns the order of things on their head and undermines foundations of public and constitutional law. Once one has a right, certainly a basic constitutional right, a public authority need not a lawful authorization in order to exercise the right and respect it, the opposite is true. It needs a lawful authorization to limit and violate it, and where the violation limits or prohibits exercising that human right it must pass muster under the tests of the Limitation Clause as a condition to its validity and application.” (The Dovrin case, para. 16 of Justice Procaccia’s judgment.)

This position has been applied in the Attorney General’s instruction, and thus I, too, support it in terms of the situation before us. Therefore, I shall briefly detail the remaining considerations that support a holding whereby the procedure requested by the Petitioners must be approved in the absence of any lawful arrangement to prohibit it.

23. First, the principles I detailed above about the right to parenthood and the principle of equality must be woven into the relevant considerations in the matter. These principles of course support permitting the requested procedure in the absence of instructions from the Legislature to the contrary. Second, the arrangement does not raise a concern for infringing the rights of third parties, as it does not involve third parties beyond the couple that is interested in the procedure and participates in it. There is no involvement of a surrogate mother or an egg donor, so there is no concern for their rights or exploitation (see the New Family case, p. 453, 464.) Neither does the arrangement raise other typical concerns such as creating an offspring with no genetic link to his parents or caregivers, or the use of medical techniques for the purposes of the child’s genetic modification (see Zafran – There Can Be Two Mothers, p. 363.) Third, when a couple of women with no fertility difficulties are concerned, they would be able to bring a child into the world with a sperm donation without difficulty, and there is no restriction here. I see no reason why such a couple should be treated differently than an unlucky couple who is unable to bring children into the world in this way (see New Family, p. 442.) Fourth, the State’s position is not founded on principled objection to the procedure requested by the Petitioners, and no claim has been raised regarding a harm to public policy or any other meaningful argument. And indeed, as noted, the Ministry of Health has in the past approved the requested procedure. Additionally, the State emphasizes that the procedure would have been permitted in the converse – that is it would have been possible to permit the Second Petitioner to extract eggs in order to implant it in the uterus of the First Petitioner. There is no logic in approving the procedure in only one direction, when no legal arrangement prohibits the opposite direction. Finally, I will note that this is not about bringing a child into a single person’s family unit, which undisputedly is a different matter than bringing a child into the family unit of a couple (see New Family, p. 453.) And I will note that no research was brought before us to indicate that children benefit from being raised in heterosexual families, and it seems there is research to deny this assumption (see, for example: Zafran – There Can Be Two Mothers, p. 376 and the references there: see also additional research on this issue that substantiate the assumption that there is no correlation between parents’ sexual orientation and the children’s social and psychological function, and which refute the findings of research claiming otherwise: Nanette Gartrell and Henny Bos “U.S. National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents” Pediatrics 2010, 126:1 28-36; Carlos A. Ball “Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective”, 21 Wm. & Mary Bill Rts. J. 691 (2012-2013); Andrew J. Perrin, Philip N. Cohen & Neal Caren “Are children of parents who had same sex relationships disadvantaged? A scientific evaluation of the no-difference Hypothesis”, Journal of Gay & Lesbian Mental Health, 17:3 327-336 (2013). See also Justice Procaccia’s on the difficulties created by the issue of when the child’s best interest consideration may justify preventing the child’s birth and when the law may intervene in the matter: “The question when may the child’s best interest justify preventing the child’s birth is a deep question in the areas of ethics and philosophy. The question of when the law may intervene in this and when a public authority may have the power to intervene in one’s right to have a child for reasons of the child’s best interest and other reasons is highly difficult and complex. The right to have a child and the right to be born are concepts that are very much within the purview of the extra-legal areas of morality and ethics” (the Dovrin case, p. 17 of her judgment.))

Conclusion

24.  The picture created by the categorization we mapped out above, then, is as follows: a woman with unhealthy eggs who can carry a pregnancy may be assisted by an eggs donation under the Eggs Donation Law; a woman with unhealthy eggs who cannot carry a pregnancy can be assisted by both an eggs donation under the Eggs Donation Law and by the Surrogacy Law for purposes of implanting the fertilized egg (with the sperm of the intended father) in the uterus of a surrogate mother; a woman with healthy eggs who is able to carry a pregnancy can be assisted by in vitro fertilization when experiencing fertility difficulties under the People’s Health Regulations; a woman with healthy eggs who is unable to carry a pregnancy may too perform in vitro fertilization under the People’s Health Regulations. The implantation of the eggs in another woman can be done according to the Surrogacy Law(when the other woman is a surrogate) or according to the People’s Health Regulations (when the other woman is the partner who is also intended to be the child’s parent.)

My conclusion, as that of my colleague’s E. Hayut, but by a different rationale and reasons, whereby had my opinion been heard we were to accept the Petition and order the State to permit the First Petitioner to extract eggs, fertilize them, and implant them in the uterus of the Second Petitioner.

 

                                                                              Justice (Ret.)

 

Justice E. Rubinstein:

"Then [God - eds. note] remembered her way of integrity [Mother Rachel - eds. note],

a fetus was exchanged in [her - eds. note] sister's womb"

(Even Chug Piyut, attributed to Rabi Eleazar Ha-Kalir, from Rosh Hashana's first morning prayer's liturgical poems)   

Background and Essence

1. The First Petitioner – Liat Moshe (hereinafter: “Liat” or “the First Petitioner”) – wishes to bring a genetic child into the world through the Second Petitioner – Dana Glisko (hereinafter: “Dana” or “the Second Petitioner”) – her life partner for about a decade now. The difficulty at the basis of this Petition is rooted – it seems – in the difficulties in carrying a pregnancy by the First Petitioner, and the Petition is for eggs from her body be implanted in the uterus of the Second Petitioner so that the child be linked to them both – a genetic link to the First Petitioner, and a physiological link to the Second Petitioner – and thus both of their motherhoods be realized. Once again this Court is called upon to pronounce upon an issue that is not one our fathers and mothers anticipated as there was no real possibility, only few decades ago, that the medical and technological advances would lead to it (HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 1 of my judgment (2013) (hereinafter: the Sperm Bank case.))
2. On September 1, 2013 we decided (by majority) to reject the Petitioners’ request – to implant an egg taken from the First Petitioner’s body, fertilized and then implanted in the uterus of the Second Petitioner – and thus in light of the current state of the law. So that the Petitioners know where they stand without delay, the decision was handed down without reasons, by the majority comprised of President A. Grunis, Deputy President M. Naor, Justice S. Joubran and myself, against the dissenting opinions of Justice E. Arbel, Justice E. Hayut and Justice H. Melcer. The facts of the case and the parties’ arguments were broadly detailed in the opinion of my colleague Justice Hayut, the core of her position will be presented below, and the same outcome, but by a different reasoning was reached by my colleague Justice Arbel. It so happened that the majority opinion in this judgment was not written in the regular order, but only after the dissenting opinions. With all best intentions to find in favor of the Petitioners, we believe that the significant strides made by the State, including during the deliberation in this case, as detailed by Justice Hayut is the best possible without legislative amendments; despite the appealing proposals of our colleagues. Therefore we present immediately below the reasons that led us – the majority justices – to reject the petition.
3. The essence of our reasons is that the current state of Israeli law, on the level of existing law, does not permit what the Petitioners request, and this because the Embryo Carrying Agreements Law (Approval of  the Agreement and the Status of the Child) 5756-1996 (hereinafter: the Surrogacy Law) does not apply on such circumstances, as will be briefly detailed below, and effectively even our colleagues do not dispute this. The Eggs Donation Law 5770-2010 (hereinafter: the Eggs Donation Law) does not apply either, in our opinion, and we did not see it fit to join the constitutional position of our colleague Justice Hayut, who “reads into” the exceptions committee’s powers under the law (article C in chapter C) the authority in this case as well, an authority which the legislature did not grant, and explicitly so, perhaps due to advice from a governmental body which itself is not acceptable to us under the circumstances. This advice, as we will show below, highlights the tension between the words of the Legislature and the powers of the Court. Finally, the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: the IVF Regulations,) which our colleague Justice Arbel wishes to use are no longer suitable, in our view, to what is requested, following the legislation of the Eggs Donation Law. There is therefore no lawful way currently to assist the Petitioners beyond what the State was prepared to do after the negotiation and changes in its position.
4. In this context let us recall, as Justice Hayut noted in paragraph 11, during the long hearings in this Petition (four time before an extended panel of this Court) the Ministry of Health issued on July 21, 2013 a protocol regarding “The Taking of Sperm, Eggs or Fertilized Eggs Out of Israel” which permits the Petitioners to perform the requested implantation outside of the country. This protocol allows the taking out of eggs extracted in Israel, among others, “for the purposes of realizing parenting… for the woman from whom the eggs were extracted,” with the approval of the exceptions committee. In a notice by the State (dated August 17, 2013) it was also said that the implementation team for the recommendations of the Mor Yossef Committee, which – as noted by Justice Hayut in paragraph 2 – recommended to extend the circle of those eligible to bring children into the world through surrogacy by including “single women who have medical conditions preventing them from creating a pregnancy” prepared a summarizing document in anticipation of legislative amendments.
5. And now for further detail. We will first note that in the medical world the procedure requested by the Petitioners is termed “Partner Assisted Reproduction/ Reciprocal IVF” (hereinafter: Reciprocal IVF.) Reciprocal IVF has become over the years fairly common in fertility clinics around the world for female same sex couples despite its high cost compared to “regular” IVF. This is because it allows both partners to participate in the process of creating the child, through dividing the “maternal function” between the partner who furnishes the egg (hereinafter: the genetic mother) and the partner who carries the pregnancy (hereinafter: the physiological mother) (see Lilith Ryiah, The G.I.F.T of Two Biological and Legal Mothers, 9 AM. U.J. GENDER SOC. POL’Y & L. 207 (2001); Dorothy A. Greenfield and Emre Seli, Assisted Reproduction in Same Sex Couple, 289, 291 Principles of Oocyte and Embryo Donation (Mark V. Sauer ed., 2013)).
6. In their amended petition, the Petitioners challenge two pieces of legislation that regulate the use of artificial reproductive technologies: the first is the Surrogacy Law, and the second is the Eggs Donation Law, as mentioned. My colleagues, Justices Hayut and Arbel, agree about the inherent misfit between the routes regulated in the Surrogacy Law and the medical procedure requested by the Petitioners. But they believe we should accommodate them through other legal paths, and as to those their opinions differ, as discussed.
7. In a realistic world, there are three potential scenarios where the State may be called upon to approve the medical procedure of reciprocal IVF between women partners: couple 1 – where both partners have healthy eggs and are able to carry a pregnancy; couple 2 – where one partner has healthy eggs but is unable to carry a pregnancy; couple 3 – where one partner has unhealthy eggs but is able to carry a pregnancy. Still, when one partner has unhealthy eggs and is unable to carry a pregnancy there is inherently no realistic possibility to initiate a process of reciprocal IVF. These scenarios before us when we examine the different statutes and the purposes behind them. We now move on to review the paths in which my colleagues walked in searching for a lawful route to realize the Petitioners’ wishes to bring into the world a child, who would be genetically linked to Liat, together with her partner – Dana – who is meant to carry the pregnancy with Liat’s fertilized eggs (and a sperm donation, of course), as well as to explain why our views differ. We will then address the Petitioners' arguments regarding the unconstitutionality of the Surrogacy Law, while the fundamental position as to its inapplicability is acceptable to us all, both majority and minority justices.

Accepting the Petition through the Eggs Donation Law?

8. Justice Hayut identifies section 11 of the Eggs Donation Law as the primary obstacle to realizing the Petitioners’ wishes, in light of the demand that the recipient be a woman who “cannot due to a medical condition become pregnant with the eggs in her body, or who has another medical condition which justifies using another woman’s eggs in order to have a child” (emphasis added – E.R.). Once my colleague reached the conclusion that the Eggs Donation Law infringes the Petitioners’ constitutional rights to autonomy (para. 24), to family life and to parenthood (para. 25), the constitutionality of the infringement was examined. It was said that the arrangement in the Eggs Donation Law was for a worthy purpose, but does not meet the proportionality requirements, because article C of the Eggs Donation Law creates an exception committee under the law, but “without granting the committee a sufficiently flexible authority to consider individual and exceptional cases that warrant diverging from the law’s provisions” (para. 34, and see also paras. 30-32.) Justice Hayut therefore suggest constitutional relief of reading into the Eggs Donation Law an additional sub-section – section 20(a)(5) – that would authorize the exceptions committee to approve eggs donation in circumstances where there are “exceptional and special reasons to do so” (para. 35.)
9. Justice Hayut therefore proposes that the Eggs Donation Law would allow the exceptions committee to approve an eggs donation for a recipient who had not pointed to a medical need for donation. Unlike the content of section 11 of the Eggs Donation Law, according to which – in the words of its heading – “a request for donation for the purposes of birth” may be submitted by a woman who is unable due to medical reasons to become pregnant with the eggs in her body and for using another woman’s eggs including for surrogacy. As much as we would like to, the history of the exceptions committee makes it difficult to support this position, though I do believe the Legislature would do well to consider authorizing the committee to consider exceptional cases on a broader basis than it has. The current state of the law, until the “amended” legislation is in effect cannot, in our view, encompass more than what the State is willing to agree to, that is, taking the eggs out from the country without penalty as detailed above (para. 4.)
10. Until the Eggs Donation Law was passed in 2010, eggs donation was regulated by the IVF Regulations which permitted eggs donation only from a woman who was “undergoing fertility treatment and where a supervising physician determined that the extraction of eggs advances her treatment” (reg. 4(1)). The restriction in the IVF Regulations on the identity of the donor created a national shortage in the pool of eggs for donation. In 2000, a public professional committee, headed by Rabbi Dr. Mordechai Halperin of the Ministry of Health, was convened in order to study the issue of eggs donation in Israel (hereinafter: the Halperin Committee). The Halperin Committee recommended to make eggs donation possible also from women who are not undergoing fertility treatments, and this only for the purposes of fertilization and in return for “comprehensive compensation” (sections 7(a) and 9(b) of the Halperin Committee’s recommendations.) It should be noted, that in the Committee’s recommendations there was no explicit demand that the recipient would have a medical need for donation. And so, in section 4(2) of the recommendations it was said that the donation recipient would be “a woman past the age of minority and an Israeli citizen whose age at the time of the eggs’ implantation in her body is under 51 years” – this and no more. Still, it is important to note that the recommendations of the Halperin Committee were not presented as is to the Knesset as a bill (see Mordechai Halperin, Eggs Donation in Israel – Dilemmas and Recommendations, Medicine and Law – The Jubilee Book 165 (2001)).
11. In 2007, the Eggs Donation Bill, 5767-2007 was published in Government Bills 289, p. 292 (hereinafter: the Bill ) and it matured into legislation only in 2010. As was said in the explanatory notes:

“The proposed statute is intended to regulate the different aspects involved in extraction and donation of eggs in Israel, and the use of these eggs. The essence of the proposed statute is to regulate eggs donation for the purposes of having children, but it also includes provisions that allow, under certain circumstances, use of donated eggs as described, for the purposes of research as well.”

As opposed to the Halperin Committee’s recommendations, section 11 of the Bill proposed to limit donations to a recipient who points to a medical condition (for a review of the many differences between the Halperin Committee’s recommendations and the Eggs Donation Bill, 5767-2007, see Smadar Noy, Daniel Mishori and Yali Hashesh, Gold Eggs Laying Geese – The Eggs Donation Bill 5767, Refu’a U’Mishpat 36, 161, 175-79 (2007)). The explanatory notes for section 11 clarify that the requesting woman may also point to the existence of “other justifying reasons” (there, p. 297, emphasis added – E.R.). Additionally, in section 21(e) of the Bill it was proposed to grant the exceptions committee the following powers:

“To approve the extraction of eggs, the allocation of eggs or the implantation of eggs, according to the request of a supervising physician as defined in section 18, should the committee be satisfied that under the circumstances there are exceptional  and special reasons to do so.”

The explanatory notes clarified that the unique reasons are those “which cannot be anticipated in advance, and this without requiring an amendment to the statute” (there, p. 304, emphasis added – E.R.) The catch all section that aimed to authorize the exceptions committee to consider “exceptional and special reasons” was deliberately removed by the sub-committee of the Labor, Welfare and Health Committee that discussed the statue. This removal was criticized in my colleague Justice Hayut’s opinion (paras. 21-22, 38.) A question remains, on the “legislative intent” level, whether even had the catch all section been enacted into the Eggs Donation Law, was there place under the circumstances before us for the exceptions committee to have approved egg donation where the recipient does not demonstrate any medical need, because we are concerned with a case where it is seemingly clear that the law did not have in mind in its origin. We shall review the legislative history in order to uncover this.

12. The minutes of the meetings of the sub-committee of the Labor, Welfare and Health Committee reveal that the Ministry of Health’s legal advisor, Adv. M. Hibner Harel, wished to create through the catch all section “an exit strategy, there are things in life I do not anticipate today” (sub-committee meeting, dated November 3, 2008.) Things to this effect were quoted by Justice Hayut in paragraph 21. And indeed justice Hayut believes that the catch all section should have covered “cases such as the one before us where the recipient has no medical need for an eggs donation but there are other reasons the justify permitting the donation” (para. 22.) However, were we to take a closer look at the sub committee’s discussions from November 3, 2008 we find – it seems – that the catch all section, before it was removed, was not designed to resolve such cases. During the discussion Rabbi Dr. Halperin expressed his concern that “the catch all section makes everything else redundant. It compromises anonymity, infringes the woman’s rights, infringes the man’s rights. It is a section that violates all the rights.” Adv. M. Hivner Harel clarified that “this section was actually born out of the shortage in eggs donation for research… this section was written for catastrophes. It was not born as a catch all section for cases that are not catastrophes” (there, p. 46, emphasis added – E.R.) Is the scenario of partners wishing to perform a procedure of reciprocal in vitro fertilization one that is a “catastrophe”? I doubt it. Let us recall that the medical procedure – reciprocal IVF – as requested by the Petitioners was anticipated and familiar to professional bodies, including in FA (Tel Aviv Dis.) 60320/07, T.Z. v. The Attorney General, State Attorney – District of Tel Aviv (2012) (hereinafter: the T.Z. case.) This was a case where in 2006 a lesbian couple secured the approval of the Ministry of Health’s legal advisor herself to perform the procedure of reciprocal IVF. I will later discuss the distinctions between that case and ours. It is therefore doubtful whether, it was actually proposed to legislate the catch all section in order to provide a solution for the procedure the petitioners request to perform.
13. The foreseeability of the procedure requested by the Petitioners is seemingly also inferred from the sub-committee’s discussions in regards to the drafting of section 22(a)(2) which addresses the designation of a donation from particular donor to a particular recipient for “religious or social” reasons:

“Chair Aryeh Eldad:

If there is an opening for lesbians, there is also an opening for the best friend. It is unclear what it is, but there is opening for the exceptions committee to discuss and say she can’t. This is a good opening.” (Minutes of sub-committee of the Labor, Welfare and Health Committee for Reviewing the Eggs Donation Bill, 5769-2008 (November 3, 2008.)) (emphases added – E.R.)

It seems that in the committee there was the opinion that saw section 22(a)(2) of the Eggs Donation Law the door to the exceptions committee for permitting lesbian couples non anonymous donations of eggs from one partner to the other who needs the donation for “a medical need” (couple number 3 in the scenarios presented in paragraph 7 above.)

14. My colleague Justice Hayut quoted extensively (para. 21) things from the discussion of the sub-committee, though at the end of the day it was decided not to include a catch all section, as a result of Rabbi Dr. Halperin noting during the discussion that “It is better to remove section 18 (approval in special cases – E.R.) and leave it to the court […] The court permits things that the law prohibits. Not just the Supreme Court, but also the District Court. There are many examples. When there is a real need it finds the way, even if it is in violation of the explicit law.” And in response to the comment by the Chair, Professor Eldad, that “the court cannot operate in violation of the law, maybe we can add here a catch all section that authorizes the court as an exception to the exception,” Rabbi Dr. Halperin replied “but this does not need to be written. The court does that anyway even without catch all sections. So we do not need this.”

My colleague criticizes these things as “puzzling and mistaken reasoning.” I regret that Dr. Halperin, who is a rabbi, a gynecologist and a legal expert, and an author of many works in medicine, and in particularly in the field of fertility “a symptomatic dysfunction” – that is, the conventional wisdom common in different circles as if the Court does as it wills. No matter what the law is, the Court walks its own path. The law is not a “pick your own adventure” even, and perhaps first and foremost, to the Court. The Court’s role is to interpret, and often the law is subject to different interpretations between which the Court must decide (on the issue of interpretation see – for instance – the series of books by Professor Aharon Barak on Interpretation in the Law, which reviews all aspects of the issue.) Moreover, when the legislature “burdens” the court with interpretive duties in matters that are subject to great moral and public debated, such as the phrase “the values of the State of Israel as a Jewish and democratic state” in section 1A of Basic Law: Human Dignity and Liberty and section 2 of Basic Law: Freedom of Occupation. However, where the Legislature’s position is clear, even under the legislative purpose as it the statute was enacted (as opposed to questions of interpretation where a statute is open to interpretation) – the Court must exercise great caution and it is not free to decide as it wishes, even when a worthy cause is at stake – and there the Court must wait for the Legislature.

15. Indeed, even were the proposed catch all section in the Eggs Donation bill enacted into the Eggs Donation Law, and in my view it should have been, the question remains – and I shall leave it for determination in future cases – whether it would have been appropriate to permit the Petitioners’ request, and this in light of the primacy given by the Eggs Donation Law to physiological parenthood over genetic parenthood. In Israeli legislation there are several statutes that address parenthood (for the different models, see Yechezkel Margalit, On the Determination of Legal Parenthood by Consent as a Response to the Challenges of Determining Parenthood in Modern Times, Din U’Dvarim 6, 533 (2012) (hereinafter: Margalit); Mordechai Halperin, "A Woman Conceived Seed and Gave Birth" Biological Parenting and Genetic Parenting, Weekly Parasha – Legal Reviews of Torah Portions, Vayikra 110 (A. HaCohen and M. Vigoda, eds. 2012.)) Section 3(a) of the Woman’s Equal Opportunity Law, 5711-1951 and section 14 of the Legal Competence and Guardianship Law, 5722-1962 reflect approach that bemoan the genetic element, an approach absent from the Adoption Law 5741-1981 and the Eggs Donation Law and even under some views in the Surrogacy Law, where the genetic element is somewhat marginalized and allows the establishment of parenthood not on the basis of clear genetic foundations (see Hagai Kalai, Suspected Parents: Legal Supervision and Control over Non Heteronormative Parents Following HCJ 566/11 Mamat-Magad v. The Minister of Interior, Law in the Net – Human Rights – Decision Commentary Updates 28, 5, 9-13 (2014) (hereinafter: Kalai.)) I will admit that in my eyes genetic parenthood within surrogacy is primary and therefore also the theoretical and moral approval of surrogacy. It should be noted that rulers of Jewish law are split on the question of which woman is considered the mother in the case of surrogacy, and see paragraph 36 below. In any event, in order to fit our case under the confines of such a “catch all section” it would have been necessary to create a model of “inherent constructed co-parenthood” and this remains in question.
16. What is the model of parenthood reflected in the Eggs Donation Law? Section 42 of the law stipulates that the child born of an egg donation shall be the child of the recipient and this without any need for issuing a parenthood order. In other words, through the Eggs Donation Law, despite the genetic link between the egg donor and the child, the physiological contribution of the recipient in creating the child is privileged. The Egg Donations Law, as we detail further in the context of the Surrogacy Law, aimed to “delink” the egg donor from the child and the recipient (see in this context of disconnecting the legal link in section 42(c) of the Eggs Donation Law, which mandates the severance of legal rights and obligations between the donor and the child; see also the references in the Eggs Donation Law in defining an “intended mother” and a “carrying mother” in the definitions section to the Surrogacy Law which at its basis is the view of “delinking” the “intended parents” from the “carrying mother” and in effect from the child and the “carrying mother.”) Only the issue of delinking is similar in both statutes.
17. The purpose of the Eggs Donation Law is expressed in section 1 of the law which stipulates that the law is essentially intended to regulate eggs donation for the purposes of birth for women who cannot realize their parenthood without an eggs donation, and this “while maximum preservation of their dignity, and protection of the rights and the health of the donor and the recipient.” This is also reflected in the legislative history: “realizing parenthood is a paramount value in the State of Israel… We must understand that when the State of Israel approved this Bill it was concerned with the realization of parenthood by women who would be unable to do so without an eggs donation” (Adv. M. Hibner Harel, minutes of discussions in the sub-committee, dated February 18, 2008, emphasis added – E.R.) The goal of realizing parenthood by the recipient, despite the absence or deficiency in genetic material, is also inferred from the medical route to receiving an eggs donation:  “Women who suffer ovarian dysfunction, a lack of ovaries, or reduced ovarian reserves; women who repeatedly produce eggs and/or embryos of compromised quality; women who have failed, after repeated attempts, to become pregnant through IVF treatments; carriers of a severe genetic defect; women over the age of 45” (Orly Loten, Eggs Donation for Fertilization and Research, The Knesset – Center of Research and Information (November 13, 2007)).
18. The fundamental approach of limiting the donation to a recipient with a medical need has, therefore, medical justifications, such as avoiding medical treatment that is unnecessary (Michal Agmon Gonen and Keren Dabach Deutsch, The Physician’s Right To Refuse Providing Fertility Treatments, Refu’a U’Mishpat 33, 13 (2005)), as well as social justifications such as preventing the use of donations for purposes of genetic engineering (Ruth Zafran, There Can Be Two Mothers – The Definition of Motherhood to a Child Born to a Female Same Sex Couple, Din U’Dvarim 3 351, 362 (2008) (hereinafter: Zafran.)) Creating a distinction between recipients who require the donation due to a medical need and recipients who seek the donation without demonstrating a medical need is at its core consistent with the legislative purpose, which is protecting the health of the donor and the recipient involved in eggs donation for the purposes of having a child. We therefore find that the approval granted by the exceptions committee to a donation by the First Petitioner to the Second Petitions would doubtfully, on its face, fit into the harmony within the entire provisions of the law in light of the primacy it affords physiological parenthood in cases where the woman is unable to realize her genetic motherhood. Realizing the desire of a woman, such as in the case before us, to bring into the world a child with genetic code that is similar to hers on its face diverges from the rationale motivating the Eggs Donation Law which was designed to assist women with medical conditions involving their eggs to realize their right to parenthood. Had the law intended for it to be possible to give an eggs donation to a healthy woman due to the medical need of the donor as well, presumably this would have been said explicitly (LCA 5638/95, Migdal Insurance Company Ltd. v. Shamur, IsrSC 49(4) 865, 871 (1996); CA 4100/97, Ridner v. Vizaltier, IsrSC 52(4) 580, 594 (1998); AAA 1721/10,  Ganei Tikva Local Council v. Kopelvitch, para. 12 (2011)).
19. At the basis of the law, therefore, is the giving of an egg donation to a woman who has a medical need for the donation. This realizes the law’s primary objective – to assist women with defects in their eggs to realize their right to parenthood. The distinction the law created between women who have a medical need and women who do not, seemingly does not discriminate against the Second Petitioner, in light of the existing relevant difference (HCJ 4124/00, Yekutieli v. The Minister for Religious Affairs, para. 35 of President Beinisch’s judgment (2010)). Thus, as opposed to my colleague Justice Hayut, I do not believe we are concerned with the constitutional level of examining the Eggs Donation Law, as this law to begin with did not come to cast its net over our case.
20. The opinion of my colleague Justice Hayut emphasized the matter of T.Z., a case from 2006 where the Ministry of Health permitted, before the legislation of the Eggs Donation Law, to women partners to donate eggs to one another. The T.Z. case was brought as evidence that the Ministry of Health “see the female couple a family unit that justifies granting their request while considering the circumstances of their shared lives” (Hayut, para. 21.) However, I am afraid that this case does not constitute evidence. Examining the facts of that case reveals that the receiving partner had a clear medical need for a donation from her partner, unlike the circumstances of the Second Petitioner. In other words, had the Eggs Donation Law already been on the books 2006 when the partners in T.Z. sought approval for an eggs donation, they would have been granted such approval according to the law, as the recipient meets the restriction legislated into section 11 of the law due to her medical need. And the other partner would have been permitted to donate, as the Eggs Donation Law removed the requirement for the donor to be in the midst of reproductive treatments. This route was proposed to the Petitioners during the hearing held on November 19, 2012 – it was suggested that Dana would donate to Liat, who has a proved medical need, a non-anonymous donation, as was also done in T.Z., but this proposal was rejected by the Petitioners.
21. When reciprocal IVF between women partners was approved in the past, before the Eggs Donation Law was legislated, it was done according to medical policy that was later supported through primary legislation. My colleague Justice Hayut described (para. 20) the Attorney General’s Guidelines  from November 24, 2009 (following a discussion dated September 6, 2009) and thus the reason that the approval of the Attorney General was necessary in T.Z. was that the donor in that case was not at the time undergoing fertility treatments, and this limitation was lifted by the Eggs Donation Law, and indeed was not an obstacle for the Petitioners in our case either.

In the absence of the recipient’s “medical need,” even had the Attorney General’s Guidelines from 2009 applied, the Petitioners could not have relied upon it. The novelty in the Attorney General’s Guidelines was lifting the restriction imposed by the IVF Regulations on the identity of the donor, while the hindrance faced by the Petitioners here stems from the requirement that the donor would have a medical need for a donation, a restriction that, as noted, is inferred from the legislative history, the legislative purpose  and the primacy the Eggs Donation Law affords physiological parenthood.

22. Were we to return to the scenarios we presented at the outset of the judgment, the Eggs Donation Law in its present version resolves only the problems of couple number 3, who seeks a procedure of eggs donation from a partner with healthy eggs who wishes to make a non-anonymous donation to her partner who has unhealthy eggs and would carry the pregnancy. By adding the catch all section, my colleague Justice Hayut seeks to additionally allow couple number 2 – where one of the partners has healthy eggs but is unable to carry the pregnancy – to come under the provisions of the law, in order to realize Liat’s wishes to be a genetic parent through her partner. It should be noted, that even had the catch all section been included in the Eggs Donation Law, as my colleague suggests, this would not resolve the problems of couple number 1 – two partners who have no proven medical condition – but still wish to pursue the process of reciprocal IVF in order to create a common genetic physiological child.
23. It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an eggs donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in Laws 8 (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, Moznei Mishpat 7, 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, who is charged with weighting the balances. In any event, and certainly in light of the legislative history on one hand and the partial solution proposed by the State on the other hand, it seems there is no place to authorize the exceptions committee to create medical public policy out of thin air through a catch all section and while eliminating the requirement for medical need in specific cases – this without any guidelines in the form of legislative instructions, which are possible through a not too great legislative effort.

Approving the Request through The People’s Health Regulations (In Vitro Fertilization), 5747-1987?

24. My colleague Justice Arbel, believes too that the Petitioners cannot prevail through the Eggs Donation Law, because “one cannot donate something to themselves, because that cannot be considered a donation” (para. 15,) and found that there is no justification to intervene in the requirement for a medical need under section 11 of the Eggs Donation Law (para. 14.) Also she suggested in her opinion an alternative path to the one proposed by Justice Hayut to accomplish a procedure of reciprocal IVF as requested by the Petitioners, through the IVF Regulations (paras. 17-18.) According to Justice Arbel, it is possible to apply the People’s Health Regulations to the situation requested by the Petitioners without difficulty, as it has already been done in the T.Z. case.
25. However, as we have already shown above (para. 20,) the circumstances of T.Z. are greatly different from the circumstances of the Petition before us. It is true that the Attorney General’s Guidelines from November 30, 2009 addresses a donation between women partners, saying that “this should not be seen as an act that violates the public policy.” However, in all the cases detailed as the foundation for this premise, which were presented at the discussion held on November 24, 2009, the recipient partner demonstrated a medical need for the donation from her partner. Meaning, we are concerned with cases that are clearly covered by the current legal arrangement established by the Eggs Donation Law, which is not seemingly the case in the case here.
26. Moreover, the language of regulation 4 of the IVF Regulations can be viewed as evidence for the indispensability of the requirement for a medical need:

“Extraction of an egg shall be done only from a woman who has met one of these conditions: (1) she is undergoing fertility treatments and a supervising physician has determined that extracting the eggs would advance her treatment; (2) she is not undergoing fertility treatments, but is interested in preserving fertility, due to her age…” (Emphasis added – E.R.)

And indeed – the definitions section of the Regulations distinguishes between a procedure of “taking an egg” which involves extracting eggs from a woman and implanting them in her body and a process of “egg donation” which involves taking an egg from a woman and implanting it in the body of another woman. Regulation 3 stipulates that taking eggs will be done only “for the purpose of in vitro fertilization and implantation after its fertilization.” We learn that the taking process, which involves the IVF process of one woman only, cannot be applied to the process of reciprocal IVF as requested by the Petitioners. Indeed “in the past the Ministry of Health approved the requested process” (para. 23), as my colleague Justice Arbel noted, but I fear that now, after the Eggs Donation Law was legislated, we are living in a different legal reality, and it seems the permission granted by the Ministry of Health became obsolete once the Eggs Donation Law was passed, as it regulated what was previously allowed through the Ministry’s approval – a process of non-anonymous donation of an egg from a woman not undergoing fertility treatments to a woman requiring the donation for medical reasons. The Attorney General’s Guidelines from 2009 implicitly exists through the Eggs Donation Law, and thus it is difficult to use the Regulations to approve a procedure where an egg is taken from the First Petitioner's body to be implanted in the Second Petitioner’s uterus. I fear such a procedure has no source in the IVF Regulations. In light of the above regarding the T.Z. case, it is also impossible to say that the law aggravated the circumstances of women like the Petitioners, and of course the Legislature holds the key to any amendments.

Interim Conclusion – Perhaps I Will Build a Family Trough Her (Genesis 16:2)?

27. As mentioned, my colleagues Justices Hayut and Arbel propose to pave a lawful way for the medical procedure requested by the Petitioners be it through the Eggs Donation Law or through the IVF Regulations, respectively. They both rejected applying the Surrogacy Law on the circumstances at hand, due to the absence of the severance element between the carrying mother and the child. Only their proposals create, in effect, a “D tour” of sorts for the Surrogacy Law, only for the sake of offering a solution for this case, and in my view the current state of the law does not support this. It is a good question whether a broad interpretation is appropriate before the Legislature has had its say.
28. I will add several comments: the surrogacy and eggs donation procedures are in effect two aspects of the same medical procedure. In both processes – aside from surrogacy cases where the intended mother requires both the services of a uterus and an eggs donation – the function of motherhood is divided between two different women: the genetic function and the physiological function. In both processes there is Woman A who provides an egg to Woman B in whose body the fertilized egg is implanted. The difference between the procedures stems only from the agreement between the parties that determines who will be the parent of the child born as a result of the medical procedure:

“When egg is retrieved from one woman, fertilized, and then implanted in a second woman, the first woman could be functioning either as an egg donor – with no intention of rearing the child – or, alternatively, as the intended rearing mother. Moreover, the second woman (i.e., the woman who carries the fertilized egg to term) might be functioning as a ‘surrogate’ or, alternatively, as the intended rearing mother. In both situations, the cast of characters is identical. What differentiates the two circumstances is not the functions performed by parties, but rather the intentions of the parties upon entering into the arrangement. These intentions define the roles of the parties and should determine legal maternal status” (Anne Reichman Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 Iowa L. Rev. 265, 277 (1995). (Emphases added – E.R.)

And further:

“An egg donor recipient woman and a gestational surrogate differ only in maternal intent, usually also reflected by legal contract. This ‘only,’ however, yields a cosmos of different contested meanings of motherhood.” (Dion Farquhr, The Other Machine: Discourse and Reproductive Technologies 151 (1996) (Emphasis added – E.R.)

The Agreement between the parties depends on the medical need of the woman who initiates the procedure. When a woman requires an egg donation, the requested process is termed “egg donation” and when she requires assistance in carrying a pregnancy the requested process is termed “surrogacy” – whereas the medical procedure itself essentially remains the same, identical.

29. Evidence for this can be found in sections 4(b) and 6(b) of the Eggs Donation Law:

“4(b) The instruction of section 4(a) would not apply to an eggs extraction from the body of an intended mother, to the lab treatment of eggs extracted as such and to their implantation in the body of a carrying mother for the purposes of executing an agreement for carrying embryo , under the Agreements Law.

…

6(b) There shall be no implantation of eggs but for implantation in the body of a recipient or of a carrying mother who entered into an agreement with a recipient for carrying embryo under the Agreements Law.” (Emphasis added – E.R.)

The identical medical procedure – extracting eggs from Woman A and implanting them in Woman B – is regulated by two different statutes. The root of the differences between the legislative arrangements is in the social agreement between the parties to the procedure and the State. Implanting a fertilized egg in the body of an intended mother according to the Surrogacy Law, is not considered a donation. Section 4(b) and 6(b) of the Eggs Donation Law clarify that there is a social choice in terms of categorizing the same procedure differently according to the medical need motivating the parties. I am afraid, that introducing a catch all section into the Eggs Donation Law, which would allow Woman A to donate an egg to a woman who has no medical need means the de facto creation of a surrogacy route under the Eggs Donation Law. This would require thought and examining legislative harmony. Extracting eggs from Woman A, fertilizing it and implanting it in the uterus of Woman B who herself has no medical need for a donation appears to put us close to a quasi-surrogacy procedure. Even in a surrogacy procedure, the carrying mother has not medical need for an egg donation and the fertilized egg is implanted in her body despite the lack of a medical need, this only if the link is severed after birth. See section 1 of this Law (the definition of “carrying mother”) as well as section 2 which addresses “implantation of fertilized eggs for the purposes of impregnating a carrying mother in order to give away the born child to the intended parents” (emphasis added – E.R.). The obstacle barring the Petitioners from coming under the confines of the Eggs Donation Law – the medical need – does not exist when we are concerned with a surrogacy procedure, thought, it is contingent upon severance, which in this case is the opposite from what the Petitioners seek.

30. The proposal to make use of the IVF Regulations, too, sounds like a “circumventing” of the Surrogacy Law because, indeed as long as the egg extraction is done for the purposes of fertilization in the body of the woman from whom the egg had been extracted, the legal arrangement which applies is the Regulations. However, once the egg is implanted in another woman’s body, the two relevant statutes are the Surrogacy Law and the Eggs Donation Law, and the determination as to the applying statute is examined in light of the intent of the party who requested the procedure in order to realize their parenthood. In our case, the First Petitioner seeks to create a child who will carry her genetic code, through the implantation of a fertilized egg from her body in the uterus of the Second Petitioner who has no medical need for the procedure. This all means that the using of the Eggs Donation Law and the IVF Regulations in order to enable a procedure where an egg is implanted in the Second Petitioner without a proven medical need, is therefore kind of circumvention of the Surrogacy Law and its provisions – an arrangement that allows, in effect, surrogacy where there is already a preexisting relationship between the intended mother and the recipient mother which is the foundation of the surrogacy, and this without applying the Surrogacy Law and the checks and balances included in its provisions, and in violation of the law’s approach in its current version.

Approving the Request through the Surrogacy Law?

31. To complete the picture, I shall address the Petitioners’ argument as to applying the Surrogacy Law which was at the foundation of their Petition from its outset. The State maintains that there are two main barriers in the Petitioners’ way when wishing to rely on the provisions of the Surrogacy Law. The first, that they are not included in the circle of eligible women; and second, the absence of severing the link between the carrying mother and the child after the birth, in light of their declared intent to raise the child together. To the State, the procedure desired by the Petitioners inherently does not fall under the Surrogacy Law, and exceeds its purpose and its provisions because it “creates genetic, biological co-parenting.” This position was general acceptable to the Justices in the extended panel – who saw the Surrogacy Law as an arrangement of severance after birth – and was at the foundation of the decision dated September 24, 2012 to have the Petitioners amend their Petition so that it would address also the Eggs Donation Law.
32. And yet I shall explore the question whether surrogacy in and of itself requires severance between the carrying mother and the child. During the hearing on April 28, 2013 Justice Arbel wondered about this, and I myself raised the question (see the records.) My concern was on the values level, first and foremost. According to the State, the severance between the carrying mother and the “intended parents” is an overarching principle of the institution of surrogacy, whereas recognizing the carrying mother as a legal mother has far reaching consequences, that is, recognizing a surrogate as the child’s mother for all intents and purposes, and doing so against the narrow and balanced arrangement established by section 13 of the Surrogacy Law which allows the carrying mother to renege on the agreement – including severance – in extreme circumstances alone.

And indeed it is seemingly possible to find in the various provisions of the Surrogacy Law evidence for the State’s position. We mentioned section 1 which defines an agreement for carrying embryo as an “agreement between intended parents and a carrying mother whereby the carrying mother agrees to become pregnant via implantation of a fertilized egg and to carry the pregnancy for the intended parents” (emphasis added – E.R.). We also pointed to section 2. Moreover, section 19 of the law stipulates that entering into an agreement to carry an embryo not according to the path laid out in the law is a criminal offense, punishable by incarceration. The law clearly designs the route to be followed by parties entering into an agreement of contractual, commercial surrogacy which involves compensation for the carrying mother ("Commercial Surrogacy") and does not involve regulation as altruistic surrogacy.

33. From the explanatory notes of the Surrogacy Law we learn that the law aims to permit surrogacy agreements “under certain conditions and in a supervised manner” (see the Embryo Carrying Agreements  Bill (Approval of the Agreement and the Status of the Child), 5756- 1995 (Bills 5756 n. 2456, p. 259, December 6, 1995.) The existing limitations in the law are inherent to the design of the surrogacy mechanism in light of the concerns for the exploitation of the surrogate mother. The Surrogacy Law was proposed following a report by a committee headed by Justice (Ret.) Shaul Aloni, and I will concede that reading the law on its face – including reading the explanatory notes to the Bill – resound of surrogacy based on severance. The explanatory notes (there) speak of advance technologies that allow “bringing children into the world… with the assistance of a woman (carrying mother) willing to become pregnant and to carry a pregnancy in her uterus for a couple, with the genetic code of the couple or at least one of them (intending parents) and to give away the child to them upon birth” (emphasis added – E.R.). I will not, however, discussing – beyond the necessary scope, it seems, of the case at hand – a situation where surrogacy does not in itself require complete severance between the carrying mother and the child.

Surrogacy seeks, at its core, to use the ability of a particular woman to carry a pregnancy and this in order to assist another (HCJ 625/10, Jane Doe v. The Committee for Approving Agreements for Carrying Embryo under the Agreements Law, para. 12 of Deputy President Rivlin’s judgment (2011)). Assistance in carrying a pregnancy in itself does not necessarily mean there must be severance, and this may depend on the circumstances, but it does require legislation, and I must say this – with emphasis – at this stage already. It should be noted that in certain countries which opted to permit surrogacy (Britain, Australia and Finland) an altruistic model was selected, rather than contractual, commercial (which our Law is modeled after, as inferred also by its title – the Embryo Carrying Agreements  Law (Approval of the Agreement and the Status of the Child), 5756-1996.) The altruistic model, as opposed to the contractual, commercial model, is built on a foundation of a preexisting relationship between the surrogate and the intended parents (Nufar Lipkin and Eti Smama, From Vision to Shelf Product: The Crawling Normativation of Surrogacy in Israel, Mishpat U’Mimshal 15, 435, 449-453 (2013) (hereinafter: Lipkin and Smama)).

34. The normative advantage of the altruistic model is that it allows overcoming the concern as to the exploitation inherent to the paid surrogacy model, a model that the approach at its foundation is that the surrogate mother is but a service provided, while ignoring the uniqueness of the procedure and the costs it involves (Id., p. 489-490.) The existing relationship between the surrogate mother and the intended parents, on the basis of which the agreement is made, may negate and at least decrease the concern for the surrogate’s exploitation. The Israeli Surrogacy Law, which addresses – as noted – commercial surrogacy, was designed with particular emphasis on the interests of the intended parents, who are usually interested in receiving the child without committing to an ongoing relationship with the surrogate. However, this is not necessarily the only way it was possible to shape the relationship created in the framework of the agreement between the intended parents and the carrying mother.
35. It is not unnecessary to note that scholars of Jewish law have theorized that the child in the surrogacy procedure has two mothers and this because of the concern for prohibited relations (see Z. Lev, Test Tube Baby – the Status of the Surrogate Mother, Emek HaHalakha B 163, 169 (1989); David J. Bleich, Contemporary Halakhic Problems 107-108 (1977)). This, as we will see, is the strict position of Rabbi S.Z. Auerbach. This all means that determining whether we are concerned with severance or with a relationship is an epistemological choice resulting from public policy and is not imminent to the medical procedure itself. There are in fact those who would say that surrogacy has environmental consequences that implicate the child. Still, the Surrogacy Law in its current version, which wishes to severe the relationship between the carrying mother and the child and intended parents, leaves a period of “twilight” – between the child’s birth and the grant of the parenting order (sections 10-11 of the Surrogacy Law) – where legal status has yet to be given to the intended parents but the child has already been moved into their custody. In this short period of time, the generic link to the intended parents does not ensure them any legal status, but does ensure them custody, and only the parenting order afterwards is which creates the final severance. It seems that the law as it is, creates a period of time where both women (the carrying and the intended) are tied to the child, at the same time. However, clearly this was not the intention of the law, which was designed to regulate surrogacy on a contractual, commercial basis which is followed by severance. Still, I have decided to examine, in light of the Petitioners' arguments, the constitutionality of the Surrogacy Law in this regard.

Surrogacy – the Jewish Law

36. To the credit of Jewish law I will note that current rulers of Jewish law contemplate and deliberate the question of surrogacy, just as they do many questions of Jewish law that come out of the technological and medical advances prevalent in our times, as well as the new family configurations, whether they are single parents or couples (see Rabbi Z.N. Goldberg, Attributing Motherhood When Implanting An Embryo in the Uterus of Another, Tehumin 5 248 (1984); Rabbi M. Herschler, Halachic Problems of a Test Tube Baby, Halacha and Medicine 1, 307 (1980); Rabbi A Klab, Who is the Child’s Mother – The Parent or the Woman who Gave Birth?, Thumin 5, 260 (1984); Rabbi Y.B. Meir, In Vitro Fertilization – Attributing a Fetus Born to the Surrogate Mother and the Biological Mother, Asya 11, 25 (1986); Rabbi E. Bik, Attributing Motherhood in Embryo Implantation, Thumin 7, 266 (1987); Professor Michael Korinaldi, The Legal Status of a Child Born from Artificial Fertilization with a Sperm or an Egg Donor, Jewish Law Yearly 18-19, 295 (1992-1994); Professor Daniel Sinclair, Artificial Insemination and In Vitro Fertilization in Jewish Law: Comparative, Halachic-Methodological and Moral Perspectives, HaMishpat 9 291 (2004); Rachel Chishlvitz, Surrogacy Coupled with Eggs Donation: Legal and Halachic Perspectives, Refuah U’Mishpat 39, 82, 85 (2008)). Some of the rulers did not consider surrogacy in a positive light as they saw it as confusing and mixing. However, it seems it should be considered, though it is not at the hard of the issue, similarly to artificial insemination that was permitted where there was great need for it (for reservations about surrogacy see Kovetz Yeshurun, 21 535, 537 on behalf of Rabbi Y.S. Elyashiv and Rabbi S.Z. Auerbach; on permitting artificial insemination see Rabbi M. Feinstein following the M.H.R.S.M, Q.A. Igrot Moshe Even Ha’Ezer 1, 10.) What is this great need? Family continuation is seen as the woman’s (for instance, the woman who requests artificial insemination) request for assistance at her old age (“A stick in hand and a shovel for burial”), Bavli Ketubbot 64, 71) and see the Sperm Bank case, in paragraph 27 of my opinion. Is it possible to see the realization of the right to parenthood a great need? This may be an extension of the need “at old age” to a life that is meaningful and satisfactory.

Another question that is somewhat highlighted by our issue, is who is considered the mother of the child – the donor of the egg or the surrogate? Rabbi Yosef Shalom Elyashiv (Nishmat Avraham 4, Even Ha’Ezer 2, 2) believed that the genetic mother – the egg donor – is the mother (Kovetz Yeshurun, p. 535-40) though perhaps later he came to doubt this (Yeshurun 21 (2009)) and see the references in Rabbi Dr. M. Halperin’s book Medicine, Reality, Halacha and the Word of the Medically Wise (2012) 22-23, 294-95. So believed, too, Rabbi I.M. Soloveitchik, The Law of a Test Tube Baby, Or HaMizrach 100, 122-128 (1981); see also Rabbi S. Goren, Implanting Embryo According to Halacha, HaTzofe 17 (1984); Rabbi Dr. E. Warhaftig, Annexure to the Discussion regarding Test Tube Babies, Thumin 5 268-269 (1984)), but for another opinion, Rabbi E.I. Waldenberg (Tzitz Eliezer, part 19, 40; 20, 49) who thought that the eggs do not belong to the body of the surrogate and she therefore would be considered the mother; and see also Rabbi Zalman Nehemia Goldberg, Tehumin 5 270. In his book, Rabbi Halperin presents the contrary position of Rabbi Ovadiah Yosef, Rabbi M. Brandsdorfer and Rabbi S.M. Amar who believe that the genetic mother is the mother (see the sources there, pages 294-295; and there are also opinions that have changed.) For a collection of opinions that essentially tip in favor of the surrogate’s motherhood, see also Olamot (lesson 33, 2009); but see Rabbi Aviad Bartov, Permitted through his Mother – and a Surrogate Mother, Shiurim B’Masechet Beitza, Har-Etzion Yeshiva, which summarizes (and see the references there) as follows: “Today it seems that the common Halachic practice is to say that the status of the fetus born of this arrangement (in vitro fertilization of the surrogate mother – E.R.) must be determined by the status of the mother who is the source of the test tube, rather than the surrogate mother.” The opinion of Rabbi S.Z. Auerbach, as I have heard it from Rabbi Professor Abraham Steinberg, was that there is no clear solution in either direction because there is not satisfactory evidence for full determination and thus both women must be seen “mother in strictness” (which would require, for instance, the conversion of one of them should she not be Jewish.) See also Rabbi Itzhak Shilat Medicine, Halacha and the Tora’s Intentions (2014) 222, 231, who brings from Nishmat Avraham (2 Ed.) Even Ha’Ezer 35. Ultimately in this case there is no need to determine who the mother is, as the goal is complete partnership between the two specific women, though this may come up in matters of singleness or of separation (see K.M. v. E.G., 13 Cal. Rptr. 3d 136 (Ct. App. 2004); Sanja Zgonjanin, What Does It Take To Be A (Lesbian) Parent? On Intent and Genetics 16 Hastings Women’s L. J. 251 (2004-2005)).

Does the Surrogacy Law Infringe upon the Constitutional Right?

37. The Surrogacy Law reflects the social agreement reached whereby “commercial surrogacy” was established for a narrow circle of intended parents who are a heterosexual couple (HCJ 2458/01, New Family v. The Committee for Approving Agreements for Carrying Embryo, IsrSC 57(1) 419, 437-38 (2002) (hereinafter: the New Family case.)) Does the existing arrangement in the Surrogacy Law infringe upon the Petitioners’ right to parenthood? Further, does creating a genetic, biological child within a lesbian relationship  was not in the Legislature’s mind when passing the Surrogacy Law, but since the First Petitioner wishes to realize her right to genetic parenthood by using her partner’s uterus, can her request rely on the Surrogacy Law?

The First Step – Is There an Infringement upon the Right to Parenthood?

38. The right to family life is a sub right that derives from the constitutional right to human dignity (HCJ 7052/03, Adalla Center for Arab Minority Rights in Israel v. The Minister of Interior, IsrSC 61(2) 2002 (2006)). The right to parenthood is a granddaughter right to the right to family life and it encompasses various methods for fertility, reproduction and birth (Aharon Barak, The Constitution of the Family: Constitutional Aspects of Family Law, Mishpat V’Asakim 15, 13, 42 (2014) (hereinafter: Constitution of the Family); Aharon Barak Human Dignity – The Constitutional Right and its Daughters Vol. 2, 662-670 (2014)). There is no dispute that the right to parenthood was recognized repeatedly in the jurisprudence of this Court as a basic constitutional right (CA 5527/93, Nahmani v. Nahmani, IsrSC 49(1) 485, 499 (1995); CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 50(1) 48, 102 (1995); CFH 2401/95, Nahmani v. Nahmani, IsrSC 50(4) 661, 775 (1996); the New Family case, p. 445; HCJ 2245/06, Dovrin v. The Prison Service, para. 12 of Justice Procaccia’s judgment (2006); HCJ 4293/01, New Family v. The Minister of Labor and Welfare, paras. 17-21 of Justice Procaccia’s judgment (2009) (hereinafter: HCJ New Family); HCJ 11437/05, Kav L’Oved v. The Minister of Interior, para. 38 of Justice Procaccia’s judgment (2011) (hereinafter: the Kav L’Oved case); the Sperm Bank case, para. 27 of my judgment and para. 8 of Justice Barak-Erez’s judgment (2013)).
39. The right to parenthood was recognized as a right with “negative” and “positive” aspects (HCJ New Family, para. 3 of President Beinisch’s judgment and para. 5 of Deputy President Rivlin’s judgment.) The negative aspect concerns protecting the individual from external intervention in the right and its exercise. The positive aspect goes to the state’s duty to assist the individual in exercising the right (see Aharon Barak, Interpretation in Law 3, 312 (1994); Aharon Barak, Proportionality in Law: Infringement on Constitutional Rights and its Limitations 44 (2010) (hereinafter: Barak, Proportionality)). The right to parenthood was repeatedly considered against technological developments in the area of reproduction. Surrogacy has been recognized as part of the right to parenthood, but was categorized as a process that belongs on the positive level of the right to parenthood (HCJ New Family, para. 23 of Justice Procaccia’s judgment.) For critiques on this categorization, see Kalai, p. 19-20. In any event, by both aspects, the right to parenthood is not absolute (Barak, Proportionality, p. 56-57.)
40. The Petition at hand raises, among others, the question of whether the right to parenthood includes the right to genetic parenthood specifically. This question was not explicitly contemplated in the case law, but the “voice of blood” – the genetic element – has been heard (CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 56(1) 48, 102 (1995); the New Family case, p. 461; Pinhas Shiffman Family Law in Israel 132-133 (1989); the Kav L’Oved case, paras. 38-39 of Justice Procaccia’s judgment; CFH 1892/11, The Attorney General v. Jane Doe, para. 6 of Justice Joubran’s judgment (2011)). In the Sperm Bank case (paras. 43-45) I discussed the weakening of the genetic element, and that genetic parenthood cannot be considered to be the end all be all. This has support in Jewish law, too – “Happy is who does charity, one who raises orphan boys and girls in one’s home and brings them to be married” (Bavli, Ketubbot 50, 71); “Anyone teaching Torah to another’s son as if the child is his” (Bavli, Megila 13, 71); “I know no other father but you, as that who raises one is called father, rather than the only leading to birth” (Shemot Rabba, 46, 5, “and now, God, you are our father”); “Rabbi Hanina says ‘and her neighbors gave him a name that meant he was a child born to Naomi (Ruth 4, 17), as because Naomi gave birth and Ruth gave birth, but Ruth gave birth and Naomi raised he was therefore called for her” (Bavli, Sanhedrin 19, 72); on the model preferring the “social/ functional/ psychological parenthood” see Margalit, p. 576-582.)) Recently this Court considered the general and supplemental issue of a request to establish parenthood based only on a contractual foundation without any genetic element in AA 1118/14, Jane Doe v. The Ministry of Welfare and Social Services (the Petition was denied on July 13, 2014, in a decision that has yet to include reasons.)
41. In the Sperm Bank case, I addressed the two levels of the right to parenthood (para. 29):

“From all of this another distinction is revealed, which goes to the two levels of this right. The first level, which is in itself valuable, is the ability to realize reproduction ability and become a biological mother or father. The second level, which is that at the basis of the right not to be a parent, is one’s ability to choose how to realize their natural right that is the first level. The second level is in the periphery of the right to parenthood, it is not designed to protect the value itself of having children, but other values such as the right to privacy, autonomy and free will with whom, how and when if at all, to bring children into the world (including the ability to plan a family)” (emphases added – E.R.)

The distinction between the two aspects of the right is relevant here. The wise would easily see that on the legal level it is possible to distinguish between the infringement upon the First Petitioner’s right to parenthood and the infringement upon that right of the Second Petitioner’s. While the infringement upon the Second Petitioner is focused essentially on the second level of the right, because she is prevented from realizing the right in a manner she had requested , the infringement upon the First Petitioner is located in the first level of the right to parenthood, because she is barred from the very access for a surrogacy procedure and therefore, realizing her right to genetic parenthood. This categorization of the Second Petitioner’s issue does not negate the actual infringement because “as long as the margins are part of the right, the marginal character of the right's infringement is relevant only to the stage of constitutional review of the infringement, rather than the matter of whether there is in fact an infringement upon the right to human dignity” (The Constitution of the Family, p. 30; Barak, Proportionality, p. 44.)

42. For purposes of this discussion, I shall assume that the arrangement set in the Surrogacy Law which permits agreements between a man and woman and a surrogate and which requires severance of the relationship between the surrogate, the child and the intended parents upon birth, infringes the Petitioners’ right to parenthood. I will thus examine the constitutionality of this infringement.

The Second Step – Is the Infringement of the Constitutional Right Lawful (Limitations Clause)?

43. The Limitations Clause includes four conditions, as articulated by the language of section 8 of Basic Law: Human Dignity and Liberty – the infringement must be done in a law or by law under in its explicit authorization; it must be fitting of the values of the State of Israel; it must be for a worthy purpose; and to an extent no greater than necessary. Two main obstacles stand in the Petitioners’ way to be included by the arrangements of the Surrogacy Law. One, the statute’s definition of the term “intended parents,” which is (section 1) “a man and a woman who are a couple, who enter into an agreement with a carrying mother in order to have a child.” Two, the absence of severance between the carrying mother and the intended parents after the birth of the child. We shall address both these pivotal obstacles.

The Constitutionality of the Definition of the Term “Intended Parents”

44. The narrow circle of eligibility resulting from the definition of “intended parents” in the Surrogacy Law was considered in the New Family case within the issue of the eligibility of a single woman to realize her right to parenthood through a surrogacy procedure. It was held that “the law did not intend to fix the problems of a women without children who has no male partner, it did not even aim at solving the problems of a man without a female partner or any other couple” (Id. p. 439, by Deputy President Cheshin.) In the New Family case, the narrow circle of eligibility was considered constitutional primarily because the law’s novelty at the time. Deputy President Cheshin insisted that in the future, the issue will warrant revisiting, once relevant information was accumulated as to the execution of the surrogacy procedure as well as to its consequences (Id., p. 447-48, 456.) See also Yelena Chechko, On Ripeness and Constitutionality: Following HCJ 3429/11, Alumni of The Orthodox Arab High School v. The Minister of Finance and HCJ 3803/11, Board of Trusties of Israeli Stock Market v. The State of Israel, Mishpatim 43, 419 (2013)).
45. The Professor Shlomo Mor Yossef Committee – the Public Committee of Examining Legislative Regulation of Reproduction and Birth in Israel (2012) – did indeed recommend to expand the circle of eligibility for surrogacy, so that single women, too, would be able to access the process of commercial surrogacy. The Committee further recommended establishing altruistic surrogacy for single men (for critiques regarding the Committee’s recommendations, see Avraham, chapter 3d.)

Following the publication of the Committee’s recommendations, in June 2012 a team was put together to examine methods of implementing the recommendations, as we have noted above. This year the Memorandum for the Agreements for Carrying Embryo Law (Approval of an Agreement and the Status of the Child) (Amendment – Definition of Intended Parents and Executing an Agreement outside of Israel), 5774-2014 was presented and received the approval of the Ministers Committee for Legislative Matters on March 2, 2014. The memorandum proposes to change the definition of “intended parents” to include in the circle of eligibility single women and single men. That is, it was proposed to expand the circle of eligibility for commercial surrogacy, according to the spirit of the decision in the New Family case. The memorandum does not directly resolve the issue of the Petitioners here under the model they request – only making it possible for the First Petitioner to contract a strange woman as a surrogate, which of course is not the Petitioners’ intention.

46. In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it won't trail behind the Legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is first and foremost the Legislature, and the existence of advanced legislative processes warrants such judicial restraint.
47. To conclude so far, the definition of the term “intended parents” in the Surrogacy Law prevents the First Petitioner’s access to surrogacy. The State claims (para. 51) that this issue is merely theoretical in her regard in light of her desire to have the assistance of her partner in order to realize the surrogacy procedure. However, there should be a distinction between barring access to a procedure, on the first level of the First Petitioner’s right to parenthood, and the matter of how the surrogacy procedure will be executed on the second level of the right. We now move to the second bar, which is concerned with how the right to parenthood is exercised.

The Requirement for the Severance of the Relationship between the Carrying Mother and the Intended Parents – Constitutional?

48. The First Petitioner’s desire to execute the surrogacy procedure through her partner, appears to be, as mentioned above, concerned with the second level of the right to parenthood: the way in which the right it exercised. The First Petitioner wishes to exercise her right to genetic parenthood in a particular way, that is possible on its face in the medical sense – subject to the reservations of the First Petitioner’s treating physician that “there is no conclusive evidence as to whether the problem is the eggs or the pregnancy taking root (uterus-based)” (exhibit P/2 of the Amended Petition dated April 14, 2013), but it is still uncharted land in the legal sense.
49. Altruistic surrogacy, and at least surrogacy based on a relationship, is not recognized in the current legislative arrangement. Still, in the mentioned law’s memorandum it is possible to find slight hinting at establishing such surrogacy. Thus, it was suggested to change the definition of “relative” in section 1(3) of the Surrogacy Law so that cousins would not be considered relatives and could serve as carrying mothers. In section 2(3)(b) of the Surrogacy Law it was proposed to add an exception to the basic prohibition on the intended parents and the carrying mother being relatives as following: “despite the above, a sister cold use as a carrying mother as long as the sperm fertilizing the eggs implanted in her body is not of her brother.” The desire to increase the pool of candidates for carrying mothers brought the drafters of the memorandum to consider relatives of the intended parents under the assumption that the existence of a relationship would serve as a catalyst for entering into the surrogacy procedure.

In order to examine the proportionality of the demand to severe the relationship between the surrogate and the intended parents we shall consider the three accepted sub tests: first, the fit test – which requires a connection between the worthy purpose and the means selected to accomplishing it. Second, the least restrictive means test – which requires that the means chosen infringes on one’s right as little as possible. The third test concerns the existence of a proper connection between the means and the purpose, and weighs the benefits resulting from the infringing statute against the extent of harm done to the right (HCJ 4769/95, Menachem v. Minister of Transport, IsrSC 57(1) 235, 279-86 (2002); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 545-47 (1994); Barak, Proportionality, p. 373-454.)

50. Because there is on its fact a rational link between the surrogacy model built around the severance and the achievement of the purpose of the Surrogacy Law, as it currently is, we will move on to the second sub test for proportionality and ask whether there is an alternative which infringes on the right to parenthood less but may still achieve the law’s purpose. The Petitioners justifiably point to a variety of problems and criticisms raised in regard to commercial surrogacy – the exploitation of the surrogate’s financial circumstances, the hardship of severing the relationship with the child, regret for entering into the procedure, and the involvement of a third party in reproductive procedures (Lipkin and Smama, p. 480-85.) They argue that these are negated by an altruistic procedure which they seek. However, the altruistic model is not free of flaws, either. The main concern arising in an altruistic model is the social and familial pressure on the woman, which may lead her to enter into an intrusive and difficult procedure that does not reflect her true wishes (Rakhi Ruparelia, Giving Away the Gift of Life: Surrogacy and the Canadian Assisted Human Reproduction Act 23 Can. J. Fam. L 11, 14; 29; 35-36 (2007); Janice J. Raymond, Women as Wombs: Reproductive Technologies and the Battle over Women’s Freedom, 53-54 (1993)). In the United States, for example, there is a tendency to restrain altruistic agreements between relatives because of the concern for difficulties of disconnection from the child (Lipkin and Smama, p. 450.) An additional problem is the lack of sufficient psychological and scientific knowledge about the altruistic process and its consequences (Id., p. 490.)
51. Moreover, altruistic surrogacy may also raise, to greater force, the question of the surrogate’s legal status vis-à-vis the child. Ordinarily, in a procedure of surrogacy, once a parenting order is granted the carrying mother loses any legal status toward the child. In the procedure requested by the Petitioners, it is likely that the Second Petitioner who would have carried the child would seek legal recognition as the child’s mother (see also HCJ 566/11, Doron Mamat-Magad v. The Ministry of Interior (January 28, 2014) (hereinafter: the Mamat-Magad case.) Such a request poses significant difficulty to the institution of surrogacy in its current formulation which only recognizes the intended mother as the legal mother (Zafran, p. 388-395.) Legal recognition within the Surrogacy Law of the carrying mother may potentially cause harm to the group of “intended parents” who currently utilize the Surrogacy Law.
52. In light of all the above, permitting a model of “relationship” within the existing statutory arrangement cannot create an alternative that less infringes upon the constitutional right, which can still accomplish the purposes of the law. Though the establishment of altruistic surrogacy has great potential, the task of setting it up is clearly within the purview of the Legislature in light of the difficulties it presents in the absence of proper and balanced regulation. Establishing a model of altruistic surrogacy requires to create legislative mechanisms that would ensure the free will of the surrogate as well as methods for detection and follow up. Here is a challenge for the Legislature.
53. The Surrogacy Law therefore restricts the First Petitioner’s right to altruistic surrogacy, as this model has yet to be enacted in a statute. However, the infringement is limited to achieving the purpose of surrogacy through the altruistic model in Israel. The State did not block the First Petitioner’s way from executing the surrogacy procedure along the route she desires abroad. We refereed to the Ministry of Health’s protocol from July 21, 2013 titled “Taking Semen, Eggs or Fertilized Eggs out from Israel,” which enables the First Petitioner to take  fertilized eggs extracted from her body out of Israel, in order for them to be “implanted in the body of the woman from whom the eggs were extracted or in the body of a surrogate woman for the purposes of carrying a pregnancy for the woman from whom the eggs were extracted, or for the purposes of realizing parenthood in alternative means for the women from whom the eggs were extracted.” (Emphasis added – E.R.)

Through the protocol the State avoids defining the requested procedure as a surrogacy procedure, in light of the law’s absence of recognition of the altruistic model, but at the same time removes the obstacle standing in the Petitioners’ way to execute the procedure in other countries in the manner they wish to execute it. In my view, the option given to the First Petitioner to take her genetic material out of Israel meets the requirement of the third sub test (narrow proportionality) which concerns the relation between the infringement upon the constitutional right and the benefit achieved. Since altruistic surrogacy does not exist in Israel, it seems we have a proportional solution that balances the petitioners’ desire to execute the procedure in a specific manner they request and the need to refrain establishing judicial arrangements as a “patch work.” In contrast, allowing the Petitioners to realize their wishes in the specific manner they seek – that is, through altruistic surrogacy in Israel – would result in parts of the Surrogacy law becoming incoherent with each other (for the problems of “patch work” legislation, see HCJ 7691/95, Sagi v. The Government of Israel, IsrSC 52(5) 577, 587-88 (1998); LCA 418/03, Ossem Food Industries Ltd. v. Smaja, IsrSC 59(3) 541, 552-54 (2004); CrimA 4783/09, Shulstein v. The Antitrust Authority, para. 1 (2010)).

Finally, referring the First Petitioner under today’s state of the law to exercise her right out of Israel, with all the inconvenience involved, does not automatically cause unconstitutional infringement upon her right (HCJ 466/07, Galon v. The Attorney General, para. 8 of (then) Justice Naor's judgment (2012) (hereinafter: the Galon case.) Executing the procedure, in the specific manner requested, out of Israel constitutes a proportionate solution for the First Petitioner, as long as there is no existing legislative regulation of altruistic surrogacy. Executing the procedure allows the State to assist the Petitioners without causing disharmony to the existing statute. Indeed, there is discomfort with the State referring its citizens to realize their dreams and rights in other countries (the Mamat Magad case, paras. 5-10 of Justice Joubran’s judgment,) yet in the absence of a legislative arrangement that allows surrogacy along the route the Petitioners request, the solution suggested by the State through the protocol is proportionate, because “at times even the exercise of a constitutional right yields to the public interest” (see Galon, para. 11 of (then) Justice Naor's judgment) and in our case – to harmony in the system of parenthood arrangements and the balances between them. Interpretation such as the Petitioners requested stands, as my colleague Justice Hayut noted as well (para. 18), in contrast to the core of the existing arrangement, which focuses on severance between the surrogate and the intended parents.

54. Under the circumstances – as we have not accepted the Petition – it is unnecessary to delve into the issue of the legal recognition of the carrying mother (the Second Petitioner.) However, to the extent that the Petitioners chose or will choose to execute the procedure abroad, it seems the solution proposed by the District Court in T.Z. (paras. 31 and 34) – issuing a judicial parenting order (after conducting a review to support the petition for a parenting order) – and which comes out also of the Mamat Magad case (para. 43 of Deputy President Naor’s judgment, para. 11 of my judgment) could seemingly work in favor of the Petitioners here, because the State expressed no general objection to a family unit of “co mothers” which the Petitioners wish to contract, but only to the legal route in which they seek to construct it (on the legal recognition of two mothers in the United States, see Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J.C.R. & C.L 201 (2009)).
55. As to the future regulation of altruistic surrogacy within the general Surrogacy Law which currently only regulates commercial surrogacy, the Legislature must explore the possibility of establishing a route for altruistic surrogacy, which would operate in parallel to the commercial route where the law’s different parts would not conflict with one another, but complement each other. See – and this is only brought as an example – the proposal by the “Woman to Woman” Center in regard to introducing elements of a “relationship” into contractual commercial surrogacy as well, and this based on psychological research demonstrating that the human relationships formed are the primary benefit that the surrogate enjoys in the process (Nufar Lipkin and Eti Smama, Surrogacy in Israel – 2010 Snapshot and Proposal for Legislative Amendments – Report by ‘Woman to Woman-Feminist Center, Haifa’ 65, 80-82 (2010), Elly Teman, Birthing a Mother: The Surrogate Body and the Pregnant Self (2010)).

Conclusion and Final Words

56. At the end of the day, we did not see it fit to intervene in the State’s latest proposal, which meets the Petitioners significantly closer, though not exactly at their desired point. In our view, under the current state of the law it is impossible to fully assist the Petitioners, and doing so is up to the Legislature. As we have demonstrated, the dissenting opinion’s suggestions – as appealing as they may be – are not acceptable to us on the legal level. Hence our position not to accept the petition. There is no order as to costs.

 

                                                                                                Justice

President A. Grunis:

I agree with the judgment of my colleague, Justice E. Rubinstein.

 

                                                                                                President

Deputy President M. Naor:

1. I am among the majority Justices who have found the Petition must be denied.
2. The right to parenthood received recognition as a fundamental right, which expresses the natural desires of women and men for continuance in future generations (HCJ 566/11, Mamat-Magad v. The Ministry of Interior, para. 41 of my judgment (January 28, 2014); HCJ 4077/12, Jane Doe v. The Ministry of Health, paras. 25-29 of my colleague Justice E. Rubinstein’s judgment (February 5, 2013) (hereinafter: the Jane Doe case)); dismissing a motion for further hearing – HCJFH 1403/13, Jane Doe v. The Ministry of Health (June 6, 2013.)) The right to parenthood, as other rights in our law, has different aspects. At the core of the right to parenthood is the right of each man or woman to bring children into the world through natural reproduction, free of state intervention. It is also accepted that at the heart of the right is “the practical ability to enter the ‘group of parents’ and bring a child into the world (Id., para. 33). Another question, a more complex one, is what is the level of protection that must be given to one’s demand that the State assist him in creating genetic, physiological or legal parenthood. This, in light of the medical, technological advances that make creating parenthood by artificial means possible. These things found expression in the jurisprudence of this Court. See, for example: HCJ 4293/01, New Family v. The Minister of Labor and Welfare (March, 24, 2009), which addressed, among others, the question whether there is a constitutional right to adopt. Justice A. Procaccia discussed there the complexity inherent in the question whether one has a right to require the State to assist in the process of creating parenthood:

“The question from a different angle is whether the constitutional right to family life and parenthood, which is granted to any person, gives rise also to the right to require the state to take action in order to make it possible where one is not able, or does not wish, to exercise it naturally – for instance through adoption, through surrogacy or through in vitro fertilization. Does the state’s failure to act amount to an ‘infringement’ whose constitutionality is examined according to the Limitations Clause? Such questions are complex and multi-faceted. They go to the link between the constitutional right and the means one has to exercise that right. They raise issues with broad normative, moral, social and other ramifications. The approaches to resolving them are subject to the influences of time, place and circumstances…

… The question to what extent the state must assist the individual and grant the means necessary to assist reproductive processes through artificial reproductive techniques is difficult and complex. The greater the need for intervention of external factors in the reproduction processes, the farther we travel from the hard core of the right to parenthood as based on the individual’s autonomy and his independent right to make decisions that determine his fate without external intervention. The scope of the duty of the state to assist the individual through active steps to realize his natural parenthood through artificial means is difficult and has many aspects.” (Paras. 22-23.)

In that same matter, President D. Beinisch commented that the right to parenthood should not be interpreted as merely a negative right, but added that were there a constitutional right to parenthood through adoption, it would have been necessary to distinguish between the scope and the force of the constitutional protection given to the relevant right in different contexts (para. 3; see also the position of Deputy President E. Rivlin there, who believed that there is a liberty to adopt, and that restricting this liberty must be done in consideration of competing interests. See also, Aharon Barak, Human Dignity: the Constitutional Right and its Daughters, vol. 2, 667 (2014)). As my colleagues pointed out, alongside the right to parenthood, the best interest of third parties who are at times involved in the process of artificial reproduction as well as medical, social, and other ethical considerations must all come into account. These considerations may lead to the limitation of the means to realize the right to parenthood, as well as declining to recognize certain types of parenthood (see and compare: our decision without reasons in LFA 1118/14, Jane Doe v. The Ministry of Welfare and Social Services (July 13, 2014.)) The mere fact that there are various ways to become a parent does not mean that the State must allow their execution in any way that science and technology allow. A similar approach was expressed in the matter of Jane Doe, where Justice D. Barak-Erez discussed the fact that the protection of the right to parenthood must be distinguished from the protection for the goal to exercise the right to parenthood “in a particular way” (para. 11), and that “these situations continue to raise the question whether when a certain course of action is available, as a scientific and technological matter, would this mean that there is also a right to make use of it, and that the way the right is exercises cannot be restricted.” (Para. 32.)

3. In the case before us, the Petitioners wish to bring a common child into the world, in a manner where the child will be born of the Second Petitioner’s uterus and will carry the genetic code of the First Petitioner. According to the Petitioners, the Respondents have not indicated there was a moral flaw, or any other consideration that justifies preventing them from exercising their right to parenthood in this way. Although their plight is touching, my opinion was that the Petition must be dismissed.
4. My colleagues have demonstrated at length, and I shall not repeat, that under the system of statutes existing currently, what the Petitioners wish to do is impermissible and may even lead to a criminal sanction, including for the treating physician.
5. My colleague Justice Hayut in her humane and sensitive judgment wishes to find remedy for the Petitioners and their desires through the doctrine of “reading in.” In her view, this way allows authorizing the exceptions committee already exists under the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law) to approve eggs donation when the committee is satisfied that under the circumstances there are exceptional and special reasons that justify doing so. This language appeared in the Bill, but was removed as a result of Rabbi Halperin’s suggestion to leave this to the court because “the court permits things that the law prohibits.” My colleague points out that these things by Rabbi Halperin have no foundation. Indeed, as opposed to Rabbi Halperin’s suggestion, the courts do not do as they see fit with statutes and law, and they do not permit what the statute has prohibited. The way of courts is the way of interpretation, and when necessary – and when the court sees it to be justified – it takes the exceptional step of judicial intervention. Still, in my opinion, even were we to expand the powers of the exceptions committee, as my colleague suggests, there was no case before us that was necessarily suitable to apply the exception to the principles established in the Eggs Donation Law. On this point, I join the words of my colleague Justice Rubinstein in paras. 16-23 of his judgment. The arrangements in terms of eggs donation, which were described in detail, emphasize the physiological connection between the mother and the fetus. In this way, section 42(a) of the Eggs Donation Law, mandates that a child born of an egg donation would be the child of the recipient for all intents and purposes. Without devaluing the importance of the genetic connection, I believe this is an infringement upon a particular way to realize the right to parenthood, and thus its force is diminished in my eyes. Accepting the Petition may shift the weight to the genetic relationship between the child and the recipient, and thus impact the definitions of parenthood resulting from an eggs donation, as well. There is no moral flaw to the Petitioners request, but accepting it may implicate other issues and destabilize the balances established in the legislation of reproduction and birth. It should also be noted that the restrictions set in the Eggs Donation Law are not concerned with the sexual preference of the recipient or the donor but with resolving the recipient woman’s reproductive difficulties. As a result there is no prohibition against the Second Petitioner donating eggs to the First Petitioner. Additionally, that the legislation regulating egg donation is actually recent and that during the hearing before the extended panel held on April 28, 2013 the Respondents expressed their willingness to examine the need to amend it must also be factored in.

5.               The circumstances described above, along with the possibility open to the Petitioners to realize their wished outside of Israel leads to a conclusion that there is no justification, at this time, to intervene in primary legislation. In this case, taking the extraordinary step of reading into the law amounts, almost, to instructing the exceptions committee to stray from the law in the Petitioners’ case, under circumstances that have no justification for doing so. Another difficulty in taking this step is that expanding the powers of the exceptions committee, as proposed by me colleague, may have wide consequences outside of the individual case of the Petitioners and couples like them. This is, in my view, a substantive and significant change to the law, and I doubt whether it is proper to make in the way of “reading in.”

6.               Moreover, even were to intervene in the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756- 1996 (hereinafter: the Surrogacy Law,) and find that the term “intended parents” in this law includes not only couples who are a man and a woman but also a woman and a woman (and I am inclined to find as such; see also Memorandum regarding the Agreements to Carry Embryo Law (Approval of an Agreement and the Status of the Child) (Amendment – definition of Intended Parents and Executing an Agreement out of Israel), 5774-2014), this would not benefit the Petitioners. The Surrogacy Law reflects a model where the relationship between the surrogate and the child is severed upon birth, whereas the Petitioners wish to realize a different type of parenthood, where the woman carrying the pregnancy, along with the genetic mother, will together serve as mothers to the child. The Surrogacy Law is not the appropriate avenue for the Petitioners’ matter.

7.               My colleague, Justice Arbel emphasized in her sensitive opinion the First Petitioner’s desire for a child of her own. As to the legal route taken by Justice Arbel, I join the words of Justice Rubinstein in paragraphs 24-26 of his opinion.

8.               In conclusion: with all the empathy to the Petitioners’ desire to bring a child into the world in the particular way they suggest, including performing the entire procedure in Israel, I find it impossible to accept their petition. They are able, however, to take the route to which the Ministry of Health was willing to agree.

 

                                                                                                Deputy President

Justice S. Joubran:

1. The issue before us is not easy to decide. On one hand it touches the heart of human existence – the desire to be a parent; on the other hand it touches the heart of society’s existence – regulating its conduct through the law. The Amended Petition aims to challenge different provisions in two statutes, which according to the Petitioners, limit their ability to realize their will to be genetic and biological co parents by using artificial reproductive technologies. The first statute is the Embryo Carrying Agreements Law (Approval of the Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law). The other statute is the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law). The dispute is, in short, whether it is possible under the circumstances of the case to allow the Petitioners to have their wish and this despite the limitations of the law.
2. I join the judgment of my colleague Justice Rubinstein, according to which we cannot permit the Petitioners’ request. Like my colleague, I too believe that there is currently no lawful avenue to fulfill their hearts’ desires, and I shall add but several short comments.
3. First as to the Surrogacy Law. I accept the position that the case before us does not fall under this law. The Second Petitioner – the “surrogate” mother – wishes to carry the embryo in her uterus and give birth to it and is intended additionally to be the co parent of the child. In order for the law to apply to the Petitioner, a central element of the Surrogacy Law must exist. This is the element of post birth severance. The current outline of the Surrogacy Law requires as a general rule, aside from exceptional cases that are detailed in section 13 of the law, severance between the carrying mother and the child and the intended parents after birth. It seems that the existing Surrogacy Law does not regulate situations where the mother who carries a fetus in her uterus and gives birth to it would also be the child’s mother, and thus the law does not exist in the case before us. This is true at least under the Israeli Surrogacy Law. It appears there are possible other outlines for surrogacy different than that in the law in its current version. The definition of surrogacy depends on the law and may take many different forms (see primarily paras. 32-33 of my colleague Justice Rubinstein’s judgment.) So, for example, there is altruistic surrogacy and there is contractual commercial surrogacy. However, as said, the current state of the law in our country indeed does not permit under any interpretive reading what the Petitioners ask.
4. Now for the Eggs Donation Law. In the case before us, the recipient who receives the eggs is, as far as we know, a healthy woman. The difficulty in applying the law to her is that the Eggs Donation Law requires that the recipient have a medical condition that requires an eggs donation from another woman (section 11 of the Eggs Donation Law,) and thus this basic condition is not met in the case at hand.
5. Although section 18 of the Eggs Donation Law authorizes an exceptions committee to approve an eggs donation procedure in certain exceptional case, but these are detailed in an exhaustive list in section 20(a) of the law and the case before us does not fall within the list. My colleague Justice Hayut proposed to use the reading in doctrine in order to read into the Eggs Donation Law a general catch all section, in addition to the list of exceptional cases detailed in the law, which authorizes the exceptions committee to approve an eggs donation “if it is satisfied that under the circumstances there are special and exceptional reasons which justify doing so” and thus permit what is requested by the Petitioners (paras. 35-38 of her judgment.) My position is identical to that of my colleague Justice Rubinstein, that this reading is impossible. The language of the Eggs Donation Bill did include such a catch all section that granted the exceptions committee the power to authorize an eggs donation “if [the committee] was satisfied that under the circumstances there are exceptional and special reasons which justify doing so” (section 21(e) of the Eggs Donation Bill, 5767-2007 Government Bills 289, 292,) and the explanatory notes clarify that the exceptional reasons are those which “were impossible to have anticipated, and this without requiring an amendment to the law” (para. 11 of my colleague Justice Rubinstein’s judgment.) However, the Petitioners’ request was anticipated and known to the professional bodies as well as the sub- committee of the Committee for Labor, Welfare and Health. This particularly in light of FA (Dist. Tel Aviv) 60320/07 T.Z. v. The Attorney General, State Attorney – District of Tel Aviv (March 4, 2012) (hereinafter: the T.Z. case) where a similar matter of a female couple interested in biological genetic co-parenting, but where the recipient woman had a medical need for the eggs donation, was decided. And yet, at the end of the day the Legislature decided not to include in the Eggs Donation Law a general catch all section or a specific exception that permitted a case such as the one before us. Under these circumstances, I doubt whether it is possible for us to read a reading that is inconsistent with the legislative intent. Therefore, it seems this law, too, does not apply to the circumstances of the case before us.
6. Beyond the necessary scope, the question whether the Eggs Donation Law is at all relevant to the case before us is raised. Indeed, the Eggs Donation Law was designed to assist women who are unable to realize their parenthood in means other than an eggs donation, but in my view – and in this regard my opinion converges with the opinion of my collogue Justice Arbel – this law is not relevant to our matter, both in light of its said purpose and the clarity of its sections which explicitly exclude cases where the woman is able to realize her parenthood even without the eggs donation, and in light of the fact that in effect this is not a “donation” in our case, as my colleague Justice Arbel analyzed in a deep and persuasive manner. I accept the conclusion that the meaning of “donation” is giving to another without receiving any compensation and in our case the “donor” receives the right to be a co mother to the child. In my opinion, this is the reasonable interpretation of this term. Therefore, and in light of my colleague Justice Arbel’s additional reasons, I believe that the Eggs Donation Law is irrelevant to our matter.
7. My colleague Justice Arbel thus turned to the People’s Health Regulations (In Vitro Fertilization), 5747-1987 (hereinafter: The IVF Regulations) in order to locate a solution to the problem and her position is that these Regulations are relevant to the case at hand, as they were in the case of T.Z.. However, my position is as the position of my colleague Justice Rubinstein. These two cases are distinguishable in the fundamental element of the egg recipient’s medical need. In the case before us there is no such need because the woman seeking to receive the eggs is a healthy woman and thus the T.Z. case, which considered a recipient with a medical need, cannot be analogized. It seems that the guidelines by the Attorney General from November 30, 2009 regarding eggs donation between female partners are irrelevant as well because these guidelines also relied on a case where the receiving partner demonstrated a medical need for a donation from her partner. And in any event, the Eggs Donation Law was enacted after this and regulated the issue in primary legislation.
8. As to the application of the IVF Regulations to the case at hand, I believe that the procedure requested by the Petitioners lacks any anchor in these Regulations. The IVF Regulations establish, among others, the exclusivity of the purposes for egg extraction as in vitro fertilization of the egg and its consequent implantation (regulation 3,) but they do not address a procedure such as the one sought in this Petition in any way. The reasonable interpretation of these Regulations leads to the conclusion that there were designed to regulate in vitro fertilization of a woman’s egg in order to implant it in her own body rather than the body of another, whether the latter woman is her partner or a stranger. And in any event, as my colleague Justice Arbel emphasizes in section 19 of her opinion, the procedure of eggs donation can currently be done only according to the arrangements of the Eggs Donation Law. Section 4 of the Eggs Donation Law explicitly limits the activity of eggs extraction and implantation to follow only the provisions of this law, unless in cases of surrogacy.
9. We learn that the procedure where a woman wishes to give her egg to her (healthy) partner in order for it to be implanted in the partner who would give birth to a mutual genetic, biological child is not regulated in Israeli legislation. But had the Eggs Donation Law not include a provision mandates the treatment of eggs to conform solely to this law (section 4 of the Eggs Donation Law,) it seems the Petitioners’ request would have been permissible. However, the explicit prohibition to follow a different path than that set out in the Eggs Donation Law limits the steps of the Petitioners and does not afford them what they request (see and compare HCJ 2458/01, New Family v. The Committee for Approving Agreements for Carrying Embryo, IsrSC 57(1) 419, 445 (2002), in a parallel context of exclusivity of arrangements in the Surrogacy Law.) Therefore, in the case before us I believe that despite our willingness to do so, we cannot assist the Petitioners.
10. In this context, a central matter that came up in my colleagues positions was the legislative intent while enacting the Eggs Donation Law, 5770-2010 (hereinafter: the Eggs Donation Law) and the assumption about courts’ intervention in legislation (see the discussion in this regard in my colleague Justice Hayut’s judgment in paras. 21-22, 38 and in my colleague Justice Rubinstein’s judgment in paras. 11-14.) So, for instance, Rabbi Dr. Halperin said that “the court permits things that are prohibited… when there is a real need it finds the way to do so even in violation of express statute” and later “this does not need to be written. The court does this anyway even without a catch all section.” I have but to join the words of my colleagues Justice Hayut and Justice Rubinstein on this issue. The assumption that the court would intervene in legislation even if it were against the law is fundamentally mistaken and undermines the public’s trust in the court system. As emphasized by my colleague Justice Rubinstein, the court sees it fit to intervene in legislation only in extreme cases and it does so with great care. These things are of even more force where the Legislature clarified his position and where the question of the statute’s interpretation does not come up, as in the case before us.
11. Similarly to the position of my colleague Justice Rubinstein, I, too, believe that the removal of the requirement for the recipient’s medical need as set in section 11 of the Eggs Donation Law must be considered in order to extend the circle of men and women eligible for an eggs donation. Similarly certain aspects or the Surrogacy Law should also be revisited and current gaps in the statutory regime – such as the existence of a procedure of partner assisted reproduction, or reciprocal IVF, which permits eggs donation for healthy women as well, of course with inherent and imminent mechanisms of control and supervision – should be regulated in legislation.
12. The right to parenthood – as discussed at length in paragraphs 2-3 of my colleague Deputy President M. Naor’s judgment – is an important and fundamental right in our country, a basic constitutional right that stands to each man and woman by virtue of their humanity. However, I agree with the position that the right to parenthood is not the right to parenthood exercised in a particular way (see HCJ 4077/12, Jane Doe v. The Ministry of Health, para. 11 of Justice Barak-Erez’s judgment (February 5, 2013.)) In the case before us, the Petitioners have several options to become parents, even if not all of them make the requested genetic biological co-parenting model possible. Specifically, they have the option, to which the State agreed, to perform the requested procedure abroad and receive recognition of the genetic biological co-parenting in Israel. We must hope that this option will be only temporary for such cases until the Legislature permits performing the procedure in our own country.

 

                                                                                                Justice

Justice H. Melcer:

1. At the time it was decided – by a majority of four Justices against three – to deny this petition. I was among the minority. The decision was made public with no reasoning so that the Petitioners may calculate their steps according to the outcome and explore whether they are willing to accept the partial solution proposed to them by the Respondents. We took this route in light of the constraints of “the biological clock” which weighed heavy on the Petitioner, and thus we allowed the Petitioners to make an informed decision in their matter as early as possible.

It is time now for giving reasons, and these took shape so that first the opinions of my colleagues in the minority, Justice E. Hayut and Justice (Ret.) E. Arbel were written and the opinions of the majority Justices, headed by the opinion of my colleague Justice E. Rubinstein, then followed. As a result before me is all the comprehensive and studious material and I have but to clarify why I was of the view that the Petition must not be rejected and how it should be upheld. I shall turn to this immediately, but I will open by briefly reviewing the Petition and focusing on the issues in agreement and those in dispute. 

2. The Petitioners are partners. They wish to bring a child into the world in the following way: an egg taken from the body of the First Petitioner would be fertilized and then implanted in the body of the Second Petitioner. Seemingly, under the statutory situation in our country, the said method is not permitted to be executed in Israel, in light of the different provisions in the Agreements for Carrying Embryo Law (Approval of an Agreement and the Status of the Child), 5756-1996 (hereinafter: the Surrogacy Law) and in the Eggs Donation Law,5770-2010 (hereinafter: The Eggs Law.) In order for this to be permitted, the Petitioners have therefore raised different arguments on the interpretive and constitutional levels to challenge the restricting provisions. An order nisi was granted in the Petition and it was considered by an extended panel.
3. My colleague, Justice E. Hayut, described well (and thus I will not repeat): The various legal obstacles in the statutory network that the Petitioners face in realizing their desire to parenthood and the constitutional rights on which they rely in their arguments. Finally, my colleague analyzed the current restrictions in the mentioned statutes against the “Limitations Clause”. In a sharp and concise opinion she reached the conclusion that the arrangement set in the Eggs Donation Law, which restricts extraction, fertilization and implantation of the fertilized eggs and prohibits, under criminal prohibition, the performance of these procedures in the circumstances where the Petitioners find themselves, violates the Petitioners’ constitutional rights to autonomy, to family life and to parenthood. Therefore she found that the limitations in the Eggs Law in this sense do not pass the requirements of the Limitations Clause in section 8 of Basic Law: Human Dignity and Liberty.

I join all these finding, as it was not said that there is an interpretive avenue that would grant the Petitioners’ wishes without judicial intervention in existing legislation (and I believe that there is such a path.) I additionally share my colleague’s conclusion and the views of the remaining members of the panel that judicial intervention in the Surrogacy Law is not the proper path to examine the arguments of the Petitioners and to find remedy to their plight.

4. Therefore it appears that the split in opinions between the majority and the minority is on the question whether the restrictions in the Eggs Law which bar the Petitioners from realizing their desires meet the requirements of the Limitations Clause. Together with this difference in opinions, within the minority justices, there is an agreement regarding the outcome (that the Petition should have been accepted), but we do not agree on the method of resolution and as to the legal basis for it.

It is fitting here to note further that even the Respondents, who were also aware of the Petitioners’ distress, proposed during the hearings in the Petition a certain partial solution for the Petitioners – an arrangement that the majority saw fit to accept as satisfactory under the circumstances, and not go beyond.

In the following paragraphs I will attempt to concisely demonstrate why the majority’s position is unsatisfactory, and why the minority position, with its differing aspects, is preferable to me.

5.  In analyzing the legal problem brought to us two insights should, at least, guide us, in my view:
   
   1. Technology generally precedes the law. In these cases where the Legislature and the courts are called upon to pour the essence of existing, good, and established fundamental principles into new legal vessels (as if were they wine which gets better with age, which only needs a more modern container. Compare: Stephen Breyer, Active Liberty 64 (2009)). And see my opinion in CA 9183/09, The Football Association Premier League Limited v. John Doe, (May 13, 2012.)
   2. Interpretation is the preferable method to resolve issues which overlap with constitutional questions and this before we reach the last resort of striking down legislation. See: judgments by President A. Barak and then Justices M. Cheshin and D. Beinisch in HCJ 9098/01, Genis v. The Ministry of Construction and Housing, IsrSC 59(4), 241 (2004); HCJ 3809/08, The Association of Civil Rights in Israel v. The Israel Police (May 28, 2012); my judgment in LCA 7204/06, Israela Erlich v. Yehoshua Bertel at para. 40 (August 22, 2012.) Review also comparative law – the judgment of the United States Supreme Court, by Justice Roberts (in majority) in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2593-94 (2012)).

Considering these insights and the distress of the Petitioners’ and others like them, the Respondents notified us in an updated notice that on July 21, 2013 the Ministry of Health published a protocol for the “taking  Sperm, Eggs or Fertilized Eggs out of Israel.” Following the protocol a decision was also made by the exceptions committee, which operates under the Eggs Law. The committee approved the taking of eggs out of Israel in order for them to be implanted abroad under certain circumstances. Such approval is permissible under section 22(d) of the Eggs Law. The protocol and the decision by the exceptions committee both mean that it is now permitted to perform the procedure of extracting eggs from the First Petitioner in Israel and later their fertilization, with their implantation in the Second Petitioners’ bodies to be done out of Israel.

The majority Justices are willing to consider this, under the circumstances, a satisfactory solution to this problem. I, with all due respect, think differently for two reasons:

1. Section 22(d) of the Eggs Law stipulates as follows:

“The exceptions committee may approve the taking out of eggs extracted in Israel from a patient’s body for the purposes of their implantation out of Israel, if it satisfied that the eggs were intended to be implanted in her body, and that there is justification to approve the eggs’ implantation out of Israel.” (My emphasis – H.M.)

Therefore, it seems, the requirement that the exceptions committee be satisfied that the eggs be intended to be implanted in the patient’s body, in its plain language, is not met here, and thus referring the matter abroad works primarily to “distance and marginalize”. What is more – moving the solution abroad is more burdensome.

2. Constitutionally, it is neither appropriate nor proportionate to send an Israeli citizen abroad to exercise her constitutional rights. In this context, the Petitioner’s cry (who is also an officer in the IDF) that called upon us from the bottom of her heart not to accept the partial solution proposed to the Petitioners by the Respondents, still rings in my ears, particularly because in my view she is not only correct on an emotional level, but also on a legal level.

What is, then, the right solution? I shall elaborate on this directly below.

6. It appears to me that granting the Petitioners’ wishes could have come to its resolution within the authority of the exceptions committee under section 22(a)(2) of the Eggs Law, which reads as follows:

“The Exceptions Committee may approve the extraction of eggs for implantation, or implantation of eggs when the donor designates in advance the eggs extracted from her body to a particular recipient, when it is satisfied that the following conditions are met, as appropriate to each case:

…(2) In the case of the donor who designates in advance the eggs extracted from her body to a particular recipient who is not her family member – there are religious or social reasons which justify such an egg donation.”

This sub section has none of the limitations of the type included is section 22(d) of the above Eggs Law. Moreover, the interpretation taken by the majority is much less sound. Furthermore, as demonstrated by my colleague Justice E. Rubinstein in paragraph 12 of his opinion – during the discussions of the Knesset’s sub-committee of Labor, Welfare and Health, which considered the Eggs law’s bill before it was prepared for its second and third reading the sub committee’s chair, MK Professor Ariyeh Eldad commented that this section was a good opening for same sex female couples.

In this way it would have been possible therefore to grant the requested by the Petitioners and accept, in this sense, their petition (there still would have been the issue of the Child’s status under section 42 of the Eggs Law, however this issue could be resolved by finding statutory solutions (see and compare with the situation in Britain – section 42-46 of the Human Fertilization and Embryology Act 2008,) or judicial ones (see the majority opinion in HCJ 566/11, Doron Mamat-Magad v. The Ministry of Interior (January 28, 2014.) Additionally, this issue was not included by the Petitioners in their Petition.)

However, since my colleagues do not accept, to my regret, for some reasons that were not expressed, the interpretive approach based on section 22(a)(2) of the Eggs Law in order to resolve the issue – I am also willing to walk down one of the paths proposed by my colleagues to the minority and in this sense will limit myself only to several short comments.

7. As to the proposal raised by my colleague Justice E. Hayut (as to the addition of a catch all section for an exception to the Eggs Law) – this solution, in principle, is acceptable to me as I support the approach that legislation should include authorities that enable solutions in “a special particular case,” or to instruct doing so by way of judicial interpretation. See HCJ 2390/10, Ala Halihal v. The Minister of Interior (May 23, 2010) para. 10 of my judgment; APA 9890/09, Nava v. The Ministry of Interior (July 11, 2013), para. 16(d) of my judgment; LAA 7272/10, Jane Doe v. John Doe (January 7, 2014), section 6 of my judgment.)

Furthermore – differently. The read in remedy also seems fitting to me under the circumstances (compare to my opinion in APA 343/09, Jerusalem Open House for Pride and Tolerance v. The Jerusalem Municipality, September 14, 2010, there in para. 5.)

On the apparent difficulty that views the “catch all exception” section to have been initially proposed in the Knesset, but then rejected – indeed this is possible to overcome in light of the mistaken reasoning which led (as my colleagues’ opinions clarify) to the removal of that section from the agenda.

8.  As for the alternative option, suggested by my colleague Justice (Ret.) E. Arbel, insofar that it is original and creative, which indeed it is – it is also acceptable to me. The reasons for this is that the People’s Health Regulations (In Vitro Fertilization), 5747-1987 were left standing despite the Eggs Law, and thus it is possible that they indeed are supposed to regulate different cases than those covered by the Eggs Law. This solution is not free of flaws either (see regulation 8(b)(1) of these Regulations) however its advantage lies in the possibility that it provides the tools to overcome the provision of section 42 of the Eggs Law.
9. In conclusion – though the path to resolution which we – my colleagues and I – support is different in its reasoning, we all believe that the Petitioners’ Petition must be accepted. This also validates my general approach that when the consideration of basic legal issues – from different perspectives of the relevant statutes – leads, in every path, to a similar conclusion – this is a sign and indication that from a general legal philosophy the outcome is correct (see my opinion in CA 4244/12, Haaretz Newspaper Publication Ltd. v. Major General Efrayim Bracha (February 19, 2014), there in para. 35.)
10. As a result, were the minority opinions heard – the Petitioners would not have to travel beyond the sea to realize their desires.

 

                                                                  Justice

For all these reasons it was decided on September 1, 2013 to reject the Petition by a majority of opinions by President A. Grunis, Deputy President M. Naor, Justice E. Rubinstein, and Justice S. Joubran, against the dissenting opinions by Justices E. Arbel, E. Hayut and H. Melcer.

There is no order as to costs.

Reasons given today, September 18, 2014.

 

 

President                                 Deputy President                                Justice (Ret.)

 

 

Justice                                                 Justice                                                 Justice

                 

 

                                                                        Justice

 

HCJFH 4128/00

 

 

Petitioners:                  1.         Director General of the Prime Minister’s Office

                                    2.         Director General of the Ministry of Religion

                                    3.         Director General of the Ministry of the Interior

                                    4.         Director General of the Ministry of Police

                                    5.         Legal Advisor to the Prime Minister’s Office

                                    6.         Prime Minister’s Advisor on the Status of Women

                                    7.         Government of Israel

                                   

                                                                        v.

 

Respondents:              1.         Anat Hoffman

                                    2.         Chaya Beckerman

3.         International Committee for Women of the Wall, Inc. by Miriam Benson

 

           

Attorney for the Petitioners:               Osnat Mendel, Adv.

Attorney for the Respondents:           Francis Raday, Adv.

 

The Supreme Court

[April 6, 2003]

 

Before President A. Barak,  Deputy President S. Levin, Justice T. Orr, Justice E. Mazza, Justice M. Cheshin, Justice T. Strasberg-Cohen, Justice J. Turkel, Justice D. Beinisch, Justice I. Englard

Further Hearing on the judgment of the Supreme Court in HCJ 3358/95 of May 22, 2000 by E. Mazza, T. Strasberg-Cohen and D. Beinisch JJ.

 

A group of Jewish women (hereinafter: the Women of the Wall) sought to pray together in the Western Wall Plaza while wrapped in tallitot [prayer shawls] and reading the Torah. The possibility of praying at the Wall in accordance with their practice was prevented due to the violent objection of other worshippers at the site. The Women of the Wall petitioned the High Court of Justice, which ruled that the Government must establish appropriate arrangements and conditions to permit the petitioners to realize their right to worship in accordance with their custom in the Western Wall Plaza. In its petition for a Further hearing, the Government reiterated its argument – that was rejected in the judgment – according to which the Government fulfilled its obligation toward the Women of the Wall by adopting the recommendation that they be permitted to pray in the area of “Robinson’s Arch”.

The Supreme Court held:

1. (1)        The Women of the Wall have a right to pray at the Wall in their manner. However, like every right, that right is not unlimited. It must be evaluated and weighed against other rights that are also worthy of protection.

(2)        Accordingly, all steps must be taken to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties.

(3)        In order to try to strike a balance between the opposing demands in this matter, the Government must prepare the adjacent “Robinson’s Arch” site and make it into a proper prayer space so that the Women of the Wall will be able to pray at the site in their manner, inasmuch as the site, in its current physical state, cannot serve as an appropriate place for prayer.

(4)        If the “Robinson’s Arch” site is not made suitable within twelve months, and having found no arrangement acceptable to both parties, it is the duty of the Government to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza.

B. (per J. Turkel J.):

(1)        In deciding to designate the “Robinson’s Arch” site for the prayer of the Women of the Wall, the Government acted within the framework of its discretion, and the Court should not intervene in that discretion. This solution should not be adopted “conditionally”, but rather as a permanent solution.

(2)        Adopting the said solution preserves the right of the Women of the Wall to access to the Western Wall Plaza itself, as long as they pray in accordance with the local custom while in the Western Wall Plaza. Thus, both their freedom of access to the Western Wall Plaza and their right to worship in their own manner is preserved.

C. (per E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ., dissenting):

(1)        The right of the Women of the Wall to pray according to their custom in the Western Wall Plaza was recognized without reservation in the prior judgments of the High Court of Justice in this matter, and there is no justification for restricting that right at present.

(2)        The position adopted by the Court in the proceedings at bar in regard to the need to prepare the “Robinson’s Arch” site as a prayer space that will serve the Women of the Wall essentially eviscerates their said right, and also upsets the appropriate balance between their right to worship in the Western Wall Plaza and the need to consider the feelings of other worshippers.

D. (per I. Englard J., dissenting):

(1)        The Palestine Order-in-Council (Holy Places), 1924, deprives the High Court of Justice of jurisdiction to consider matters concerning freedom of worship in the Holy Places.

(2)        The dispute between the petitioners and the Government in the case at bar concerns freedom of worship at the Holy Places and not freedom of access to them, inasmuch as no one is preventing the Women of the Wall from entering the Western Wall Plaza. Rather, the dispute is in regard to the possibility that they pray in their manner at that place. Therefore, the High Court of Justice does not have subject-matter jurisdiction over the dispute at bar.

(3)        All the laws of the Knesset are, by their very nature, secular norms, but there is no principled reason that a secular law not refer to a religious system.

(4)        The secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. The presumption is that terms borrowed from a religious system should be interpreted in accordance with that system.

(5)        The result is that terms employed in the Protection of the Holy Places Law that are borrowed from the religious world should first and foremost be interpreted in accordance with their religious significance.

(6)        Accordingly, the expression “conducting a religious ceremony that is not in accordance with the local custom” in reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, should be interpreted in accordance with its halakhic meaning, such that prayer in the Western Wall Plaza in the manner of the Women of the Wall falls within the scope of the prohibition established under the regulation.

(7)        Additionally, there is support for the opinion that, in view of the halakhic situation, the judgment under review in this Further Hearing that would allow the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others or an excessive violation of the feelings of others.

 

Judgment

 

Justice M. Cheshin:

1. Why was the First Temple destroyed? Because of three things that prevailed there: idolatry, immorality and bloodshed.

But why was the Second Temple destroyed, when they were occupied with Torah, mitzvoth and charity? Because baseless hatred prevailed. This teaches us that baseless hatred is of equal gravity with three sins: idolatry, immorality and bloodshed (TB Yoma 9b).

 

            So it was in besieged Jerusalem when Titus, the representative of distant Rome, battered its walls. The enemy beset from without, seeking to destroy and extinguish a nation and a kingdom, and the People of Israel within Jerusalem – the residents of Jerusalem and those who gathered in Jerusalem from all the corners of the land of Israel – raised their hands at one another. Beset from without and beset from within. That is the nature of strife. That is the nature of hatred. For strife and hatred destroy all that is good, they completely undermine human relations, they destroy man and beast, tree and field. Such is hatred, such is jealousy, such is zealotry, and zealotry stands above them all.

            The Western Wall is a remnant of our Second Temple, and now those who fight amongst themselves fight over it. Can we not learn from the history of our tortured nation?

Background

2.         Our concern this time is a Further Hearing on the judgment of the Supreme Court in HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 245. In that judgment, the High Court of Justice decided – per Justice Eliahu Mazza, Justices Tova Strasberg-Cohen and Dorit Beinisch concurring – to order the Government “to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza.” The Petitioners before the Court – the Government of the State of Israel and those acting on its behalf (hereinafter: the Government of Israel or the Government) – are of the opinion that they should not be ordered to act as ordered by the Court, inasmuch as immediately prior to the rendering of the said judgment the required arrangements and conditions had been established as required by the Court’s decision. In its judgment, the Court rejected this argument, and the Government now asks that we find – in a Further Hearing – that it indeed fulfilled what it was required to do.

3.         The Protection of the Holy Places Law, 5727-1967 (the Protection Law) – a law enacted some two weeks after the end of the Six Day War – instructs us in decisive, unambiguous language to protect the Holy Places against any desecration or violation, to protect the freedom of access of the various religious communities to the places they hold sacred, and prohibits the affront of feelings towards those places:

Protection of Holy Places

1.The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.

The very same language, word for word, is conveyed to us in Basic Law: Jerusalem, Capital of Israel (the Jerusalem Law). The Protection Law – and later, the Jerusalem Law as well – was intended to change the status quo ante from stem to stern. For until the enactment of the Protection Law – thus during the Mandate period and thus after the establishment of the State, when the Western Wall and other places holy to the Jews were under the rule of the Hashemite Kingdom of Jordan – there were limitations, often severe and disgraceful limitations, upon the rights of Jews to their holy places. But from that point, the limitations were removed and the barriers were lifted.

            The Protection Law was not created for the Jews alone, or perhaps we should say that it was created primarily not for the Jews. It was created for the Moslems, it was created for the Christians, it was created for the members of every other faith that have places that are sacred for them in Israel. The rights of all of these were established in the law, and not just any law, but a Basic Law. The status of the Jews in regard to the places they hold sacred was established like the status of all members of other faiths for the places sacred to them, with complete equality and without discrimination – each believer and the places he holds sacred.

            We live among our people, and to date we have not heard a serious complaint of any violation incurred by the members of any other faith in regard to the places they hold sacred. The State protects their rights with utmost care, and there is no breaching and no wailing [Psalms 144:14]. Yet see how wondrous, or perhaps not so wondrous: we Jews are the ones dissatisfied by what has been done and by what has not been done in the places sacred to us – at times from here and at times from there. The matter before us in this Further Hearing is one of those disputes that have arisen among the Jews themselves.

4.         This is the fourth time that we are addressing the subject before us, and we would express the hope that it will be the last. The first time was in HCJ 257/89, 2410/90 Anat Hoffman et al. v. Director of the Western Wall; Susan Alter et al. v. Minister of Religious Affairs et al., IsrSC 48 (2) 265 (the First Judgment or the First Petition). The second time was in HCJ FH 882/94 Susan Alter et al. v. Minister of Religious Affairs et al. (unpublished), in which the petitioners in the First Petition requested a Further Hearing on the First Judgment (the Further Hearing). The third time was the judgment that we are now addressing in this Further Hearing, that is, HCJ 3385/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 345 (the Second Judgment or the Second Petition). And now we meet for the fourth time.

            In order to understand the disagreements and the arguments of the parties, we have no alternative but to review – if only in brief – the proceedings to date. Indeed, the aforementioned proceedings were like necklace beads strung one beside another to form a single strand, and before we string another bead, we should study and understand the nature of that strand.

 

The Original Events and the First Petition

5.         The matter began on the Rosh Hodesh [beginning of the new month of the Jewish calendar] of the month of Tevet 5749 (Dec. 9, 1988), when a group of Jewish women, residents of Jerusalem, tried to pray together in the Western Wall Plaza. It is the custom of those women to wrap themselves in tallitot [prayer shawls] in prayer, and to read aloud from a Torah scroll, as is customary for the reading of the Torah. Thus the women sought to do facing the Western Wall every month and on special occasions. That Rosh Hodesh Tevet, the other male and female worshippers at the Wall were unwilling to permit the women to pray as they desired, and from the moment they began to pray, those other worshippers met them with violence. Prior to Rosh Hodesh Adar I, having learned from their experience, the women informed the police in advance of their intention to pray at the Wall in accordance with their custom, but to no avail. In the course of prayer, other women worshippers – soon joined by male worshipers – began to interrupt the group of women, to curse tem, shower them with insults, and even to grab the prayer books from their hands, throw objects at them and beat them.

6.         Following that event, the women met with the late Rabbi Getz, who was the rabbi in charge of the Western Wall, and prior to the Fast of Esther of that year an arrangement was concluded and the women agreed to pray at the Wall without tallitot and without Torah scrolls. For his part, Rabbi Getz assumed the responsibility of seeing to the safety of those women and to ensure their right to pray. The arrangement did not succeed, as Rabbi Getz was unable to keep his promise. The prayer on the Fast of Esther became particularly stormy, and ultimately the police had to break up a violent, rioting crowd by means of tear-gas canisters.

7.         On the day following the grim events of the Fast of Esther, on 14 Adar II 5749, March 21, 1989, those women submitted their first petition (HCJ 257/89). Thus began the first affair.

8.         The opponents of the prayer of those women continued to act aggressively, but the women did not relent. They continued to arrive at the Wall on Rosh Hodesh and pray there, but the absolute opposition displayed by the other worshippers at the site – and the rabbi in charge of the Western Wall Plaza among them  -- did not dissipate. The exchanges between the warring camps did not mince words – orally and in writing – and even violence showed its ugly face. The history of the struggle leading up to the judgment on the First Petition is described in detail by Deputy President Elon in the First Judgment, at pp. 277 – 292.

9.         Towards the end of 1989, the group of women gained encouragement and support from another group of Jewish women, residents of the United States (the Second Group). These women established the “International Committee for Women of the Wall” – from that point on, the First Group and the Second Group have been referred to as the Women of the Wall – and also tried to pray at the Wall from time to time. The worship services of the Second Group was – and is – conducted in accordance with Orthodox halakha. Inasmuch as that group comprises women from various streams of Judaism, and in order for them to unite as a single group, the group chose to follow the strictest approach to prayer from among the various schools. These women pray together as individuals, that is, they do not view themselves as constituting a “minyan” [prayer quorum], and therefore refrain from reciting those prayers that are permitted only in a minyan, such as the kaddish prayer. They wrap themselves in tallitot and read from a Torah scroll – as is the practice of the women of the First Group – but at the same time, they take care not to follow the Torah reading practices that are permitted only in a minyan, such as reciting the blessings and being called to the Torah.

10.       The women of the Second Group wished to pray at the Wall – together, as is their custom – on Rosh Hodesh Kislev 5750, but when they arrived at the Western Wall Plaza, wrapped in tallitot and carrying a Torah, they were prevented from entering the women’s prayer section. This incident led to an exchange of letters with the representatives of the Ministry of Religious Affairs, and when it became clear that this correspondence would not bear fruit, this Second Group also petitioned the High Court of Justice. This petition – submitted to the Court on June 3, 1990 – was the petition in 2410/90 Susan Alter et al. v. Minister of Religious Affairs et al. The proceedings in that petition were joined with the proceedings in the First Petition, and the two petitions together composed the first affair. For the sake of completeness we would also add that the groups composing the Women of the Wall are of various hues – like the other groups we have become accustomed to seeing in Judaism – but for our purposes they are all united in the demand that they be permitted to pray together at the Wall, wrapped in tallitot and reading the Torah aloud, just as men wrap themselves in tallitot and read the Torah aloud without fear.

11.       To complete the picture, we would also add the following. Under the provisions of sec. 4 of the Protection Law, the Minister of Religious Affairs may, after consulting with, or upon the proposal of, representatives of the religious communities concerned, and with the consent of the Minister of Justice, make regulations as to any matter relating to the implementation of that law. The Minister of Religious Affairs has exercised that authority on several occasions. In regard to the Western Wall (and other Jewish Holy Places), he promulgated regulations called the Regulations for the Protection of Holy Places to the Jews, 5741-1981 (the Protection Regulations). On Dec. 31, 1989, after the First Petition was submitted to the Court – that is the first petition of the Women of the Wall – and before the Second Petition was submitted, the Minister published an amendment to those regulations – after consulting with the Chief Rabbis of Israel – adding subsection (1a) to regulation 2, as follows:

                        Prohibited Conduct

                        2.         (a)        In the area of the Holy Places, … the following is prohibited:

                                    (1) …

(1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place;

…

            We will return to examine this subsection further on, but for the meantime we would only add that it would appear that is was on the basis of this subsection (and reg. 4 of the Regulations) that the rabbi in charge of the Western Wall Plaza sought to prohibit the entrance of the Women of the Wall to the women’s prayer section of the Plaza.

 

The Judgment on the First Petition

12.       The petitions of the Women of the Wall – that in HCJ 257/89 and that in HCJ 2410/90 – came before a panel of the High Court of Justice composed of President Meir Shamgar, Deputy President Menachem Elon, and Justice Shlomo Levin. After the passage of no small amount of time during which the parties were unable to come to terms, the Court issued its decision. The judgment was delivered on Jan. 26, 1994, and the three justices wrote three separate opinions. All three agreed “that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way”, that “the freedom of worship of the Petitioners stands” (per Elon D.P., ibid., at p. 350), and that the prayers of the Women of the Wall “are not halakhically flawed from a formal perspective” (per Elon D.P., ibid., at p. 321). However, differences of opinion arose among the justices on the question of whether the Women of the Wall could, in practice, pray in accordance with their custom in the Western Wall Plaza, and thereby realize their fundamental right to freedom of worship.

13.       Justice Elon was of the opinion – in a decision that is worthy of being called monumental and encyclopedic – that the Women of the Wall do not have the right to pray in the Western Wall Plaza in accordance with their custom, and he constructs his decision as follows.  First, the Deputy President holds that the prayer area beside the Western Wall is a synagogue, and not merely a synagogue, but “the holiest synagogue in the halakhic and Jewish world” (ibid., p. 318). Elsewhere, the Deputy President holds that the prayer area beside the Western Wall “must be treated like a synagogue and even more so” (ibid., p. 319). Second, the manner of prayer of the Women of the Wall, although not contrary to halakha, is a manner of prayer that is “unacceptable”, that is to say, unacceptable in an Orthodox synagogue, in that it is contrary to the manner of prayer in an Orthodox synagogue. In conclusion: the manner of prayer of the Women of the Wall is, in the opinion of the Deputy President, a manner of prayer that stands in contradiction of the “local custom”.

            In this regard, the Deputy President reminds us of the provision of reg. 2(a) (1a) of the Protection Regulations – a provision that prohibits conducting a religious ceremony “that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place” – and he further holds that this provision “expresses the principle of maintaining the status quo – ‘local custom’ and the status quo are one and the same” (ibid., p. 344). The Deputy President further states “that prayer conducted in the manner of the Petitioners – prayer that … violates ‘local custom’ – leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall” (ibid., p. 345). Indeed (ibid., p. 329):

The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions – even that in HCJ 2410/90 – as constituting a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

            (And further see p. 350). The necessary conclusion is that:

… Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place …

Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Judaism’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to (ibid., p. 350, emphasis original – M.C.).

            This is even the case in regard to the serious fear of a possible breach of public order. The freedom of worship acquired by the Women of the Wall must retreat before the fierce opposition of the majority of worshippers at the site – opposition deriving from the severe affront that will be felt by those worshippers if the Women of the Wall are granted their request and permitted to pray in accordance with their custom in the Western Wall Plaza. In the words of Justice Elon (ibid., pp. 349-350):

It is clear beyond all doubt that granting the petitions before us would lead to particularly harsh, bitter and sharp dispute, as well as to violence that would end in bloodshed. It is an uncontested fact that the overwhelming majority of worshippers who visit the prayer area at the Western Wall every day and every night are of the honest, good-faith opinion and belief that the changes requested in the two petitions before the Court amount to desecration of the prayer area at the Western Wall. Not only will it result in extremely violent and severe dispute, but in terms of halakha, both men and women will be prevented from praying at the Wall. At present, access to the Wall and prayer at the Wall are open and permitted to every Jewish man and women, who pour out their hearts before God as each women and man desires, and as each wishes to speak with his Maker, whether by heart or from a book. It would be unthinkable that different dates and times for prayer would be instituted at the prayer area at the Western Wall for the prayer services of different groups, and that the fate of this holy site would be its division into times and periods among the members of the Jewish People, their holidays and different movements, as has been the fate of the Holy Places of other religious communities … (emphasis original – M.C.).

            Deputy President Elon was thus of the opinion that the petition of the Women of the Wall should be denied in its entirety, and that they should not be permitted to pray according to their custom in the Western Wall Plaza.

14.       On the other side – diametrically opposed to the Deputy President – stood Justice Levin. As opposed to Deputy President Elon, Justice Levin was of the opinion that the Women of the Wall had a right to pray in the Western Wall Plaza in accordance with their custom. Moreover, after four years had passed since the events that gave rise to the petitions, it was time, in his opinion, to decide the matter and grant the petitioners’ request.

15.       First of all, Justice Levin held that the Protection Law is a secular law, and therefore the petition should not be decided solely on the basis of halakhic considerations. This statement by Justice Levin conspicuously contradicts the opinion of Deputy President Elon, who interpreted and effected the Protection Law in accordance with Jewish halakha, and in reliance upon numerous Jewish-law sources. In the opinion of Justice Levin, the Western Wall site is sacred to the Jewish People both as a religious site and place of prayer, and as a place bearing national significance, a symbol of the Jewish kingdom, and he was of the opinion that it was in accordance with that approach that the manner of conduct in its vicinity and the rights of Jews to act there must be interpreted. Moreover, the Western Wall is not a synagogue, and therefore it is not subject to the halakhic rules that apply to a synagogue. The test that should be applied in regard to permissible activity in the Western Wall Plaza should be based upon “the common denominator of all the groups and people who visit the Western Wall site and the Plaza in good faith, whether for prayer or for other legitimate purposes” (p. 357).

            As for the concept of “local custom” in accordance with reg. 2(a) (1a) of the Protection Regulations, Justice Levin expressed his opinion that:

… in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

            However, Justice Levin was also of the opinion that restrictions may be imposed upon certain activities at the Western Wall site (ibid., p. 357):

Without exhausting the subject, it may be justifiable to restrict religious ritual or other conduct at the site when the common denominator of the public that legitimately cares about the Wall, and not merely one sector, sees the conduct as an “intolerable” violation that “desecrates” the site, or where the conduct is not carried out in good faith but simply to anger and provoke, or where circumstances justify establishing that certain concrete conduct will, by reason of its extent or timing, lead to a breach of public order in circumstances in which preventing the conduct (in those concrete circumstances) overrides the right to worship or the conduct of the relevant party, while ensuring appropriate alternatives for the conduct in order to limit the danger to public order that would result from it.

            The practical result of this is (loc. cit.):

… that no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its Plaza may fully realize their rights without unnecessarily violating the feelings of others.

            Inasmuch as four years had passed since the events that gave rise to the petitions, it no longer seemed appropriate to decide – after such a long period – “whether or not the conduct of any of the Petitioners was in good faith at the time” (loc. cit.), and therefore Justice Levin decided “under these circumstances” that:

I am satisfied that, at this point, it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above. That is what I would decide.

            Nonetheless, being aware of the difficulties that might confront the Government in putting the decision into practice, Justice Levin further decided that the execution of the decision should be postponed. In his words (p. 358):

In light of the sensitivity of the subject, and the need to prepare for the execution of this decision, and perhaps also to enact legislation to arrange the matter, I would recommend to my colleagues that this judgment be issued subject to the interim order remaining in force for one year from today.

16.       The third opinion – the second in the order published in IsrSC – was given by President Shamgar. At the outset, President Shamgar addresses the exalted status of the Western Wall – both in the religious tradition and in the national tradition of the Jewish People – stating (ibid., p. 353):

The Wall – which bounds the Temple Mount on its western side – was sanctified in the religious tradition of the Jewish People as the remnant of our Temple. For thousands of years, it has represented in our national tradition what we lost with the destruction of the Temple, as well as the continuity of our national existence. In the eyes of the religious halakha, it is a mikdash m’at; from a nationalist perspective, it symbolizes generations of suffering           and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality. Therefore, inter alia, the opening ceremony of Remembrance Day for the Fallen Soldiers of Israel is held there, and soldiers are sworn in while facing it (emphasis original – M.C.).

Further on, President Shamgar goes on to speak of tolerance and patience (ibid., p. 354):

… we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person. Thus we were of the opinion … that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

Tolerance and patience “are not unidirectional norms, but rather they are encompassing and multidirectional” (ibid., p. 354), and therefore:

… tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            Following this preface, President Shamgar informs us: “All of this leads us to the bumpy road of trying to balance between approaches and beliefs that are incompatible” (ibid., p. 354), and in this context he adds that it would be preferable if the resolution of disputes be reached through dialogue. In his words (ibid., pp. 354-355):

… it is worth remembering that exclusive focus upon presenting questions and problems before the Court – the “wonder drug” of our generation – is not necessarily the appropriate solution or the desirable remedy for all that ails us. At times it comprises the desire for an imposed solution, grounded in a judicial order, when an attempt at reaching agreement and discussion between the various approaches seems more difficult. However, a solution achieved through agreement and understanding has the advantage of deriving from the parties, and the spirit that led to the agreement will imbue its results.

17.       On the merits, one needn’t dig too deeply to discover that President Shamgar was of the opinion that the petitioners had a right to pray according to their custom in the Western Wall Plaza. Like Deputy President Elon, President Shamgar was also of the opinion that we must seek and find “a common denominator for all Jews, whomever they may be” (ibid., p. 355). However, unlike Deputy President Elon, in the opinion of President Shamgar (ibid., p. 355):

… the common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers. It does not mean imposing the strictest approach. Incidentally, if we were to adopt the strictest approach, then no Jew would be permitted to visit the Temple Mount (emphasis original – M.C.).

            President Shamgar agrees that “in light of the unusual sensitivity of the issue at bar, it cannot be resolved at a stroke, while ignoring its deep roots”, but he adds, “I am not convinced that the Respondents are not exaggerating the conflicts and differences.” He then continues to express his opinion in no uncertain terms in regard to the right of the Women of the Wall. In his words (ibid., p. 355):

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

18.       President Shamgar is of the opinion that it would be appropriate to attempt to continue to employ means that might lead to an arrangement acceptable to all:

I have already noted that this Court may not be the most effective medium – and certainly not the only one – that, through meeting with the various parties, can try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence.

If the relevant parties are willing, it would be appropriate to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall.

            And for this reason, he is of the opinion that a decision should not be rendered immediately (ibid., pp. 355-356):

It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers.

Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

19.       If we closely examine the opinions of the three justices, we discover that they are divided into a majority and a minority for various reasons. In order to understand this correctly, we will now take a small step backwards. We will examine the petitions of the Women of the Wall and then return to the opinions of the justices.

            The primary prayer of the petitioners in HCJ 257/89 (the First Group) was directed against the Director of the Western Wall, the Ministry of Religious Affairs, and the Chief Rabbis, demanding that they show cause:

Why do they forbid and/or prevent the Petitioners in particular, and Jewish women in general from carrying Torah scrolls and reading from them, and/or wearing tallitot during their prayers.

            As for the Second Group – the Women of the Wall who petitioned in HCJ 2410/90 – their primary prayer was this:

A petition for an order against the Respondents … forbidding them to prevent Petitioners nos. 1-6 from praying at the Western Wall and in the Western Wall Plaza while wearing tallitot and reading the Torah, and requiring them to permit the Petitioners to bring a Torah scroll into the Western Wall Plaza, and ensure such prayer by the Petitioners without interference or harm.

            These petitions were denied by a majority composed of President Shamgar and Deputy President Elon, but while the Deputy President’s reasons came from the east, the President brought his reasons from the west.

20.       On the merits, as noted, Deputy President Elon was of the opinion that the Women of the Wall did not have a right to pray according to their custom at the Western Wall, and he therefore decided that the petitions should be denied. President Shamgar was also of the opinion that the petitions should be denied, but unlike the Deputy President, it was his opinion that the time was not yet ripe for a judicial decision, and he therefore decided to deny them. In the opinion of President Shamgar, the Petitioners’ petitions were premature, as the parties had not exhausted all of the avenues for resolving the disputes amicably – rather than by a decision of the Court – and it would not, therefore, be appropriate to decide the matter and rule upon the rights of the parties at law. The Deputy President from here and the President from there – each for his own reasons – arrived at a joint operative conclusion that the petitions should be denied and the orders nisi quashed. But the reasons for their decisions were diametrically opposed. In this regard, Justice Levin was in the minority, as his opinion was that an order absolute should be granted in a particular form.

            Thus far in the matter of the operative relief.

21.       The disagreements on the operative decision were unlike the disagreements on the merits in regard to the right of the Women of the Wall to pray at the Western Wall in accordance with their custom. In this regard, the division among the opinions of the justices was different than in regard to the operative decision.

            The opinion of the Deputy President, Justice Elon, was, as stated, that the Women of the Wall did not have a right to pray at the Western Wall in accordance with their custom. As opposed to this, Justice Levin was of the opinion that, subject to certain provisos, the Women of the Wall had a right to pray in good faith at the Western Wall in accordance with their custom, while wearing tallitot and carrying a Torah scroll. In this regard, President Shamgar concurred with Justice Levin that the Women of the Wall had a right to pray at the Western Wall in good faith and in accordance with their custom. Indeed, as we saw, President Shamgar was of the opinion that “[T]he legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws” (at p. 355).  At the same time, while President Shamgar and Justice Levin agreed on the merits, they disagreed as to the operative relief, and for reasons that we explained above, President Shamgar was of the opinion that the order nisi should be quashed and the petitions denied.

22.       The result of the First Petition was thus that according to the majority, the Women of the Wall had a right to pray in accordance with their custom at the Western Wall, while by a different majority, their petition was denied.

 

The Proceedings after the Judgment in the First Petition and the submission of the Second Petition

23.       President Shamgar was of the opinion that the possibilities for reaching an agreed solution had not been exhausted, and in this regard he accompanied Justice Levin part of the way (see para. 15, above, in regard to the operative relief that Justice Levin thought should be granted to the petitioners). President Shamgar did not set a time for examining the possibilities for reaching an agreed solution, but he expressly stated the parameters for striking a balance. We quoted his opinion above (para. 17), and we will reiterate it here:

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

            In other words, the Women of the Wall have the fundamental right to pray to God in accordance with their custom – whether in their own place or before the Western Wall – “as long as it will not constitute a substantial interference with the prayers of others.”

24.       In the judgment that is the subject of the Further Hearing – the judgment in the Second Petition – the Court surveyed the events following the judgment on the First Petition at length (see pp. 352 – 361 of the judgment in the Second Petition), and we will therefore be brief.

25.       Two months passed after the rendering of the First Judgment, and on May 17, 1994, pursuant to the recommendation of President Shamgar, the Government of Israel decided to appoint a committee that was instructed as follows:

… to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site.

            The members of the Committee were the Director General of the Prime Minister’s Office (Chair), and the Directors General of the Ministry of Religious Affairs, the Ministry of the Interior, and the Ministry of Police, and the Legal Advisor of the Prime Minister’s Office. The Prime Minister’s Advisor on the Status of Women was appointed to the committee as an observer (the Directors General Committee). The Government allotted six months for the Committee to present its recommendations.

 26.      When they saw that the First Judgment did not grant them the relief they had hoped for, the Women of the Wall petitioned the Supreme Court to grant a Further Hearing on the First Judgment (HCJFH 882/94 Susan Alter et al. v. Minister of Religious Affairs et al., unpublished). The Deputy President, Justice Aharon Barak, decided to deny the request, grounding his decision upon the Government’s decision. In his decision, the Deputy President wrote:

This petition must be denied. My opinion is grounded upon the view expressed by President Shamgar in his opinion in the judgement that is the subject of this request. In his opinion, the President noted that, at this time, he would not decide upon the petition. Instead, he recommended that the Government consider the appointment of a committee that would examine the matter in depth in order to arrive at a solution that would ensure freedom of access to the Wall and minimize the violation of the feelings of the worshippers.

            The Deputy President quotes the Government’s decision, and goes on to say:

On the basis of this sequence of events, it would appear to me that we should wait for the Committee’s recommendation (which is supposed to be given within six months of the establishing of the Committee). If those recommendations are unacceptable to the Petitioners, they may reapply to the Court (sitting as High Court of Justice). In his opinion, the President noted in this regard that “[T]he gates of this Court are always open, but as stated, the other available options should first be exhausted”.

27.       Let us return to the Committee. The six months allocated to the Committee by the Government passed. Then a further six months passed (pursuant to an extension decided upon by the Government, and the Committee’s recommendations were still delayed in coming. Seeing this, the Women of the Wall petitioned the High Court of Justice, this time presenting a united front (HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et. al.).

            This Second Petition added nothing new to the First Petition. The request of the Women of the Wall was merely that the Government establish arrangements that would permit them to pray in the prayer area at the Western Wall “in women’s prayer groups, together with other Jewish women, while they are wearing tallitot and reading aloud from the Torah”, in accordance with the First Judgment (see the Second Judgment, IsrSC 54 (2) 345, 347). In other words, the Second Petition was, in essence, a petition to force the Government to do what the Court had ordered that it do in the First Petition.

28.       Not long after the submission of the Second Petition, on July 2, 1995, the Government decided to extend the time allocated to the Committee for presenting its recommendations by an additional six months.

            Ultimately, on April 2, 1996, the Committee presented its recommendations to the Government. And this is the core of the Committee’s recommendation:

In order to achieve the balance demanded of the Committee in the Government’s decision between freedom of access to the Wall and limiting the violation of the feelings of the worshippers, the Committee has not found the time to be ripe for permitting prayer in the Western Wall Plaza itself that differs from the traditional prayer accepted there.

            In arriving at its decision, the Committee gave significant weight to the views of the Commissioner of Police and the Police Commander of the Jerusalem District who expressed their opinion in regard to the consequences of the prayer of the Women of the Wall for public order. They were of the opinion that an arrangement for the allocation of prayer times would not prevent harm to public order. The Committee further examined four alternative prayer sites in the vicinity of the Wall: the site beneath “Robinson’s Arch”, the area in front of the Hulda Gates, the southeastern corner of the Temple Mount wall, and the “Little Western Wall”. Of the four alternatives, the Committee was of the opinion that the southeastern corner was the most appropriate.

29.       When the recommendations of the Directors General Committee were presented before it, the Government decided to appoint a ministerial committee to “examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government.” That decision was made on April 21, 1996, but because elections for the fourteenth Knesset were held shortly thereafter, the ministerial committee was automatically dispersed.

30.       Another year passed until, on June 2, 1997, and after being presented with the recommendations of the Governors General Committee, the Ministerial Committee for Jerusalem decided to adopt the recommendations. This was the decision of the Ministerial Committee:

A.To record the notice of the Prime Minister according to which the Government of Israel recognizes the right to freedom of worship and religion of every person, including the Petitioners.

B.To find that in reliance upon the evaluation of the Israel Police, the prayers of the Petitioners, in accordance with their custom, cannot be permitted in the Western Wall Plaza, and that in accordance with the evaluation of the other security services that was recently presented, a change of the status quo in regard to prayer arrangements in the alternative suggested sites may lead to a danger to public safety.

C.In accordance with the aforesaid, to maintain the existing situation unchanged for the present. To act to examine the possibility of arranging an appropriate alternative prayer site, and to request a postponement of the Court proceedings for an additional three months for the purpose of examining the situation of the proposed sites from the security standpoint.

D.The evaluation of the security agencies will be brought for further discussion by the Ministerial Committee for Jerusalem, and for a decision on the matter.

31.       The Government did not relent in its attempts to find an agreed solution for the prayers of the Women of the Wall. A committee was established at that time whose assignment was to develop recommendations in regard to the matter of conversion to Judaism (the Neeman Committee), and the Government proposed that that committee address the issue of the Women of the Wall. The Women of the Wall initially rejected this proposal, but after discussion in the Court – in the course of the proceedings in the Second Petition – the matter was transferred to the examination of the Neeman Committee.

32.       The members of the Neeman Committee were – in addition to the Chair, the then Minister of Finance Yaakov Neeman – Prof. Dov Frimer, Adv.; Rabbi Nahum Rabinowitz; the Head of the Ma’aleh Adumim Yeshiva; Rabbi Uri Regev,  representing the Reform Movement; and Rabbi Ehud Bandel (replacing Rabbi Reuven Hammer), representing the Conservative Movement. The representatives of the parties were invited to the Committee’s meetings, and the representatives of other relevant bodies also participated, among them: the Antiquities Authority, the Ministry of Religious Affairs, the Ministries of Justice and Internal Security, the Office of the Minister for Diaspora Affairs, the Israel Police, and others. The Committee held a number of meetings, and in the course of its deliberations it also visited five possible prayer sites: the area of the parking lot adjacent to the entrance to the Western Wall Plaza, beside the staircase; the “Southern Wall” area; the women’s prayer section in the Western Wall Plaza; an area at the back of the Western Wall Plaza known as the “Flag Plaza”; and the “Robinson’s Arch” area.

            On Sept. 23, 1998, the Committee presented the report that it had prepared, examining the advantages and disadvantages of each of the proposed alternatives. At the end of its report, the Committee reached the conclusion that conducting prayer at the “Robinson’s Arch” site is “the most practical solution for the needs and demands of the Women of the Wall. That is the case after weighing the advantages and disadvantages of each of the above alternatives. … [and] weighing and balancing the need to find an appropriate prayer site that would meet the needs and demands of the Women of the Wall, and the important principle requiring the avoiding of violation of the feelings of the worshippers at the Western Wall Plaza and not violating the local custom”. These conclusions were adopted over the opposition of Rabbi Uri Regev.

 

The Second Judgment

33.       The recommendation of the Neeman Committee was not acceptable to the Women of the Wall. They were of the opinion that the recommendation did not fall within President Shamgar’s balance parameters, and they therefore maintained their position, demanding their right to pray in accordance with their custom in the Western Wall Plaza. That is also what they argued before the Court in the Second Petition. The Government’s position was, needless to say, different and opposed. In the Government’s opinion, President Shamgar had said nothing more than that a balance must be struck between the right of access to the Wall, and harm to the feelings and well-being of the public. The Government further argued that that balance had been appropriately preserved by the Neeman Committee, and that the Committee’s recommendation reasonably balanced the interests pulling to either side. The Court was therefore required to decide the issue of whether the decisions of the Government and the committees that had acted on its behalf were consistent with the decision rendered in the First Judgment.

34.       The judgment in the Second Petition was drafted by Justice Mazza, with the concurrence of Justices Strasberg-Cohen and Beinisch. The judgment reviewed the chain of events leading up to it, and in examining the activity of the committees in relation to the balancing parameters set down by President Shamgar, instructed us as follows (ibid., 364-365):

… the recommendation of the Directors General Committee was not only contrary to the express instructions of the First Judgment, it also deviated from the purpose for which the Committee was appointed, as defined in the Government’s decision.

The committees that followed the Directors General Committee – the Ministerial Committee for Jerusalem, as well as the Neeman Committee – pursued the same path. The common denominator of the recommendations that were presented by all of the committees that addressed the matter was expressed by the conclusion that the balance between the Petitioners’ right to pray in the Western Wall Plaza, and the harm that the Petitioners’ prayer will cause to others and the opposition that will be aroused can only be found in removing the Petitioners from the Western Wall Plaza and forcing them to suffice with this or that alternative prayer venue. Needless to say that these recommendations too – like the recommendation of the Directors General Committee – deviated from the balancing formula in the First Judgment.

It would not be superfluous to note that even in explaining the reasons for their conclusions, the honorable committees drifted to views that were rejected by the majority of the justices in the First Judgment. Thus, for example, in arriving at its positon, the Directors General Committee ascribed weight to the verdict of the Chief Rabbis that “there should be no change in the existing status quo, and that prayer at the Western Wall should continue to be conducted as was customary and accepted to this day”. That position, sanctifying the “status quo”, was supported in the First Judgment only by the Deputy President, Justice Elon, but was entirely rejected by Shamgar P. and Levin J. This comment is equally applicable to the balancing formula followed by the Neeman Committee, which also granted weight to the consideration of “not violating the local custom”. Particularly perplexing was the comment of the Directors General Committee that “the paths of peace require mutual sacrifices of both sides”, inasmuch as by its recommendation that the Petitioners be removed entirely from the Western Wall Plaza, the Committee expressed the opinion that only the Petitioners are required – for the sake of peace – to sacrifice everything, whereas the groups opposing the presence of the Petitioners – the fear of whose violent reaction led the Committee to seek a different solution from that it was asked to recommend – are neither asked nor expected to make any sacrifice.

            As for the parameters of the balance decided upon (by majority) in the First Judgment, Justice Mazza adds as follows (ibid., 366):

… the First Judgment recognized the right in principle of the Petitioners to conduct prayers in accordance with their custom in the prayer plaza beside the Western Wall, and [] the committees that addressed the subject of the petition following the First Judgment did not do what they were intended to do in accordance with the instructions of that judgment …

            As for the fear of the violent reactions of the opponents of the prayer of the Women of the Wall, the Court further held that a balance that abolishes the right of the Women of the Wall by reason of public safety deviates from the balance parameters established in President Shamgar’s opinion (ibid., 365):

We are of the opinion that in arriving at its decision in the First Judgment, the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign.

35.       This, therefore, was the decision in the Second Judgment now before us in a Further Hearing: Having found that the “balances” effected by the various committees are incompatible with the instructions of the First Judgment, the Court ruled (ibid., 367) to issue an order absolute:

[I]nstructing the Government to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza.

            This time as well, as in the first case, the Court refrained from deciding upon the details of the appropriate arrangement, but Justice Mazza found it appropriate to emphasize that “the required decision [in the matter of the arrangement] is only in regard to the concrete conditions in order to enable the Petitioners to pray in accordance with their custom in the Western Wall Plaza, such as the place and times in which they may do that, while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements” (ibid., at 367).

            The Court further decided to delay the execution of the judgment, setting a period of six months – i.e., until the end of November 2000 – for the establishing of the necessary arrangements.

 

The Petition for a Further Hearing

36.       The Second Judgment was issued on May 22, 2000, and two-weeks later – on June 6, 2000 – the Government and those acting on its behalf (the Director General of the Prime Minister’s Office, and the Directors General of the Ministry of Religious Affairs, the Ministry of the Interior and the Ministry of Police, the Legal Advisor of the Prime Minister’s Office, and the Prime Minister’s Advisor on the Status of Women) petitioned for a Further Hearing in the matter of the judgment. President Barak granted the request on July 13, and thereafter, the panel appointed for the Further Hearing decided to further delay the execution of the order issued by the Court in the Second Judgment until the rendering of judgment in the Further Hearing.

37.       We will now take a brief recess in order to complete the picture. While the proceedings in the Further Hearing were pending, two organizations – the “Kolot Hakotel” Association and the “Am Echad” Association – requested to join the petition as additional petitioners – public petitioners – together with the Government. These organizations were not party to the High Court proceedings up to this point, but now requested to join the proceedings in the Further Hearing after they had begun. The “Kolot Hakotel” Association presented itself as an association whose members are “religious and traditional women who see preserving and employing traditional prayer at the Western Wall, as the last remnant of the place of the Temple, to be a supreme value in the continuity of Jewish life and Jewish tradition”. As for the “Am Echad” Association, it presented itself as a religious movement whose members are drawn from “a broad spectrum of ‘streams’ within Orthodox Judaism in Israel and the Diaspora.” This organization expressed “great concern in regard to change or deviation from the accepted prayer of generation upon generation at the Western Wall, in which all of world Jewry is a partner”, and therefore, it explained, it requests to further argue before the Court alongside the Government.

38.       After examining the requests of the two organizations and their written summary pleadings – which were submitted after the submission of extensive summary pleadings by the State Attorney’s Office – we reached the conclusion that those requests added nothing to the detailed, broad scope of the arguments presented by the State Attorney’s Office. For that reason, we decided, on Nov. 19, 2000, to deny the requests of the organizations to join the proceedings as additional petitioners in the Further Hearing.

            Indeed, it is decided law that when an entity with a general public interest requests to join as a party to proceedings before the High Court of Justice, we carefully consider “if that joinder would contribute to the proper, full examination of the dispute” (HCJ 852/86 Aloni v. Minister of Justice, IsrSC 41 (2) 1, 32, and also see p. 31). If such is the case in regard to proceedings before the High Court of Justice, then it applies all the more so in regard proceedings in a Further Hearing. Thus, having found that the organizations did not present arguments that are not argued by the Government, we decided to deny the requests.

            Following this brief recess, let us now return to the matter of the Further Hearing.

39.       The State Attorney’s Office, on behalf of the Government and its subsidiaries, reiterated the argument that it has presented since the outset of the proceedings in the matter of the Women of the Wall, that the Women of the Wall did not acquire a right to pray in accordance with their custom before the Wall and in the Wall Plaza, adding that it disagrees with the Court’s finding in the Second Judgment that the First Judgment established the law. The State Attorney’s Office finds support for this view in the statement of President Shamgar – in the First Judgment, ibid., 355-356 – that “at this stage, we should not decide the matter before us”, and in the statement of the Deputy President, Justice Barak, who, in denying the request of the Women of the Wall for a Further Hearing on the First Judgment, held that “[i]n his opinion [in the First Judgment], the President [Shamgar] noted that, at his time, he would not decide upon the petition” (para. 26, above).

40.       I find it hard to accept the argument of the State Attorney’s Office that the matter of the right of the Women of the Wall was not decided in the First Petition. We quoted the statements of the justices in the First Judgment at length, and in our opinion, the Court decided upon the right of the Women of the Wall to pray in accordance with their custom at the Western Wall (see the statements that we quoted above in paras. 15-18 and para 21). We would further recall that among his other statements in the First Judgment, the President explicitly held that “we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws” (ibid., 355). In speaking of “the said laws”, the President was referring to the provisions of sec. 1 of the Protection Law and its identical parallel in sec. 3 of Basic Law: Jerusalem, Capital of Israel, according to which: “The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places”.

            President Shamgar went on to speak of these two laws further on in his opinion, in stating that the parties should “try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence” (ibid., 355). President Shamgar addressed that “declaratory principle” at the beginning of his opinion (ibid., 353), holding that the fundamental provision that we addressed in the two relevant laws give “statutory expression to the statements of the Declaration of Independence, which declares that the State of Israel will ensure freedom of religion and conscience, and will protect the Holy Places of all religions” (ibid., 353). Can there be any doubt that President Shamgar recognized the right of the Women of the Wall to pray in accordance with their custom in the Western Wall Plaza? The question begs the answer.

            President Shamgar’s holding in regard to the right of the Women of the Wall to pray according to their custom at the Western Wall is clarified and explained further on, against the background of his recommendation that the Government “consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers” (ibid., 356). A person naively reading this statement would learn that the Women of the Wall held a right to pray in their manner at the Western Wall, and that the committee that President recommended appointing was intended only to find a solution that would “ensure”[1] freedom of access – in his words – while limiting the affront to the feelings of the worshippers. The term “ensure” freedom of access is not ambiguous. It has but one meaning, which is that the Women of the Wall have a right to pray at the Wall in accordance with their custom. That right, together with the need to limit affront to the feelings of the worshippers – both the right and the need – must coexist.

41.       When the Court examined the actions of the Government and its committees against the balance parameters that the Court had established in the First Judgment, it found that the actions were one thing and the balance parameters were another, that is, the actions did not fall within the parameters. The Government’s prayer, therefore, is that we turn back the clock and reverse not only the Second Judgment but the First Judgment as well. In any case, the opinion of the majority in the First Judgment is clear and requires no interpretation.

42.       In the course of the proceedings before us, we tried to bring the sides closer; we tried but did not succeed. The Government reiterated the proposal of the Neeman Committee that the Women of the Wall pray in accordance with their custom at the “Robinson’s Arch” site. In the words of the Government in its pleadings:

The Respondents will argue that prayer at “Robinson’s Arch” realizes both conditions established by President Shamgar, viz., the ensuring of the right of access to the Wall and limiting the affront to the feelings of the worshippers. The right of access to the Wall will be preserved (as will freedom of worship), inasmuch as Robinson’s Arch is, as stated, a part of the Wall, and prayer there will avoid friction and prevent affront to those who pray at the Wall in the long-customary manner.

…

The solution is respectable, fair and immediately executable. It would be proper for the honorable Court to issue a ruling in the matter of the prayer arrangements at the Holy Places that will allow the necessary flexibility in order to ensure freedom of access and worship, on the one hand, and the prevention of friction and violence, on the other.

            As we are all aware, “Robinson’s Arch” is a remnant of the western wall of the Temple Mount, just like the Western Wall. However, no one would deny that in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall: with a capital “T”. We would further add that, over the last few years, the site adjacent to “Robinson’s Arch” – a site under the auspices of the Antiquities Authority – has occasionally served as a prayer space for the Conservative Movement. The question before us was, therefore, whether the “Robinson’s Arch” site would be suitable for the prayer of the Women of the Wall.

43.       The justices of the First Judgment examined the Neeman Committee’s proposal in regard to “Robinson’s Arch”, and their opinion was that the site was not suitable to serve as an appropriate alternative prayer space to the Western Wall in that it could not realize the balance parameters enunciated in the First Judgment. The Court also visited the other alternative prayer sites proposed to the Women of the Wall – among them “Robinson’s Arch” – but further held in the Judgment (at p. 366) that “making such a visit was unnecessary for the purpose of rendering a decision, inasmuch as the Petitioners’ right to pray in accordance with their custom at the Wall was already recognized, in practice, in the First Judgment”. As for us, we should remember that we are sitting in judgment in a Further Hearing.

44.       In our deep desire to try to find an appropriate, amicable solution to this prolonged dispute between the parties, we, too, decided to visit the “Robinson’s Arch” site. We indeed visited the site, and received explanations from the representatives of the Antiquities Authority and other relevant bodies. After seeing the site with our own eyes and examining what needed to be examined, we arrived at the conclusion – like the justices of the Second Judgment – that prayer at the “Robinson’s Arch”, site in its current state, would not properly realize the right of the Women of the Wall to pray opposite the Wall. Indeed, had the Government acted to adapt the site to a regular prayer space, it might have been perceived – although not easily – as a sort of continuation of the Western Wall Plaza. However, in its present physical state, “Robinson’s Arch” cannot serve as an appropriate prayer space. We are satisfied that this alternative cannot succeed, and we cannot blame the Women of the Wall for not agreeing to the proposal. We would further note that the “Robinson’s Arch” site currently serves as a unique archaeological park that is under the auspices of the Antiquities Authority, and the Antiquities Authority does not agree to introduce any changes that would make the place suitable to serving as a prayer site.

45.       We regret that the parties could not find a way to bridge the gap between them, even if it meant walking a narrow bridge. It was possible, and would have been proper, to find an appropriate arrangement, but we now find ourselves before a rift. It is best that prayer arrangements not be decided by the courts – neither the High Court of Justice nor any other court. However, now that the matter is brought before us, it is our right – nay, our duty – to decide in accordance with the law.

46.       The Western Wall is a place that is sacred to the Jews. The Wall is also sacred to the Women of the Wall, and to those who firmly oppose the manner of prayer of the Women of the Wall. And so, on one side we have the right of the Women of the Wall to pray in their manner at the Wall, and on the other side stands the firm opposition of other religiously observant people who see the prayer of the Women of the Wall as an affront to their feelings toward a place they hold as holy. And as is well known, holiness is indivisible. This is the main problem standing in the way of finding an appropriate legal solution to the differences of opinion that have arisen between the parties.

47.       I have considered and reconsidered the matter, and in the end I have reached this conclusion: the right of the Women of the Wall is a right that entitles them to pray at the Wall in their manner. That is what was held in the First Judgment. That is what was reiterated in the Second Judgment, and I can find no justification to uproot that decision. However, like every right, the right of the Women of the Wall to pray beside the Wall in their manner is not unlimited. It is a right that – like every other legal right – requires that we evaluate it and weigh it against other rights that are also worthy of protection. Indeed, we must do what we can to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties. As President Shamgar stated in the Second [sic] Judgment (ibid., 355):

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner …

            In order to try to comprise both these and those, I believe that, for the time being, it would be appropriate that the Women of the Wall pray in their manner at the Western Wall in the “Robinson’s Arch” site, with the proviso that the site be properly prepared in a manner appropriate for people to enter and spend time there. As we said – and saw with our own eyes – the present physical state of the site does not make it possible to conduct prayer there in an appropriate manner, and the worshipper can also not touch the Wall as do worshippers at the Western Wall. The required conclusion is that the “Robinson’s Arch” site cannot be deemed an appropriate alternative site for prayer in its present state. But if the site will be properly and appropriately adapted, it will be possible to view it as an alternative to the Western Wall for prayer. And so, if the Government will prepared the “Robinson’s Arch” site – appropriately and as required – within twelve months from today, then the Women of the Wall will be able to pray in their manner at that site. In saying that the Government must prepare the site “appropriately and as required”, I mean, inter alia, the making of appropriate safety arrangements and easy, secure access to the prayer site and the Wall itself.

48.       But if the place is not made suitable – within twelve months – as appropriate and required, and having found no arrangement acceptable to both parties, it is the duty of the Government to make arrangements in accordance with the instructions set out by President Shamgar in the First Judgment and the instructions of the Court in the Second Judgment. In other words: the Government will be required to make appropriate arrangements and provide appropriate conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza. The Western Wall Plaza is a large space, and with a little good will, the Government will be able to allocate “four cubits” for them to pray in their manner. The Women of the Wall do not ask for much. They are willing to make do with little: for example, prayer for one hour, once a month on Rosh Hodesh (except for Rosh Hodesh of the month of Tishrei), and altogether eleven hours a year (see: the First Judgment, p. 355 at letter C). The Government can arrange this small thing. I would further recall what the Court wrote in the Second Judgment – and recommend that we adopt this statement – that what the Government is asked to decide in regard to appropriate arrangements and conditions is exclusively in regard to the concrete conditions in which the Respondents will be able to pray according to their custom in the Western Wall Plaza – such as the place and times in which they can pray in their manner – while mitigating the affront, as far as possible, to the feelings of other worshippers, and while providing the necessary security arrangements.

            A government is created to govern, which is why it is called a government. And it is the legal duty of the Government to find an appropriate way to enable the Women of the Wall to conduct their prayer in good faith and in their manner in the Western Wall Plaza.

 

Epilogue

49.       The Second Temple was destroyed and went up in flames in the year 70 CE. Little remains but broken fragments. From that time, and for one-thousand-nine-hundred years, those fragments were the captives of foreigners. Jews were callers, permitted to visit their own holy places. On the 28^th of Iyar 5727, June 7, 1967, the Western Wall – a remnant of the outer wall if the Temple – was liberated from the foreign hands that held it. The Wall did not free itself from its captivity. It was the paratroops, paratroopers of the Israel Defense Forces, who freed it from its foreign yoke. Since that liberation, we are at home in this remnant of the Temple. Some of those paratroopers who freed the Wall were religiously observant and some were not. And even the observant ones among them were not all of one stripe. But all of them were agents of the Jewish People – all of the Jewish People. When that war was over – actually, immediately following the liberation of the Wall – the paratroopers fulfilled their duty, and gave the People of Israel that precious trust that they held and that they had redeemed in blood. The Wall was handed over to the Jewish People in its entirety, and not just to a part of it. And all of the Jewish People – and not just part of it – acquired rights in the Wall. “And just as the Temple Mount, and the Temple that stood upon it, was a symbol of the Jewish religious world and of the Jewish nation’s political sovereignty over Israel, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty.” Thus wrote Deputy President Elon in the First Judgment (ibid., 333). Indeed, so it is. The Western Wall is for all the Jewish People, and not just for a part of it.

 

Conclusion

50.       In conclusion, I recommend to my colleagues that we decide as stated in paragraphs 47-48 above.

            I will conclude with the prayerful wishes of the psalmist (Psalms 122:6-7):

Pray for the peace of Jerusalem, may they prosper who love you.

Peace be within your walls, and security within your towers.

 

 

President A. Barak:

            I concur in the opinion of my colleague Justice M. Cheshin.

 

Deputy President (Emeritus) S. Levin:

            I would deny the petition without reservation, as the time has come to render a final judgment in accordance with the law. I see no reason to order, except in the framework of a compromise, that the Robinson’s Arch site, currently a special and unique archaeological park, be converted into a prayer site over the objections of the Antiquities Authority.

 

Justice T. Orr:

            I concur in the opinion of my colleague Justice M. Cheshin.

 

Justice E. Mazza:

            Like my colleague the Deputy President, I too am of the opinion that the petition should be denied without any reservations. The right of the Women of the Wall to pray in accordance with their custom in the Western Wall Plaza was decided by a majority in the judgment on the First Petition (HCJ 257/89 Hoffman v. Director of the Western Wall, IsrSC 48 (1) 265), and unanimously affirmed in the judgment that is the subject of this Further Hearing (HCJ 3358/95 Hoffman v. Director General of the Prime Minister’s Office, IsrSC 54 (2) 345). Even my colleague Justice Cheshin, with whose opinion in regard to the right of the Women of the Wall, the majority of justices in this Further Hearing concur, does not doubt the justice of the said judgment. Nevertheless, he recommends that we intervene in the relief that was granted to the Women of the Wall in the judgment that is the subject of this Further Hearing, such that they will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza only if the Petitioners fail to prepare – and as long as they do not prepare – the “Robinson’s Arch” site for them as an alternative prayer site. In referring to that site, which currently serves as an archaeological park worthy of the name, my colleague indeed admits that “in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall”. Nevertheless, my colleague recommends seeing this site (as long as it is prepared to serve as a prayer site) as an alternative with which the Women of the Wall must make do, and at least for the present, relinquish the realization of their recognized right to pray in accordance with their custom in the Western Wall Plaza. My colleague Justice Cheshin proposes adding this proviso to the judgment, in order, in his words, to “do what we can to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties”.

            I cannot agree with this proposal that, with all due respect, essentially eviscerates the recognized right of the Women of the Wall. As we already noted in the judgment that is the subject of this Further Hearing, “the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign”. Moreover, in arriving at our decision in the judgment that is the subject of the Further Hearing, we were careful to point out that the Government must establish the arrangements and conditions, such as the place and times in which the Women of the Wall can conduct their prayer in the Western Wall Plaza, “while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements”. It is important to explain that the arrangements that the Government was obliged to establish were intended to allow the Women of the Wall to realize their right to pray in the Western Wall Plaza, as opposed to beside the Wall. As is generally known, the Western Wall Plaza covers a large area. Most of the worshippers are concentrated in the part of the area that is adjacent to the Wall and clearly separated from the more remote parts of the Plaza. In requiring that the Government establish arrangements that would allow the Women of the Wall to realize their right to pray – some eleven hours a year, in all – in a suitable place in the Western Wall Plaza, we gave appropriate expression to consideration of the feelings of the other worshippers. This equation reflects a proper balance between the need to allow the Women of the Wall to pray in accordance with their custom and the need to mitigate, as far as possible, the resulting affront that may be caused to the feelings of other religiously observant people. Intervening in the substance of the relief granted to the Women of the Wall in the judgment that is the subject of the Further Hearing would upset that balance.

            It is, therefore, my opinion that the petition should be denied, and that a timeframe should be set for the Government to make the necessary arrangements as ordered in the judgment that is the subject of the Further Hearing.

 

Justice T. Strasberg-Cohen:

            My opinion was and remains that the Women of the Wall should be permitted to realize their right to pray in accordance with their custom in the Western Wall Plaza, and that the Government must make that possible by establishing appropriate arrangements, as decided in our judgment in HCJ 3358/95.

            Therefore, I concur with the position of my colleagues Deputy President S. Levin and Justice E. Mazza, according to which the petition should be denied. Nevertheless, I would welcome any compromise that might be achieved by the parties concerned that would be acceptable to all.

 

Justice J. Turkel:

1.         Like my colleague Justice M. Cheshin, I too am of the opinion that the choice of the “Robinson’s Arch” site as a prayer space for the Respondents (who have come to be known as “The Women of the Wall” – J.T.) is the fitting, appropriate and balanced solution to the dispute that was brought before us. However, this solution should not be adopted “conditionally”, as recommended by my colleague, but rather as a permanent solution. My approach also differs from his. If it were up to me, I would quash the order issued by this Court (E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ.) in HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 345 (hereinafter: the Second Judgment) ordering the Government “to establish the appropriate arrangements and conditions under which the Petitioners [the Respondents in the petition before the Court – J.T.] will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza”. One way or another, the “Robinson’s Arch” solution, recommended by the Neeman Committee, has been adopted. And it would appear that the petition before us is grounded in law – “in law” in its plain meaning – for reasons of law and not principally for reasons of the law of prayer.

 

Non-intervention in Administrative Discretion

2.         I will begin with first principles. The discretion granted to an administrative authority is the power to choose among possible solutions. The rule is that the Court will not substitute its discretion for the discretion of the administrative authority required to decide a matter. Thus it has been held:

One thing is beyond all doubt, and it is that the Court will not attempt to substitute its discretion for the discretion of the competent authority, and will not impose its opinion on those upon whose wisdom, reasoning, knowledge and practical experience the legislature intended to rely; in short – on their discretion that is based upon knowing the true situation in all its aspects and conditions …. (CA 311/57 A.G. v. M. Dizengoff and Co. Ltd., IsrSC 13 (2) 1026, 1039, per Z. Berenson J.).

            It was further stated in this regard, inter alia:

A discretion is given to an administrative organ …in order that, in fulfilling its many-sided functions which circumstances may vary and change periodically and which cannot be precisely determined in advance, it may have freedom of action. In other words, discretion means freedom of choice from among different possible solutions, or an option granted to the administrative authority, and because that authority is empowered to choose and select the solution appropriate to its mind, the court will not interfere for the reason alone that it would itself have picked upon a different solution. Such interference is tantamount to a negation of the discretion of the administrative organ and its transfer to the court (FH 16/61 Registrar of Companies v. Kardosh, IsrSC 16 1209, 1215, [English translation: IsrSJ 4 33, 35]; HCJ 92/56— Richard Weiss v. Chairman and Members of the Law Council (1956) IsrSC 10 1592; HCJ 636/86 Nahalat Jabotinsky Workers’ Moshav v. Minister of Agriculture [1987] IsrSC 41(2) 701, 708 per E. Winograd J.).

 

            This rule is based upon the separation of powers, “in accordance with which the authority to decide in matters of execution and administration remains – except in exceptional cases – in the hands of the Executive, whereas the Judiciary restricts itself to judicial review of the constitutionality of the authority’s decision” (R. Har-Zahav, Israeli Administrative Law (1966) p. 436 (Hebrew). However, a number of causes for intervention in administrative discretion have been developed in the case law, inter alia, the duty to act within the law, the duty to refrain from discrimination and act equally, the duty to exercise discretion reasonably, the duty to act fairly and not arbitrarily, the duty not to act on the basis of extraneous considerations or for extraneous purposes. Thus, it has been stated:

It appears to me that in this regard, the normative framework that applies to the exercise of administrative discretion applies to this matter as well. The accepted rules in regard to reasonableness, fairness, good faith, an absence of arbitrariness, discrimination and other such criteria that apply to administrative discretion apply to this matter as well (HCJ 297//82 Berger et al. v. Minister of the Interior, IsrSC 37 (3) 29, 34, per Barak J.).

            Did the Government act within the framework of its discretion in deciding to designate the “Robinson’s Arch” for the prayer of the Respondents? Do any of the causes that justify intervention in administrative discretion apply here? And therefore, should we order the Government to establish arrangements and conditions as stated in the order in the Second Judgment?

 

The Exercise of Discretion

3.         Before attempting to answer these questions, we will first consider some of the history of the affair. In HCJ 257/89, 2410/90 Anat Hoffman et al. v. Director of the Western Wall et al.; Susan Alter et al. v. Minister of Religious Affairs et al., IsrSC 48 (2) 265 (hereinafter: the First Judgment) – in which this Court (M. Shamgar P., M. Elon D.P. and S. Levin J.) first addressed the subject at bar – the Court “decided by majority to dismiss the petitions, subject to the recommendation in the opinion of presiding judge” to “consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers”.

            Pursuant to the First Judgment, and in accordance with the recommendation of President Shamgar, the Government decided, on May 17, 1994, to appoint a Directors General Committee that was requested “to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site” (hereinafter: the Directors General Committee). The Directors General Committee recommended that the petitioners be offered an appropriate alternative site in which they might realize their desire to pray in accordance with their custom, in two sites in the boundaries of the archaeological park – the “Hulda Steps”, and the southwestern corner of the Western Wall that is referred to as “Robinson’s Arch”. The recommendations of the Directors General Committee were presented to the Government on April 2, 1996. On April 21, 1996, the Government appointed a ministerial committee to “examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government” (hereinafter: the Ministerial Committee). On June 2, 1997, the Ministerial Committee decided to adopt the recommendations of the Directors General Committee. At that time, a committee was established to make recommendations in the matter of religious conversion. The Government asked the committee to make recommendations in regard to the prayer of the Women of the Wall, who are the Respondents in the petition at bar. On Sept. 23, 1998, the Neeman Committee presented a report in which it reached the conclusion that prayer at the “Robinson’s Arch” site, which “meets the Wall and is adjacent to it …” is “the most practical alternative for the needs and demands of the Women of the Wall”. The committee emphasized that it reached this conclusion after “weighing and balancing the need to find a suitable prayer space that will answer the needs and demands of the Women of the Wall and the important principle of refraining from causing affront to the worshipping public in the Western Wall Plaza and not violating local custom”. The conclusion was adopted by the Government, as we learn from the Petitioners’ notice which states that “the recommendations of the Neeman Committee represent a reasonable balance between the petitioners’ wish to pray according to their custom at the Western Wall and the other relevant considerations” (para. 13 of the respondents’ supplemental pleading in that case, who are the Petitioners at bar, for the hearing in which the Second Judgment was given).

            The Neeman Committee’s conclusion was examined in the Second Judgment, and it is also at the heart of these proceedings. As stated, the Neeman Committee reached its conclusion after it examined and considered other possible prayer sites, after “weighing and balancing” the various considerations, and after finding that “the most practical alternative” was at the “Robinson’s Arch” site. Thus, the committee chose one solution from among the possible solutions presented to it, which included the women’s prayer section in the Western Wall Plaza. Even if I were of the opinion that a different solution could have been chosen, there are no grounds for saying that the Neeman Committee – and then the Government – could not make the choice that it made, or that any of the causes that would justify intervention in that conclusion were present. Therefore, inasmuch as the Government concluded that it would be appropriate to choose the alternative recommended by the Neeman Committee, this Court must not substitute its discretion for that of the Government, whether by rejecting its decision or by revisiting the matter in a Further Hearing, as was done in regard to the Second Judgment.

 

The Conclusion of the Neeman Committee –Additional Reasons for Adoption

4.         According to my colleague Justice M. Cheshin: “As we are all aware, ‘Robinson’s Arch’ is a remnant of the western wall of the Temple Mount, just like the Western Wall. However, no one would deny that in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall with a capital ‘T’.” I cannot agree with that statement, and not merely because my impression is different, but primarily because no halakhic or historic sources were presented from which one might conclude that the holiness of any particular part of the Western Wall – the wall that, in my view, is the entire western wall of the Temple Mount – is more holy than any other part.

            I also find it hard to agree with his conclusion that: “had the Government acted to adapt the site to a regular prayer space, it might have been perceived – although not easily – as a sort of continuation of the Western Wall Plaza”. I am of the opinion that the sanctity of a place does not derive from constructing and adapting it, but rather it is inherent to its very nature. I would note in this regard that the Masorti [Conservative] Movement uses the “Robinson’s Arch” site as a prayer venue, and regards it as the “Masorti Wall” (see the Masorti Movement’s advertisement in the Kol Ha’ir newspaper of June 16, 2000, submitted as Appendix B of the Petitioners’ written summation).

5.         It is worth noting that under the Neeman Committee’s recommendation, the Respondents – who claim to follow “Orthodox custom” – retain the right of access to the women’s prayer section of the Western Wall Plaza, including the right to pray there in accordance with the local custom. The only restriction upon the Respondents’ worship there would be in regard to their practice of praying “in a group, wrapped in tallitot, carrying a Torah scroll and reading from it”. However, they would be able to follow that practice in the “Robinson’s Arch” site, which is the continuation of the Western Wall.  The respondents would, therefore, be permitted to carry out all of their prayer customs – some in the Western Wall Plaza before the Western Wall, and some at the “Robinson’s Arch” site. For this reason as well, the solution chosen by the Neeman Committee and adopted by the Government was appropriate, proper and balanced.

This conclusion does not contradict the view expressed by President Shamgar in the First Judgment, in which he stated: “I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers” (ibid., at p. 3556). I doubt that President Shamgar’s intention in that statement was to hold that the Respondents, the Women of the Wall, have the right to pray at the Western Wall – in its specifically limited sense that does not include the “Robinson’s Arch” site – and specifically according to their custom. It would seem to me that the intention can be inferred from the fact that, contrary to the position of Justice S. Levin in the First Judgment – who wished to issue a judgment that recognized the right of the Women of the Wall “to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls” – President Shamgar adopted the language “freedom of access to the Wall” and no more. The Neeman Committee’s conclusion thus ensures both the freedom of access and the freedom of worship of the Respondents, as recommended by President Shamgar, but limits part of their prayer practices to “part” of the Western Wall, which is the “Robinson’s Arch” site. There is no reason to intervene in that.

 

Judgment of Peace

6.         In concluding, I would say a few words about the paths of peace. In tractate Derekh Eretz Zuta, Perek HaShalom we read: “As we learned there, Rabbi Shimon ben Gamliel says: The world exists on three things – on justice, on truth and on peace. Rabbi Mina says: And these three are one. Where justice is done, truth is done and peace is made. And these three were stated in one verse, as it says (Zachariah 8:16) ‘Give judgment in your gates for truth, justice, and peace’. Wherever there is justice, there is peace…”. The judgment rendered by the Government in adopting the alternative that it chose is judgment and is peace.

 

Conclusion

7.         If my opinion were adopted, we would grant the petition, quash the order issued by the Court in the Second Judgment, and declare that in adopting the conclusion of the Neeman Committee in regard to choosing the “Robinson’s Arch” site as a prayer venue for the Respondents, the Government fulfilled its obligation. However, since my colleague Justice Cheshin – in his own way, which is the way of compromise – reached the conclusion that “it would be appropriate that the Women of the Wall pray in their manner at the Western Wall in the “Robinson’s Arch” site”, I concur with what is stated in the concluding part of para. 47 of his opinion.

 

 

Justice D. Beinisch:

            I concur in the opinion of my colleagues Deputy President S. Levin, Justice E. Mazza and Justice T. Strasberg-Cohen, who are of the opinion that the petition should be denied. I have not changed my opinion that it is the right of the Women of the Wall to pray in accordance with their custom at the Western Wall, and that the Government must establish the arrangements and conditions that would limit, as far as possible, the affront to the feelings of the other worshippers, in terms of a suitable place, times, and security arrangements.

 

Justice I. Englard:

            I utterly disagree with my colleagues in the majority. My disagreement is not focused upon individual points, but is rather a disagreement with their entire approach, beginning with the alleged holding in the judgment in the first proceeding, HCJ 257/89, 2410/90 Hoffman et al. v. Director of the Western Wall et al., IsrSC 48 (2) 265 (hereinafter: the First Case), and ending with the merits of the approach adopted by this Court in the second proceeding, HCJ 3358/95 Hoffman v. Director General of the Prime Minister’s Office, IsrSC 54 (2) 245 (hereinafter: the Second Case).

            I will begin with my different understanding of the holding in the First Case. My colleague Justice E. Mazza tried to infer a majority holding – which would constitute a binding instruction – from the three different opinions given in the First Case, recognizing the fundamental right of the petitioners to pray in their manner in the Western Wall Plaza. The trouble is that such an attempt, focused upon the opinion of President Shamgar, is highly problematic in that, from a legal standpoint, the only result of the judgment was the denial of the petitioners’ petition, subject to a recommendation that the Government consider the appointment of a committee. Thus, all the rest of President Shamgar’s opinion, whatever it may mean, was nothing but obiter dicta that have no obligatory legal force whatsoever.  Indeed, at the end of his opinion, President Shamgar expressly holds that “at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided”, and he adds that “[t]he gates of this Court are always open, but as stated, the other available options should first be exhausted”. Against the background of these statements, I cannot agree with this Court’s assumption in the Second Case that the committees that addressed the issue “drifted to views that were rejected by the majority of the justices in the First Judgment”. Moreover, President Shamgar held that practical solutions should be sought “according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others” (ibid., at p. 335 between marginal letters e-f; emphasis added – I.E.). Therefore, even according to the “majority”, no fault can be found with the committees that examined and found that prayer in the manner and style of the petitioners significantly violates the prayers of others, and therefore proposed what they proposed. It should be noted that preserving the local custom does not constitute a fundamental impediment barring the petitioners from approaching and praying beside the Wall. The prohibition concerns only the outward manner of worship, to which I will return in the course of this opinion. For the moment, I will suffice with the comment that there is unanimous agreement on the condition that the realization of the right to worship must be made in good faith (per Shamgar in the First Case, at p. 355 [marginal letters e-f]; per Levin, ibid., at p. 357 [c]; per Mazza in the Second case, at p. 363 [d]). Yet, there are those who see the petitioners’ manner of prayer as constituting a “provocation” or a “war” to achieve ideological goals, and the Western Wall is not the appropriate place to wage it [Elon, pp. 329 & 350].  This question, too, was examined by the Court in the First Case. From all the above we can, in my opinion, conclude that there is no legal basis for this Court’s assumption that the committees that addressed the matter of the petition, following the First Case, did not do what they were asked to do in accordance with the instructions in that judgment. There was no such instruction, and therefore, for this reason alone, the petition in the Further Hearing should be granted.

2.         It is, however, clear that the said formal reason is not sufficient to conclude the debate surrounding this petition. In the final analysis, what stands behind the formal reliance upon the judgment in the First Case is a substantive perspective that guided my colleagues in the Second Case – a point of view that, in principle, adopted the opinion of my colleague Justice S. Levin in the First Case, while utterly rejecting the point of view of Deputy President M. Elon. It would, therefore, be appropriate to address that substantive perspective as expressed in the Second Case. I will state at the outset that this approach is very problematic in my view due to its shaky legal grounds. There are many questions for which I did not find adequate answers in the opinions of my colleagues Justices S. Levin in the First Case, E. Mazza in the Second Case, and M. Cheshin in this petition. I will briefly touch upon the main issues among them.

3.         The first fundamental issue concerns the general jurisdiction of this Court to consider the issue of freedom of worship in the Holy Places. This issue was mentioned and quickly decided in the First Case by Deputy President Elon (ibid., at pp. 297-298). It should be noted that the claim of lack of jurisdiction was raised not by the State but rather by one of the other Respondents. This is what the Court states there, per Deputy President Elon:

The Palestine Order in Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences, as established in the Law and the Regulations for Protection of Holy Places to the Jews. In HCJ 222/68 National Circles Association v. Minister of Police (IsrSC 24(2) 141), the majority held that while the Order-in-Council does deprive the Court of jurisdiction in matters of freedom of worship in the Holy Places, it does not deprive it of jurisdiction    in regard to freedom of access to the Holy Places, the duty to ensure the prevention of desecration of the Holy Places, or the duty to protect the sensitivities of the members of the various religions towards their Holy Places, which are the matters addressed by the Regulations in the matter at bar. This petition treats of the freedom of access of the Petitioners to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers, and this Court holds jurisdiction over the matter of the petition.

            It should be noted that Justice S. Levin expressed his agreement with this opinion in regard to the Court’s jurisdiction to address the matter of the petition (ibid., at p. 356 [b]).

4.         However, that conclusion as to the jurisdiction of the Court, taken against the background of the provisions of the Order-in-Council and the majority opinion in HCJ 222/68, Mot 15/69 National Circles Association v. Minister of Police, IsrSC 24(2) 141 (hereinafter: the National Circles case), does not stand up under examination. The matter before us directly concerns freedom of worship and not freedom of access or criminal offenses in regard to the Holy Places. As noted, the petitioners are not being prevented from approaching and praying beside the Wall. The sole restriction is upon the outward manner of their worship. In my opinion, such a dispute falls within the scope of the provisions of the Order-in-Council, even under the provisos set out by President Agranat in the National Circles case. It should be noted that the majority opinion in the National Circles case is viewed with approval by this Court, as can be seen even in HCJ 4185/90 Temple Mount Faithful v. Attorney General et al., IsrSC 47 (5) 221, 282:

Indeed, it has also been held by this Court that the authority to address the realization of the right to worship is granted to the Executive and not the Judiciary, as that is what is established by art. 2 of the Palestine Order-in-Council (Holy Places), 1924, as construed in the National Circles case, above.

            While it is true that the parties to the said proceeding did not raise this claim, nevertheless, since we are concerned with subject-matter jurisdiction, the Court does not derive its authority from them, but must raise the issue of an absence of subject-matter jurisdiction nostra sponte, inasmuch as it relates to the very source of its judicial standing and thus to the validity of its judgment. As is well known, the consent of the parties cannot remedy a lack of subject-matter jurisdiction. Perhaps we should revisit the majority opinion in the National Circles case, but as long as that holding has not been reversed, the authority to address matters of worship in the Holy Places, including the Western Wall Plaza, is granted exclusively to the Executive. By way of demonstration, would anyone imagine that this Court might intervene in the arrangements for worship of the various Christian communities in the Holy Sepulchre in Jerusalem, while changing the existing status quo?! Would it not be self-evident that such an inter-community dispute would be non-justiciable under the Order-in-Council?!

5.         For the sake of continuing the examination, I will assume that it is possible to overcome the problem of lack of jurisdiction, as this Court believed in the two cases mentioned. In other words, I will proceed upon the assumption that the case before us can be situated in the provisions of the Protection of the Holy Places Law and Basic Law: Jerusalem, Capital of Israel. In the First Case, my colleague Justice S. Levin expressed his view in regard to the significance of the Protection of the Holy Places Law and the regulations thereunder. It would appear that that view was adopted in its entirety in the Second Case. I will first quote the statement of my colleague Justice S. Levin in regard to the Protection of the Holy Places Law (ibid., at pp. 356-357):

                        A.          In my opinion, the subject of the petition should not be decided on the basis of halakhic considerations. After all, it is clear that the Protection of the Holy Places Law (hereinafter: the Law) is a secular law. It takes account of considerations of the relevant religious communities, including the considerations of the Chief Rabbis (see sec. 4), but not only those considerations, and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety. Therefore, the terms “desecrate”, “other violation”, and “anything likely to violate … their feelings (of the members of the religious communities – S.L.) towards those places” in sec. 1 of the Law should be given an interpretation that, on the one hand, expresses the right to freedom of worship and religion, as accepted in a democratic society and as “tolerated in it”, and on the other hand, the protection of the interests of public safety and “intolerable” violation of the feelings of others as acceptable in that society.

                        B.          Unquestionably, the Western Wall (and its Plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

                        C.          The above leads to two primary results. One in regard to the right to freedom of worship at the Western Wall site, and the other in regard to the right to conduct other activities of an appropriate nature at the site. As for these two types of matters, we should establish permission in principle for conduct, as long as that conduct does not constitute “desecration”, an “other violation”, or a “violation of feelings” of the nature that I have already mentioned above. In this regard, in my opinion, the adoption of the broadest common denominator as a standard – in the manner presented by my honorable colleague -- is of no help. Consider, for example, even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

            As noted, this view was adopted by the Court in the Second Case. See and note well, ibid., at p. 352 [e].

6.         Before addressing the said basic point of view of this Court in the matter of the meaning and construction of the Protection of the Holy Places Law in regard to the Holy Places, it would be proper to note, as well, reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, that was added as a result of the dispute that is the subject of this petition. It states as follows:

                        Prohibited Conduct

In the area of the Holy Places … the following is prohibited: Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place.

            In the First Case, this Court agreed that this regulation does not deviate from the scope of the law (see ibid., at p. 357 [e], per S. Levin J.). However, in regard to the interpretation of this regulation, Justice Levin was of the opinion that:

[B]ut in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

7.         In my opinion, the interpretive approach adopted by this Court is incorrect. The idea that due to the secular character of the Protection of the Holy Places Law and the regulations thereunder, the terms appearing therein must also be interpreted in accordance with secular standards does not stand up under examination. This we must admit: all the laws of the Knesset are, by their very nature, secular norms, inasmuch as the Knesset is not a religious institution. Therefore, nothing can be learned from the nature of the Knesset’s laws in regard to the manner for interpreting terms that appear therein. There is no principled reason that a secular law not refer to a religious system. And this, in fact, is actually done, for one example among many, in the framework of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953. No one would dispute that the term “Jewish religious law” in sec. 2 refers to the Jewish halakhic system. The fact that the Rabbinical Courts Jurisdiction Law is a secular law says nothing about the legislative intent to refer to the religious legal system.

8.         From the above it would appear that the secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. On the contrary, the presumption is that terms borrowed from a religious system should be interpreted in accordance with that system. Moreover, the idea of holiness – in the present context in regard to particular places – is a categorically religious term that has no material meaning in the secular world, and see the classical text R. Otto, Das Heilige (Breslau, 1917); id., The Idea of the Holy, trans. J.W. Harvey (Oxford, 1923, 2^nd ed. 1950). Thus, I cannot accept the general approach of this Court, which, in the context of the Protection of the Holy Places Law, attributed secular significance to the Western Wall. Of course, I do not dispute the national significance that holy places may have, but that was not the intention of the law, which expressly addressed the holy dimension of those places.

9.         The result is that terms borrowed from the religious world, such as “desecrate”, should first and foremost be interpreted in accordance with their religious significance. This is conspicuous in reg. 2 (a) (1) of the Protection Regulations that prohibits “Desecration of the Sabbath and Jewish holidays”. Is there any doubt that the intention is to refer to the Jewish halakha that defines what constitutes “desecration of the Sabbath and Jewish holidays”?!

10.       I utterly disagree with the idea expressed by my colleague Justice S. Levin in the First Case that he is “unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other” (ibid., at p. 356 [e]). In speaking of the Western Wall and its Plaza as a holy place, the Protection of the Holy Places Law and the regulations thereunder must have intended the Western Wall as a synagogue, for that is the status that – in accordance with the halakhic conception – imbues that place with its holiness. This is made clear in the opinion of Deputy President M. Elon, who addressed this matter at length in the First Case, and arrived at the conclusion that the law applicable to the Western Wall Plaza is the law of the synagogue. See ibid., at pp. 318-319, where, inter alia, Sephardic Chief Rabbi Ovadia Yosef is cited:

This place must certainly be no less than a synagogue, which is a beit mikdash m’at [a little Temple]. So it is in regard to the laws of a synagogue … certainly all that is true there, is true for the Western Wall … it should be treated with no less strictness than a synagogue and a mikdash m’at (“The Western Wall and its Surroundings in Halakha,” in The Western Wall (Jerusalem, 1976) p. 139 (Hebrew)).

11.       Against this background, we may conclude that the Court’s understanding of the expression “conducting a religious ceremony that is not in accordance with the local custom” is also mistaken. “Local custom” is patently halakhic term, as is clear from the opinion of Deputy President M. Elon in the First Case. The purpose of “local custom” is to express the existence of the distinctive, traditional manners of prayer of a given place of worship. Therefore, there is no basis for the view of this Court that “in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others”. In my opinion, this construction is absolutely contrary to the intention of the author of the regulations and to the language of the regulation, and no legal basis can therefore be found for it.

12.       The result is that, assuming the said regulation was issued in accordance with the law – an assumption on which both I and this Court agree – then the decision to grant an order absolute in the petition at bar cannot stand. But that is not all. In accordance with the halakhic decisions cited in the opinion of Deputy President Elon, which were issued by Chief Rabbis Rabbi Avraham Shapira and Rabbi Mordechai Eliyahu, granting the petition would constitute a desecration of the customs and sanctity of a synagogue (First Case, at pp 328-329, and pp. 319-320). In this regard, Deputy President Elon wrote (ibid., at p. 350):

The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions as constituting a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

            I cannot but wonder where this Court finds the authority to disagree with those halakhic decisions, according to which granting the petition would constitute a violation of the provisions of sec. 1 of the Protection of the Holy Places Law, which protects the Western Wall from desecration.

13.       Lastly, even if I were to ignore all of the legal problems that I have enumerated in my opinion, there would still be support for the opinion that, in view of the halakhic situation, granting the petition allowing the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others (Shamgar P., the First Case, at p. 355 [e]), or an excessive violation of the feelings of others (Levin J., ibid., at p. 357 [e]), and thus a violation even under the accepted tests of this Court.

14.       Parenthetically, I would make an observation in regard to the alternative site proposed to the petitioners at “Robinson’s Arch”. The Court’s visit to the site showed that, in principle, the site is appropriate for prayer beside the Wall. However, the representatives of the Antiquities Authority opposed making any change to the site, no matter how small. Their opposition was in regard to a stone that had fallen from the ancient wall and that, in the opinion of the representatives of the Antiquities Authority, must not be moved or hidden. I was not convinced that there is any real reason not to adapt the site such that access to the wall itself would be possible, with minimal injury to the fallen stone. I regret that my impression was that for some, the “sanctity” of archaeology exceeds the sanctity of the synagogue.

            In light of the above, if my opinion were accepted, the petition for a Further Hearing would be granted and this Court’s judgment in HCJ 3358/95 would be reversed.

            However, inasmuch as my opinion remains a minority view, I concur, at least, with the first part of the opinion of my colleague Justice M. Cheshin, by which, if the Government will prepare the “Robinson’s Arch” site – as appropriate and necessary – within twelve months from today, then the Women of the Wall will be permitted to pray there in their manner.

 

 

            Decided in accordance with the majority of Barak P. and Orr, Cheshin, Turkel and Englard JJ., and against the dissenting opinions of Levin D.P. and Mazza, Strasberg-Cohen, and Beinisch JJ., as stated at the conclusion of paragraph 47 of the opinion of Cheshin J. in regard to the preparing of the “Robinson’s Arch” site as a prayer space for the Women of the Wall. However, if the “Robinson’s Arch” site is not prepared to serve as a prayer space for the Women of the Wall within twelve months of the day of the rendering of this judgment, then we decide by a majority of Barak P., Levin D.P., and Orr, Mazza, Cheshin, Strasberg-Cohen and Beinisch JJ., and against the dissent of Turkel and Englard JJ., as stated in paragraph 48 of the opinion of Cheshin J., that is, that the Government is obliged to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in accordance with their custom at the Western Wall.

            Under the circumstances, we make no order for costs.

 

            This 4^th day of Nissan 5763 (April 6, 2003).