Equality Before the Law

The Supreme Court sitting as the High Court of Justice

 

HCJ 3856/11

 

Before:                                                The Honorable Deputy President M. Naor                                                                 The Honorable Justice E. Arbel                                                                                  The Honorable Justice N. Solberg

 

The Petitioner:                        Anonymous

 

v e r s u s

 

The Respondents:                   1.       The Supreme Sharia Court of Appeals

                                                      2.       The Sharia Court in Tayibe

                                                      3.       Anonymous

 

The Parties Requesting

to Join as amici curiae:           1.       "Kayan" – Feminist Organization

                   2.       The Concord Research Center for Integration of International Law in Israel

                                                                                   

Petition to Grant an Order Nisi

 

Date of Session:                                           13^th of Kislev, 5773 (November 27, 2012)

 

On behalf of the Petitioner:                Adv. V. Herzberg, Adv. T Mudlij

 

On behalf of Respondents 1-2:           Adv. A. Avzek

 

On behalf of Respondent 3:                Adv. A. Natur

 

On behalf of Party 1 requesting

to join as amicus curiae:                      Adv. S. Batshon

 

On behalf of Party 2 requesting

to join as amicus curiae:                      Adv. F. Raday

 

On behalf of the Attorney General:    Adv. D. Bricksman

 

 

J U D G M E N T

 

 

Justice E. Arbel:

 

Before us is a petition against the decision of the Sharia Court of Appeals ruling it is impossible to appoint a female arbitrator in a divorce proceeding before the court.

 

 

 

 

Background and Review of the Proceedings

 

1.The Petitioner and Respondent 3 (hereinafter: the “Respondent”) are Muslim Israeli citizens who are married to each other. A dispute erupted between the two, which led to various proceedings held in civil courts, including motions for protective orders, alimony actions and more. At the same time, on April 23, 2009, the Respondent filed an “Arbitration Claim” with the Sharia Court in Tayibe. There, the Petitioner claimed that the claim was filed in bad faith since the Respondent intended to divorce. Despite this, the court accepted the Respondent’s petition and on November 1, 2010, instructed that each party appoint an arbitrator on its behalf pursuant to Sections 130 and 131 of the Ottoman Family Law (hereinafter: the “Family Law”). On January 17, 2011, the Petitioner filed a notice to the Sharia court regarding the appointment of Hajjah Rudina Amsha from Tayibe as the arbitrator on her behalf.

 

2.On January 18, 2011, the Sharia Court ruled that: “This court sees that the religious scholars stipulated that the arbitrators must be men, according to the Maliki, Hanbali and Shafi schools of thought…”. Later the court required the Petitioner to appoint a male arbitrator. The Petitioner appealed this decision to the Sharia Court of Appeals. On April 5, 2011, the court denied the appeal. It was ruled that Section 130 of the Family Law, which is the binding law in Sharia courts in Israel, is based on the Maliki interpretation. Since the Maliki required that arbitrators be men, it is impossible to appoint women as arbitrators. Following the judgment, the Sharia Court in Tayibe decided again that the Petitioner must appoint an arbitrator on her behalf within a week. After the Petitioner did not appoint an arbitrator on her behalf, the court appointed two male arbitrators on its behalf on May 11, 2011. At the same time, this petition was filed. Notably, on June 2, 2011, this Court (Honorable Justice Meltzer) granted the Petitioner an interim order prohibiting the arbitrators appointed by the Sharia court from issuing any decisions in the entire matter handed over to their care, until another decision in the petition.

 

3.Following a hearing we held on July 13, 2011, we decided to issue an order nisi, and to have the Attorney General file its position on the matter. After receiving the positions of the parties, we held an additional hearing on May 7, 2012, in which we decided that the Sharia Court of Appeals should give a detailed and reasoned decision on the parties’ arguments, and particularly regarding the applicability of the Equal Rights for Women Act, 5711-1951 (hereinafter: the “Equal Rights for Women Act” or the “Act”). Such judgment was indeed handed down and provided to this Court on August 9, 2012, whose main points we shall address immediately. On November 27, 2012, we held a final hearing in the petition and heard the parties’ arguments. In order to complete the picture, it shall be noted that two organizations filed motions to join the petition as amici curiae“Kayan”–Feminist Organization (hereinafter: the “Kayan Organization”), and the second is the Concord Research Center for Integration of International Law in Israel (hereinafter: the “Concord Center”). Following these proceedings, it is now time to deliver our decision in the petition.

 

 

 

The Sharia Court of Appeals’ Judgment

 

4.As mentioned, following our decision, a reasoned judgment in the matter was given by the Sharia Court of Appeals on June 18, 2012. The Court stated that first the question of which school of thought was chosen by the Ottoman legislator when legislating Section 130 of the law, which binds the Sharia courts in Israel, must be addressed. The Court clarified that according to the Maliki school of thought, the arbitrators serve as a kind of Qadi, and not as representatives of the parties. Their authority is to reconcile the couple or divorce them from each other even without the couple’s consent. In contrast, according to the Hanafi, Shafi and Hanbali schools of thought, the arbitrators’ authority ends with delivering a report to the Qadi who is the one who performs the divorce according to the arbitrators’ report, and the arbitrators do not have authority to perform the divorce unless they have been permitted to do so. The Court further ruled that in Section 130 of the law, the Ottoman legislator relied on the Maliki's opinion, as the language of the section authorizes the arbitrators to dissolve the marriage and provides that the arbitrators’ judgment will be final. The court also relied on the explanatory notes to the Family Law that explicitly referred to the Maliki school of thought.

 

5.The Court stated that the Sharia courts indeed operate pursuant to this principle when implementing Section 130 of the Family Law, and it has been ruled that the act of the panel of arbitrators is a judicial act that creates a judgment similar to the act of a Qadi. The Qadi's only role is to confirm whether the arbitrators’ report is consistent with the law, and if not, to void it. It has been ruled that the Qadi may intervene in the scope of the dowry (mahr) given to the women if he found that the arbitrators unjustifiably reduced it, however this is only the case for a monetary matter and where the court has tools to intervene, in the absence of a Sharia reason for the reduction. It has been ruled that the purpose of the intervention is to prevent the prolonging of the litigation between the parties. In contrast, the court cannot intervene in other matters of the arbitrators’ report since the arbitrators are the ones who heard the couple’s arguments based upon which they reached their conclusions. In summary, the Sharia Court of Appeals rules that “the arbitrators, pursuant to Section 130 of the law, are Qadis and not representatives, and they are the ones who rule regarding the dissolution of a marriage, and the Qadi’s authority is to confirm their ruling.”

 

6.The Court stated that the law does not clarify the terms and characteristics required of the arbitrator, and therefore, it is necessary to turn to the customary opinion in the Maliki school of thought to clarify such terms. According to this school of thought, the arbitrators must be men. The court clarifies that the religious scholars that viewed arbitrators as representatives permitted women to be arbitrators, while the religious scholars that viewed arbitrators as Qadis did not permit women to be arbitrators. The Court further noted that according to the Hanafi school of thought a woman can also be a Qadi.

 

7.As for the Equal Rights for Women Act, the court rules that both of the Act’s exceptions apply: the exception regarding laws permitting or prohibiting marriage and the exception regarding appointing a person to a religious position. The Court emphasized that the arbitrators’ judgment has Sharia implications that stem from the dissolution judgment, which is final and binding, and therefore the Equal Rights for Women Act should not be applied to the appointment of arbitrators. The Court rejected the argument that the Family Law is a civil law and ruled that this law is the codification of Sharia laws that includes laws regarding marriage and divorce that were taken from various schools of thought. The Court also stated that at hand is a religious lex specialis that prevails over the provisions of the Mejelle which is legi generali. The Court cautioned that adopting a different school of thought would harm women, since according to other schools of thought the arbitrator cannot perform a divorce without the husband’s consent, while the Maliki school of thought is the only one that applies a cause of action for dissolving a marriage without the husband’s consent.

 

The Petitioner’s Arguments

 

8.The Petitioner’s attorney claims that Section 130 of the Family Law does not prohibit the appointment of a female arbitrator. According to him, we are concerned with a statue of a civil governing body within the codification process and reforms made during the Ottoman Empire. The Family Law was intended to introduce some into the existing rules and also to reform the legislation while adopting and integrating opinions from various schools of thought and creating a single body of binding legislation. It follows, as argued, that the law is to be interpreted similarly to other civil laws, rather than according to interpretations that were customary among the religious scholars in the period preceding the law’s legislation. It is further argued that the Ottoman legislature did not adopt the Maliki interpretation across the board and allowed itself to prescribe norms that diverge from this school of thought. For example, it is argued that the idea the law established, whereby the authority to dissolve the relationship is granted to the Qadi and not the arbitrators, deviates from Maliki law, as does the Qadi’s authority to appoint a third deciding arbitrator. The Petitioner’s attorney also refers to religious institutions in Muslim countries, such as Jordan, Egypt and Morocco, and even in the Palestinian Authority, where women were appointed in recent years to serve in the position of Qadis. The Petitioner’s attorney claims that according to the civil interpretation, Section 130 of the law is to be interpreted as allowing the appointment of a male or female arbitrator, based also on comparison with the provisions of the Mejelle, which deal with arbitration and grant the parties the freedom to choose the arbitrator acceptable to them.

 

9.The Petitioner’s attorney further claims that the Sharia court’s decisions are to be reversed as they are contrary to the Equal Rights for Women Act. According to the attorney, the Petitioner’s right to be heard (audi alteram partem) was impaired as her arguments regarding the appointment of the female arbitrator were not heard at all before the decisions of the Sharia courts were handed down.

 

10.In the supplementary arguments by the Petitioner, following the Sharia court giving its supplementary judgment, her attorney repeated the argument that the interpretation of Section 130 of the law must be separated from the Maliki school of thought and the law must be treated as an independent and modern statute. According to him, the Sharia courts have also not necessarily adhered to the Maliki school of thought in interpreting the law and that it has been ruled many times that the court has the authority to intervene and revoke the arbitrators’ judgment. He further argues that the Mejelle is based on the Hanafi school of thought and that that is how the residents of the country conducted themselves for several years, and therefore the rules of the Maliki school of thought should not be imposed upon them now. He states that no specific characteristics are required of the arbitrators other than them being acceptable to the parties.

 

The Respondent’s Arguments

 

11.The Respondent’s attorney claims first that the Petitioner’s right to be heard was not impaired since all her arguments were reviewed in writing before the Sharia Court of Appeals, which is not required to conduct oral hearings. As for Section 130 of the Family Law, he argues that this is part of the material-judicial-religious law that is based on the Quran. He presents references that the arbitrator is a judge of sorts who is somewhat inferior to a Qadi. The arbitrators’ authority to listen to the parties’ arguments, and even to rule on a divorce, indicates, so it is argued, their judicial position. The arbitrators’ authorities go to dissolving the relationship between the couple, and therefore their actions relate to the hard core of the laws of divorce. The Respondent’s attorney further states that the Court must accept the arbitrators’ judgment as long as it is not flawed. His conclusion is, therefore, that this is a religious judicial position that falls within the exceptions of the Equal Rights for Women Act. The Respondent’s attorney agrees that the Family Law was indeed legislated primarily based on the Hanafi school of thought, but it includes sections, such as Section 130, which were legislated based on the Maliki school of thought. Furthermore, he argues that the Court is authorized to appoint arbitrators without granting the parties the option of choosing arbitrators on their behalf. Finally, the attorney argues that this is not a case for the High Court of Justice to intervene.

 

12.In relating to the Sharia Court of Appeals’ supplementary judgment, the Respondent’s attorney reiterates his arguments and supports substance of the supplementary judgment. According to him, the Family Law is not a civil law, and contrary to the Mejelle, it is directly based on the Quran, which is a religious law. It is a lex specialis that prevails over the legi generali of the Mejelle. It is also argued that one must distinguish between arbitration under the Mejelle and arbitration under the Family Law. Arbitration under the Mejelle is pursuant to the parties’ desire and at their choice, while arbitration under the Family Law is mandatory by law and it is in fact the Qadi who is authorized to appoint. He further mentions that according to the Maliki school of thought, the arbitrators must be male.

 

The Position of the Attorney General

 

13.At our request, the Attorney General presented its position that the Family Law is a civil law that was legislated based on Sharia Law. During the Ottoman period it was applied to all of the subjects of the Empire irrespective of their religion, but since 1919 this law binds only the Sharia courts. The Family Law was primarily legislated based on the Hanafi school of thought, and it is turned to only upon a lacuna in the law. However, there are sections that were legislated based on other schools of thought, including Section 130, which is based on the Maliki school of thought. According to the Attorney General, the adoption of the Maliki school of thought in this context was apparently meant to benefit women, since this school of thought allows a woman to separate from her husband in broader circumstances and causes of action than the other schools of thought. According to this school of thought, the arbitrators must try to reconcile the couple that is in conflict, but should their attempts be unsuccessful, they have the power to separate the couple even without their consent. The arbitrators are further authorized to determine the sum of the dowry that the husband must pay the wife, according to the degree of fault by each party. The Attorney General clarifies that according to the Maliki school of thought the arbitrators are Qadis for all intents and purposes, and therefore, their ruling is final and binds the Qadi who is not authorized to intervene therein. Additionally, the arbitrator must be a man. However, there are schools of thought which relate to the arbitrators as representatives and allow a woman to be appointed to this position.

 

14.The Attorney General examines the two exceptions of the Equal Rights for Women Act. As for the exception regarding laws permitting or prohibiting marriage and divorce, the Attorney claims that there is doubt whether this exception applies. Indeed, according to the Maliki school of thought the arbitrators are authorized to dissolve the marriage, however, on the other hand it is not actual laws of divorce that are at hand, but rather the identity of those authorized to determine the divorce. According to the Attorney, it is doubtful whether the exception was meant to apply also to those authorized to implement the marriage and divorce laws. As for the exception regarding the appointment of a religious position pursuant to religious law, the Attorney General claims that according to the Maliki school of thought arbitrators have a somewhat judicial position that requires Sharia education. However he notes that this Court has ruled in the past that the arbitrators’ decision is not final and their decision is subject to the confirmation of the Sharia court, in which the court is also authorized to intervene. The Attorney General notes that the Sharia courts indeed do so de facto, similarly to the Hanafi school of thought. According to the Attorney General, these figures allegedly indicate that the exception does not apply to the appointment of the arbitrators. However, the Attorney General believes the exception also applies to religious positions that are not judicial. Since the position of the arbitrator was created by virtue of the Muslim religious law, it appears that the exception in the Equal Rights for Women Act does apply. The Attorney General adds that the Family Law grounds religious laws even if it was made by the Ottoman legislator which applied the law to all the subjects of the Empire.

 

The Position of the “Kayan” Organization

 

15.The "Kayan" organization emphasizes that the decisions of the Sharia court constitute an ultra vires act since they are contrary to the principle of equality and to the Equal Rights for Women Act. As for the exception regarding the appointment of a religious position according to religious law, the organization argues that it is to be interpreted narrowly, so that it shall only apply to actual religious or judicial positions. It is further argued that the arbitrator’s position is not a judicial or religious position and therefore does not fall within this exception. According to the provisions of the Family Law and according to the customary practice of Sharia courts, the arbitrators have the status of representatives of the parties and their recommendations are subject to the court’s confirmation. It follows that this is not a judicial position. According to the organization, these arguments were already accepted and ruled in the past, by this Court. The organization further adds that according to Sharia law and customary practice, the arbitrator can be any person whom either party chooses to appoint and that there are no criteria for such choice. The arbitrators can even be relatives of the couple. It is further argued that it is obvious that a relative, who lacks objectivity and independence in performing his duties, cannot accept a judicial position. Additionally, the Qadi is the one with the authority to confirm the marriage or to declare a separation between the parties. Scholars indicate that the Sharia court has deviated from the Maliki school of thought in all that relates to the roles of the arbitrator and has ruled that the court can reject the arbitrator’s judgment.

 

The “Kayan” organization further clarifies that it is its position that the arbitrator is not a religious position. There are no criteria for appointing an arbitrator, who may also be a relative, which indicates this is not a religious position. At issue, so it is argued, is a familial-social role that is intended to reconcile the couple. It also states that the Family Law is a civil law and argues that in any event the interpretation that minimizes the violation of the principle of equality should be chosen.

 

16.As for the exception relating to laws permitting or prohibiting marriage and divorce, the “Kayan” organization argues that since the arbitrator does not fulfill a judicial or religious position, and since the court is the one that rules on the divorce claim as it is permitted to reject the arbitrators’ recommendation, then this is not a matter of violating laws permitting or prohibiting divorce. The arbitrator has limited discretion that amounts to examining the fault of each of the parties and making a recommendation in the matter of the dowry.

 

17.In general, the “Kayan” organization further argues that preventing the appointment of a woman to the position of an arbitrator in a Sharia court critically violates women’s rights to dignity. It emphasizes that there is no relevant difference between men and women in terms of this position, and therefore, any distinction between them is improper. Furthermore, according to the organization, the appointment of women as arbitrators in necessary in order to realize women litigators’ right to self-expression, and so that they may have an arbitrator on their behalf who would listen to their inner-most feelings in such personal and sensitive matters, who would serve as a voice and a mouthpiece to the woman. Doing so would, in fact, prevent a double infringement, both to the arbitrating women and to the litigating women. Preventing the appointment of a woman as an arbitrator prejudices Muslim women’s access to Sharia courts and contributes to silencing their voice.

 

The Position of the Concord Center

 

18.The Concord Center focuses its arguments on the implications of international law on the case at hand. According to the Center, the Family Law and the Equal Rights for Women Act must be interpreted in light of the human rights conventions Israel committed to uphold. The Center mentions the International Convention for Civil and Political Rights, which protects the right of litigating parties to equality in civil legal proceedings. According to the Concord Center, the Sharia court’s interpretation violates this right, as it prevents one of the parties to the proceeding from exercising the litigating party’s right to choose the person who, pursuant to her discretion, will most efficiently represent her before the family council, while the other party benefits from the option of appointing such a person. According to the center, the said interpretation particularly violates women’s right to due process without discrimination. The disqualification of women to serve as arbitrators has negative implications for the status of women as litigating parties. Such disqualification signals to the litigating woman that her position is inferior to that of the man against whom she is litigating. Finally, the Concord Center argues that the Sharia court’s ruling excludes women in terms of public representation. Such exclusion is contrary to Israel’s commitment pursuant to Section 7(b) of the Convention on the Elimination of All Forms of Discrimination against Women, not to restrict women’s participation in the public arena.

 

Discussion and Decision – Intervening in the Judgment of Religious Courts

 

19.The religious courts, including Sharia courts, are independent judicial authorities with judicial jurisdiction in matters relating to personal status. As such, this court exercises narrow and limited judicial review to decisions of the religious courts, in accordance with that stated in Section 15 of Basic Law: The Judiciary:

 

15.       The Supreme Court

…

(c)        The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court.

(d)       Without limiting the general applicability of the provisions of subsection (c), the Supreme Court sitting as a High Court of Justice shall be authorized –

…

(4) to order religious courts to hear a particular matter within their jurisdiction or to refrain from hearing or continue hearing a particular matter not within their jurisdiction; provided that the court shall not entertain an application under this paragraph if the applicant did not raise the question of jurisdiction at its earliest opportunity; and if he had no reasonable opportunity to raise the question of jurisdiction until a decision had been given by a religious court, the Court may cancel a hearing that was held or a decision given by the religious court without authority.

…

 

It has been repeatedly said that this Court does not sit as an instance of appeal on decisions of the religious courts. As such, and in light of the authorities granted to them by law, defined causes of actions were prescribed for this Court’s intervention in decisions by religious courts (HCJ 2578/03, Pachmawi v. Pachmawi, para. 17 (May 8, 2006)). Among such causes of action is the cause of action of ultra vires – the cause of action of violating the rules of natural justice; and the cause of action enshrined in Section 15(c) of Basic Law: The Judiciary, regarding granting relief for the sake of justice (HCJ 11230/05, Muasi v. The Sharia Court of Appeals in Jerusalem, paragraph 7 (March 7, 2007) (hereinafter: the “Muasi Case”). These causes of action, and particularly the latter two, could include various matters from both sides of the coin of justice, violation of the rules of natural justice on the one hand, and relief that shall be granted for the sake of justice, on the other hand. As for this latter cause of action, it has been said:

 

“The latter cause of action for intervention – ‘for the sake of justice’ – is a blanket cause of action which can cover various different matters. The crux of all these matters is the need to grant relief for the sake of justice in the circumstances of a given case, and there is no necessary internal logical connection between them” (HCJ 5227/97, David v. The Great Rabbinical Court of Jerusalem, IsrSC 55(1) 453, 458-459 (1998)).

 

20.An additional cause of action justifying this Court’s intervention in the religious court’s decisions is the court’s deviation from the provisions of a law directed to it. The question whether this cause of action falls within the ultra vires cause of action prescribed in Section 15(d)(4) of Basic Law: The Judiciary, or rather within the cause of action justifying intervention to grant relief for the sake of justice, prescribed in Section 15(c) of Basic Law: The Judiciary, has been raised in the court’s rulings. The different classification of the causes of action implicates the determination of the scope of this Court’s intervention:

 

“This distinction between the causes of the High Court of Justice’s intervention according to the different alternatives of Section 15 of Basic Law: The Judiciary, could implicate the scope and extent of the High Court of Justice’s intervention in the relevant judicial act. If at hand is a court decision that is ultra vires since it did not follow all of the specific details of the civil partnership rule, such decision would generally be overturned. On the other hand, if the matter is classified as a case where relief must be granted for the sake of justice, then there is extensive discretion to examine the essence of the result reached by the court, from a perspective of justice, even if all of the specific details of the civil law required in the path chosen to obtain it, were not strictly implemented.” (HCJ 2222/99, Gabay v. The Great Rabbinical Court, IsrSC 54(5) 401, 426-427 (2000)).

 

In any event, the proper classification has yet to be ruled upon by courts, and it appears that we, too, are not required to rule on the matter.

 

The Matter Before Us

 

21.As emerging from the petition before us, the cause of action that merits our intervention in the Sharia court’s decisions is that relating to the religious court ignoring provisions of law directed to it. The relevant statutory provision here appears in Section 1A(a) of the Equal Rights for Women Act, which prescribes as follows:

 

“There shall be one law for a woman and a man for purposes of every legal act; any statutory provision which, for purposes of any legal act, discriminates against a woman because she is a woman shall not be followed.”

 

This statutory provision, which is also directed to the Sharia court, must be applied by the court, even if applying the religious law brings about different results:

 

“The actions of any court, which shall not act according to the law, shall be ultra vires. Because the Equal Rights for Women Act limited and restricted the authorities of the religious courts to act according to religious law, as they did before the Act’s legislation” (HCJ 187/54, Briya v. Qadi of the Muslim Sharia Court, Acre, IsrSC 9(2), 1193 (1955)).

 

Meaning, the religious court is not permitted to rule based on discriminating against the woman, at least as long as the exceptions to the application of the Equal Rights for Women Act do not apply, or as long as there is no other statute that trumps the provisions of the Equal Rights for Women Act (see HCJ 1000/92, Bavli v. The Great Rabbinical Court-Jerusalem, IsrSC 48(2), 221, 241 (1994) (hereinafter: the “Bavli Case”). It follows that should the Act apply to the case at hand, and the Sharia court reached a result that is contrary to this provision of the Law, and if there is no other law that implicitly overrides the provisions of the Equal Rights for Women Act, the petition is to be accepted and the decision of the Sharia court is to be overturned.

 

Therefore, first we shall have to examine whether the Act applies to Sharia court in the case before us, and whether the exceptions prescribed in it do not. To do so we must interpret the Act’s provisions, while elaborating on its fundamental principles and primarily on the principle of equality between the sexes. It is also necessary to elaborate on the essence of the Sharia court’s ruling in the matter before us. Should we find that the Act applies to the case at hand and that there is no other overriding statutory provision, it would be necessary to examine whether the Sharia court’s ruling violates it. Should the answer to this be in the affirmative, we shall examine the relief that should be granted to the Petitioner in this case.

 

The Principle of Equality Between the Sexes and the Equal Rights for Women Act

 

22.When the architects of the nation wrote the Declaration of Independence they promised to ensure “complete equality of social and political rights for all its citizens, regardless of religion, race and sex”. In doing so, they signed a bill for the benefit of the State, society and the women among it. A bill of promise of basic rights to life, liberty and equality. The State requested to honor the bill and in its early days legislated the Equal Rights for Women Act. The basis for the legislation of the Equal Rights for Women Act is, of course, the principle of equality between the sexes. The principle of equality constitutes one of the main foundations of our legal system and of the democratic rule, in general. The principle of equality is the soul of democracy. “Where there is no equality for a minority, there is also no democracy for the majority” (HCJ 6924/985, The Association for Civil Rights in Israel v. The Government of Israel, IsrSc 55(5) 15, 28 (2001) (hereinafter: the “Association for Civil Rights Case”)). This Court has emphasized the great importance of the principle of equality on many occasions, “setting its place in the center of the legal map and in the roots of all of the rules of law” (HCJ 6845/00, Niv v. The National Labor Court, IsrSc 56(6) 683 (2002) (hereinafter: the “Niv Case”); HCJ 2671/98, The Israel Women’s Network v. The Minister of Labor and Welfare, IsrSC 52(3) 630, 650-651 (1998) (hereinafter: the “Second Women’s Network Case”). Violating the principle of equality creates a double violation: both to the individual and to the public. Discrimination sends out a message of inferior status to the individual and to the discriminated group, and in doing so creates deep humiliation and violates the dignity of such individual or group (HCJ 4541/94, Miller v. The Minister of Defense, IsrSC 49(4) 94, 132 (1995) (hereinafter: the “Miller Case”); (HCJ 953/87, Poraz v. Mayor of Tel-Aviv-Jaffa, IsrSC 42(2) 309, 332 (1988) (hereinafter: the “Poraz Case”). “Discrimination is an affliction that creates a sense of deprivation and frustration. It damages the sense of belonging and the positive motivation to participate in social life and contribute to it” (HCJ 104/87, Nevo v. The National Labor Court, IsrSC 44(4) 479, 760 (1990) (hereinafter: the “Nevo Case”). Equality is essential for society and for the social contract upon which it is built. Infringing the principle of equality means not only prejudicing the individual discriminated against or the group experiencing the discrimination, but also “derogating from the entire public interest, from the character of the society, the wellbeing of all those who comprise it” (HCJ 5755/08, Aren v. The Government of Israel, para. 4 of Justice E. E. Levy’s opinion (April 20, 2009) (hereinafter: the “Aren Case”)). It should be emphasized that the meaning of equality is, not relating differently to people who are not different in any relevant way. The existence of a relevant difference directly and concretely related to the purpose at hand, could, however, justify a permitted and legitimate distinction (the Miller Case, on pages 109-110; the Nevo Case, on page 754). It shall further be noted that the examination of discrimination is an objective examination which is not impacted by the existence or absence of the intent to discriminate (the Niv Case, on page 698; the Second Women’s Network Case, on page 654).

 

23.The principle of equality holds many meanings and various sub-principles. However, the core of the principle of equality, or as it is called “the principle of equality in the narrow sense”, includes a list of defined causes of action which are referred to as the classic causes of action of equality or the generic causes of action of equality. Among these causes of action is equality between the sexes. Violation of the principle of equality in the narrow sense in considered especially severe, and in many countries is even deemed a violation of a constitutional right (the Association of Civil Rights Case, on page 27). “Discrimination due to religion, race, nationality or sex is among the most severe forms of discrimination”, and “the prohibition of sex discrimination – the prohibition of discrimination against women – became one of the strongest leading principles of Israeli law” (the Niv Case, p. 683; 689). Sex discrimination is a form of discrimination with which many of the world’s countries are dealing, and which requires eradication of prejudices and perceptions that were common in human society as to the essence of the differences between the sexes:

 

“Confronting the problem of discrimination in general, and with regard to differences between the sexes in particular, is not only our concern. It concerns every free society where the principle of equality is one of its foundations. Discrimination derives from a perception that was grounded in human society as part of a perspective that for generations viewed the status of women as inferior and without rights. The granting of rights to women has developed step by step. It received impetus and strength in this century as part of the ideological and practical renaissance aimed at eradicating discrimination between people. This struggle to eradicate discrimination against women because of their sex is taking place in various arenas and with a range of weapons. It occupies a place of honor in literature, philosophy, articles, the media, political frameworks and various public arenas.” (the Miller Case, p. 122; see also Justice Dorner’s review there, p. 129).

 

24.The principle of equality, in general, and the principle of equality between the sexes, in particular, have both been recognized in the State of Israel, since the birth of the State of Israel. The declaration of independence establishes the new state’s commitment to maintain “complete equality of social and political rights for all its citizens, regardless of religion, race and sex”. Not long after the Basic Laws were enacted, the principle of equality was recognized as a constitutional principle that is encompassed within human dignity – in its narrow model – and therefore, is protected by Basic Law: Human Dignity and Liberty. The position that was voiced was that the equality that is constitutionally protected is that whose violation amounts to humiliation. Sex discrimination was recognized as humiliating discrimination, and therefore a violation of a constitutional right (the Miller Case, p. 110, 132). It shall be noted that today an interim model has been adopted in the rulings of this Court, whereby “discrimination that does not involve humiliation may also be included within the boundaries of human dignity, provided it is directly related to human dignity as an expression of personal autonomy, freedom of choice and freedom of action, and such other aspects of human dignity as a constitutional right” (HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset, IsrSC 61(1) 619, para. 38 of President Barak’s opinion (2006); HCJ 4948/03, Elhanati v. The Minister of Finance, IsrSc 62(4) 406, para. 17 of Justice Hayut’s opinion (2008) (hereinafter: the “Elhanati Case”).

 

25.Israeli courts’ jurisprudence has, for many years, dealt with discrimination against women in various fields. The courts have constructed the roof beams upon the foundations laid by the legislature. Step by step, courts are taking strides towards eradicating discrimination against women, at least at the declarative and normative levels. The court applies the duty not to discriminate first and foremost to government authorities, “however since it derives from the fundamental principles of fairness and good faith that formulate any social contract and any jurisprudence that stem from them, the forms of the right to equality are not absent in the fields of private law” (the Elhanati Case, para. 17 of Justice Hayut’s opinion). Over the years, the legal system has played an important role in advancing the status of women in society and in realizing the aspiration towards an egalitarian society in which each individual has the opportunity for self-fulfillment, and realizing their capabilities, their desires and aspirations. The Court has not been deterred from intervening in and overturning decisions and actions that were afflicted by sex discrimination, in all walks of life, in a broad and varied list of matters: in the field of employment and wages (the Nevo Case; HCJ 1758/11, Goren v. Home Center (Do it Yourself) Ltd., (May 17, 2012); the Niv Case); in the matter of appropriate representation for women (the Aren Case; HCJ 5660/10, Itach-Women Lawyers for Social Justice Organization v. the Prime Minister of Israel, (August 22, 2010); HCJ 453/94, The Israel Women’s Network v. The Minister of Transportation, IsrSC 48(5) 501 (1994) (hereinafter: the “First Women’s Network Case”); the Second Women’s Network Case; NLC 33/3-25, Air Crew Flight Attendants Committee - Hazin, IsrLC 4 365 (1973)); in the military and security field (the Miller Case); in the family law field (developing the partnership presumption – see for example CA 1915/91, Yaacobi v. Yaacobi, IsrSC 49(3) 529 (1995); FC 4623/04, Anonymous v. Anonymous, IsrSC 62(3) 66 (2007); during pregnancy, birth and parenting (HCJ 11437/05, Kav Laoved v. The Ministry of Interior, (April 13, 2011)); and more. “The equal status of women within the principle of equality is not solely formal and it must span over all the arenas of our life in a practical and real way” (the Poraz Case, p. 342). The meaning of all of the above is that we hear the sounds of equality but still do not see it in full. There are still things to be done, improved and advanced, and the Court has an important and significant role in this matter.

 

One of the sensitive fields in which the court must deal with discrimination against women is that field which directly or indirectly relates to matters of religious law, religion and state. Indeed, the Court has, on more than one occasion, addressed the principle that prohibits discrimination against women because of their sex, in this field as well, and has overturned decisions afflicted by such discrimination. Thus, this Court intervened in the matter of training and appointing female rabbinical pleaders when it appeared that the relevant institutions were attempting to make it difficult for them in order to prevent such positions from being performed by women (HCJ 6300/93, “Hamachon Lehachsharat Toanot Beit Din” v. The Minister of Religious Affairs, IsrSC 48(4) 441 (1994) (hereinafter: the “Rabbinical Pleaders Case”); thus, a petition to order that the female petitioner be added to the Religious Council in Yerucham, after such candidate was disqualified merely because she was a woman, was accepted (HCJ 153/87, Shakdiel v. The Minister of Religious Affairs, IsrSC 42(2) 221 (1988) (hereinafter: the “Shakdiel Case”); and thus it was ruled that a local authority is not permitted to avoid selecting a woman as a representative to the meeting electing a city Rabbi, merely because she was a woman (the Poraz Case).

 

26.However, this is a field in which discrimination against women at the declarative and principle level, too, still remains. This is partly protected by legislation, and the Court must maneuver its way in a manner that respects the legislator’s decisions, but with maximum commitment to the basic principle and constitutional right of equality for women. This is particularly true when at hand are public and state institutions whose services are required by the entire public who cannot avoid such institutions’ services. The perspective regarding discrimination against women shall be different for a member of a community that chooses to belong to it and to accept its rules and the rulings of its institutions, than for a public institution which the public cannot choose whether or not to need its services (see Ruth Haplerin-Kaddari, More on Legal Pluralism in Israel, 23 559, 570 (5760)). It is clear that as every right, the right to equality between the sexes is also not absolute and at times requires balancing with additional interests and rights. However, a violation of equality between the sexes shall have to comply with the tests of the Limitation Clause prescribed in Basic Law: Human Dignity and Liberty (HCJ 11163/03, Vaadat Hamaakav Haelyona Leinyanei Haaravim Beyisrael v. the Prime Minister of Israel, IsrSC 61(1) 1, para. 22 of President Barak’s opinion (2006); the Miller Case, p. 138).

 

27.When we focus on religious courts, the difficulty is exacerbated, since discrimination is inherent to these institutions’ system. This is primarily because only men are being appointed to judicial positions, the appointment to which is allegedly protected by the Act, as we shall see below. Additionally, repeated arguments are heard that the religious law itself often creates discrimination against women, and that at the very least, in terms of results, there is often some kind of propensity against women in these institutions (see for example, Frances Raday, Religion and Equality: Through the Perspective of Jurisprudence, 341, 381, 386 (Vol B, 5760); Frances Raday, On Equality, 19 (edited Frances Raday, Carmel Shalev and Michal Liban-Kobi, 1995); Shirin Batshon, (Kayan Organization, 2012); Aharon Layish, The Status of the Muslim Women in the Sharia Court in Israel, 364 (edited Frances Raday, Carmel Shalev and Michal Liban-Kobi, 1995) (hereinafter: Layish); Pinchas Shipman, Rabbinical Courts: Where Are They Heading, 2 523 (5755); Yifat Biton, Feminine Matters, Feminist Analysis and the Dangerous Gap between Them: Response to Yechiel Kaplan and Ronen Perry, 28 871, 875, 890 (5765)). It shall be emphasized that it is important to maintain the sense of equality and egalitarian results particularly in these institutions, which deal with most sensitive matters of family law, and already often reflect a struggle between the sexes. In any event, the principle of equality also applies in religious courts, subject to the exceptions that were prescribed in the Act (the Shakdiel Case, on page 278). Hence, the role of the state and the government systems, with the support and intervention of this court, is to try, to the extent possible, to balance the said picture, so that women who require the services of these institutions feel they are equal and that they receive the same treatment given to men. For example, one can encourage the appointment of candidates to judicial positions, who besides their professional skills, are supported by women’s organizations (see my remark in HCJ 8756/07, Amutat “Mavoi Satum” v. The Committee for the Appointment of Religious Judges (June 3, 2008)); additionally, one can promote the appointment of women to managerial and administrative positions in the religious courts themselves (see HCJ 151/11, The Ruth and Emanuel Rackman Center for the Advancement of Women's Status v. The Ministry of Justice, (December 27, 2011)); one can also enable and encourage women to fill various positions in religious courts that do not represent the court itself, such as was done with respect to female Rabbinical pleaders in the Rabbinical Courts (the Rabbinical Pleaders Case). This is also the point of departure when examining the appointment of female arbitrators in Sharia courts. Having said that, we must examine the matter in light of the provisions of the Equal Rights for Women Act.

 

The Equal Rights for Women Act, Its Exceptions and Interpretation

 

28.Along with the work done by case law in advancing equality between the sexes, the legislature did not stand still either. Over the years, commencing from shortly after the establishment of the State and until this very day, statutes have been legislated with the purpose of protecting women from sex discrimination. First on the list of these laws is the Equal Rights for Women Act, which was legislated in as early as 1951, and which we discuss in further depth below. Additionally, the Authority for the Advancement of the Status of Women Act, 5758-1998, and the Local Authorities (Advisor for the Advancement of the Status of Women) Act, 5760-2000, were legislated with the general purpose of advancing equality between men and women in Israel. In the area of employment the following statutes and provisions were legislated: section 42(a) of the Employment Service Law, 5719-1959; the Equal Employment Opportunity Act, 5748-1988; the Equal Pay for Female and Male Employees Act, 5724-1964, which was replaced by the Equal Pay for Female and Male Employees Act, 5766-1996; and the Encouragement of Advancement and Integration of Women in the Workforce and the Adjustment of Workplaces for Women Act, 5768-2008. The Women’s Employment Act, 5714-1954, which was intended to protect women in the workplace was also legislated. Sections intended to obtain appropriate representation of women in various institutions and bodies were also legislated (see Section 18A of the Government Companies Act, 5735-1975; Section 4(b) of the Senior Citizens Act, 5750-1989; Sections 8(b)(3) and 16(c) of the National Laboratories Accreditation Authority Act, 5757-1997; Section 63(a)(3) of the Sewage and Water Corporations Act, 5761-2001; Section 15A of the State Service (Appointments) Act, 5719-1959; Section 11(d) of the National Battle Against Road Accidents Act, 5757-1997; see also the Niv Case, on page 686; the Second Women's Network Case, on pages 652-654). One of the long-standing and general statutes in this matter is the Equal Rights for Women Act, which stands at the heart of this petition, and on which we shall now focus.

 

29.As stated, the Equal Rights for Women Act was legislated in as early as 1951, and its purpose was to maintain “complete and full equality for women – equality in rights and obligations, in the life of the state, society and market and in the entire network of laws” (see the Equal Rights for Women Bill, 5711-1951, on page 191). The Act was recognized by this Court as having a special status, superior to ordinary laws. As such, it was referred to by President Barak as a “royal” law (the Bavli Case, p. 240), and Justice Zilberg emphasized that “this law is not like another ordinary law! This is an ideological, revolutionary law that changes social order” (HCJ 202/57 Sides v. The President and Members of the Great Rabbinical Court, Jerusalem, IsrSc 12 1528, 1537 (1958)). The Law is directed at all of the government authorities as well as all of the judicial instances, and religious courts were explicitly obligated to act accordingly (see Section 7 of the Act and the Bavli Case, p. 240). In 2000, a purpose statement was added in the following section:

 

1.Purpose of the Act

The purpose of this Act is to set principles for the assurance of full equality between women and men, in the spirit of the principles of the Declaration of Independence of the State of Israel.

 

It shall be noted that within that same amendment from the year 2000 the exception provided in Section 7(c), upon which we shall elaborate further below, was also added (see Equal Rights for Women (Amendment no. 2) Act, 5760-2000). The Act’s center of gravity, in my opinion, is located in the general and broad provision anchored in Section 1A of the Act, pursuant to which “There shall be one law for a woman and a man for the purposes of every legal act.” This section has been interpreted broadly as anchoring women’s right to equality not only regarding any legal act, but also regarding any legal aspect whatsoever (see Civil Appeal 337/61, Lubinski v. The Assessment Officer, Tel Aviv, IsrSC 16 403, 406 (1962); the First Women’s Network Case, p. 522, the Poraz Case, p. 335). It is further important to emphasize that this is a declaratory and descriptive statue rather than one that is constitutive, since the principle of equality between the sexes existed before the Act was legislated (see the Niv Case, p. 686). An interesting question then follows – what will the impact of the principle of equality on the matter be should we determine that the Equal Rights for Women Act does not apply to the case at hand (see the Shakdiel Case, p. 277). In any event, as we shall see below, we need not rule on this issue here. However, I find it appropriate below to add a few words on it.

 

30.The Equal Rights for Women Act applies broadly. Section 7(a) provides that every governmental authority is obligated to honor the rights detailed in the Act. Section 7(b) expands this application to all courts and tribunals competent to address matters of personal status as well, unless all parties agree to litigate according to the laws of their community. However the law establishes two central exceptions to its applicability, both of which relate to religious courts. Section 5 of the Act provides that “this Act shall not infringe any legal prohibition or permission in connection with marriage and divorce”. Section 7(c), which, as mentioned, was added to the Act in the legislative amendment of 2000, provides that:

 

The provisions of this Act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and of holders of judicial positions in religious courts.

 

31.In light of the Act’s objective, its unique status and the principles upon which it relies, it is my opinion that the Act should be interpreted broadly while the exceptions provided in the Act should be interpreted narrowly. This approach follows this Court’s jurisprudence that legislation that violates basic human rights should be interpreted narrowly, based on the assumption that the Act’s provisions are not intended to violate the principle of equality (the Miller Case, p. 139; the Nevo Case, p. 763; the Shakdiel Case, p. 273; the Poraz Case, p. 322). This is all the more relevant when the principle of equality under the Equal Rights for Women Act is concerned:

 

“In this case even more weight should tip the scale in favor of the Equal Rights for Women Act. This law reflects an important and central value, a principle that formulates life in our state as a civilized state. The Equal Rights for Women Act declares a value that should encompass our entire legal system. Therefore, as long as nothing explicitly contradicts this law, an interpretation that corresponds with the principle of equality between the sexes should be preferred” (the Nevo Case, p. 764).

 

This approach certainly corresponds with the general objective of the Act, as is explicitly provided in Section 1 of the Act, which addresses securing full equality between men and women, explicitly provides. It is appropriate in a democratic state that honors human rights, in general, and equality between the sexes, in particular, and is all the more relevant when an interpretation relating to state and public institutions that serve the entire public is concerned. This approach also addresses the need to interpret the provisions of the Act in light of the spirit of Basic Law: Human Dignity and Liberty, which protects women from discrimination (see the Miller Case, p. 138).

 

32.The exceptions that are relevant to the case at hand appear, as mentioned, in Section 5 and Section 7(c) of the Equal Rights for Women Act. Pursuant to Section 5 of the Act we must examine whether the appointment of a female arbitrator according to Section 130 of the Family Law violates laws permitting or prohibiting marriage or divorce in Muslim law. Pursuant to Section 7(c) of the Act, we must examine whether the appointment of arbitrators is an appointment to a religious position according to religious law or an appointment to a judicial position in a religious court. In order to examine whether or not the case before us falls under the said exceptions, we must first elaborate on the legislative framework in Sharia law that applies to the matter at hand and understand its essence.

 

Arbitrators in Sharia Law and Section 130 of the Family Law

 

33.Before turning to understanding the matter that was presented to the Sharia Court, I shall state in general that the authority of the Sharia courts stems from Section 52 of the King’s Order in Council that grants Sharia courts exclusive jurisdiction to address matters of personal status of Muslim Israeli citizens. The matters of personal status also include matters of marriage and divorce pursuant to Section 7 of the Act of Procedure of the Muslim Religious Courts 1933 (see S. D. Goitein and A. Ben Shemesh The Muslim Law in the State of Israel 42, 276 (1957) (hereinafter: “Goitein and Ben Shemesh”)). It shall be noted that the Family Matters Court Act, 5755-1995, was amended in 2001 to grant parallel jurisdiction to the family matters courts to address personal status matters of Muslims, except matters of marriage and divorce (see HCJ 2621/11, Anonymous v. The Sharia Court of Appeals in Jerusalem, para. 13 (December 27, 2011)). The matter before us, which addresses the divorce of a couple, is, indeed, still in the exclusive jurisdiction of the Sharia court.

 

34.The law that applies to this case is the Ottoman Family Law. The Family Law was legislated by the Ottoman regime and its purpose was to regulate the family laws that would apply to all citizens regardless of their religion. In 1919, the British Mandate adopted the law in the framework of the Muslim Family Law Ordinance, but limited its applicability to Muslims only. The statute’s provisions address matters of marriage and divorce, and the drafters of the law adopted various laws from various schools of Muslim thought – the Hanafi, the Shafi, the Maliki and the Hanbali – in an attempt to choose the rules most appropriate for the twentieth century (Goitein and Ben Shemesh, p. 213; Layish, p. 371).

 

35.The parties before us disagree on whether the Family Law is a religious or civil law. The Family Law was legislated by the Ottoman legislature and was even intended to apply to all citizens of different religions, allegedly indicating that the law is “civil”. The Family Law does not adopt each and every rule of the Quran. For example, there are forms of termination of marriage which appear in the Quran and which were not expressed in the Family Law (see Goitein and Ben Shemesh, p. 139). The Ottoman legislature even took the liberty to select various rules from different schools of thought in Muslim law, as a sign of the times, as it deemed fit. However, the Ottoman legislature did not create rules out of nowhere, but rather, even if in a mixed manner and as per its civil discretion, anchored rules from the various schools of thought which are ultimately based on the Sharia and the Quran (see Iyad Zahalka, The Identity of the Sharia Courts in Israel, in 75 (edited by Liat Kozma, 2011)). It follows that I am willing to assume that the Family Law is a law that is religious in its essence (however, see Moussa Abu Ramadan, The Status of the Ottoman Family Law” in 49 (edited by Liat Kozma, 2011) (hereinafter: “Abu Ramadan”).

 

36.The section the Sharia court applied in this case is Section 130 of the Family Law, which reads as follows, as translated by Goitein and Ben Shemesh:

 

“If arguments and disagreements erupt between a couple, and one of them approached a judge, the judge shall appoint two arbitrators from the couple’s families and if arbitrators from among the relatives are not found or do not have the required characteristics, the judge shall appoint appropriate arbitrators not from among the relatives. A family panel of such composition shall listen to the parties’ complaints and arguments and shall try, to the best of its ability, to reconcile them. If this is not possible because of the husband, they shall rule that the marriage be untied, and if because of the wife, they shall also revoke her right to the entire dowry or a portion thereof. If the arbitrators cannot agree among themselves, the judge shall appoint appropriate arbitrators in a different composition, or a third arbitrator not from among the relatives. The decision of such persons shall be final and non-appealable.”

 

The section anchors an additional way of dissolving the marriage in the event that disputes emerge between the couple. Each one of the couple may demand that a family “panel” or “council” be established and that it shall be comprised of one representative from the husband’s family and one representative from the wife’s family. The council must attempt to reconcile the couple, but if they do not succeed, they must rule to untie the marriage and determine the scope of the dowry to be paid (the Muasi Case, para. 9). If the first arbitrators that were appointed do not agree among themselves, additional arbitrators must be appointed or a third arbitrator must be appointed to decide (HCJ 9347/99, Hamza v. The Sharia Court of Appeals in Jerusalem, IsrSC 55(2) 592, 597 (2001) (hereinafter: the “Hamza Case”).

 

37.The different schools of thought in Sharia law viewed the role of arbitrators differently. As the Sharia court stated in its decision here, the Maliki school of thought allows arbitrators to dissolve the marriage themselves without the involvement of the Qadi, and they serve as a kind of Qadi themselves. According to this school of thought, the arbitrators must be male adults. In contrast, the Hanafi school of thought, along with other schools of thought, views the arbitrators as representatives of the parties, and therefore there is nothing preventing the Qadi from intervening in their decision. According to these schools of thought, a woman can be appointed as an arbitrator (see also Moussa Abou Ramadan, Divorce Reform in the Sharia Court of Appeals in Israel (1992-2003), 13, 2 / (2006) (hereinafter: Abou Ramadan); Abu Ramadan, p. 61).

 

38.The matter of interpretating Section 130 of the Family Law was already brought before this Court in the Hamza Case, which addressed how to interpret the end of the section that “the decision of these people shall be final and is non-appealable.” This Court interpreted the section to mean that after the arbitrators completed their role, the matter is handed to the Sharia court to make its decision, and it has the discretion whether or not to adopt the arbitrators decision:

 

“It is my opinion that the proper interpretation of the sentence in dispute is that the finality mentioned therein means that from that stage, the matter is transferred to the decision of the Sharia court that appointed the arbitrators. At this stage, the arbitrators have completed their role, and the Sharia court is to have its say. The sentence uses the phrase “the decision of these people.” “These people”: the arbitrators, and the finality means that their decision is final, in the sense that their decision is the last decision to be given in by arbitrators before the Sharia court has its say. The arbitration proceeding pursuant to Section 130 has been exhausted and from this stage the Sharia court must rule in the dispute with the arbitrators’ decision before it. This does not mean that the Sharia court cannot return the matter to the arbitrators. But as of this stage, the arbitrators have completed their work, the decision is “final”, and the matter is transferred to the Sharia court for it to reach a decision.

This interpretation accords with the fact that in order for a separation between the couple to be valid, a Sharia court judgment is required. The arbitrators’ decision in and of itself does not dissolve the marriage. Only once a judgment by the court is handed down can the divorce be registered under the law (Section 131 of the law). It is unreasonable to interpret the sentence in dispute such that even though the court must issue a judgment, it does not have the discretion whether or not to accept the arbitrators’ decision. Only an explicit statement that the Sharia court is bound by the arbitrators’ decision and has denied the authority to rule in the matter, could bring about such an extreme result. Therefore the correct interpretation is that the arbitrators’ decision is final, on the arbitration level, but does not derogate from the regional Sharia court’s authority to consider the merits of the arbitrators’ decision and decide whether or not to adopt it” (the Hamza Case, p. 598).

 

According to this interpretation, the final authority to confirm a divorce judgment is granted to the Sharia court. The arbitrators’ decision itself does not dissolve the marriage, and the Sharia court must exercise its discretion and decide whether to adopt the arbitrators’ decision, reject it or accept it in part. The parties may raise arguments against the arbitrators’ decision before the Sharia court and the Sharia court has the authority to accept such or other arguments. It is the one that makes the final ruling in the dispute before it. It shall be noted that in its ruling, the Court also relied on the customary practice in Sharia courts, whereby the Sharia courts have consistently ruled that they have the authority to intervene in the arbitrators’ decision:

 

“One can see that the Sharia court intervenes in the arbitrators’ conclusion when it finds that it does not accord with the facts of the case or is not based on sufficiently solid evidence. It can further be seen that in certain circumstances the court sends the case back to the arbitration level. Meaning, it also emerges from the customary practice that the court has the authority to intervene in the arbitrators’ decision, and that this is how the sentence that is in dispute is interpreted." (The Hamza Case, p. 600).

 

This case law has indeed since been implemented by this Court (the Muasi Case).

 

 

 

Applying the Exceptions of the Equal Rights for Women Act on the Appointment of Arbitrators

 

39.After elaborating on the Equal Rights for Women Act, its purpose and the manner it is interpreted, as well as on the essence of the matter before us, it is now time to examine whether the exceptions in the Act apply to the appointment of arbitrators under Section 130 of the Family Law. The first exception is that in Section 5 of the Act whereby “this Act shall not infringe any legal prohibition and permission in connection with marriage and divorce.” In this matter I agree with the Attorney General’s position that this section was intended to apply to the content of the religious law itself that regulates the matters of divorce and not to the laws that apply to the persons having the authority to implement such laws. This explicitly emerges from the language of the section that deals with the prohibition and permission laws.

 

Furthermore, as mentioned, in my opinion the exceptions in the Act should be interpreted narrowly and thus the interpretation which relates only to the content of religious law, as implied by the language of the section itself, must be preferred. Section 7(c) of the Act also supports this interpretation, since it addresses the persons holding the positions that implement the religious law. The logical conclusion is that Section 5 does not address those in these positions. However, I shall leave instances where a certain appointment in and of itself results in violating laws prohibiting and permitting marriage or divorce for future consideration. In the case of the appointment of arbitrators, at hand is an appointment to a position that exercises authorities related to divorce and not to the actual law that regulates divorce. Additionally, as we saw, there are schools of thought in Sharia law which allow women to be appointed as arbitrators. So the question left for future consideration does not arise. Hence, the conclusion is that the exception in Section 5 does not apply to the case at hand.

 

40.The main exception on which the litigating parties focused, is in Section 7(c) of the Equal Rights for Women Act, and in light of its importance I found it appropriate to restate it here as well:

 

(c)        The provisions of this Act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and of holders of judicial positions in religious courts.

 

The section effectively includes two exceptions, and we must explore the application of both here. The first addresses the “appointment to a religious position under religious law,” and the second addresses the “appointment of holders of judicial positions in religious courts.” On its face, according to the Act’s language the second exception is encompassed by the first exception, but we shall examine each exception separately.

 

41.Is the appointment of arbitrators an appointment to a religious position under religious law? As mentioned, I am willing to assume that the Family Law is a religious law and therefore the end part of the exception applies. This assumption is not free of challenges, because this Act was legislated by a civil legislature and was absorbed into our general system of laws (see Abu Ramadan). However, we shall leave this assumption in place, since in any event I am of the opinion that one cannot say we are concerned with a religious position. The legislature did not exclude any appointment to a position under religious law, but rather only the appointment to a religious position under religious law. This distinction by the legislature is significant. I find much logic in this distinction. There can be an appointment to an administrative position under religious law. Why should such an appointment be excluded from the provisions of the Act? I believe that the expression “religious position” must be interpreted as a position in which some level of professionalism and expertise in religious law and the exercise of such law in the course of the position are required (see the Shakdiel case, p. 274: “Indeed, there is nothing in the Religious Services Act that indicates that only religious and legal scholars should serve on religious councils, and in principle even a non-religious person is qualified to serve on the council”). The more professionalism and expertise in religious law are required for the position and the more religious law is actually exercised in the course of the position, the more we will tend to perceive the position as a religious position, and vice versa.

 

The appointment of arbitrators pursuant to Section 130 of the Family Law does not meet such definition at all. The arbitrators, as we have seen, are representatives of the disputing couple’s relatives. They are not required to have any familiarity with religious law, skills, understanding or qualification in this law. They have no professionalism or expertise in exercising the religious law. Even according to the Maliki school of thought, the characteristics are unrelated to the religious matter (for example, it is required that the arbitrators be fair, mature, adult persons who are not slaves, are not corrupt, are not wastrels and are not atheists. It is preferable that they be relatives or neighbors and in any event that they be aware of the problems between the parties. See Abou Ramadan, p. 264-265). Furthermore, the arbitrators are not required to implement religious law in the course of their position. All they are required to do is act according the provisions of the section – to try to reconcile the couple, and when unable to do so, they must rule a divorce while determining which party is at fault, and accordingly, the scope of the dowry. Once they encounter any problem they must turn to the Sharia court for instructions (see the Muasi Case, paragraph 13).

 

The conclusion is, therefore, that the appointment of the arbitrators is not a religious appointment under religious law, and therefore is not included in this exception.

 

42.Is the appointment of arbitrators an appointment to a judicial position in a religious court? I believe that the answer to this question is also in the negative. On its face, it appears that the section’s interpretation must be limited only to holders of judicial positions in actual religious courts, such as rabbinical judges or Qadis. However, even were we to assume that the exception should be interpreted more broadly, it would not cover the appointment of arbitrators pursuant to Section 130 of the Family Law. As mentioned, in the Hamza Case the Court held that the arbitrators’ decision is not final and is subject to the Sharia court’s absolute discretion. In practice, Sharia courts intervene in the arbitrators’ rulings (see Abu Ramadan, p. 61). It follows that even pursuant to Section 130 of the Family Law the judicial position to rule the divorce is granted to the Qadis in Sharia courts, and not to arbitrators. While arbitrators are important auxiliary tools for Qadis in ruling in the dispute between the couple, they do not make the final decision and they have no authority to divorce the couple without receiving material confirmation from the Sharia court of such decision. The conclusion is that arbitrators cannot be perceived as holding any judicial position whatsoever. It shall be further noted that contrary to holders of a judicial position, arbitrators are not an objective party in the dispute, but rather an involved party, that is generally appointed from among the relatives and as per the desire of the parties in dispute, and therefore, their position cannot be perceived as a judicial position.

 

Hence, Section 7(c) does not apply to the appointment of arbitrators pursuant to Section 130 of the Family Law.

 

43.It emerges from the above analysis that the exceptions provided in the Equal Rights for Women Act do not apply to the case at hand. It follows that the Sharia court should have ruled in this case according to the provisions of the Act that there shall be one law for a woman and a man. The parties before us did not, in fact, dispute the fact that the ruling of the Sharia court was contrary to this provision. None of the parties even raised an argument that there are contrary or conflicting interests in the matter. In my opinion it cannot be said that Section 130 of the Family Law intended for the provisions of the Equal Rights for Women Act not to apply. First of all, the Equal Rights for Women Act was legislated after the Family Law. Secondly, there is not even a hint in the section implying the intention of the law not to allow the appointment of female arbitrators. Furthermore, the purpose of the section supports the appointment of female arbitrators according to the parties’ desire. The arbitrators are meant to represent the parties. They are meant to try to reconcile the couple, and if this is unsuccessful, to determine fault in the dissolution of the couple’s relationship. As such, it is proper to allow the couple to choose an arbitrator who shall be acceptable to them and with whom they are comfortable. Indeed, the Sharia court, as occurred in the case at hand, approaches the couple and allows them to choose an arbitrator on their behalf who shall be approved by the court. Since we are concerned with a dispute between a couple, in a system that is generally patriarchal, it should not come as a surprise that a woman would, at times, prefer to appoint a woman, rather than a man, as arbitrator on her behalf (and of course the man may as well). Perhaps by appointing someone who is acceptable to each of the parties and with whom they are comfortable, the chances of reconciling the couple increase. Similarly, maybe the chances of reaching the correct decision regarding each party’s fault in the dissolution of the relationship and the scope of the dowry would also increase. It follows that the objective of the section also indicates the need to allow a female arbitrator to be appointed.

 

The conclusion that emerges from all of the stated above is that the decision by the Sharia court is to be overturned as it ignored the provisions of the Equal Rights for Women Act. Before I turn to examine the relief, I would like to add one additional remark beyond the necessary scope here.

 

44.It is possible that we would have reached the same result even had we assumed that the Equal Rights for Women Act does not apply to this case. Religious courts, as all judicial tribunals and government authorities, are subject to the fundamental principles of the system, including the principle of equality, which has been consistently implemented in the rulings of this Court. As I mentioned, the principle of equality between the sexes was not born of the Equal Rights for Women Act, but rather only received practical and declarative grounding. Therefore, religious law must also be exercised while taking the fundamental principles of the system, in general, and the principle of equality, in particular, into consideration, to the extent possible within the limitations of the religious law itself. As President Barak stated “There is equality in the application of the principle of equality” (the Shakdiel Case, p. 278; see also the Bavli Case, p. 248). Thus, Basic Law: Human Dignity and Liberty provides that “All governmental authorities are bound to respect the rights under this Basic Law” (Section 11). In my opinion, the implication of this provision is that if there is a customary school of thought in the religious law that conforms to the principle of equality, the religious court must prefer it over a different school of thought in the religious law that does not conform to such principle.

 

45.As I specified above, there are a number of customary schools of thought in Sharia law which religious courts as well as the Ottoman legislature applied in a mixed fashion, without any absolute commitment to one school of thought or another (see also Goitein and Ben Shemesh, p. 24). Indeed, part of the Family Law is based on the Maliki school of thought that only allows appointment of male arbitrators. However, there is also the Hanafi school of thought which is customary in the Muslim world and upon which the Mejelle is based (Goitein and Ben Shemesh, p. 4). Even most of the Family Law is based upon it (Iyad Zahalka 115 (2009)). It allows the appointment of female arbitrators (and it shall be noted that it also allows the appointment of female Qadis). In my opinion, given the principle of equality, the court should have preferred the school of thought that fits this principle over the school of thought that denies it. Especially given that in fact the Sharia courts actually conduct themselves in a manner similar to the Hanafi school of thought, since they do not relate to the arbitrators’ decision as final, but rather exercise their discretion whether or not to confirm it.

 

46.It shall be further emphasized that I do not accept the argument that should it be decided to appoint a female arbitrator similar to the Hanafi school of thought, the Sharia court will have to also adopt the causes of action for divorce of such school of thought, which are more stringent against the wife (see Goitein and Ben Shemesh, p. 141). First of all, as mentioned, the law combines laws from different schools of thought, and therefore there is nothing preventing the appointment of arbitrators under the Hanafi school of thought, meaning allowing a female arbitrator, while the causes of action of divorce shall be determined under the Maliki school of thought, which is more friendly toward women, as has been done so far. The causes of action of divorce have nothing to do with the characteristics of the arbitrators. Secondly, the causes of action of divorce have already been grounded in the Family Law, and it is impossible to derogate from those that are grounded in the law and are customary today as per the rulings of the Sharia court (see CrimAppeal 353 Al-Fakir v. the Attorney General, PD 18(4) 200, 221 (1964)).

 

Summary and Relief

 

47.As we have seen, the exceptions of the Equal Rights for Women Act specified in Sections 5 and 7(c) of the Act, do not apply to the appointment of arbitrators under the Family Law. It follows that the Sharia court should have taken the provisions of the Act into consideration and it failed to do so. Taking the provisions of the Equal Rights for Women Act into consideration would have led to the result that it is possible to appoint female arbitrators, and in turn to the approval of the arbitrator suggested by the Petitioner. The conclusion that follows is that the Sharia court’s decision is overturned. The case shall be remanded to the Sharia court for the arbitration process to continue, while granting the Petitioner the option to choose a female arbitrator on her behalf. Hopefully this may open a window to equality and prevent discrimination among officers in this field.

 

Should my opinion be heard, the petition would be accepted. The Respondent would pay the Petitioner’s costs in the amount of NIS 15,000.

 

 

 

Justice

 

 

Justice M. Naor

 

1.I agree with my colleague, Justice Arbel’s extensive judgment.

 

2.At the basis of the Sharia Court of Appeals’ reasoned decision is the approach that arbitrators are Qadis. The Sharia court summarized its approach in Section 12 of the reasoned judgment dated June 18, 2012, as follows:

 

“12.     In summary, arbitrators pursuant to Section 130 of the law are Qadis and not representatives, and the judgment regarding the dissolution of a marriage is in their hands, and the Qadi's authority is to confirm their judgment. As for the monetary rights, the dowry resulting from the dissolution, the Qadi has the authority to alter the judgment of the arbitration panel and rule that the wife receive the entire dowry in the absence of a Sharia cause of action to reduce it, and the sole purpose is to prevent prolonged litigation” (my emphasis – M.N.)

 

3.Accepting this approach that the judgment regarding the dissolution of the marriage is in the hands of the arbitrators and that the Qadis’ authority is solely to confirm the arbitrators’ ruling, could, in other cases, lead to severe results. Where Qadis conclude the facts of the case do not justify the arbitrators’ ruling that the marriage is to be dissolved, are the hands of Qadis – who were authorized by the law of the State to judge – indeed tied by arbitrators’ final judgment regarding the dissolution of a marriage? This is hard to accept. This is an approach that takes judging out of the hands of those who were appointed to judge – the Qadis. As my colleague noted, this is inconsistent with the rulings of this Court in HCJ 9347/99, Hamza v. the Sharia Court of Appeals in Jerusalem, IsrSC 55(2), 592 (2001) and in HCJ, Muasi v. The Sharia Court of Appeals in Jerusalem (March 7, 2007).

 

 

 

Deputy President

 

 

 

 

 

Justice N. Solberg

 

I agree.

 

Justice

 

 

It was decided as per Justice E. Arbel’s judgment.

 

Given today, the 19^th of Tamuz, 5773 (June 27, 2013).

 

 

Deputy President                                Justice                                     Justice

 

 

Supreme Court of Israel

HCJ 129/13

 

Before:            The Honorable President A. Grunis

                        The Honorable Vice President M. Naor

                        The Honorable Justice E. Rubinstein

 

Petitioners:      1. Eli Axelrod

2. Moshe Axelrod

v.

Respondents: 1. Government of Israel 

2. Israeli Knesset

3. Ministry of the Interior

 

Petition to grant an order nisi

 

Date of Hearing: 21 Shvat 5774 (January 22, 2014)

 

On behalf of Petitioners:           Adv. Eli Axelrod

On behalf of Respondents 1,3: Adv. Ran Rosenberg

On behalf of Respondent 2:     Adv. Dr. Gur Bleigh

 

Judgment

 

President A. Grunis and Vice President M. Naor:

1.         This petition seeks to bring before this Court again a difficult and painful problem. This problem pertains to citizens of Israel, many thousands of them, who cannot marry in this Country because they are not members of one of the recognized religious groups, or one of them is not a member of one of those groups. In addition the petition relates to those who can marry in Israel, but do not wish to do so in a religious ceremony.

2.         The stated problem has been presented to this Court in several petitions argued in the last few years: HCJ 7127/11 Center for Jewish Pluralism v. Government of Israel (Dec. 5, 2011); HCJ 1143/11 Jerusalem Institute for Justice v. The Knesset (Oct. 18, 2012). The first petition was deleted and the second was denied, in both cases after the petitioners accepted the recommendations of the different panels hearing the cases to retract the petitions. There is nothing novel in the current petition in comparison to the previous ones. Clearly, the solution to the difficult problem has to be by way of Knesset legislation. However, the Court cannot order the legislature to legislate. There is a dramatic distinction between striking down a law due to a constitutional defect, and ordering the legislature to regulate a certain issue in legislation. The additional claims raised by the petitioners, including the one pertaining to the Marriage and Divorce (Registration) Ordinance and its treatment of civil marriage, do not substantiate a cause of action.

3.         Regrettably, we do not see a basis for the Court’s involvement.

 

President, Vice President

 

Justice E. Rubinstein:

A.        I join my colleagues’ judgment. I would like to note that, sadly, the problem invoked by the petitioners is very old, and has worsened with the wave of immigration from the Commonwealth of Independent States (former Soviet Union) from the late 1980’s, as it is undisputable that large numbers of those entitled to Shvut in a family’s two generations are not Jewish according to Halacha; even though they are of Israel seed, through father, grandfather, or grandmother.

            I would be the last to support intermarriage; however a solution to citizens seeking to marry must be given to them within their country. In my opinion in LFA 9607/03 Ploni v. Plonit (2006), paragraphs J-K, I said about them:

“Intermarriage, a painful issue since ancient days (see, during the first return to Zion – Ezra 9 1-2, 12 and chapter 10, and Nehemia 9 31), makes my heart cringe, due to its meaning in the historical respect and its impact on the state of the Jewish people and its size, to an existential degree … (But) I doubt that closing our eyes to the fact of these difficulties is the way to deal with intermarriage, given the factual and legal reality that has evolved over the years … It seems that the wave of intermarriage, which appears with great force within a big part of the Jewish diaspora and exists among our people as well since the waves of immigration of the previous decades – is not going to be stopped in this way, and attending to the larger matter is beyond the judicial scope … The place for decision is the legislature … the Legislature ought to consider an arrangement that would be suitable to those Israelis who cannot marry in Israel (emphasis in original – E.R.); I dare say, that if it were possible to persuade each and every Jewish man and woman, for many good reasons, to marry members of the Jewish people, there would be no-one happier than me, certainly so after a third of the People was decimated in the Holocaust. But since this is not the reality, the state should provide the suitable solutions, of course while accounting for its Jewish and democratic character – as well as for the slippery slope that can ensue.”

 

The son of a Jewish father and a non-Jewish mother – Petitioner 1 did nothing wrong. He is an Israeli citizen, as good as any of us, subject to duties and entitled to rights, including the right to marry. Since the 1970 amendment to the Law of Return, 1950, and the addition of Section 4A, the right to marry applies also to citizens entitled to Shvut and to their offspring. The Law on Matrimonial Partnership for People without Religion, 2010, does not apply to the Petitioner, since he seeks to marry a Jewish woman. He apparently chose not to convert into Judaism although he considers himself Jewish; to me this would have been a practical and commendable solution, but it is up to him and his personal decision. Therefore the state should devise a fair solution to those like him, one that would not make any of its citizens feel as if they are “second rate.” Indeed, the difficulty in this is clear and for that reason the Law on Matrimonial Partnership was dedicated to those without a religion, as its name suggests; however a solution to the complex question is required, while reserving marriage to the religious groups within themselves; the issue is clearly in the purview of the legislature.

 

Justice

 

The petition is denied. Given the circumstance no fees will be assessed.

 

Entered today, 25 Shvat 5774 (Jan. 26, 2014)

 

President                             Vice President                             Justice

HCJ 3429/11

 

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

                                                   2. Radwan Badarneh

                                                                    3. Ayman Miari

                                                                    4. Hazar Hijazi

                                                                    5. Ron Shapira

                                                                    6. Arik Kirshenbaum

                                                                    7. Professor Oren Yiftachel

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

                                                                    9. The Association for Civil Rights in Israel

 

                                                                    v.

 

Respondents                                         1. Minister of Finance

                                                                    2. Knesset

 

                                                         .

The Supreme Court sitting as the High Court of Justice

[5 October 2011]

 

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

 

Petitions for an order ­nisi and for an interim order.

 

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

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

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

Petition denied.

Legislation cited:

 

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

Administrative Courts Law, 5760-2000

Disengagement Plan Implementation Law, 5765-2005

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

Public Education Law, 5713-1953

 

Israeli Supreme Court cases cited:

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

US Supreme Court cases cited

 

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

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

 

 

 

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

 

For respondent 1                              — S. Rotsenker

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

 

 

JUDGMENT

Justice M. Naor

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

 

 

 

Background

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

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

3b.  (a) In this section –

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

“Expense” – includes a waiver of income.

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

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

(2) Incitement to racism, violence or terror;

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

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

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

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

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

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

 Arguments raised in the petition

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

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

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

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

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

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

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

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

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

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

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

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

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

The position taken by Respondent 1

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

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

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

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

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

Response of Respondent 2

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

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

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

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

Discussion and determination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

President D. Beinisch

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

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

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

I therefore join in the result reached by my colleague.

 

Vice President E. Rivlin

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

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

 

Decided as per Justice M. Naor

10^th of Tevet 5772.

15 January 2012.

 

 

In the Supreme Court Sitting as the High Court of Justice

                                                                                                                        HCJ 7245/10

                                                                                                                        HCJ 8357/10

                                                                                                                        HCJ 908/11

 

Before:                                                Her Honor Justice E. Arbel

                                                Her Honor Justice E. Hayut

                                                Her Honor Justice D. Barak-Erez

 

The Petitioner in                     

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

                                   

                                                v.

 

The Respondents:                   1. The Ministry of Social Affairs

                                                2. The National Insurance Institute

                                                3. The Knesset

 

The Petitioner in                      The Israel National Council for the Child

HCJ 8357/10: 

                                                v.

 

The Respondents:                   1. The Israeli Government

                                                2. The Minister of Finance

                                                3. The Attorney General

4. The Minister of Health

5. The Israeli Knesset

6. The National Insurance Institute

 

The Petitioners in                    1. The Association for Information on Vaccines

HCJ 908/11:                            2. Binyamin Brotski

                                                3. Matan Koren

                                                4. Netta Dror

                                                5. Itay Hadar

                                                6. Lilach Rochel                                             

 

                                                v.

 

The Respondents:                   1. The National Insurance Institute

                                                2. Director General, Ministry of Health

                                                3. The Speaker of the Knesset

 

Petitions for an order nisi and an interim order

 

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

 

On behalf of the Petitioner    

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

 

On behalf of the Petitioners   

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

 

On behalf of the Petitioners   

in HCJ 908/11:                        Adv. A. Naveh

 

On behalf of Respondents     

1-2 in HCJ 7245/10 and

Respondents 1-4 and 6

in HCJ 8357/10 and the

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

 

On behalf of Respondent 3

in HCJ 7245/10 and

Respondent 5 in HCJ

8357/10:                                  Adv. Dr. G. Bligh

 

 

Judgment

 

Justice E. Arbel:

 

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

 

The Arrangements Law

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

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

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

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

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

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

The petitions at bar were filed against this arrangement.

HCJ 7245/10 –Petitioners’ Claims

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

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

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

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

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

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

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

HCJ 8357/10 – The Petitioner’s Claims

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

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

HCJ 908/11 – The Petitioners’ Claims

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

The Respondents’ Claims

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

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

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

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

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

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

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

Deliberation and Decision

Claims Pertaining to the Legislative Process

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

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

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

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

Regarding the Content of the Legislation

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

 

Child Allowance – the Arrangement and its Purpose

23.

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

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

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

The Vaccination Program

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

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

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

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

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

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

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

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

The MMRV Vaccine

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Violated Rights: The Right to a Dignified Life

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

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

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

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

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

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

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

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

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

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

The Violated Rights – The Right to Autonomy and Parental Autonomy

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

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

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

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

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

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

The Violated Rights: The Right of Equality

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

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

And elsewhere I stated:

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

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

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

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

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

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

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

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

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

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

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

 

The Limitation Clause

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

 

•  

Justice D. Barak Erez

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

The Legal Issues

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

Child Allowances: History and Purpose

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

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

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

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

Child Allowances: Legal Rights or Constitutional Rights

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

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

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

Conditioning of Rights: The Normative Framework

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

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

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

Equality in Granting Eligibilities

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

The Amendment to the Law through the Limitation Clause

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

Conclusion: About Rights and the State’s Responsibility

61. An overview of the petition reveals a fundamental tension between the expectations the various individuals have of the State. On the one hand, there is an expectation that the State minimize its intervention in decisions of its citizens. On the other hand, there is an expectation that the State operate in an active manner to promote the citizens’ welfare. (On the discrepancies between the various expectations from the State, compare Barak Erez, Administrative Law, on p. 54-55; Barak Erez, Citizen-Subject-Consumer, on p. 34-35). The tension that exists between these expectations might lead to a conflict, like in the case before us. When the State takes an active stance with respect to child vaccination, it is intervening in personal decisions. Thus, it is ostensibly intervening in the private sphere. However, the means used by the State in this case pertain to the granting of child allowances, the mere granting of which expresses the State’s involvement in the family sphere. Moreover, intervention in the private sphere is not necessarily bad, particularly when it is done to promote the rights of the weak individuals in the family unit, those whose voice is not always heard—in this case the children whose parents did not act to vaccinate them.
62. There may be a dispute on the scope of the requirement to vaccinate children and perhaps, over the years, changes will even occur in the perceptions that direct the policy in this area. However, on principal, the starting point with regard to the State’s intervention in promoting children’s welfare does not always have to be suspicious. Essentially, taking an active stance on the issue of child vaccination is not the State riding roughshod over rights, but rather evidence of the State’s commitment to the welfare of the children in Israel, a commitment whose importance cannot be exaggerated.
63.  

Justice E. Hayut:

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

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

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

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

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

I disagree.

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

 

The Supreme Court sitting as the High Court of Justice

HCJ 3368/10

HCJ 4057/10

 

Before:                                                The Honorable Justice E. Arbel                                                                                  The Honorable Justice I. Amit                                                                                    The Honorable Justice U. Shoham

 

The Petitioners in HCJ 3368/10:   1.   The Ministry of Palestinian Prisoners

                                                      2.   Adv. Fahmi Shakirat

                                                      3.   Adv. Kamil Sabbagh

                                                      4.   Adv. Kareem Ajwa

 

The Petitioners in HCJ 4057/10    The Association for Civil Rights et al.

 

v.

 

The Respondent in HCJ 3368/10: 1.   The Minister of Defense

 

The Respondent in HCJ 3368/10

and in HCJ 4057/10                      2.   GOC Central Command, Commander of IDF Forces in the Region

 

                                                                        Petition to Grant an Order Nisi

 

Date of Session:                                           14^th of Sivan, 5773 (May 23, 2013)

 

On behalf of the Petitioners

in HCJ 3368/10:                            Adv. S. Ben Natan

 

On behalf of the Petitioners

in HCJ 4057/10:                            Adv. L. Margalit

 

On behalf of the Respondents:     Adv. A. Helman

 

P A R T I A L   J U D G M E N T

 

Justice E. Arbel:

 

The Petitions before us, the hearings of which were united, address the question why not shorten the periods of detention which are prescribed in the security legislation in the Judea and Samaria region, including in the Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (no. 1651), 5770-2009 (hereinafter: the "Security Provisions Order" or the "Order"), which came into effect on May 2, 2010. In the framework of the Petitions, this Court was requested to determine periods of detention which shall be shorter than those determined in the Security Provisions Order, as required under international law and in a manner that corresponds with the periods of detention that are customary in Israel.

 

 

Background

 

1. Petitioner 1 in HCJ 3368/10 is the Ministry of Prisoners' Affairs in the Palestinian Authority, to which, under the security legislation, most of the detainees belong, and which attends to their welfare, their families, their legal representation and which engages lawyers who are members of the Israel and Palestinian Bar Associations. Petitioners 2-4 are lawyers who represent, on behalf of the Ministry of Prisoners' Affairs, suspects who are detainees under the security legislation. The Petitioners in HCJ 4057/10 are the Association for Civil Rights in Israel, "Yesh Din" – Volunteers for Human Rights and the Public Committee against Torture in Israel.

 

2. The Petitioners filed their Petitions in light of the legal reality that existed at the time the Petitions were filed, pursuant to which the law applicable to Israeli citizens in the Judea and Samaria region (hereinafter: the "Region"), is different than the law applicable to Palestinians in the Region. In the framework of the Petitions, the said Petitioners requested to shorten the periods of detention prescribed in the Security Provisions Order such that they will be the equivalent to the periods applicable to Israeli citizens in the Region and will correspond to the periods of detention that are customary in Israel.

 

The Law that was in Effect at the Time the Petitions were Filed

 

3. The period of the pre-indictment detention and the period of detention until the end of proceedings are grounded in Article C of Chapter C of the Security Provisions Order, which addresses the arrest and release of Palestinian detainees in the Region. Sections 31 and 32 of the Security Provisions Order prescribed the following with respect to detention prior to judicial review:

 

"31.   (a) A soldier may arrest, without an arrest warrant, any person violating the provisions of this order or if there is cause to suspect that he committed an offense under this order.

(b) A person arrested in accordance with sub-section (a) shall be transferred as soon as possible to a police station or place of detention as determined in this order.

(c)   An arrest warrant against a person arrested in accordance with sub-section (a) must be received within a reasonable time; if an arrest warrant is not given within 96 hours from the time of his arrest - he shall be released.

(d) The Commander of the IDF Forces in the Region may authorize any person to order the release of a person arrested in accordance with sub-section (a), provided that no arrest warrant pursuant to the provisions of this article was issued against such detainee.

 

32.     (a)   A police officer who has reasonable grounds to assume that a person violated the provisions of this order or who becomes aware that the investigation material that was gathered against the person who was arrested in accordance with sub-section 31(a) necessitates his continued detention, is authorized to issue a written arrest warrant for a period which shall not exceed eight days from the time of his arrest.

(b)   If an arrest warrant as noted was issued for a period shorter than eight days from the time of his arrest, a police officer may extend it in writing, from time to time, provided that the total periods of detention shall not exceed eight days from the time of his arrest."

 

With respect to the extension of the detention prior to the filing of an indictment, Sections 37 and 38 of the Security Provisions Order prescribe as follows:

 

"37.   A judge is authorized to grant an arrest warrant and to extend the duration of the detention, provided that the arrest warrant or the detention extension shall not be for a period exceeding thirty days at a time and that the total period of detention in accordance with this section shall not exceed ninety days.

 

38.     A Military Court of Appeals judge, may, at the request of the Region's legal counsel, order the extension of the detention of a person who was arrested under Section 37, or his renewed arrest, for a period which shall not exceed three months; if such an arrest warrant is granted for a period of less than three months, a Military Court of Appeals judge may extend it from time to time, provided that the total period of detention in accordance with this section shall not exceed three months."

 

With respect to the period of detention until the end of proceedings, Section 44 of the Security Provisions Order provides as follows:

 

"44.   The matter of a defendant who after being indicted was held under detention for the same indictment for a cumulative period that amounted to two years and whose trial in the court of first instance did not end with a verdict, shall be brought before a judge of the Military Court of Appeals.

The judge will hear the defendant's matter and order his release, conditionally or unconditionally, unless the judge believed that the circumstances of the matter, including the severity of the offense attributed to the defendant and his level of dangerousness, the fear of him fleeing justice and the reasons for the prolonging of proceedings, do not justify his release.

(b)   If the judge decides that the circumstances of the matter do not justify the defendant's release, the judge may instruct the defendant's continued detention for a period which shall not exceed six months, and may reorder this from time to time."

 

In accordance with that which is stated above, at the time the Petitions were filed with this Court, a suspect who was arrested under the Security Provisions Order could have been held under detention up to eight days without judicial review, up to 90 days before the filing of an indictment, and with court approval – up to six months. Additionally, a defendant could have, before his trial was completed, been held under open ended detention, subject to periodic extensions every six month, after two years from the commencement of his detention.

 

4.As opposed to the detention periods applicable to Palestinians in the Region, which are listed in the Security Provision Order, Israeli law prescribes detention for citizens of up to 24 hours (which can be extended up to 48 hours) until being brought before judicial review, detention of up to 30 days, which can be extended up to 75 days with the Attorney General's approval, before filing of an indictment, and detention of nine months, which can be periodically extended every three months, until the end of proceedings (Sections 17, 29, 30, 59, 60, 61 and 62 of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996). Additionally, certain exceptions are prescribed in the Israeli law with respect to suspects who are arrested for security offenses and with respect to minors who have been arrested (Criminal Procedure (Arrest of a Security Offense Suspect (Temporary Provision) Law, 5766-2006 and the Youth (Adjudication, Punishment and Methods of Treatment) Law 5731-1971).

 

The Claims of the Petitioners in HCJ 3368/10

 

5.The Petitioners claim, through Adv. Smadar Ben Natan, that the periods of detention prescribed in the Security Provisions Order that applies to the Palestinians in the Region are significantly longer than the standards prescribed for such matters both in international law and in the corresponding periods in Israel. They claim that these periods infringe the right to due process and the protection against arbitrary infringement of liberty which are granted to the residents of the Region, both by virtue of international law and by virtue of the fundamental principles of Israeli law. According to the Petitioners, although at hand are two different regions that are subject to different legal regimes, however both are under the control of the State of Israel.

 

6.The Petitioners further claim that the far-reaching changes that have occurred in Israeli law have hardly been reflected in the military legislation in the Region. They claim that experience shows that the extended periods of detention impact the manner in which arrest and interrogation procedures are conducted, such that they excessively infringe detainees' rights: de facto, the detention of detainees who are arrested in an initial arrest, is not requested to be extended before the lapse of the eight days allowed by the Security Provisions Order; many of them are not interrogated at all during entire days of this detention period and during subsequent detention periods; in many cases, detainees are released after four, five or even eight days without procedures being taken with respect thereto and without a cause of arrest against them being examined by a judge. According to the Petitioners, such an extended period of detention creates fertile ground for inappropriate treatment, for pressure and violence in the interrogation, such as the arrest of a relative without any real cause as a means of pressure.

 

7.The Petitioners add that the proceedings at the Military Courts after the filing of an indictment, are conducted ponderously: Most of the cases end with plea bargains since defendants know that if they chose to conduct a trial, they will stay in detention for a long and unlimited period of time; in the few cases that do go to trial, the periods of time between hearings are extended, the number of judges is small in relation to the volume of the cases, and this reality is created and encouraged by the unlimited detention until the end of proceedings.

 

8.The Petitioners further state that until the implementation of the Disengagement Plan, detainees from the Gaza Strip were subject to the provisions of the Security Provisions Order and that since the Disengagement detainees from the Gaza Strip are brought for detention extensions before the Israeli Courts, subject to Israeli law. According to them, the Israeli law also applies to the population of the settlers. According to the Petitioners, this reality constitutes a violation of equality among people – a legal apartheid. The Petitioners emphasize that not all of the offenses addressed in the Military Courts are security offenses, but the laws of detention apply to all of the detainees.

 

9.According to the Petitioners, the judicial review in the detention proceedings is an integral part of the suspect's right to due process. The very lengthy periods of detention are not justified due to security needs or due to circumstances that are unique to the Region. Therefore, they claim, there is a duty to act in accordance with similar standards in protecting human rights in the procedural criminal proceeding and they request to cancel Sections 31A, 32 and 44 of the Security Provisions Order, to shorten the periods of detention and to determine periods of detention that correspond to those that are customary in Israel.

 

The Claims of the Petitioners in HCJ 4057/10

 

10.These Petitioners, through Adv. Lila Margalit, also requested to amend the Security Provisions Order and they raise similar claims against the periods of detention prescribed in the Order. They claim that the periods of detention severely and gravely infringe the fundamental rights of the Palestinian residents of the Region, their right to liberty and their right to be free of arbitrary arrest, as well as their right to due process, dignity and equality, to appropriate means of supervision in order to ensure fair interrogation and in order to prevent torture. These detainees are subject, so they argue, to illegitimate methods of interrogation and to improper treatment on behalf of the interrogation authorities. These infringements derive, according to the Petitioners, both from the fact that their treatment is arbitrarily different than the treatment of Israelis living in the Region and from the duration of the periods of detention which in and of themselves are exaggerated. According to the Petitioners, these infringements are contrary to the provisions of the customary and contractual international law applicable in the Region and to the principles of Israeli public law which apply to Israeli authorities. They argue that these infringements do not serve an appropriate purpose, are not proportionate and are not reasonable. According to the Petitioners' opinion, it is hard to describe a more severe and grave infringement of human rights than the illegitimate situation in which two "categories" of people who are distinguished from each other based on their national origin, are living beside each other. Even regardless of the discrimination allegation, the Petitioners claim that the periods of detention in the Security Provisions Order are contrary to the principles of international law which apply to the Region and to the principles of public law that apply to any action of Israeli authorities. According to them, immediate and frequent judicial review of the detention of a suspect is a necessary condition of its reasonableness and proportionality; an extended detention without judicial review is not proportionate.

 

11.The Petitioners add that the military prosecution's claim that the judicial review of the detention is to be delayed in order to enable the "formulation of a reasonable suspicion", attests that the Order is used for making arbitrary arrests, without there being a reasonable suspicion against the detainee. Therefore, the Petitioners claim that the initial detention period of Palestinian detainees is meant to enable arresting people without there being a reasonable suspicion against them; to protect the interrogation authorities from the court's "intervention", to grant the interrogators "minimal time" to exhaust the interrogation, to avoid the "disturbance" thereof that is involved in presenting the suspect before the judge, and to avoid the logistical difficulties involved in applying immediate judicial review.

 

12.According to the Petitioners, the lack of distinction between minors and adults in the security legislation regarding the periods of detention and the lack of sufficient consideration of the principle of the child's best interest during arrests of minors, result in a disproportionate infringement of children's rights which are grounded in international law and which are recognized by Israeli Law. The basic premises that Palestinian minors are worthy of less protection than Israeli minors also living in the Region, is, in their opinion, illegitimate.

 

13.The Petitioners add that the judicial review of the detention is meant to ensure the justification, from the outset, of the continued denial of a person's liberty and that there is no place to delay it in order to enable the authorities to progress with their interrogation. Additionally, judicial review also has a role in supervising the manner the interrogation is conducted and serves as an important guarantee against the application of illegitimate means of pressure during interrogation and against the use of the detention itself to make the suspect feel completely disconnected from the outside world and subject to the mercy of his interrogators, while his dignity and his right to be silent are being infringed. According to the Petitioners, interrogation that is far from the court's watchful eye, could lead to the use of illegitimate means of interrogation which violate the detainee's dignity and even the integrity of his body, and therefore, in their opinion, constitutes a breach of the State's duty to prevent torture and inhumane treatment of detainees. The lack of judicial supervision is even more severely significant in cases in which the Palestinian detainee is prohibited from meeting with a lawyer, contrary to international law. According to the Petitioners, the concern regarding the use of illegitimate means of interrogation against Palestinians is not a  mere concern, and they refer to reports that were published by human rights organizations in 2007. According to them, purely logistic considerations or administrative difficulties cannot justify the infringement of a human's right to liberty, equality and dignity.

 

The Respondents' Response

 

14.The Respondents' response was presented by Adv. Aner Helman. Even since the letters of response to the Petitioners' approaches, prior to the filing of the Petition, the Respondents stated that the issue of shortening the periods of detention in the Region is being examined in the framework of in-depth staff work that has commenced long ago. It was further written that the security legislation is based on security and public order considerations and this is also true with respect the laws of detention, and that the differences between the law customary in the Region and the law customary in the State of Israel in this context derive from relevant security considerations.

 

15.In the response which was filed on the Respondents' behalf to this Court on January 9, 2010, the Respondents reiterated their claim that it is not for no reason that the periods of detention prescribed in the Security Provisions Order are different than those prescribed in Israeli law. According to the Respondents, the nature of an area that is held under belligerent occupation (occupatio bellica), even if long-term occupation, necessitates that the special security conditions prevailing therein dictate that different arrangements be prescribed than those customary in the occupying state.

 

16.For example, due to the security situation, the ability to move in the Region is limited, and at times, in light of security conditions which delay or prevent reaching the location, it is not possible to perform interrogations expeditiously, or even at all, in the area; some of the areas of the Region are under Palestinian control and it is not possible or very difficult to reach witnesses and suspects living there; in many cases, suspects who need to be interrogated find shelter in areas that are under Palestinian control making their interrogations and the interrogations of their accomplices who were arrested by the security forces, difficult; in most of the cases, the potential witnesses refuse to cooperate with the security forces, making interrogations difficult; in security interrogations the persons being interrogated acted out of nationalist and ideological motivation, and their interrogation is very difficult. Naturally, there is a minimal period of time that is required until their interrogations will produce initial evidence to support the intelligence information that has been received. At times, a certain interval is required between the time information is received and the time it can be used against the party being interrogated, since using intelligence information very soon after its receipt could "burn" the source of information and at times could even risk his life; in a large share of the security interrogations it is not possible to determine the location and time of the arrest in advance, resulting in the delay of the initial interrogation and it being more difficult; all of the detainees who are suspected of committing severe security offenses are transferred to one of four interrogation facilities which are located in Israel for their interrogation. At times, such transfer, in and of itself, requires not insignificant amounts of time. It is also necessary to exhaust the initial interrogation of the person being interrogated before bringing him before a judge, so as to avoid the possibility of him escaping to the Region; at times it is necessary to arrest many hundreds of people, like for example during the period of the "Defensive Shield" operation in 2002, and it is not possible to prepare to bring all of them before a judge during a short period of time.

 

17.The Respondents argue that these grounds require determining that it is appropriate to allow detaining a suspect for a reasonable period of time that is required in order to formulate initial evidentiary material prior to bringing him before a judge. The Respondents further state that international law does not limit the number of days that a person may be detained without judicial involvement, but rather expresses a principle pursuant to which the decision regarding the detention should be brought to a judge without delay.

 

18.Having said that, the Respondents notified that in recent years staff work has been conducted in the IDF and further on in the Ministry of Justice, by the Deputy Attorney General (Criminal Matters), together with the Deputy Attorney General (Special Assignments) and the Deputy Attorney General (Consultation), which is meant to examine the possibility of shortening the maximum periods of detention in the Region. The Respondents updated that in the framework of the staff work, a decision was reached that, considering the current security situation, at this time, it is possible to significantly shorten the maximum period of detention until bringing a detainee before a judge, however it is not appropriate to make the arrangement which shall be applicable in the Region in this matter the same as the arrangement which is applicable in Israel. The Respondents specified the manner of shortening the periods of detention:

 

19.With respect to offenses that are not security offenses, it was decided that, as a rule, the authority of an initial detention until presentation before a judge shall be for 48 hours; additionally, it will be possible to delay the presentation of the detainee before a judge for an additional 48 hours, as per the decision of an administrative authority, if there is a special cause, such as, for example, urgent acts of interrogation. It was further decided that the arrangement shall be re-examined upon the lapse of two years from the effective date of the amendment of the Order. As for detainees of security offenses, it was decided that the rule that shall be prescribed is that the initial period of detention until presentation before a judge shall be 96 hours at most, with an administrative party being able to extend such period by 48 additional hours, in cases in which the Head of the Interrogation Department at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in substantially prejudicing the interrogation. It was also decided that in very special circumstances it will be possible for an administrative party to extend the period of detention until being brought before a judge by 48 additional hours, beyond the above said 11(sic.) hours (six days), in cases in which the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in harming the performance of an essential act of interrogation that is meant to prevent harm in human lives. Considering the concern that was raised by security entities regarding the operational implications of these modifications, it was determined that this arrangement would be examined upon the lapse of two years from the date the amendment to the Order became effective.

 

20.It was further decided that the extension of an initial detention by a judge will not exceed 20 days and that it will be possible to re-extend the detention for additional periods which shall not exceed 15 additional days each. The extension of detention prior to the filing of an indictment which exceed 60 days shall be subject to the approval of a senior legal authority in the Region.

 

21.The Respondents added that in the framework of the staff work it was decided to add a provision to the Order pursuant to which if a person was arrested and his interrogation ended he shall be released from detention, however, if the prosecutor declared that they are about to file an indictment against him and the court was convinced that there is prima facie cause to request his detention until the end of proceedings, the judge may extend the detention on this  ground for a period which shall not exceed eight days. It was also decided that at the initial stage the period of detention until the beginning of trial shall be 60 days, and that the possibility of shortening this period to 30 days shall be examined upon the lapse of two years.

 

22.The Respondents further updated that it was decided to amend Section 44 of the Security Provisions Order so that with respect to offenses that are not security offenses, the period stated for holding the first hearing before a judge in the matter of a detainee who is under detention until the end of proceedings shall be one year from the date the indictment was filed. With respect to security offenses, the period currently stated in the Order – two years – shall remain in effect, and this matter shall also be examined upon the lapse of two years from the time the arrangement shall become effective. The Respondents estimated that the required adjustments to the modifications shall last approximately six to nine months and that the Order shall be amended accordingly, immediately thereafter.

 

23.The Respondents requested to dismiss in limine the relief requested in HCJ 4057/10 to make the periods of detention of minors in the Region the same as the periods of detention of minors in Israel, and claimed that the Petitioners did not exhaust the proceedings in this matter. According to them, this matter should not be mixed with the matter of the detention of adults in the Region. According to the Respondents this is a "premature petition" since it was already decided to conduct staff work on this matter as well.

 

Hearing of the Petititons and Update Notice

 

24.On January 12, 2011, a hearing took place in this Court before President D. Beinisch and Justices N. Hendel and I. Amit. At the end of the hearing it was decided that within five months the Respondents would file an update notice together with a draft of the Order which shall be issued in accordance with the principles that were formulated. The Bench of Judges even instructed the Respondents to consider its remarks when drafting the Order, especially with respect to the duration of the period of time until first bringing a detainee before a judge and with respect to the period of detention until the end of proceedings after an indictment has been filed.

 

25.On June 1, 2011, the Respondents filed an update notice, and according thereto, in an additional meeting that was held following the court hearing, it was decided to shorten the period until a detainee, who is detained until the end of proceedings for security offense, is brought before a judge, from two years to 18 months. It was further decided that it is vital that the manner of the actual implementation of the arrangement which the staff work decided upon with respect to the maximum period of detention until bringing a suspect before a judge, be examined for a period of approximately two years, before an additional re-examination of the matter. In the framework of this notice, the Respondents added that it is essential, prior to actually shortening the detention periods in the Region, to examine the developments that were scheduled to occur in the Region in September 2011 onwards, in light of the Palestinian Authority's notice that it intends to approach the United Nations General Assembly this month with a request to recognize the "State of Palestine". The Respondents updated that the staff work has not yet been completed and that they expect the Order to be amended during the month of January, 2012.

 

26.Both the Petitioners in HCJ 3368/10 and the Petitioners in HCJ 4057/10 responded to that stated in the update notice. According to them, the shortening of the detention period that the Respondents declared is insignificant and cannot cure the severe defects and infringement of rights that are embodied in the security legislation in the Region. According to the Petitioners, the changes that were made shall not have any practical impact on the arrest procedures of Palestinians who are residents of the Region and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement in the infringement of the right to liberty, of due process and of the presumption of innocence. The Petitioners reiterated their claim that judicial review is an integral part of the arrest process and that there is no justification to delay the judicial review for such an extended period of time. They argued that the initial detention period and the detention until the end of proceedings period constitute an arbitrary infringement of the right to liberty and therefore they insist on their petitions to issue an order nisi in the Petitions and to instruct the Military Commander in the Region to determine periods of detention that correspond with international standards and with those that are customary in Israel. The Petitioners further claimed that there is no reason not to amend the Order due to uncertain future developments.

 

27.The Petitioners in HCJ 4057/10 added that the list of security offenses that is included in the Order spans over dozens of sections and includes offenses such as conducting a procession or an unlicensed meeting, waving a flag without a permit, printing "material which has political significance" without a license from the Military Commander, and the like. The list also includes many "public order" offenses such as throwing objects, disturbing a soldier, breaching curfew or a closed military zone order and the like, thus making the arrangement that relates to offenses that are not security offenses predominantly theoretical. In their opinion, the appropriate criterion for determining the periods of detention is the timeframe applicable to Israelis who also live in the Region. The Petitioners also drew attention to the inconsistencies between the Respondents' notice and the draft of the Order. According to them, the amendment of the Order should not be avoided due to a concern regarding unusual events.

 

Additional Update Notices

 

28.On November 22, 2011, the Respondents filed an additional update notice,  according to which, it was told in meetings that were held at the Deputy Attorney General (Criminal Matters), that the IDF has completed the staff work examining adding the necessary staff positions at the military courts and at the Judea and Samaria Region Prosecution in order to shorten the detention period in the Region and that a decision was even already reached to add the new necessary staff positions, subject to the amendment to the Order becoming effective and to the time required for the procedure of selecting and appointing new judges to the court. It was also clarified that due to a dispute between the Ministry of Finance and the Ministry of Public Security regarding the source of the budget, there is still no budgetary solution for the Police and Prison Service's needs for implementing the staff work and that a few additional months shall be required after such a solution is found in order to recruit and train personnel and purchase and receive additional vehicles. On December 22, 2011, the Respondents filed an additional update notice informing that the dispute regarding the budget source was still unresolved, and this is what they informed on January 16, 2012, as well.

 

29.On February 6, 2012, the Respondents filed an additional update notice that the budget dispute regarding financing the detention periods in the Region was resolved. The Respondents further updated that on December 2, 2012 (sic.), the Commander of the IDF Forces in the Region signed the Security Provisions Order (Amendment no. 16) (Judea and Samaria) (no. 1685) 5772-2012 (hereinafter: the "Amending Order"), which shortened the period of detention in the Region in accordance with the conclusions of the staff work that had been done, and prescribed that its provisions shall become effective gradually, such that the last changes shall become effective on August 1, 2012.

 

The Petitioners' Response

 

30.The Petitioners in HCJ 3368/10 welcomed the amendments made to the Amending Order. However they claimed that a review of the language of the Amending Order reveals that there are significant differences between the changes declared in the Respondents' response and the actual language of the Amending Order. For example, the Petitioners noted that a security offenses detainee can be held under detention for two periods of 96 hours, i.e. eight days, and only be brought before a judge upon the completion thereof, and the same is true in the case of a non-security offenses detainee. The Petitioners claimed that the shortening of the detention period that was applied is insignificant and does not cure the severe infringement of the detainees' rights under the security legislation in the Region. They claimed that in the case of security offenses, which are the majority of the offenses that are addressed in the Region, the Amending Order does not, in effect, shorten the period of detention before initial judicial review. The Petitioners added that the Amending Order shortens the period of detention until the end of proceedings in security offenses in an insignificant manner from two years to a year and a half, which can be extended indefinitely, and that no change was made with respect to minors and that there is no distinction between a minor and an adult with respect to the detention laws. According to the Petitioners, these changes shall hardly have any practical impact on the procedures of detaining the Region's residents and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement with respect to the infringement of the right to liberty, the right to due process and the presumption of innocence. The Petitioners mentioned with respect to the initial detention period, that judicial review is an integral part of the arrest process and that this is the stage where it is necessary to present the court with only reasonable suspicion which is meant to exist upon the actual arrest. Therefore, in their opinion, there is no justification for delaying the judicial review for such a long period.  Interrogation difficulties should be presented before the judge to justify the extension of the detention, including in security offenses.

 

31.The Petitioners further claimed that the European Court of Human Rights ruled that an initial detention period of four days without judicial review breaches the right to be free of arbitrary detention. Therefore they are of the opinion that a period of detention of four to eight days before judicial review constitutes an arbitrary infringement of the right to liberty in violation of the Basic Law: Human Dignity and Liberty, and is illegal. According to them, a period of detention of a year and a half infringes the defendant's presumption of innocence and constitutes an arbitrary infringement of his right to liberty, since it is based only on prima facie evidence and amounts to an infringement of his right to a fair trial, as it constitutes a negative incentive to conduct trials and examine the charge.

 

32.The Petitioners in HCJ 4057/12 also responded to the Respondents' update notice. They also welcomed the Respondents' notice regarding the amendments made to the Amending Order but claimed that they cannot cure the flaw of illegality embedded therein, since even after the amendment, the Palestinian residents of the Region will continue to be subject to exaggerated and discriminating periods of detention which severely infringe their rights. The Petitioners emphasized again that immediate and frequent judicial review of arrest for interrogation purposes is a necessary condition for the reasonableness, proportionality and legality of the detention and that in the absence thereof, it is not possible to prevent arbitrary detention, it is not possible to protect the rights of the suspect and it is not possible to ensure a fair criminal procedure. The Petitioners reiterated their argument that an arrest that is not arbitrary is meant, to begin with, to be based on a reasonable suspicion and that the judicial review constitutes a part of the formulation of the legality thereof. According to them, the special difficulties that characterize the interrogations in the Territories are not at all relevant to examining the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge. According to the Petitioners, the Respondents did not provide grounds which could justify the discriminating policy also with respect to the other periods of detention. The Petitioners stated that the Respondents did not refer to minors in their notice and according to them, the list of security offenses is still "all inclusive", and a situation in which an Israeli detainee who lives in the Region and is suspected of a security offense must be brought before a judge within 24 hours while a Palestinian must be brought before a judge only after an a-priori period of four days, cannot be justified.

 

In light of President D. Beinisch's retirement, President A. Grunis appointed me to hear the Petition on March 14, 2012.

 

Additional Hearing of the Petition

 

33.On April 23, 2012, we held an additional hearing of the Petition, in which the Petitioners presented their claims regarding four matters: the time until bringing a detainee before a judge, the detention of minors, the definition of security offenses pursuant to the Order, and the period of the extension of a detention until the end of proceedings. At the beginning of the hearing, the attorney for the Respondents filed the Amending Order with respect to Section 31 of the Order. According to the amendment, a detention prior to being brought before a judge in special circumstances was limited to a period which shall not exceed 96 hours from the time the suspect was arrested, and can, in special circumstances, specified in the Order, be repeatedly extended by two additional days at a time, in accordance with approval by very senior echelons.

 

34.With regard to minors, it was discovered in the hearing that a new Security Provisions Order was meant to come into effect in August, 2012, and the age of minors in the Region was also recently changed to 18 years of age (instead of the previous 16 years). The Respondents requested to monitor the change for one year from the time it became effective, to monitor the wardens' training procedures, and to consider the state of affairs following the lapse of such period. As such, we ruled that the Respondents shall file update notices with respect to the results of the change by no later than December 1, 2012.

 

35.As for the matter of the offenses defined as security offenses, we ruled in a decision at the end of the hearing that the matter was not raised in the Petitions and an order nisi was not requested with respect thereto, other than in the framework of the responses to the Respondents' update notices. Having said that, we found it appropriate that the Respondents consider our remarks, especially the question whether it is appropriate to relate to the security offenses as one assemblage rather than excluding some of them from the definition of security offenses that appear in the Third Addendum of the Security Provisions Order.

 

36.With respect to the detention until the end of proceedings, the Respondents' attorney notified that it was decided to shorten the period of detention to 18 months in security offenses. Since we were of the opinion that this is still a lengthy period and it is appropriate that the matter be re-examined, we instructed that this be addressed in the framework of the update notice that was to be filed. We also ruled that after filing the update notice, the Petitioners would be able to respond thereto, and that we would thereafter decide regarding the further treatment of the Petitions.

 

Additional Update Notice

37.On December 16, 2012, the Respondents filed an additional update notice. First of all, the Respondents informed that the review of the results of the shortening of the periods of detention in the Region indicated that by dedicating effort the Respondents have managed to implement the shortened periods of detention as prescribed in the Amending Order. The Respondents added that following the remarks of this Court in the hearing and the decision it issued at the end of the hearing, the Commander of the IDF Forces in the Region amended the Security Provisions Order regarding the detention of minors, the definition of the security offenses and the period of extension of detention until the end of proceedings:

 

38.With respect to the detention of minors, the Respondents updated that it was decided to act to amend the security legislation and to prescribe special periods of detention until being brought before a judge and until the end of proceedings, for minors in the Region, which as a rule, shall be shorter than the corresponding periods of detention for adults. In this context, the Respondents informed that on November 28, 2012, the Commander of the IDF Forces in the Region signed two new amendments to the Security Provisions Order: Security Provisions Order (Amendment no. 25) (Judea and Samaria) (no. 1711), 5772-2012 (hereinafter: "Order no. 1711"). The Respondents noted that according to Order no. 1711, as from April 2, 2013, the maximum period of detention of a "youth", as defined in the Security Provisions Order, i.e. a person who is at least 12 years but not yet 14 years old, until being brought before a judge shall be 24 hours from the time of arrest, with a possibility of an additional 24 hours extension due to an urgent act of interrogation. It was decided that this period shall apply to the detention of a "youth" for both security offenses and offenses which are not security offenses. Additionally, the Respondents noted that beginning from such time, the maximum period of detention of a "young adult", as defined in the Security Provisions Order, i.e. a person who is at least 14 years old but not yet 16 years old, until being brought before a judge shall be 48 hours from the time of the arrest, with a possibility of an additional 48 hours extension due to an urgent act of interrogation. It was decided that this maximum period of detention shall apply to the detention of a "young adult" for both security offenses and offenses that are not security offenses. The Respondents further noted that such maximum period of detention applies also to minors over the age of 16 and to adults in the Region who are detained for offenses that are not security offenses.

 

39.According to the Respondents this is a very significant shortening of the maximum period of detention until being brought before a judge for all suspects aged 12-14 and for suspects of security offenses aged 14-16, compared to the periods of detention until being brought before a judge for adult suspects for the said offenses, which were also significantly shortened in the framework of the Amending Order. The Respondents added that the maximum periods of detention until being brought before a judge which apply to adults shall continue to apply with respect to minors over the age of 14 for offenses which are not security offenses, and with respect to minors over the age of 16 for security offenses, as stated in the Amending Order.

 

40.With respect to the period of detention until the end of proceedings for minors in the Region, the Respondents further stated that Order no. 1711 prescribes that the period of detention until the end of proceedings for a minor, i.e. any defendant who is less than 18 years old, shall be only one year. Additionally, the detention of minors until the end of proceedings can be extended by a Military Court of Appeals judge, upon the lapse of a year of detention, for a period which shall not exceed three months, which the judge may re-order. It was noted that such provision applies with respect to minors who are accused of security offenses and offenses which are not security offenses.

 

41.As for the definition of security offenses, the Respondents updated that in the framework of the Security Provisions Order (Amendment no. 26) (Judea and Samaria) (no. 1712), 5772-2012 (hereinafter: "Order no. 1712"), approximately a third of the security offenses that were previously listed were removed from the Third Addendum of the Security Provisions Order which defines "Security Offenses", and one offense (offense under Section 222 of the Security Provisions Order) was added, and therefore, Order no. 1712 actually resulted in the significant shortening of the maximum periods of detention of those who are suspected and accused of the many offenses that were removed from the Third Addendum. The Respondents noted that there was a significant change even in the matter of adults since approximately a third of the offenses that were previously defined as "security offenses" are no longer defined as such, and therefore the period of detention until the end of proceedings for anyone suspected of committing them shall be 12 months rather than 18 months. The Respondents claim that the implementation of such significant changes in the various periods of detention necessitates granting an opportunity, prior to considering additional changes, to examine the implications thereof on the law enforcement system in the Region and on its ability to function. Therefore, it was decided that at this time it is inappropriate to change the periods of detention until the end of proceedings for adults in the Region. The Respondents were of the opinion that in doing so, a worthy balance was struck between all of the relevant considerations, while granting obvious preference to the rights of minor defendants over those of the adults.

 

The Petitioners' Responses

 

42.The Petitioners in HCJ 4057/10 responded to the Update Notice. They welcomed the significant shortening of the period of detention applying to minors aged 12-14 and the additional amendments of which the Respondents informed. However, in their opinion, the Petition has not yet been exhausted since even after the amendments, the periods of detention applicable to Palestinians in the Territories, minors and adults alike, remain exaggerated, discriminating and contrary to the law. According to them, to this day, the Respondents have still not raised any legitimate reason which could justify the continued severe discrimination in this matter between Palestinians and Israelis in the Region. According to the Petitioners, even after the amendments to the Order, it is possible to hold a suspect up to eight days without any judicial review, if he is suspected of an offense which is classified as a security offense, including offenses such as throwing rocks (including towards property) and organizing a protest without a license. Such an extended period of detention also applies to minors who are 16 years old or older. In offenses that are not security offenses, the bringing of a suspect before a judge can be delayed up to 96 hours, even when at hand is a minor who is 14 or 15 years old. The Petitioners mentioned that an arrest is meant to be based, to begin with, on a reasonable suspicion, and that the judicial review constitutes part of the formulation of the legality of the initial detention regardless of the severity of the offense. According to them, the difficulties that characterize the interrogations in the Territories are not relevant to the examination of the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge.

 

43.As for minors, the Petitioners claimed that even after the amendment of the Order it will still be possible to hold a minor aged 12 or 13 for an entire day until bringing him before a judge, or for two days if there is a need to perform an urgent act of interrogation, and a minor 14-15 years old can even be held under detention up to 96 hours for ordinary offenses, prior to being brought before a judge. This, as opposed to an Israeli 12 or 13 year old minor from the Region who must be brought before a judge within 12 hours or 24 hours in certain cases. The Petitioners added that even after the amendment, the prohibition against holding Israeli minors who live in the Region under detention until the end of proceedings, is not applied to minors under the age of 14. Additionally, a longer period of detention until the end of proceedings shall continue to apply to minors, a year as opposed to six months, and this period can be extended for longer periods of time, three months, compared to 45 days at a time under Israeli law. The Petitioners complained that the extension of a detention of a Palestinian suspect under the age of 14 or until his release without indictment, was not shortened.

 

44.The Petitioners added that despite the removal of approximately a third of the security offenses from the Third Addendum of the Order, it still includes a wide variety of offenses that do not justify lengthy periods of detention, such as, for example, the throwing of objects, including throwing rocks towards property, organizing protest without a license and the breach of a closed military zone order. According to them, leaving these offenses in the list was meant to serve considerations that are totally irrelevant to the interrogation needs, such as deterrence considerations. At the very least, leaving them in the list does not comply with the proportionality criterion. According to the Petitioners, there is no justification to hold Palestinian detainees who are suspected of security offenses up to 96 hours without judicial review, when according to the Amending Order judicial review can be delayed for up to six or eight days at terms that are much more lenient than those that are required for the detention of Israelis living in the Region and who are suspected of severe security offense. In their opinion, there is also no justification to set a longer period of time for the period of detention until the end of proceedings in security offenses. Determining a period of detention until the end of proceedings that is too long will result, in the Petitioners' opinion, in disproportionate infringement of the defendant's right to liberty and prejudices the fairness of the criminal process, particularly when the extended period is automatically pre-determined and does not require special approval. In their opinion, the expectation of lengthy detention could result in defendants admitting to that which is attributed to them only to avoid an extended stay in jail. According to them, the lack of stringent limits on the length of a trial allows a delay of justice which could even interfere with the discovery of the truth. The Petitioners stated that the matter of the definition of the security offenses did not appear in the Petition because the special periods of detention for security offenses were first prescribed by the Respondents in their response to the Petition. Therefore, the legality and the proportionality of the duration of the periods of detention for security offenses as well as for other offenses, constitute, so they argue, an integral part of the reliefs that were requested in the Petition to begin with.

 

45.The Petitioners reiterated their objections regarding the period of detention until the end of proceedings that applies to adults in security offenses, which was not shortened in the Amending Order, as well as with respect to holding a suspect up to eight days until being brought before a judge if detained in a "combat arrest", as stated in Section 33 of the Security Provisions Order. The Petitioners emphasized their claim that the proper criterion to examine the reasonableness and proportionality of the periods of detention that apply to the Palestinian residents of the Territories is the timeframe that applies to Israelis also living in the Region.

 

46.The Petitioners in HCJ 3368/10 notified that they join that which was stated in the response of the Petitioners in HCJ 4057/10. According to them, the differences between the legislation in the Region and the legislation in Israel will remain unfathomable even after the changes that were made to the Order, which in and of themselves are welcome.

 

An Additional Hearing of the Petition

 

47.In a hearing we held on May 23, 2013, the parties reiterated their main arguments: The Petitioners claimed that the amendments made in the Amending Order are not sufficient and that they maintain their petitions. The attorney representing the State requested to separate the matter of the detention of minors from the Petitions being addressed and requested to enable the system to examine the implementation of the amendments to the Order over a reasonable period of time in order to ensure that "things work" and adopt educated decisions. The attorney representing the State stated that upon the lapse of the period, the periods of detention will be re-examined, as the system does not rest on its laurels.

 

48.On October 29, 2013, the Respondents filed an additional update notice. The Respondents informed that on September 30, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 35) (Judea and Samaria) (no. 1727) (hereinafter: "Order no. 1727"), which came into effect on the date of the signing thereof. According to Order no. 1727, the provisions of Article G, Chapter E of the Security Provisions Order, including, the age of minors in the Region, shall from now on be "permanent provisions". The Respondents also updated that since the last hearing of the Petitions, and further to additional staff work, on September 1, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 34) (Judea and Samaria) (no. 1726), 5773-2013 (hereinafter: "Order no. 1726"), which came into effect on October 6, 2013. Order no. 1726 introduced an additional significant shortening of the periods of judicial detention of minors for interrogation purposes, resulting in a Military Court judge being able to order the arrest of a minor for interrogation purposes for a period of 15 days and extend the detention for additional periods which shall not exceed 10 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 40 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 40 days, for additional periods which shall not exceed 90 days each.

 

49.Additionally, Order no. 1726 prescribed periods of judicial detention for interrogation purposes for adults that are similar to those applicable in Israel, such that a Military Court judge may order the arrest of an adult suspect for interrogation purposes for a period of 20 days and extend the period for additional periods which shall not exceed 15 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 75 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 75 days, for additional periods which shall not exceed 90 days each.

 

50.According to the Respondents, it is evident that following the coming into force of Order no. 1726, the maximum judicial detention periods of adults for interrogation purposes in the Region are now identical to the periods of detention for interrogation purposes of adults in Israel, mutatis mutandis, except for two matters: one, the maximum period of the first judicial detention order (20 days in the Region compared to 15 in Israel), and two, the requirement to receive the approval of the Attorney General for the request to extend the detention for interrogation purposes beyond 30 days in Israel, compared to the approval of the Military Advocate General, which is only required beyond 75 days in the Region. Considering the previous update notices and this present one, the Respondents are of the opinion that the Petitions have exhausted themselves and should be dismissed.

 

51.On December 30, 2013, the Petitioners in HCJ 4057/10 filed a response to the update notice. According to them, the notice reflects the flawed approach which is guiding the Respondents, who on the one hand prescribed discriminating and exaggerated periods of detention for Palestinians and on the other hand, ostensibly adopted the principle of equality. The Petitioners welcome the Respondents' decision to distinguish between minors and adults with respect to the periods of judicial detention for interrogation purposes and to somewhat shorten the periods applicable to Palestinian minors, however object to the arbitrary determination of longer periods of detention for Palestinian minors as opposed to the periods of detention prescribed for Israeli minors living in the Region and compare them. The Petitioners add that the differences between to the periods of judicial detention for adults are not solely "technical", since while as a rule an Israeli adult suspect in the Region cannot be detained for more than 30 days with respect to the same event, a Palestinian adult suspect can be detained for 75 days and his detention can even be extended without adopting the basic rule pursuant to which upon the lapse of 75 days, "he shall be released from detention, with or without bail". According to the Petitioners, the Respondents have not yet, to this day, provided any legal reasons for the discriminating periods of detention which are imposed upon the Palestinians.

 

Discussion and Ruling

 

52.A person's right to liberty is a constitutional right that is grounded in Section 5 of the Basic Law: Human Dignity and Liberty, where it is prescribed that: "There shall be no deprivation or restriction of the liberty of a person by imprisonment, detention, or any other way." The importance and centrality of the right to liberty in a democratic regime also stems from the implications of denying the liberty for the injured person and for the damage that could be caused thereto as a result thereof. The denial of liberty is not expressed only in a person merely being subject to the custody of the State, but also is felt each and every day, during the period when a person is subject to the rules of conduct and discipline that are customary in the place of custody and which also limit his liberty (see HCJ 2605/05 The Law and Business Academic Center v. The Minister of Finance, paragraph 25 of President D. Beinisch's decision (November 19, 2009)). The right to due process prior to a person's liberty being denied derives from the right to liberty, and it is even warranted that he will be given the opportunity to respond and voice his arguments prior to this fundamental right being denied (LCrimA 837/12 The State of Israel v. Gusakov, paragraph 29 (November 20, 2012)). On the other hand, it is in the public interest to expose criminals and prevent crime, and certainly to try and thwart security offenses. Therefore, it is necessary to strike a balance in the constant tension that exists in the Israeli reality, between security and protecting the rights of someone suspected of committing an offense. This tension emerges also in the matter before us – the periods of detention of Palestinians who are residents of the Region.

 

53.As mentioned, the purpose of the laws of detention, including in the Region, is to strike a balance between the public interest of exposing and preventing crime and protecting the rights of the suspect. One must remember that the Region has unique characteristics which derive from the security reality and the essence of the military rule applicable there, from the security needs and from the difficulties of enforcing the law, in light of the absence of Israeli control in part of the area. There is no dispute that constant judicial review of the process of arrest for interrogation purposes is important for the protection of human rights, however the continuity of the interrogation is important for the purpose of realizing the objective of the interrogation: exposing the truth. Exposing the truth quickly and efficiently is especially important when the security of the State and its citizens are at stake.

 

54.The dilemma, therefore, is clear: on the one hand, the conduct of a proper legal procedure is an essential element to secure the proportionality and constitutionality of an arrest for interrogation purposes, and in principle, the appearance of the suspect before a judge should not be regarded as an obstacle, but rather as a fundamental condition for an effective and constitutional arrest for interrogation purposes (CHR 8823/07 Anonymous v. The State of Israel, paragraph 32 (February 11, 2010)). This follows from the customary fundamental approach that judicial involvement is an integral part of the arrest process. It is not "external" judicial review of the arrest, but rather an integral part of the formulation of the arrest itself. This is a constitutional approach that views the judicial involvement in the arrest procedure an essential part of the protection of individual liberties:

 

"The judicial involvement is the barricade against arbitrariness: it is warranted from the principle of the rule of law (see Brogan v. United Kingdom (1988) 11 EHRR 117, 134). It guarantees that the delicate balance between individual liberties and the security of the general public – a balance that lies at the basis of the laws of arrest – shall be preserved (see ADA10/94 Anonymous v. The Minister of Defense, IsrSC 53(1) 97, 105)." (HCJ 3239/02 Marav v. Commander of IDF Forces in Judea and Samaria, IsrSC 54(2) 349, 368 (2003))."

 

The meaning of this is that it is necessary to adjust the interrogation methods to the need to interrupt them at a certain stage of the interrogation in order to allow an effective and fair judicial procedure to take place. An interrogation that takes place over a period of time, when the person being interrogated is in detention and cannot appear before the court and voice what he has to say, could result in disproportionate infringement of human dignity and liberty.

 

On the other hand, we cannot ignore the fact that the security legislation which is the subject of our discussion was created in light of a complex security situation in a territory that is occupied under belligerent occupation (occupatio bellica), that the special security conditions applicable there dictate the determination of arrangements that are different than those that are customary in the occupying state. This reality has, inter alia, resulted in the detention of Palestinian suspects prior to being brought before a judge, for periods of time that are longer than those of Israeli suspects. In this context, it is important to remember, for example, as the Respondents have clarified, that due to the security situation, the ability to move in the Region is limited and that part of the area is under Palestinian control. The security conditions could, therefore, prevent, or delay, the interrogation parties from reaching the arena, and could make the collection of testimony and evidence more difficult. Additionally, according to the Respondents, potential witnesses do not cooperate with the interrogation parties, either due to their sympathy towards the suspects or due to their hostility towards the State of Israel. According to the Respondents this also creates genuine difficulty in interrogations and greatly delays the ability to formulate initial evidence against the suspect. Furthermore, intelligence material that was received has to be used carefully and often it is necessary to wait before using it so as not to give away the source of the information or god forbid risk his life. Additionally, there is an enhanced concern in the Region of fleeing into areas that are under the Palestinian Authority's control, such that it will not be possible re-arrest such person who was released from detention. In such conditions, the interrogation of the detainees is complicated and complex and at times a longer period of time is necessary to exhaust the interrogation before bringing the detainee before a judge.

 

55.As mentioned, the Petitioners claim that the balance between the need to maintain the security of the general public and the State and the need to protect human rights, dignity and liberty, which is reflected in the Security Provisions Order is not the proper balance even after the amendment thereof, while the Respondents request to examine the implementation of that which is stated in the Amending Order before being able to reach any conclusions on the matter. This is the state of affairs in the case at hand. In any case, it appears that the parties to the Petition share the opinion that judicial review is an essential tool for protecting the legality and propriety of the arrest and share the aspiration to shorten the periods of detention of the Palestinian residents of the Region as much as possible and to apply statutory arrangements thereon which are as similar as possible to those that are customary in Israel, in terms of the degree of protection they provide to the suspect's or defendant's rights. This was also the spirit of what was expressed in this Court, when the matter was presented before it in the past. The Supreme Court expressed its opinion and ruled that:

 

"It is time to apply statutory arrangements in the Military Courts which are similar to those prescribed in the Arrests Law in Israel, in order to protect the rights of defendants; all subject to the unique characteristics of the Region. This is the case with respect to dictating periods of a detention from the time of filing an indictment and until the commencement of the trial (Section 60 of the Arrests Law which does not have a corresponding statutory arrangement in the Region); with respect to limiting the period of the detention between the end of interrogation and the filing of an indictment (Section 17(d) of the Arrests Law, a matter which also does not have a corresponding statutory arrangement in the Region); and with respect to shortening the periods of detention prescribed in the security legislation that applies in the Region, as they are significantly longer than those prescribed in the Arrests Law in Israel" (HCJ 10720/06 Farid v. The Military Court of Appeals (February 11, 2007).

 

56.Indeed, a consequence of this aspiration is the changes that were made to the arrangements of arrests of Palestinian detainees who are residents of the Region. During the course of the Petition, the Respondents took far reaching measures with respect to shortening the said periods of detention, so as to make them more similar to the periods of detention customary in Israel. For the sake of good order and in order to clarify the matter, I shall present the changes that were made to the Security Provisions Order since the Petitions were filed, in the following table:

 

 

 

	Previous Law	New Law (the Amending Order)
Initial detention until being brought before a judge for offenses that are not security offenses	Eight days	Minors: 12-14 year olds: 24 hours 14-18 year olds: 48 hours Adults: 48 hours + an option to extend up to 96 hours
Initial  detention until being brought before a judge for security offenses	Eight days	Minors: 12-14 year olds: 24 hours 14-16 year olds: 48 hours 16-18 year olds: 96 hours Adults: 96 hours + an option to extend up to 8 days
Judicial  detention for interrogation purposes prior to filing an indictment	30 days Can be extended for additional periods which shall not exceed 30 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 90 days. Can be extended beyond the 90 days for three additional months.	Minors: 15 days Can be extended for additional periods of up to 10 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 40 days. Can be extended beyond the 40 days for additional periods which shall not exceed 90 days each.   Adults: 20 days Can be extended for periods of up to 15 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 75 days. Can be extended beyond the 75 days for additional periods which shall not exceed 90 days each.
"Bridge Detention" for the purpose of filing an indictment	Unlimited	Eight days
Detention after filing indictment and before the commencement of the trial	Unlimited	60 days
Detention until the end of proceedings in offenses that are not security offenses	Two years Extensions of up to six months each.	Minors: A year Extensions of up to three months each. Adults: A year Extensions of up to six months each.
Detention until the end of proceedings in security offenses	Two years Extensions of up to six months each.	Minors: A year Extensions of up to three months each. Adults: 18 months Extensions of up to six months each.

 

 

 

57.The difference between the new law (the Amending Order) and the law existing in Israel can be seen in the table below:

 

	Initial detention until being brought before a judge	Detention before indictment	Detention until end of proceedings	"Bridge  Detention " for purpose of filing an indictment
In the Region – Offenses that are not security offenses	48-96 hours	20-75 days	A year + extensions of up to six months each.	Eight days
In Israel - Offenses that are not security offenses	24-48 hours	15-30 days	Nine months + extensions of up to three months each.	Five days
In the Region – Security offenses	96 hours – 8 days	20-75 days	18 months + extensions of up to six months each.	Eight days
In Israel – Security offenses	24-96 hours	20-35 days	Nine months + extensions of up to three months each.	Five days
Minors in the Region – 12-14 years old	24-48 hours	15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in the Region – 14-16 years old	48-96 hours	Offenses that are not security offenses: 15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in the Region – 16-18	Like adults: 48-96-8 days	Offenses that are not security offenses: 15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in Israel – 12-14	12-24 hours	20-40 days	Will not be arrested until the end of proceedings	Five days
Minors in Israel – 14-18	24-48 hours	20-40 days	Six months + extensions of up to 45 days each.	Five days

 

58.The tables I have presented above illustrate the significant changes the Respondents made in the matter at hand. For example, the current maximum period of detention until being brought before a judge for offenses that are not security offenses is 48 hours from the time of the arrest, with an option of extension as per the decision of an administrative authority for additional periods which shall not exceed 48 additional hours due to urgent acts of interrogations. In security offenses the maximum period of detention until being brought before a judge is 96 hours from the time of arrest, with an option of extending the detention by 48 additional hours by an administrative party in unusual circumstances, in which the head of the Interrogation Department at the Israel Security Agency was convinced that the interrogation could be substantially prejudiced. In most special circumstances, it is possible to extend the detention by an additional 48 hours (beyond the said six days), when the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation could result in harming the performance of an essential interrogation that is meant to save human lives. The Respondents repeatedly emphasized in their arguments that the new arrangement requires preparations and is scheduled to be reexamined again upon the lapse of two years from the time the Order becomes effective, based on the experience that shall accumulate during such period.

 

59.A significant change also occurred with respect to the matter of minors. We shall remind that before the Petitions were filed, there was no distinction at all between minors and adults in all of the periods of detention in the Region. Today, the age of minority in the Region increased from 16 to 18, and special arrangements were prescribed for minors based on a division into a number of age groups. Order no. 1711 provides that the maximum period of detention until bringing a "youth", i.e. a person who is at least 12 years old by not yet 14 year old, before a judge, both for security offenses and for offenses that are not security offenses, shall be 24 hours from the arrest, with a possibility of extending by an additional 24 hours due to urgent acts of interrogation; and that the maximum period of detention until bringing a "young adult", i.e. a person who is at least 14 years old but not yet 16 years old, before a judge, both for security offenses and offenses which are not security offenses, shall be 48 hours from the time of the arrest, with a possibility of extending by an additional 48 hours due to urgent acts of interrogation.

 

60.As for the definition of security offenses, the distinction between security offenses and offenses that are not security offenses for the purpose of the periods of detention in the Region was made by the Respondents only after the Petitions before us were filed. Therefore, the Petitioners' objections regarding this matter were not raised in their Petitions, but rather only in the framework of responses to the Respondents' update notices. The dispute regarding which offenses shall be defined as security offenses, is directly and closely linked to the reliefs that were requested in the Petitions, and in fact is a consequence of these reliefs. Indeed, we found it appropriate that the Respondents consider our remarks in the hearing that was held in the Petitions, inter alia, regarding the question whether it is proper to relate to the security offenses as one assemblage rather than excluding some of them from the Order's definitions. Consequently, the Respondents removed a third of the security offenses listed in the list in the Addendum of the Security Provisions Order and this is to be welcomed. If and to the extent the Petitioners still have objections regarding the offenses listed in the Addendum, they are entitled to voice their objections separately and it is inappropriate to further discuss this matter in the framework of the Petitions before us, which already encompass many matters.

 

61.Now, therefore, the staff work that was performed jointly with the Ministry of Justice and the Prime Minister Office produced a welcome change in the periods of detention listed in the Security Provisions Order. The change is meant to reduce, as must as possible, the infringement of the rights of the Palestinian detainees. There is no doubt that the State came a long way and significantly and even dramatically shortened the periods of detention applicable to the Palestinian residents of the Region. It is worthy to note the many discussions and long meetings that the State held with the IDF and the Ministry of Justice, together with other government ministries, until reaching the results which are expressed in the Amending Order (and in this respect, the Petitioners' achievements are invaluable. Their efforts to shorten the periods of detention of the Palestinian residents of the Region, bore significant fruit and are commendable).

 

62.So, considering the differences that stem from the different conditions between Israel and the Region, and in light of the dramatic changes that were just recently made, the "on site" implementation of which must be examined over a period of time – we are of the opinion that the current detention periods which were prescribed for adults, who are suspected of committing security offenses, in the time period before the filing of an indictment – are reasonable and proportionate, and therefore there is no cause for our involvement in this context at the current time. We shall mention that the Respondents requested to examine how the system adjusts to the changes that were made in the Security Provisions Order over a reasonable period of approximately two years, and it is presumed that upon the lapse of the period and in accordance with the on-site reality, the option of further shortening the mentioned periods of detention shall be reconsidered. We therefore assume that the Respondents' policy shall be re-examined from time to time in accordance with the security situation assessments and that if and to the extent it shall be possible to formulate reliefs these shall be applied in the future by the Respondents accordingly, and the periods of detention prescribed in the Amending Order shall be further shortened. Obviously, the Petitioners have the option of voicing their objections regarding the mentioned periods of detention, also upon the lapse of the "adjustment period".

 

63.Having said that, and without making light of the efforts the Respondents exerted and the important changes they made following the filing of the Petitions, we are not comfortable with three central matters (which partly overlap): Firstly, the periods of time in which Palestinian minors who are residents of the Region can be detained. Indeed significant changes were also made with respect to the population of minors, as specified above, however, in light of the special caution and sensitivity that must be applied towards people who are not yet adults, we are of the opinion that it is necessary to continue to monitor what is being done in their matter. The second matter that is not yet exhausted in the current Petitions is the periods of detention that was prescribed for Palestinians who are suspected or accused of offenses that are not defined as security offenses. The reasons presented in the Respondents' response, in its various stages, did not convince us of the need for such long periods of detention for "ordinary" criminal offenses. This is true also with respect to the third matter of detention until the end of proceedings of both minors and adults, in security offenses and offenses that are not security offenses (including detention after filing an indictment and prior to the commencement of the trial, which is currently 60 days). The circumstances and constraints which the Respondents indicated, by virtue of which more extended periods of detention are required in the Region, relate primarily to the stage of interrogation and collection of evidence and not to the stage of conducting the trial, after the indictment has been filed. In light of these difficulties, we considered issuing an order nisi with respect to the three mentioned matters, however at this stage we decided to leave the Petitions pending and to instruct the Respondents to reconsider how to advance these matters and give notice to such effect in the form of an update notice which is to be filed by September 15, 2014.

 

In summary, in all that relates to the maximum periods of detention for adults suspected of committing security offenses, at the stage before an indictment is filed; and in the scope of the offenses defined as security offenses – the Petitions are denied without an order for expenses (subject to that stated in paragraphs 60 and 62). However, in all that relates to the periods of detention of minors, the periods of detention of adults in offenses that are not security offenses; and the period of detention until the end of proceedings (of minors and adults, in all classifications of offenses) – the Respondents shall, as mentioned, file an update notice by September 15, 2014.

 

Given today, 6^th of Nissan, 5774 (April 6, 2014).

 

 

Justice                                     Justice                                                 Justice

 

In the Supreme Court as High Court of Justice

 

HCJ 6971/11

 

Before:                                    The Honorable President A. Grunis

                                    His Honor Justice N. Hendel

                                    His Honor Justice Z. Zylbertal

 

The Petitioner

 

                                    1.         Eitanit Construction Products Ltd.

 

                                    v.

 

The Respondents:

 

                                    1.         The State of Israel

                                    2.         The Knesset

                                    3.         Minister of Environmental Protection

                                    4.         Minister of the Treasury

5.         Mate Asher Municipality

                                    6.         Israel Union for Environmental Defense

                                    7.         Association for Quality of Life and the Environment in

Nahariya

 

                                    Petition for Temporary Injunction and Interim Order

 

Date of session:           23th Elul 5772; October 9, 2012

 

                                    Adv. Pinchas Rubin

                                    For the Petitioner

 

                                    Adv. Sharon Rotanshker

                                    For Respondents 1, 3-4

 

                                    Adv. Avital Semplinski

                                    For the Second Respondent

 

                                    Adv. Eitan Maimoni

                                    For the Fifth Respondent

 

                                    Adv. Keren Halperin-Mosseri

                                    For the Sixth Respondent

 

                                    Adv. Moshe Goldblat

                                    For the Seventh Respondent

 

 

 

 

Judgment

 

Justice N. Hendel

1.A petition against the constitutionality of section 74 of the Prevention of Hazards from Asbestos and Harmful Dust Act, 2011 (“Asbestos Act”) is before us. This section declares the launch of a project to remove asbestos waste from the Western Galilee (“The Project”). The petition objects primarily to the requirement that the Petitioner, Eitanit Construction Products Ltd. (“Eitanit”), to shoulder half of the expenses of the project, up to NIS 150m.

General Background – Asbestos:

2.Asbestos is an umbrella term for a group of fiber minerals, with high insulation and resilience properties. Because of these qualities, for hundreds of years asbestos has been widely used for industrial purposes, such as producing protective gloves and other gear, acoustic insulation boards and more.

Currently, it is known that crisp asbestos, that is: asbestos in ground or powder state, is a dangerous substance that may cause cancer. Crisp asbestos releases tiny fibers into the air, which enter the respiratory system and harm lung tissue. Among the first diseases recognized as linked to asbestos was asbestositis: the shrinking and scarring of lung tissue, which causes shortage of breath and a decline in lung functions. Another disease is mesothelioma: a cancerous tumor that harms the lungs, heart and abdomen.

The petition before us, as will be explained below, deals with a material called asbestos-cement. It is a compound made of approximately 10% asbestos and 90% cement, in hard from. Out of this asbestos-cement mixture products such as pipes and boards may be manufactured. As long as the asbestos-cement remains in hard from, the asbestos fibers are contained in the cement. This may change when the asbestos cement – or the product manufactured from asbestos-cement – is eroded, cracked or broken, then the dangerous asbestos fibers are released into the air.

Awareness of the dangers of asbestos has grown over time. As early as the beginning of the 20^th century, information about the prevalence of asbstositis among workers exposed to asbestos has accumulated. Later reports proliferated about different cancers among asbestos workers. In 1976, after a comprehensive examination of the scientific material, the International Agency for Research of Cancer (IARC) recognized asbestos as a substance certain to cause cancer in humans (Class I). Additional research indicated that health risks were caused not only to asbestos workers but to those who live in close proximity to asbestos mines, as well as family members of asbestos workers (generally, for an updated review of asbestos risks by IRAC, see Monographs.iarc.fr/ENG/Monographs/vol100C/mono100C-11.pdf)

The Petitioners and the Asbestos Industry

3.In 1952 Eitanit set up an asbestos-cement factory in the Nahariya area (“the factory”). Work in the factory included two stages: in the first stage, the factory imported raw asbestos to Israel and made asbestos-cement out of it. In the second stage, final asbestos-cement products, such as pipes and boards, were manufactured. The factory was closed in 1997.

Over the years, and during production processes, a significant amount of industrial asbestos waste was amassed in the factory (“the waste”). Eitanit disposed of the waste in two ways: one, it sold or gave away the waste to third parties, which I will refer to as end users, that used the waste primarily for surfacing, for instance to pave roads or parking lots. Second, Eitanit buried the waste in the ground. The first method of removing the waste – that is, selling or giving it away, probably stopped around the late 70’s.

In any event, the waste was distributed in dozens of locations around the Western Galilee. Both the waste that was buried and the waste that was used for surfacing risks area residents’ health to this day. The waste is partly crumbled, causing asbestos fibers to be released into the air. Additionally, the daily use of the surfaces which were covered with asbestos uncovers masses of crisp asbestos and create a health hazard. Surveys commissioned by the State revealed that the asbestos waste distributed in the Western Galilee amounts to about 30,000 cubed meters and the State evaluates that the clean soil that was polluted by this waste amounts to about 150,000 cubed meters The Petitioner, however, believes that the ratio between the waste and the polluted soil is 1:3, not 1:5.

The Previous Proceedings Regarding the Petitioner:

4.The petition before us deals, as mentioned, with a project to remove asbestos waste that arguably came from Eitanit’s factory. But this is not the first round of proceedings on this matter between Eitanit and State authorities.

As some point, Eitanit began to remove some of the asbestos waste to a site within Shlomi municipality (Hanita mine), without permit or license to do so. In 1981 the Ministry of Health demanded Eitanit cease from this practice and the site was closed. Consequently, Eitanit buried waste at the Sheikh Danon site, also without permit or license. In March 2002 the Ministry of Environmental Protection (“the Ministry”) issued conditions for temporary permits that would allow restoring the site at Sheikh Danon. In a petition by Eitanit against the Ministry, which was dismissed, the court pointed out that the demand to require Eitanit shoulder the cost of the site’s restoration is “natural and obvious” (AP 589/02). Ultimately, in 2003, after additional legal proceedings, the Sheikh Danon site also closed.

In 1998, after the factory was shut down, the City of Nahariya initiated a project to build an amusement park called “The Children’s Land.” The park was meant to be located on the beach, adjacent to the closed factory. When it was revealed that the area was polluted with asbestos, the Ministry issued a decree to preserve cleanliness, according to section 13b of the Maintenance of Cleanliness Act 1984. The City of Nahariya announced it would clean the area from asbestos, and consequently sued Eitanit for reimbursement of costs. In 2007 the dispute between the City and Eitanit regarding that area was settled.

In 2005 the Minister of Environmental Protection (the Minister) met with representatives of Eitanit and of the City, in an attempt to reach an agreement for co-funding asbestos waste removal from the Western Galilee. The attempt failed. In May 2007 negotiations between the parties resumed. Eitanit proposed, among others, that it remove the waste on its own. In November 2008, the Ministry notified Eitanit of a decision that the State would no longer facilitate a mutual agreement.

In December 2008 the Asbestos Act memorandum was distributed. The Act aimed to resolve a whole host of environmental issues around asbestos hazards in Israel. Among others, the Act included a specific section that addressed the project of removing asbestos waste from the Western Galilee. This is section 59 of the bill, which eventually became section 74 of the final Act and is the section at the center of this petition. We will address the Act and the section in further depth. Briefly, the section required Eitanit to fund half the project to remove asbestos waste from the Western Galilee. In 2009 the bill passed its first reading, and was referred to the Interior Committee and the Environmental Protection Committee. Eitanit’s representatives attended the committee’s meetings, and presented their arguments against the proposed arrangement. In March 2011, the bill passed its second and third readings.

Simultaneously, the Ministry published a tender to select a corporation that would manage the removal project. Negotiations were conducted with Eitanit, along with others, and in December 2009, it proposed participating in the project at the cost of NIS 10m, a sum that was later updated to NIS 15m. There were big gaps between parties regarding calculating costs, including due to different estimations of the amount of soil polluted and of the cost of removal. In November 2010, when the negotiation was complete, the Ministry of the Treasury notified Eitanit that its financial proposal for the project was rejected and Eitanit responded by withdrawing the proposal altogether.

In June 2011, after the Act’s publication, Eitanit complained to the Minister of Environmental Protection that section 74 creates extraordinarily important constitutional problems. It suggested the Minister institute regulations that would prevent, or at least reduce, the infringement of Eitanit’s rights. In response, the Minister emphasized that the constitutional issues were already discussed comprehensively and thoroughly before the bill passed. Later, in August 2011, the Minister provided Eitanit with a draft of instructions for implementing section 74 for its review. The draft did not satisfy Eitanit, and correspondence between the parties continued. Eventually, in September 2011, the Minister signed the final version of the instructions. Once Eitanit concluded it had exhausted the proceedings to temper section 74, without a satisfactory minimization of its harm, it filed the petition before us.

On the Prevention of Hazards from Asbestos and Harmful Dust Act (Asbestos Act)

5.The Asbestos Act was designed to reduce the environmental and health hazards caused by asbestos or by other harmful dusts. The purpose is ensuring an adequate environment under the principle of preventative care and the improvement of quality of life and the environment (section 1).

The Act expressly prohibits manufacture, import, possession and use of asbestos in any way and for any purpose, unless permitted by the Act (section 3). The Act regulates the continual use of existing asbestos in public places and factories (sections 4-8). The Act prohibits anyone from creating an asbestos hazard, that is: causing the existence of asbestos fibers in the air, and requires the creator of the hazard to remove it at their own expense (sections 10-11). The Act also regulates methods for handling asbestos, including the granting of licenses and working with asbestos (chapters E-F). There is also an option to apply several of the Act’s provisions to other materials that may be defined as harmful dust (section 71).

Section 74 was designated to address the asbestos hazards in the Western Galilee. This is the section the petition before us focuses on. The language of the section is as follows:

“(a)            In this section –

“the project to remove asbestos from the Western Galilee” – a project to locate, remove, and bury asbestos waste which originated from a factory for asbestos manufacture in the Western Galilee, which was buried or distributed in a radius of up to 15 KM from the factory, except for land owned by asbestos companies, at an extent and measures instructed by the Minister in consultation with the Minister of the Treasury, and as it pertains to the funding aspects of the project, with the consent of the Minister of the Treasury;

“Asbestos Companies” – companies that manufactured asbestos in the Western Galilee prior to the day this Act came into effect.

(b)              The project of asbestos removal from the Western Galilee will be funded through the State budget, payments from asbestos companies, and payments from local authorities within whose jurisdiction the project will take place (“local authorities”).

(c)              A separate account will be managed in a trust to preserve cleanliness and will be used to fund costs, direct or indirect, of the project for asbestos removal from the Western Galilee (in this section – “the separate account”).

(d)             The Minister, with the Minister of the Treasury’s consent, after providing the local authorities and the asbestos companies the opportunity to present their arguments, will order the sums that the local authorities and the asbestos companies will transfer into the separate account and the schedule for payments, as long as the entire sum from asbestos companies will be equal to the entire sum from the state budget and the local authorities combined. However, the entire sum from the asbestos companies may not exceed NIS 150m.

(e)              While setting payment sums and schedules according to section (d), the Minister will consider, among others, the scope of the state budget dedicated to funding the project generally, the sums already actually expended, and regarding local authorities – the identity of property rights holders in the land where asbestos is found, the use of these lands and the extent of the authorities’ responsibility over them, as well as the local authorities financial state.

In other words, a project for the removal of asbestos waste from Eitanit’s factory that was buried or distributed in a radius of up to 15 KM from the factory would be launched. In this regard “asbestos waste” includes asbestos that was broken, cracked or fractured, or broken as well as asbestos that is unused (as defined in section 2). It should be noted that the statute does not explicitly mention Eitanit’s name, but instead uses general language – “asbestos companies” and “a factory for asbestos manufacture”. Still, as will be clarified below, there is no dispute that the statute in effect targets only Eitanit and its factory; it is the only company in the Western Galilee area that manufactured asbestos.

The project would be funded from three budgetary sources: the State, the local authorities in whose jurisdiction the project will take place, and Eitanit (who, as mentioned, is not explicitly mentioned by name in the section.) The Minister will establish the extent and process of the project. Additionally, the Minister will set the sums that the local authorities and that Eitanit will transfer, once their arguments are heard. Setting the amounts of participation is subject to two restrictions. First, the sum that Eitanit transfers will be equal to the total sum the State and the local authorities transfer, combined. Second, the sum Eitanit transfers must not exceed NIS 150m.

In September 2011 the Minister signed the implementation instructions. They stipulate that the project will take five years, and will be executed by a managing company chosen by tender. A local authority’s participation will be calculated as 10% of the removal cost, through equally valuable operations, including restoration. To set the sums required from Eitanit, the company will receive itemized reports of expenses every three months, along with a detailed report of the sites where the removal was done and the amount of waste removed. Eitanit will have 30 days to respond to each bill (annexure 20 to the State’s responding papers.)

The Parties’ Arguments

6.Eitanit claims, in essence, that section 74 infringes its right to property and rights to equality, without passing the conditions of the limitations clause.

The infringement on property rights manifests in the very imposition of financial burdens, exacerbated by the severe and retroactive responsibility without demonstrating fault or liability. The infringement of equality was caused by discriminating against Eitanit compared to others – asbestos importers, end users and future polluters – who have been partially or fully absolved from any liability regarding asbestos waste.

The infringement of property and equality does not pass, as the argument goes, the tests set by the limitations clause. It is not an infringement or restriction by statute, as this is personal legislation. It is not for a worthy purpose that befits the values of the State of Israel, as Eitanit was retroactively tainted as a lawbreaker without evidence it actually did pollute the land. And finally, the infringement is not proportional: the statute does not advance the end of channeling the conduct of offenders or to deter them, so that there is no rational connection between the ends and the selected means. Other less restrictive means were available, for instance: allowing Eitanit to execute the project on its own or valuing its participation in funding the project according to the extent of its liability. In any case, the benefits of this section are minimized compared to the harms caused to Eitanit.

Ultimately, Eitanit asks we void section 74. Alternatively, it suggests other remedies, in the following order of preference: directing the Minister to set regulations that would de facto release Eitanit from the mandates of section 74, allowing more proportional means (such as paving paths or performing other aspects of the project by Eitanit), directing the Minister to hold a proceeding where Eitanit could be heard and the Minister would be able to consider the extent of its liability regarding the entire area effected by the project.

7.The State emphasizes that section 74 is designed to apply only to industrial waste that resulted from Eitanit’s factory’s operations. It does not apply to complete asbestos-cement products that were purchased by end users and then disassembled and discarded, but only to the waste that Eitanit produced.

The State is willing to assume that the statute infringes upon Eitanit’s property rights. However it disputes the infringement to the right to property: it raises misgivings as to whether the right to equality should apply to corporations, and argues that in any case Eitanit’s right to equality was not infringed here as there is a relevant difference between Eitanit and the other entities it had identified.

The State continued its constitutional analysis on this foundation. The infringement is by statute, albeit personal legislation. The infringement is for a worthy purpose – the removal of serious environmental hazard in the Western Galilee. The statute relies on the principle of “the polluter must pay” that derives from rationales as efficiency, deterrence, and justice. As for the issue of proportionality, there is an obvious connection between the ends – cleaning the Galilee from asbestos waste, and the means – launching the project. The mean selected is mild, as Eitanit shoulders only about half of the project’s cost, and in any case no more than NIS 150m. The proposal that Eitanit itself will clear the land was discussed between the parties for a long period of time, but turned out to be impractical and ineffective. Finally, the benefit derived from the statute (eliminating proven health risks) far outweighs the harm caused to Eitanit, if any.

8.Many of the sites intended for waste removal are located within the territory of the local authority of Mate Asher, the Fifth Respondent. In its response to the petition, the local authority emphasized that Eitanit turned a substantial profit from selling asbestos-cement waste, though it knew in real time, or at the very least should have known – about the dangerous outcomes of asbestos exposure. The local authority additionally notes that the basic rights on which Eitanit hangs its hat, if any, should yield to the rights to life and to bodily integrity of those actually and potentially harmed by asbestos.

The Sixth and Seventh Respondents are public non-governmental organizations active in environmental preservation and protection. They reiterate that the statute was born out of all the failed attempts to consensually address Eitanit’s financial liability. In this regard, the Respondents refer to the principle of extended producer responsibility (EPR), which would have manufacturers responsible for their products’ environmental impact during the entire life cycle of the product. This principle is applied in different contexts in many of the OECD states, an organization of which Israel is now a member.

9.To paint a complete picture, we should note that on October 9, 2012 a hearing was held for this petition. At the end of the hearing we ordered the parties to notify the Court, within 60 days, whether a settlement was possible. On November 16, 2012, the Respondents notified the Court that they believe any arrangement different to that which the legislature mandated in section 74 would be inappropriate. We must therefore rule on this petition.

It should also be noted that Ms. Ayelet Bruner has moved to join as respondent. As the motion explains, her husband – a resident of Kibbutz Kabri, which is adjacent to the factory – died of mesothelioma due to asbestos dust exposure, and Ms. Bruner has therefore filed a tort suit against Eitanit and the State. Ms. Bruner argues that she holds additional evidence that Eitanit and the State notified here at the relevant times about the risks of asbestos. Under the circumstances her arguments were included, explicitly or implicitly, in the other parties’ arguments, and thus we do not believe it appropriate to formally join her to the petition.

Discussion and Ruling

I. Comparative Law

10.The issue before us is universal. It stems from the connection between humanity and the land. In more detail, it is a result of the conflict between humanity’s desire to control the environment and the cost of this progress.

The dialectics that arise because of humanity’s ambition to develop and evolve is addressed in Jewish law, and is timeless. Its roots can be found in the first human himself. In the Book of Genesis, man is commanded: “be fruitful and multiply and inherit the earth” (Genesis 1, 28). In his monumental manifest, “The Lonely Man of Faith,” written almost 50 years ago, Rabbi Yosef Dov Halevi Soloveitchik mentions that in the beginning of the Book of Genesis there are two descriptions of the creation of man to emphasize his two facets. The first man, described in chapter 1 of Genesis, about whom it was said that he was “created in God’s image” (Genesis, 1, 27), is creative. “He engages in creative work, trying to imitate his Maker … In doing all this, Adam the first is trying to carry out the mandate … "to fill the earth and subdue it." … man’s dignity, manifested in man’s awareness of his responsibility and ability to fulfill his duty, cannot be realized as long as he does not control his surroundings… there is no dignity without responsibility, and one cannot shoulder responsibility as long as one cannot fulfill the commitments involved… we have obtained the following triple equation: human dignity-responsibility-majesty.” (The Lonely Man of Faith, J.B. Soloveitchik, Tradition Magazine (summer 1965), Rabbinical Council of America. Hebrew translation by Mossad HaRav Kook Publishing, 8^th edition, 2002, pp. 13-18.) Control over the environment – a mixed blessing. In conquering nature, humanity is impressive in its creativity and progression from one generation to the next. However, its comprehension is limited. Humanity cannot know, at the same time it controls the environment, what toll this “progress” may take.

Jewish law was even sensitive to this aspect. The rule is – do not destroy (Talmudic Encyclopedia, volume 3, under “do not destroy”, in Hebrew – “Bal Tashchit”.) Originally, the prohibition is on destroying fruit-bearing trees during a wartime siege: “should you siege a city many days in order to fight and conquer, you shall not destroy its trees.” (Leviticus 20, 19-20). However, Jewish law’s sages interpreted the prohibition broadly. The Book of Education (=Sefer ha-Chinnuch), that summarizes all 613 commandments (authored in the 13^th century, likely by Rav Aharon Levi of Barcelona), explains the reasons and application of this commandment:

“The root of the commandment is known to be teaching us to love good and utility and stick to it, and in turn good will stick to us and we will distance from all evil and destruction. It is a way of the pious and men of action, peace lovers, those who rejoice in the good of people and bring them closer to the Torah, who will lose not even a mustard seed, and will grieve any loss or destruction that they come across, and if they could they would rescue anything from ruin with all their might.” (Torah portion of “Judges” [=Shoftim].)

Rav Shneor Zalman of Lyadi, (founder of Chabad Russia in the 18^th century) believes the “do not destroy” prohibition applies even to the abandoned:

“Just as one must be careful of loss, damage or harm to one’s body, so must he be careful of loss, damage or harm to his funds. And anyone who breaks tools or clothes or demolishes a building or clogs a pool or discards food or spoils anything else that should be enjoyed by people is violating the commandment ‘do not destroy’… even if abandoned.” (Shulchan Aruch Harav, Choshen Mishpat…)

Therefore the matter is not preserving the property rights of others in the private sense, but of the environment as a right to property.

The above functions as normative background to the issue at hand. In recent years, all around the world, countries have been required to face different dilemmas regarding the environment. A significant portion of these dilemmas incorporates legal, economical and moral aspects, among others. Among these, the removal of polluting waste – the issue at the core of this petition – is a matter that carries real weight. Asbestos, specifically, has proven to be a strong, efficient material, with many uses. Over time, its harm was discovered to tremendously outweigh its utility.

Since the 20^th century, different countries have faced the problem of cleaning the environment from asbestos, determining who must shoulder the burden of implementing and funding the task. Therefore, I found it fit to turn to the relevant legal framework in several key countries overseas. Of course, we should not automatically apply those here. But because of the universal character of the issue before us, I believe there are benefits to paying attention to legal trends in the world. It should be noted, before presenting the legal situation in other countries, that the legislation I mention applies to asbestos as part of a broader group of polluting or dangerous materials.

11.In 1980 the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was passed in order to address environmental hazards. CERCLA was designed to regulate the removal of polluting materials from dangerous waste sites that were abandoned or stopped operating. It places the obligation to fund the cleaning process on the creator of the hazard (see Karen S. Danahy, CERCLA Retroactive Liability in the Aftermath of Eastern Enterprises v. Apfel, 48 B 509, 530 (2000)). Below we focus on two elements of CERCLA that are particularly pertinent to the case at hand: strict liability and retroactivity.

The case law has found CERCLA to establish strict liability. There is no question whether, and to what extent the hazard creator violated its duty of reasonable care or is in any way blameworthy for the risk it created. Therefore the creator of the hazard will be liable even without proof that a duty of care was not fulfilled (Alexandra Klass, From Reservoirs to Remediation: The Impact of CERCLA on Common Law Strict Liability Environmental Claims, 39 Wake Forrest L. Rev. 903 (2004) and see Israel Gilad, Tort Law – Liability’s Limits, 1190 B.H.S. 167 (2012), which addresses the distinction between strict liability and absolute liability, where the latter “is not subject to any defenses.”) Although the principle of strict liability was not written explicitly into CERCLA, the case law found that the legislative history – including minutes from committees and general discussions in the House of Representative and Congress – reveal this was the legislature’s intent (see New York v. Shore Reality Corp., 759 F.2d 1032, 1042 (2^nd Cir. 1985); General Elec. Co. v. Litton Indus. Automation Sys. Inc., 920 F.2d 1415, 1418 (8^th Cir. 1990); Burlington N. Santa Fe Ry. V. United States, 556 U.S. 599, 608 (2009)).

The strict liability standard did not appear out of nowhere. At common law, strict liability is a prevalent standard for particularly dangerous tortuous activity. A British judgment from the 19^th century, Rylands v. Fletcher, considered a water reservoir that exploded and flooded a neighboring coalmine (Rylands v. Fletcher, L. R. 3 H.L. 330 (1868)). The House of Lords held the defendant liable, though no negligence by him was proven, because the reservoir was found to be “likely to do mischief if it escapes.” Nowadays, the second and third Restatement of Torts notes that whoever conducts abnormally dangerous activity will be liable for damages resulting from that activity, even if maximal precautions were taken (Restatement (Second) of Torts § 519(1) (1977); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 20 (2010)). This is the historical-legal foundation from which CRECLA’s strict liability standard stems.

Based on the legislative history, the case law and the scholarship presented about CERCLA, another reason for strict liability arises: conventional legal methods have failed to combat the occurrence of polluting waste. This reason, which is rooted in the legal realism school of thought, has helped to shape legal policy. Among other considerations in favor of placing strict liability are reasons of justice: in the absence of blameworthiness, it is justified to place a risk on the party who created that risk and has financially benefited from it (Lynda J. Oswald, Strict Liability of Individuals Under CERCLA: A Normative Analysis, 20 B.C. Enntl. Aff. L. Rev. 579 (1993)). While the legislation has been opposed for placing liability without fault, the position that allocating costs to the polluter was found to outweigh placing those costs on all of society. This was also due to the link between the polluter and harm, both in terms of creating that harm and in terms of profiting from it.

From another perspective, one might ask what is the economic benefit in placing liability without fault? Where is the deterrence in this? The answer is in the distinction between cost internalization and cost externalization. Under this theory, whoever handles material that pollutes or is likely to pollute should consider the possibility of strict liability. To reduce potential future costs, such party would initiate from the get-go research and experimental activity the produce a more cost-effective and environmentally friendly product, or at least one that has less potential for harm. The polluting party, who has expertise and capabilities, is in a better position to take such preventive measures. Under this approach, it is strict liability that creates deterrence (for more, see Mark Wilde, Civil Liability for Environmental Damage: A Comparative Analysis of Law and Policy in Europe and the United States (2002); Lucas Bergkamp, Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context (2001)).

As mentioned, CERCLA imposes liability even on whoever produced and distributed dangerous materials before the legislation’s enactment, though this activity was permissible at the time. CERCLA had to face facts already on the ground. In this context, too, the American statute did not explicitly create retroactive liability. American law, it should be reiterated, includes a rebuttable presumption that legislation does not apply retroactively, unless the legislative intent was clearly different (Landsgraf v. Usi Film Prods., 511 U.S. 244 (1994); Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). However, the case law recognized CERCLA’s retroactive application, realizing this was clearly the legislative intent. It was understood from the statute’s language, its history and the payment mechanisms it established (U.S. v. Hooker Chem. & Plastics Corp., 680 F. Supp. 546 (W.D.N.Y. 1988); U.S. v. Olin Corp., 107 F.3d 1506 (11^th Cir. 1997)).

CERCLA’s retroactive application survived judicial review. The case law held that this aspect of the statute did not violate due process, because of its rational and legitimate purpose to clear sites that are no longer in operation of their dangerous waste. Additionally, the legislation was not arbitrary or irrational because it burdened the entity that polluted and profited from that pollution (U.S. v. Ne. Pharm. & Chem. Co., 810 F.2d 726, 732-34 (8^th Cir. 1986)). The case law found that without retroactive application achieving the legislation’s purpose – cleaning existing waste – is impossible. We should note the similarities between these tests to those in Israeli law’s limitation clause.

12.In 2004, a directive was passed by the European Union (“EU”) regarding the liability for environmental harms: Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage (ELD). The core principle of the directive is “the polluter must pay” – whoever caused environmental harm through their actions must shoulder the financial consequences.

The ELD’s instructions do not require EU member states to set retroactive application. Put differently: liability applies to environmental damage even if it occurred before the statutory prohibition came into effect. As to the scope of liability, the ELD directive distinguishes between categories. The first is that of strict liability and it applies to harm caused by dangerous activities listed in the directive’s third appendix. The second category is of fault-based liability, and it applies to all other activity that may have caused harm to nature reserves or protected animal species. Notably, earlier versions of the directive expressed support for broader application of strict liability. In 1993 the Commission issued a “green document”, a non-binding working paper of sorts, that detailed the justifications for a strict liability standard for environmental damage (Commission Green Paper on Remedying Environmental Damage (COM 1993) 47 final (May 14, 1993)). Consequently a semi-binding principles document, a “White Paper” was issued in 2000 (Commission White Paper on Environmental Liability (COM 2000) 66 final (Feb. 9, 2000)). This document discussed at length the evidentiary challenges of a fault-based standard, which may be resolved by a strict liability standard, and argued that there is greater level of justice in imposing strict liability on polluters. Additionally, the doctrine of cost internalization was emphasized as a measure of deterrence.

In reality, European countries adopted various approaches (on the legal state in Europe, see: Chris Clarke, Update Comparative Legal Study (2001); Robert v. Percival, Katherine H. Copper & Matthew M. Gravens, CERCLA in a Global Context, 41 SW. L. Rev. 727 (2012); N.S.J. Koeman, Environmental Law in Europe (1999). Sweden imposes strict liability for any pollution that harms or may harm people and the environment (Sweden Environmental Code, 1998). Such is the law in Switzerland, which is not a member of the EU (Environmental Protection Act of 1983, §4), and in France (Percival, Cooper & Gravens, 740). Holland distinguishes between two pieces of legislations: the statute from 1982 (Soil Clean-up (Interim) Act of 1982) applies retroactively from 1975 onward, because a polluter from that date forward ought to know it may be liable for its actions. This means that should the state remove pollution created after 1975, it may demand the polluter to shoulder costs, as held by the Holland Supreme Court (State v. Van Wijngaarden and State v. Akzo Resins (24.4.1992)). The legislation from 1994 focuses on administrative orders for removal of hazards. The agency employs this legislation, with a degree of success, to order a polluter or landowner to remove pollutions created before 1975. There is also a mechanism of environmental insurance shared by Dutch insurance companies (Nederlandse Milieupool), which aims to provide coverage, including for costs incurred by removing pollution, through direct payments to end users (Percival, Cooper & Gravens, 744; Wilde 203). In Spain, the relevant statute (Wastes Law tit. V (B.O.E. 96, 1998)) places responsibility for cleaning the polluted site on the polluter. This is retroactive and strict liability. In 1998 Germany adopted the federal statute that regulates protection of land from pollution (The Federal Soil Protection Act). The Act establishes strict liability, but the scope of actual compensation may be reduced according to the extent of the polluters’ liability. In Finland, new legislation from 2000 (Environmental Protection Act) applies strict liability on any kind of pollution, but not retroactively. The situation in Britain is highly similar to the legal situation in the United States under CERCLA. The British Environmental Protection Act of 1995 imposes retroactive strict liability for removal of hazards, regardless of the time the pollution was created and without an exhaustive list of polluting materials.

In Canada, relevant environmental legislation is not federal. Generally, legislation in most of Canada’s provinces is based on the principle of “the polluter must pay” while adopting strict liability standards. In Saskatchewan, legislation imposes strict liability to remove hazards on their creator (Environmental Management and Protection Act). In Nova Scotia, anyone who releases polluting material into the environment is obligated to reverse the pollution and remove the polluting material (Nova Scotia Environment Act, 1994-1995 S.N.S., ss. 67(2), 68(2)). The most restrictive standard of liability is that of British Columbia (Environmental Management Act, S.B.C.). This statute requires the manufacturer of a dangerous material, or anyone interested in that dangerous material’s removal, to remove it, as well as places retroactive strict liability upon them for the removal and rehabilitation of the polluted area. The statute clarifies that this obligation applies even when no legislation prohibited pollution at the time the pollution was created.

The Constitution of South Africa guarantees the right of each person to an environment that is not harmful to health or welfare (S. Afr. Const. §24(a), 1996). Following this right, South Africa’s National Environmental Management Act of 1999 (NEMA) requires anyone who has polluted or harmed the environment to remove that hazard and rehabilitate the damaged area. The statue does not explicitly establish strict liability, but the South African High Court (Transvaal Provincial Division) ruled that strict liability applies to owners of polluted land. However, the court ruled that the legislation is not retroactive as the legislature did not intend as such (Chief Pule Shardrack VII Bareki and Others v. Gencor Limited and Others (2005)). 

13.To end this part, let us recall that the environmental policy termed “Extended Producer Responsibility” (ERP) is widespread in Europe. This policy aims to extend the manufacturer’s liability to a product’s entire life cycle, even after the product is out of the manufacturer’s possession, or is no longer in use. It is rooted in the expectation that a more suitable policy would incentivize manufacturers to factor in, as early as when a product is being designed, environmental concerns such as improving the prospects for recycling the product, reducing the use of materials, etc. (see an overview by the OECD: www.oecd.org/env/tools-evaluation/eprpoliciesanIsrSCroductsdesigneconomictheoryandselectedcasestudies.htm).

In practice, the EPR doctrine brings different policy tools together: burial tolls, deposits, subsidies, and other taxes. Therefore, for example, in 1994 the EU issued a directive regarding packaging waste. The directive regulates manufacturing packages, as well as sets quantity goals for collecting and recycling packaging waste (for more on implementing the EPR policy in European Union countries see: Aaron Ezroj, Extended Producer Responsibility Programs in the European Union, 20 Colo. J. Int’l Envtl. L. & Pol’y 199 (2009)).

14.In summary, the overview above reveals different and similar components. As far as imposing strict liability on the polluter, a consensus emerges, certainly regarding inherently dangerous materials such as asbestos. Of course there are countries that have tied the extent of that strict liability to the level of fault. As for retroactive application, it appears there are different approaches: those who support retroactive application and those who oppose it. The implication of this review on our case will be clarified below.

II. Constitutional Analysis

15.We now turn to examining the constitutionality of section 74 in Israeli law. First we must consider the rights Eitanit argues were violated. Then we may discuss whether that violation, if any and to what extent, passes the tests established in the limitation clause of section 8 of Basic Law: Human Dignity and Liberty.

A. The Violated Rights

(1). The Right to Property

16.The right to property is enshrined in our law in section 3 of Basic Law: Human Dignity and Liberty. This right is accorded to corporations as well (see HCJ 4885/03 Israel Poultry Farmers Organization, Cooperative Agricultural Union Ltd. v. the Government of Israel, IsrSC 59(2) 14, (2004) at para 41 of Justice Beinisch’s opinion and citations there.)

The State agrees that section 74 infringes Eitanit’s right to property. In any event, this point needs no elaboration. I will only remark that according to Eitanit its property rights are violated not only by imposing financial obligations, but also by imposing a seemingly retroactive obligation without examining whether Eitanit is at fault. I will address these to aspects of section 74 in depth below.

(2) The Right to Equality

17.Eitanit’s argument is twofold. First, it should enjoy constitutional protection of its right to equality. Second, this right has been violated.

Still, the first prong is not at all simple. In Israel, constitutional protection of equality rights flows from the constitutional protection of human dignity. This is because the right to equality is not explicit in the Basic Laws. It is a hybrid model of sorts, in the sense that violations of equality rights are recognized only in the – rather broad – context of harms to human dignity. In regards to the latter the case law has adopted the approach that the constitutional protection covers not only humiliation or indignities, but also other aspects closely related to human dignity. For our purposes, this means that the constitutional protection of equality applies only to discrimination that humiliates and disgraces, or discrimination that is closely linked to human dignity (HCJ 5427/02, Movement for Quality of Government v. the Knesset, IsrSC 61(1) 619, at para 38 of President Barak’s opinion (2006); HCJ 6304/09 L.H.B v. the Attorney General, at para 76 of Justice Procaccia’s opinion (Sep. 2, 2010)). In this view, it is doubtful whether the constitutional right to equality should extend to a legal entity that is not flesh and blood (compare: HCJ 4593/05 United Mizrahi Bank Ltd. v. the Prime Minister, at para 10 of President Barak’s opinion (Sep. 9, 2006); HCJ 956/06 Israel Bank Union v. Minister of Communication, at p. 12 of Justice Hayut’s opinion (March 25, 2007); Ofer Sitbon, On People, Corporations, and everything in between, Kiryat HaMishpat 8, 107 (2009)).

In the case before there is no need to decide the general issue of the scope of constitutional protection for corporations’ equality rights. The reason for it is that I believe, as detailed next, Eitanit was not discriminated against at all. Incidentally, there may be instances where discrimination or lack of equality in the corporation context would require consideration. Two examples suffice: first, a statute that taxes a company owned by Arabs differently than a company owned by Jews. Even if the State would argue that the taxation applies to the corporation and not the individual, this is a matter that must be adjudicated. This example is easier because although there is discrimination between corporations – it is based on grounds involving people. The second example, which is the more pertinent for our purposes, is that of a corporation that claims a certain tax is imposed only on that corporation and not on any other corporation in the country. The argument is clear and notable, and renders discussion. However the violation, to the extent it exists, is not one of human dignity as applied to a corporation but of the right to property. The approach that infringements upon human dignity do not apply to a corporation, does not absolve the state from its duty to fend off the argument that the statute infringes upon the right to property, even if that infringement stems from a discrimination claim. Clearly, fleshing out the infringement upon property is different than fleshing out a direct infringement upon equality. The State may overcome the argument about violations of property rights in at least two ways: first, that there is no violation, and second, that the violation withstands the limitations clause. In our case, to me, the State’s response on this point is satisfactory even if we assume that a corporation has a constitutional right to equality, and this is also true when we explore the lack of equality in the context of infringement of property rights.

18.On one hand, Eitanit claims it suffered discrimination because it was required to shoulder the costs of removing asbestos waste discarded by asbestos importers. Additionally it is required to bear removal costs instead of those who have purchased final asbestos-cement product from Eitanit over the years, used them, and ultimately discarded of them. Obviously, there are financial ramifications to this.

Yet these arguments must be rejected in light of the statute’s language. The “waste population” subject to section 74 is industrial waste that came from operations at Eitanit’s factory. This definition excludes two types of waste: (a) completed asbestos-cement products, such as pipes and boards, that have been passed on to end users and then dismantled, discarded and gradually became waste (“the first exception”); (b) asbestos waste that came from production processes of others besides Eitanit (“the second exception”). These two exceptions are not included in the definition of “waste population” to which section 74 applies.

To clarify, the record reveals that professionals can easily distinguish asbestos waste that originated in production processes from completed asbestos-cement products that have been discarded post-use (the first exception). First, asbestos waste is a batter-like, non-homogenous mix that comprises of lumps and excess raw asbestos, cement, board and pipe debris made out of asbestos-cement. Additionally, some of the waste sites are built in layers: a layer of waste, above it a layer of soil, then again a layer of waste, and so on. In some sites the sacks used to bring in the waste were visible. These techniques indicated the methodical and lengthy process of waste removal, through burial or surfacing. These are not  random or accidental piles of asbestos-cement products that have been worn out and discarded absentmindedly.

This said, the language of the statute releases Eitanit from paying for the second exception – asbestos waste that originated in the production processes of others. This raises a separate question: how do we know that Eitanit will not be required to pay for waste that did not come from its own factory, under the second exception? There are several indications for this. First, section 74 targets only waste found in a radius of 15 KM from Eitanit’s factory. Second, Eitanit’s factory was at the time the only factory in Israel to process raw asbestos into final asbestos-cement products. The industrial waste from these production processes has unique characteristics, as discussed above. Other factories processed completed asbestos-cement products, and thus their industrial waste would have been consistent of only asbestos-cement and dust. Third, there is no evidence that other factories had indeed removed their waste in the same manner Eitanit did. Fourth, there is no evidence that asbestos importers operating in Israel alongside Eitanit at the relevant time, distributed asbestos in the area, and in any event the State clarifies that those importers used materials for acoustic and thermal isolation without cement. Fifth, in a survey from 2007, different witnesses reported out of their personal knowledge purchasing or receiving the waste from the factory and scattering it in the ground. These finding have been confirmed, the State argues, by soil samples and drilling.

The mounting of all this evidence, along with the above findings about the type of waste and its systematic discarding, indicates – to me – that there is a “presumption of burial” against Eitanit in the context of section 74. This presumption means that asbestos waste with certain common characteristics, that was buried in systematic and organized methods, all in a limited and confined area in the factory’s vicinity, would have come out of Eitanit’s factory. Lest we forget: this is a rebuttable presumption. After all, the legislature afforded Eitanit a right of hearing before the Minister, about specific areas where waste did not originate from Eitanit’s factory (according to section 74(d) of the Act and according to the instructions by the Minister – see above section 5, and the State’s attorney declaration that the content of the objection and the relevant instruction’s interpretation – p. 9, line 28 of the hearing transcript).

To summarize, the Act requires Eitanit to bear the cost of removing industrial waste that originated from the operations in its factory. Eitanit’s arguments in this regard cannot be addressed to the legislature, as the legislature expressly stipulated that Eitanit is only responsible for its own waste. These arguments may be relevant, at most, at the administrative level, if and when there are challenges to the Act’s implementation, and not at the clearly constitutional level we are concerned with here.

19.The argument regarding the end users, who received asbestos waste from Eitanit and used it to cover soil, is more complicated. Analytically, Eitanit’s argument is twofold. First, Eitanit was required to pay while the end users were exempted from direct payments. Second, Eitanit was required to pay for waste from which the end users also benefited. In my mind, the answers to the first aspect effectively resolve the difficulties in the second aspect. The main point is there is a relevant difference that justifies distinguishing the end users, who were not directly required to bear costs, and Eitanit. Recall that not every distinction is prohibited discrimination. Warranted distinctions, which are based on a relevant difference, will not usually be seen as prohibited discrimination (for example see the matter of LHB, para 77; HCJ 10203/03 The National Census Inc. v. The Attorney General, para 53 of Justice Procaccia’s opinion (August 20, 2008)). To me, there are three differences between Eitanit and the end users: the awareness test, the control test, and the profit test. Each and every one of these independently, let alone put together, constitutes a relevant difference that separates Eitanit from the end users and that warrants the distinction between them – from both aspects.

First, it appears from the material before us, that in the relevant time period, Eitanit had a notable advantage of information compared to the end users. This advantage manifested, primarily, in scientific knowledge that existed – or should have existed – for Eitanit even at that time about the potential health risk posed by asbestos waste. Indeed, there is no intention to find fault in Eitanit on neither the criminal or tort levels. Rather the presumption is that Eitanit must pay due to strict liability, not as a result of a finding that it breached any duties of care. However, the focus is on Eitanit’s awareness of potential risk caused by asbestos compared to other entities – the end users – to whom it asks to be considered similarly situated. The relevance of the awareness issue will be discussed more below.

In May 1969 Professor Schilling visited Eitanit’s factory. At the time, Professor Schilling headed the Department for Occupational Health at the London School of Hygiene & Tropical Medicine. After his visit, Professor Schilling authored a report, which was attached as Annexure 7 to the Respondents’ reply. In the report, Schilling points to severe health risks that are caused by exposure to dust in asbestos factories, including asbestositis, lung cancer and mesothelioma. He emphasized that the factory must take immediate precautions to reduce the risk of these diseases’ development.

In 1970, an organization of Israeli occupational doctors dedicated a conference to issues of employees and asbestos-cement factories. During the conference, an article written in collaboration with the factory representatives was presented. This article was submitted as Annexure 8. As early as the opening paragraph, the authors state that there is “clear awareness of health risks caused by asbestos and the prevalence of cases of asbestositis on one hand, and cancer on the other.

In April 1976, Yekutiel Federman, one of the holders of controlling interest in Eitanit, sent a letter to the factory manager, Mr. B. Friedrich. In that letter Mr. Federman states that: “The asbestos industry is currently the target of a witch hunt… Should we receive a positive report that proves the allegations are exaggerated and are not serious, and that it is more dangerous to walk down a street breathing in gas emissions from cars, and this report will be prepared by the Ernst Bergman Foundation, which is renowned in the science community, we will be able to combat the attacks academically and scientifically.” This letter, too, demonstrates that Eitanit was aware, at this stage if not sooner, of the scientific claims that were common at the time about the severe health risks caused by asbestos.

What is more, certain aspects of that time’s labor laws indicated the dangers of asbestos. As early as 1945 the British Mandate defined asbestositis as an occupational disease. This meant that a diagnosis of a factory worker with the disease was required to be reported. Additionally, the employment of women and teenagers in processing asbestos or its industrial use was prohibited. These directives were incorporated into Israeli law in the early 1950s. In 1964 The Safety at Work Regulations (Medical Examinations of Workers with Asbestos Dust, Talc and Silicon) 1964 were legislated. The Regulations set restrictions on the ways asbestos workers were employed, and required that workers receive periodic medical examinations. In 1978 The Safety at Work Regulations (Restrictions on Spraying Asbestos) 1978 were added. Those prohibited spraying crisp asbestos for isolation purposes. All of these were in force during the same period when, by Eitanit’s own admission, it passed on the waste to the end users, let alone when the waste was buried in the ground. Later, in 1984, the old Regulations – from both 1964 and 1978 – were incorporated into The Safety at Work Regulations (Occupational Hygiene of the Public and Workers with Harmful Dust) 1984. The new Regulations additionally prohibited the use of asbestos to pave roads. In 1988 this prohibition was expanded to manufacturing, importing and selling asbestos for road paving.

On the other hand, we do not have a sufficient factual foundation about the scope and depth of the end users’ awareness of the health risks caused by asbestos waste. However, on its face, it is doubtful that Eitanit and the end users are in the same category as far as what was known or should have been know. For decades, Eitanit imported raw asbestos, processed it into asbestos-cement, and manufactured final products from it. In effect, it was the dominant – if not only – entity in this industry. By virtue of this position Eitanit was likely familiar in real time with the relevant scientific research about Asbestos’ health risks. Not only did Eitanit apparently follow the developments, but was an active observer in the research (see, for example the article from 1970 and the Mr. Federman’s letter from April 1976, mentioned above). As an employer of asbestos workers, Eitanit was also subject by law to different duties that reflected the health risks asbestos posed. The end users, on the other hand, are in a different category. The material shows that they were not manufacturers of asbestos, nor were they industrial factories, but mainly the towns, kibbutzes and private persons in the area. These are probably not experts in asbestos, asbestos employers or workers, or even active in the scientific research scene.

Analogously, tort law attributes significant weight to knowledge gaps between parties. For instance, a doctor’s duty to disclose to clients stems from the presumption that there are major knowledge gaps between the parties, though their scope may change from case to case (see for this topic, CA 2342/09 Joubran v. Misgav Ledach Hospital (April 6, 2011)). Similarly, the scope of an insurance agent to a consumer depends, among others, on whether there are information gaps between the consumer and the insurance agent or insurer (LCA 5696/06, Saif vs. Mari, para 14 (Sep 21, 2009)).

Truth be told, factoring in the knowledge gaps between Eitanit and the end users is only part of a broader context. Eitanit is distinct from the end users because the products and waste left a factory it owns. This fact points to the material difference between Eitanit and the end users – Eitanit is the manufacturer of the waste. The end users were Eitanit’s customers. These are two different groups that must be distinguished. The distinction is consistent with the principles of EPR, mentioned above. The duties placed on manufacturers are not as the duties placed on the user. The manufacturer has control over the product’s design, assembly, and finalization. In any event is it highly logical to place extended liability on the manufacturer and placing financial burdens upon it, both for reasons of justice and fairness and of economic efficiency. In the matter at hand, the control test has an additional aspect. It is appropriate to weigh the fact that arises from the record, that Eitanit sold the waste for a low price, sometimes giving it away. This, too, solidifies the link between Eitanit and the waste, including that which is not on factory grounds, but in the land around it up to 15 KM. The awareness test thus connects to the control test and to economical aspects, and we must not neglect the profit test.

Applying economic approaches to law, it is clear that Eitanit and the end users are not similarly situated, as a function of the profit test. Comparative case law, primarily American case law, finds merit in placing the costs of asbestos removal on the manufacturing corporation because of its status as manufacturer. This consideration is relevant not only from an economical stand point, which may justify shifting the financial burden of removing hazards to the manufacturer’s shoulders, but also for reasons of justice and fairness. From this perspective, there is no discrimination against the petitioner but achieving the statutory purpose of “the polluter must pay.” We come back to this point when examining the issue of a worthy purpose which is, of course, one of the tests established by section 8 of Basic Law: Human Dignity and Liberty.

To summarize this point: there were knowledge gaps – actual and theoretical – between Eitanit and the end users. Moreover, Eitanit, as a manufacturer is clearly distinguishable from the end users. This distinction reflects the difference between the two aspects of the control test, as well as the profit test. The combination of all these – awareness, control and profit – establish, in my view, a relevant difference between Eitanit and the end users, in terms of its obligation to share up to half of the costs of removing the waste.

20.Eitanit additionally, claims it suffered discrimination compared to the local authorities. Eitanit bases its claim on the right to be heard by the Minister which section 74 grants the local authorities and which allows them to reduce the rate of their participation in funding the project. In reality, an arbitrary and low rate of only 10% was set in regulations which go as far as permitting “payment” of this rate by provision of services. Eitanit, on the other hand, was denied the option of carrying out the project on its own.

Here, too, I believe Eitanit and the local authorities are not similarly situated. There is a relevant difference between Eitanit and the local authorities, based on reasons stated above: Eitanit is the manufacturer of the waste, and created its implications. The local authorities, as the record reflects, are not even part of the “end users” addressed earlier. Their link to the waste is indirect, and they are merely a default in funding the project. Furthermore, the mechanism set in the Act splits the costs equally between Eitanit (on one end) and the local authorities and the state (on the other end.) Each and every Shekel that is reduced from the local authorities’ obligations will be added to the bill served to the State. Put together, the local authorities and the State will fund only half of the project’s cost. The result, therefore, is that – willing or not – taxpayers will directly shoulder at least half of the project’s costs. For this reason, too, the discrimination claim must fall.

21.Finally, Eitanit claims it was discriminated against in comparison with future polluters. It argues the Act stipulates that anyone creating asbestos hazards will bear the costs of removal according to their share of liability, and they will be permitted to remove the hazard (section 11(e) of the Act). Additionally, a bill for Prevention Soil Pollution and Restoration of Polluted Grounds 2011 (“the bill”) is pending before the Knesset. The bill, Eitanit maintains, is more lenient toward owners of polluted properties and considers the extent of their fault. Contrastingly, Eitanit bears the brunt of a strict liability standard regardless of fault and it is denied the opportunity to remover the waste on its own.

Regarding the claim of discrimination in terms of the bill, I see no reason to discuss a claim of discrimination in a bill that has yet to have been passed. As far as the discrimination claims about other statutory provisions go, I do not find it necessary to examine these provisions in detail, nor to consider whether they are discriminatory against Eitanit or perhaps favor it. This is because the project of removing asbestos waste from the Western Galilee merits regulation unique to it. I will elaborate on this point below, in relation to the argument that the Act constitutes personal legislation. As an aside, recall that the new asbestos statute prohibits manufacture of asbestos products, places full responsibility for pollution on the polluter, and only allows the polluter to remove the waste independently with the property owner’s consent. On its face, it does not appear that the statutory arrangement that applies to the petitioner is clearly more egregious than statutory arrangements that will exist going forward. Quite the contrary.

22.To conclude this part, I accept Eitanit’s argument that section 74 infringes upon its property rights. However, Eitanit’s argument about a violation of its equality right, insofar that it is a right independent of the property right, and this for the reasons described above. Based on these conclusions, I move on to examine whether the infringement on Eitanit’s right to property passes the tests set in the limitations clause of section 8 of Basic Law: Human Dignity and Liberty, entitled “Violations of Rights”:

“There shall be no violation of rights under this Basic Law except in legislation befitting the values of the State of Israel, designed for a worthy purpose, and to an extent no greater than required or by such a law enacted with explicit authorization therein.”

B. Violation of Rights In Legislation Or By Explicit Authorization Therein

23.Eitanit’s position is that the said violation of the right to property (and in its view the right to equality, too) is not in legislation or by authorization in legislation, because the Act constitutes personal legislation, with a specific target – Eitanit. Eitanit maintains that a statute that is not generally applicable cannot be considered legislation for the purposes of the limitations clause.

I cannot accept Eitanit’s position. Recall that the case law found the prong “in legislation or by authorization therein” to be a formalistic test that seeks whether the infringement upon basic rights was done by primary legislation or was authorized by primary legislation (see the matter of The National Census, para 9 of President Beinisch’s opinion; the matter of L.H.B, para 104 to Justice Procaccia’s opinion; see also Aharon Barak, Interpretation in Law Volume 3 – Constitutional Interpretation, 489-498 (1994)). To compare, section 5 of the European Covenant of Human Rights addresses ways to limit liberties, including a requirement that the limitation is done in legislation, or in the Covenant’s language: “in accordance with a procedure prescribed by law). Similar language appears in section 10(2) of the Covenant regarding limits on free speech. The European Court of Human Rights pronounced, in various contexts, on the interpretation of “in legislation,” and concluded that in order for a particular provision to be considered legislation for these purposes, it must be clear and accessible, that is, published to everyone (see: Tonilo v. San Marino & Italy, §46 (26.6.2012); Telegraaf Media v. Netherland, §§89-102 (22.11.2012)).

The piece of legislation at hand is a product of extended preparation. After passing the Knesset’s first reading, the Act was considered by the Knesset’s Interior and Environmental Protection Committee. The Committee dedicated over ten meetings to discuss the details of the Act. During the discussions, the constitutional issue was also examined. Eitanit argued boisterously, but its arguments were rejected. Once the Committee completed is process, the Act passed in second and third readings and was published officially. This in mind, the argument that the final produce is not legislation must fail. It appears Eitanit’s arguments about the lack of the Act’s general application repeat, in a sense, the arguments about discrimination against it – arguments I have addressed at length above – or, in a different sense, are claims about the Act’s wrongful purpose, claims that I will address below. And again recall: the Act does not expressly mention Eitanit or its factory. Instead, it uses terms such as “asbestos companies” and “factory for the manufacture of asbestos.” It is true, however, and undisputed, that only Eitanit meets the definitions in section 74. This matter might increase the need to guarantee the Act is proportional and does not overly infringe Eitanit’s property rights. Still, that the Act effectively only applies to Eitanit is not in and of itself sufficient for a finding that the Act is not “legislation.”

C. For a Worthy Purpose Befitting the Values of the State of Israel

24.What is the purpose of section 74, and is this purpose worthy and befitting? Section 1 states the Act’s general purpose: to minimize asbestos hazards in Israel. This is also the source for section 74’s actual purpose: to launch a project for the removal of asbestos waste from the Western Galilee. The explanations that accompanied the Act’s bill, as well as the State’s response in this petition, described how this severe and unique environmental hazard was formed in the Western Galilee. A very large amount of asbestos waste was scattered or buried in many dozens of sites. Some of the waste is buried deep underground, and some is used in surfacing trails, private gardens, agricultural land and the like – all, as mentioned, in dozens of different locations. I elaborated upon the harms caused by this waste in depth, and it is unnecessary to repeat it all here. The purpose of section 74, therefore, is to remove or reduce as much as possible this health risk, which in some ways is a “time bomb” threatening the health and welfare of many of the area’s residents. There is no doubt then that it is a worthy and important purpose, and the sooner it is achieved, the better.

This purpose is not only worthy, but also befits the values of the State of Israel as a Jewish and democratic State. I recently discussed Jewish law’s approach to protecting the environment, from a religious and civil perspective (HCJ 1756/10 The City of Ashkelon v. The Minister of the Interior (January 2, 2013)). I specifically mentioned Jewish law’s approach to attending to waste and the financial mechanisms it put in place in order to achieve this.

Additionally, the purpose of section 74 is worthy because it realizes area residents’ rights to health and to quality environment. There is no need here to go into the constitutionality or the scope of these rights (see: HCJ 3071/05 Luzon v. The Government of Israel (July 28, 2008); HCJ 11044/04 Solomtin v. The Minister of Health, paras 11-13 to Justice Procaccia’s opinion (June 27, 2011); Daniel Sperling and Nissim Cohen, The Impact of The Arrangements Act and Supreme Court Decisions on Health Policy and the Status of the Right to Health in Israel, Laws (4) 154, 218-225 (2012)). All these are complex, serious and weighty questions, but they are irrelevant to the case at hand. All that matters here is that cleaning waste is meant to remove a grave hazard that threatens the health of residents, and it is a welcome initiative. As presented above, this concern to the health of residents is typical of democratic states, which have invested substantial efforts in regulating removal in modern environmental legislation.

25.The State presents an additional reason for the way section 74 sets the funding mechanism: the principle of “the polluter must pay”. Truthfully, I am not convinced this principle is in fact the purpose of the Act in terms of the limitations clause. Arguably, this principle justifies choosing this particular mechanism, rather than the legislative goal. Put differently: it is the justification for the means chosen to achieve the end. Therefore, the principle must pass the limitations clause in the context of proportionality, not in terms of purpose. Yet the state explicitly argues that the Act has the purpose of realizing the principle of “the polluter must pay” (p. 9 of the record). However, even under this approach the principle is not a single purpose, but is intertwined with the central purpose, which is cleaning the Western Galilee from Asbestos Waste.

As I said, I doubt whether the principle of “the polluter must pay” is a purpose – even secondary – of the Act. It is possible this position, which upgrades the means to the level of an end, is meant to boost the legitimacy of the selected funding mechanism. Another possibility is that the State grabbed the bull by its horns. In other words, being aware of the distinct difficulties presented by the principle of “the polluter must pay” and by applying it, the State categorized it as a secondary purpose, willing to subject it to the proper constitutional review. But, as I will clarify, I cannot accept that this categorization of the principle as an end will injure Eitanit and prevent it from examining the proportionality of the funding mechanism established in section 74. For the purpose of ruling in this petition, I am willing to assume – for the sake of a complete discussion – that the principle of “the polluter must pay” is a secondary purpose of the Act in terms of the limitations clause. This approach demands that the matter be subject to a strict review of proportionality. Lest we forget, the worthy purpose test is but a threshold requirement (Aharon Barak, Proportionality in Law, 297 (2010)). That is, in the absence of a worthy purpose, a statute must fail constitutional review. For this reason precisely the worthy purpose test is not conclusive. It is not the end of the enquiry, but its beginning. The difficult task of constitutional review is yet before us. As former President Barak wrote: “It is a mistake to examine constitutionality of means through the lens of the end’s constitutionality. It would be too premature” (Id. at 299). Thus we must first evaluate whether the principle of “the polluter must pay” is indeed a worthy purpose befitting the values of the State of Israel. This discussion is separate from the discussion whether the principle of “the polluter must pay” and its application in the present case is proportional, given that it places strict liability, and does so retroactively.

The principle of “the polluter must pay” is simple. Whoever caused the pollution will fund its removal and be liable for harms that have and will continue to be caused. This principle stems also from efficiency reasons, with the premise that placing the financial burden on polluters will incentivize them to minimize the scope of the pollution. The goal is to reduce the amount of waste to be removed and to encourage the polluter to take precautions and develop “green” technology. This economical approach finds support in the theory of costs internalization. Coupled with the considerations of justice, which dictate that it is unfair for the polluter, who has profited from polluting, would deflect costs toward the public (see: Marsha Glefi, Ruth Plato-Shinar and Amichai Kerner, Lenders’ Liability for Environmental Hazards Caused by Borrowers, The Attorney (50) 439, 443-47 (2010); Isaschar Rozen-Tzvi, Who The Hell Does This Waste Belong To? Waste Removal and Environmental Justice in Israel, Law Research (23) 487, 553-54 (2007)). This approach was recognized by many democratic states, as reviewed above.

We will note that in Jewish law, too, the basic obligation of waste management is placed on the waste’s owner. It is thus generally prohibited to remove raw materials – such as rocks and dust – or actual waste into public spaces, and the owner is expected to be liable in torts, or subjected to fines (Tosefta Bava Kamma 2; Tosefta Bava Metzia 11, Babylonian Talmud, Bava Kamma 30, 1; Maimonides, Yad ha-Chazaka, Hilchot Nizke Mammon 13, 13-17; Shulchan Aruch, Choshen Mishpat, 414, 2; also see my opinion on the matter of The City of Hulon.)

The principle of “the polluter must pay” is well established in our current law. It is also the answer to the Petitioner’s claim that section 74 is out of place in the legal landscape. The Prevention of Environmental Hazards Act (Civil Suits) 1992, authorizes courts to order anyone who causes environmental hazards to cease from doing so, to correct the hazard, or to restore, and this regardless to the level of fault, if any (section 2-4.) Additionally, a string of legislative amendments in this vein was incorporated into The Environmental Protection Act (The Polluter Must Pay) (Legislative Amendments) 2008. Further, in terms of industrial waste, the principle of “the polluter must pay” translates into a similar principle of “manufacturer responsibility”. That practical meaning of this is that the costs of taking care of and recycling waste will generally be placed upon the factory that manufactured the polluting products in its production processes (see above regarding EPR policies). This has many aspects in the new environmental legislation in Israel. We will mention here The Environmental Care for Electric and Electronic Equipment and Batteries Act 2012, The Regulation of Care for Packaging Act 2011, The Beverage Container Deposit Act 2001 – amended in 2010 to set quotas for bottle collection by manufacturers, The Removal and Recycling of Tires Act 2007, and The Preservation of Cleanliness Act 1984 – amended in 2007 to set a mechanism for burial tax (see the matter of The City of Hullon, para 31 of Justice Barak-Erez’s opinion).

Incidentally, the State points out that the principle of “the polluter must pay” is reflected in statutes that were already in effect when Eitanit created the asbestos waste. For instance, section 54(1) to The People’s Health Ordinance, num. 40 of 1940 stipulates that the local authority or the ministry are authorized to order a person who created a hazard to remove it. For these purposes, a hazard is any place whose state or use endanger or damage public health (section 53).

To summarize, Eitanit does not dispute that the purpose of the Act insofar that it is to remove asbestos waste from the Western Galilee is a “worthy social purpose” (see section 107 of the petition). The Petitioner’s primary opposition is for the principle of “the polluter must pay”, particularly in terms of the strict liability standard and the retroactive application. In this context, Eitanit challenges the efficiency of applying the principle of “the polluter must pay” and the fairness in applying it. Therefore, assuming that “the polluter must pay” is a worthy purpose because of its contribution to ecology, the question remains whether the funding mechanism is proportional. This question leads us to the main issue, which is the establishment of retroactive and strict liability.

D. Proportionality

26.The last requirement of the limitations clause is that the infringement of a constitutional right is “to an extent no greater than required”. This is the proportionality requirement. The case law has articulated three sub-prongs for evaluating the proportionality of infringements of constitutional rights: the rational connection test, the least restrictive means test, and the cost-benefit test (narrow proportionality). 

Before we begin, recall that the proportionality criterion does not dictate selecting only one mean to achieving the legislative end. There is a collection of – perhaps many – alternative measures, all of which may in themselves be proportional. These measures are different in terms of the scope of their infringement on constitutional rights, as well as how they may achieve the legislative purpose. This creates a range of proportionality within which the legislature may operate. The legislature has room to maneuver, and it may choose certain alternatives over others so long as they sit within the range of proportionality (compare: HCJ 2605/05, The Academic Center for Law and Business v. The Minister of the Treasury, para 46 of President Beinisch’s opinion (November 19, 2009)).

(1) Rational Connection

27.Under the first proportionality sub-test, we must examine whether there is a logical link between the Act’s purpose and the means selected to achieve it. As I have discussed above, for purposes of our discussion, the Act has two goals: to clean the Western Galilee of asbestos waste, and to realize the principle of “the polluter must pay”. These are the legislative ends. The means that legislature selected is the mechanism set in section 74, specifically its funding aspect (which is at the core of this petition). We will explore the link between the selected means and each of the purposes.

28.Regarding the first purpose, I do not find it necessary to elaborate, because the link here between the means and the end is practically obvious. The first purpose is to remove asbestos waste from the Western Galilee. The selected means is the relevant project, arranging for its budget and funding and authorizing the Minister to establish operative regulations. The means leads directly to the end.

29.As for the second purpose, the case is more complex. Eitanit raises a string of questions about the link between the funding mechanism established and the principle of “the polluter must pay”. Eitanit’s criticism includes four arguments. First, Eitanit claims there is no evidence it scattered the waste. Second, Eitanit is subjected to strict liability, and it is required to pay for conduct that was not legally proscribed at the time. Second, Eitanit maintains that a significant portion of the waste was distributed by the end users and not by Eitanit. Third, Eitanit challenges the strict liability imposed upon it, along with the requirement to pay for conduct that was not statutorily prohibited at the time. Fourth, Eitanit argues that it must pay for past-conduct such that the aspect of channeling behavior and deterrence is non-existing here. Retroactive payment, Eitanit believes, is also unfair. Therefore there is no link, to Eitanit, between the type of payment the Act imposed upon it and the principle of “the polluter must pay”.

The first argument raises a factual issue, which I have addressed above. Repeated briefly, the accumulation of several indications demonstrates that there is a “presumption of burial” against Eitanit in terms of section 74: the asbestos waste, that has similar characteristics, was buried by organized and systematic techniques, and all in a limited area around the factory. Even if this not an absolute presumption, Eitanit has the opportunity to argue that the waste in a specific location did not originate in its factory. To what extent a petitioner may attack the factual basis for the Act is a good question. I my view, such attack is not identical to attacking the factual basis for an administrative decision, or even to an administrative petition in the High Court of Justice, or to a factual dispute between parties of the civil or criminal case. Yet, as mentioned before, the broad legal issue need not be decided here, as the factual basis is well substantiated. The truly relevant question is what this factual basis means.

The second argument does not negate the rational connection between the means and the end either. It is true that some of the waste was layered on the ground by the end users. However, one of the important justifications for the principle of “the polluter must pay” is cost internalization by whoever benefited from creating the pollution. In our case, Eitanit fits this criterion because it profited from the production processes that resulted in buildup of industrial waste. Additionally, it profited – albeit indirectly – from passing the waste from the factory on to the end users. In any event, there is a clear rational link between the means – mandating that Eitanit share the cost of removing the waste – and the relevant purpose – the principle of “the polluter must pay”. Eitanit’s arguments on this point may be seen from a different angle that focuses the discussion on the question of equal burden. In other words, why would Eitanit alone shoulder the financial burden and not the end users? The answer is twofold. First, there is no discrimination between Eitanit and the end users. I discussed this in depth above. Second, the possibility of a different allocation of financial burdens as to reduce the harms to Eitanit. I will discuss this below, when analyzing proportionality’s second and third sub-prongs.

The third and fourth arguments revolve round the strict liability and its retroactive application. Regarding the rational link between the means – the funding mechanism – and the secondary purpose – the principle of “the polluter must pay,” it seems that imposing payments on the entity that created the hazard and benefited from it advances this purpose and puts it into practice. Refer to the discussion above as to how the principle of “the polluter must pay” is based on justice and fairness. It is only reasonable and logical that whoever created a hazard and was the primary beneficiary of it would be the one required to pay for it. In this context, it would be appropriate to combine the two purposes the State finds in the Act. It is necessary, as Eitanit also agrees, to remove the asbestos waste from the Western Galilee. The legislature elected, as did other legislatures in democratic states, to impose special costs on the asbestos company – the manufacturer and direct profit-maker – compared to others, including the public.

To sum up this point, this is not a case where the means do not promote the end. The contrary is true. Recall that the “the rational connection test, like the worthy purpose test – is a threshold test. It is not a balancing test. It does not weigh the worthy purpose against the infringement” (Proportionality in Law, p. 387). However, there is the approach that the first sub-prong is not technical: “this sub-test is not satisfied with the existence of a merely technical causal connection between the means and the end. Therefore the requirement for a rational link is designed, among others, to restrict arbitrary, unfair or illogical means” (HCJ 2887/04 Abu Madigam v. Israeli Land Authority, IsrSC 62(2) 57, para 37 of Justice Arbel’s opinion (2007)). In my own opinion, the natural place for testing the justice and fairness of a means is in the contest of the second sub-prong, and more so in the third sub-prong. That said, I am willing to assume that in extreme cases where the means’ arbitrariness and unfairness are obvious this should be considered even in the first sub-prong. This certainly is not the case: here, applying the second and third sub-prongs will shed light on the extent of justice and fairness in the chosen means.

(2) The Least Restrictive Means

30.We now approach proportionality’s second sub-test. The question before us is whether, of all the alternative means that may achieve the purpose of the Act, the means selected is that which least infringes Eitanit’s right to property. Put differently, we ask whether there is a less restrictive alternative that will similarly achieve the Act’s purpose (compare HCJ 10202/06 The City of Nahariya v. The West Bank Military Commander, p. 12 (November 11, 2012)).

In this context, Eitanit identifies two alternatives for the mechanism established by the Act. One is to “repair” the sites where the waste serves to cover the land. The second is allowing Eitanit to execute the removal project on its own. We will explore each alternative.

31.The first alternative is only generally argued by Eitanit, without adding details that can illuminate the primary relevant question: is it expected to achieve the same purpose while harming Eitanit less. Recall, that, as Eitanit presented things, re-covering and sealing the paths that were surfaced with asbestos is a partial solution to the waste problem at best. Whether this is a real fix, including for the paths themselves, is doubtful. Moreover it is unclear to Eitanit what the solution for other types of waste, such as waste that was buried underground. We cannot therefore find that the suggested alternative would sufficiently accomplish the Act’s purpose of cleaning the Western Galilee from asbestos waste, while lessening the harm to Eitanit.

32.We are left with the second alternative: Eitanit’s consent to removing the waste independently, instead of paying for removal (the “self-removal” alternative). However, the Petitioner did not meet its burden to prove that this alternative will serve the Act’s purpose adequately.

The task of removing the asbestos waste was discussed among the parties for a long time. Eitanit’s proposal to remove the waste, through a sub-contractor it will employ, was also subject to discussion. After several rounds of negotiation, the proposal was rejected. I will here refer to a detailed and reasoned letter that Mr. Oshik Ben-Atar, a senior deputy to the Accountant General, sent to Eitanit in November 2010, in which the State notified Eitanit that its self-removal proposal is impractical. The letter states that Eitanit estimated the project to cost between NIS 166-300m, if not more (see also section 120 of the petition). These are substantial gaps that elicit concerns that Eitanit’s low estimate will prevent it from completely and successfully executing the project. This is coupled with the doubt that Eitanit has, on its face, little incentive to execute the project as best as possible. This is also because it is not expected to profit from executing the project and it has no incentive to conduct thorough surveying and locating all the polluted sites.

Eitanit maintains the recently completed removal of asbestos from a certain area, under State supervision, and the costs of that removal was approximately 65% lower than the costs estimated by the State. The State, on the other hand, maintains that the experience with Eitanit in this regard is not positive. The State supervises Eitanit’s work to restore waste sites in Sheikh Danon and in Shlomi, as well as work to remove asbestos waste in other areas. These projects have been found to have professional deficiencies, and these deficiencies have caused major delays in the projects.

I do not intend to rule on the factual disputes between the parties, as if this were a civil dispute or an administrative petition. Such a ruling is not necessary for our purposes. We are concerned with section 74 of the Act, not with administrative or appellate review. The question before us is whether there is an alternative means that will impose less harm upon Eitanit, while achieving the legislative purpose behind section 74. From this perspective, Eitanit has not met its burden. I am not persuaded that the self-removal option will lead to the end that inspired enacting section 74 – cleaning the Western Galilee from asbestos waste. We were even presented with material that supports the State’s position, or at the very least demonstrates its logic.

33.The perspective we so far employed has been negative: whether there are alternatives that achieve the statutory purpose while lessening the harm caused to Eitanit. Eitanit emphasized this approach. However, the issue can be examined, simultaneously, in a positive perspective: whether the mechanism elected by the legislature includes checks and balances that reduce the harm caused. In this contest there are five elements: (1) Eitanit would be required to pay no more than half of the estimated removal costs – half, perhaps less but certainly no more; (2) In any event, Eitanit’s funding obligation shall not exceed NIS 150m; (3) The funding mechanism the legislature selected, along with supplementary instructions from the Minister, ensure that this is not a fine or a compensation. Eitanit’s financial obligation will be used to (partially) cover the costs of removal alone; (4) The relevant removal project is limited to a radius of 15 KM around the factory. Section 74 does not compel Eitanit to participate in funding the removal of asbestos waste if that waste is in locations beyond that area. Finally, the Minister’s instructions create a mechanism of supervision and checks that will allow Eitanit to challenge each and every payment it is required to submit in terms of specific waste sites.

The five elements mentioned are no hypothesis or creative interpretation. These are checks and balances built into the explicit language of section 74 and its supplementary instructions. They reduce the harm caused to Eitanit’s property, while still achieving the primary purpose of cleaning the Western Galilee of asbestos waste and the secondary purpose of “the polluter must pay” (to the extent this purpose exists).

The elements above can be categorized through three questions: how much, for what, and how. “How much”: 50 percent, which shall not exceed NIS 150m. In examples from the United States and from other countries, some legislation required funding up to 100 percent, without setting a maximum amount. The gap in the amount is substantial. It is another rebuttal for Eitanit’s argument that it would have been appropriate to impose some liability for removing the waste upon the end users. As mentioned before, I am not persuaded that the maximum amount set does not reflect a fair estimate of potential costs. Moreover, even were the Petitioner to dispute the estimates for removal, because the State bears half the costs, it has no interest in inflating costs. “For what”: for cleaning a defined area. The significance of this is that there is no penalty or sanction. Restricting the project that Eitanit must fund further supports the conclusion that the means of imposing liability is not an end unto itself. The “for what” element is joined by the scope of the territory – a 15 KM radius around the factory. This area is not only limited but also reflects the history of Eitanit’s conduct in terms of distributing industrial asbestos waste. This history include the fact that Eitanit buried some of the asbestos waste, as well as passed it on to the end users in the area for very low cost, or no cost at all. This supports the assumption that implementing the principle of “the polluter must pay” is neither arbitrary nor irrational. The third question is “how”: the section includes an internal mechanism that ensures that Eitanit is able to present its position as to the periodical invoices it would receive. The reservations Eitanit may raise in this context are not limited to calculations, but also to the issue of whether particular piles of waste in fact originated in its factory. The State stipulated this in section 121 of its responding papers. This element contributes to the proportionality of the selected means. The internal mechanism emphasizes supervision rather than top-down orders.

(3) Narrow Proportionality

34.We are thus left with the third and last sub-prong of constitutional review: the narrow proportionality test. This tests measures the appropriate ratio “between the public benefit of a statute subject to constitutional review and the infringement of a constitutional right caused by that legislation (the matter of The Academic Center, para 50 of President Beinisch’s opinion; see also HJC 2651/09 Association for Civil Rights in Israel v. The Minister of the Interior, para 22 of Justice Naor’s opinion (June 15, 2011). It weighs cost against benefit in the constitutional sense – social gain versus infringement of rights.

The case law expressed the view that “this is the most important of the three sub-prongs” (Justice Dorner in HCJ 4541/94 Miller v. Minister of Security, IsrSC 49(4) 94,140 (1995)). Either way, it is not a threshold test. Being the last obstacle in the constitutional journey a spotlight is pointed at this test. Though it is termed “narrow proportionality” is it not narrow at all. It poses a special challenge to judges. In my view, and precisely because of it, the test may develop over time – including setting standards for its application – more than the other sub-tests.

In any event – in our case – it is crystal clear that the Act is immensely beneficial. Therefore, it may be determined that the section is unconstitutional only if the infringement on Eitanit’s property rights – the other side of this equation – is so great that it eclipses the benefit.

By imposing financial obligation, section 74 infringes upon Eitanit’s right to property. Its arguments articulate three aspects that exacerbating the infringement: (1) the Act is personal; (2) the Act imposes strict liability; (3) the Act is retroactive. For each aspect, I first present the substance of the harm argued, then the actual scope of the harm: has the Act crossed the constitutional line and thus must be struck down; is the harm indeed as severe as argued or can it be mitigated by elements of the Act. This analysis will illuminate the constitutionality of the ratio between the cost and the benefit.

Personal Act

35.It is undisputed that even though the Act does not explicitly mention Eitanit, it is personal legislation as it effectively applies specifically to Eitanit.

In a broad sense, one of the basic traits of a statute, that in principle distinguishes it from other arbitrary norms, is its general application. This trait usually manifests in application over a non-specific group of subjects, or in that the statue mandates, prohibits or authorizes constant or organized conduct (aspects discussed by H. L. A. Hart, The Concept of Law (1961); see also Chaim Ganz, On The Generality of Legal Norms, Iyunei Mishpat (17) 579, 579-85 (1992)). This distinction constitutes one of the differences between a law that addresses the public at large and a judicial decision that addresses a single individual. Therefore, arguably, though this is a statute enacted through the proper legislative process, substantively, it is so flawed that it infringes Eitanit’s right to property.

I respond to this with the justification for Act targeting only Eitanit. It is not a question of numbers, that is, how many are subjected to the Act, and the fewer the number, the more personal the statute. Rather, we must ask whether there is good reason for applying a statute only to a limited group. The examination must be done carefully when few are concerned, let alone when only one factory is.

What is the context around section 74? It appears there is no arbitrariness, whim, or specific persecution. The legislature prioritized a project for cleaning the Western Galilee. The section was designed to respond to a unique situation – extensive accumulations of asbestos waste, in a defined geographical area, that was created systematically by one dominant entity. Eitanit presented no arguments to the effect that this is not exclusive to the Western Galilee. It should also be noted that Eitanit enjoyed its status as a lone and dominant manufacturer in the local asbestos market.

The heart of the matter is that Eitanit’s special position is not born of legislation but of reality. Presumably, and as reflected in comparative foreign legislation, in a more sizable country, the market would include more than one player. And yet, the Israeli Act was designed to remove the waste through the shared – but not full – participation of the entity that created it and profited from it. That this is a single entity does not compromise justice or fairness. From this perspective, I do not believe that the fact that Eitanit was a single factory indicates, in constitutional terms, excessive infringement of property rights. In my opinion, these considerations mitigate the alleged harm caused by the sections lack of general application. I will also note that to the extent that Eitanit claims that the Act’s lack of general application is discriminatory, I cannot accept this argument for the reasons detailed at length above, when discussing the issue of infringement of equality.

Incidentally, the Israeli legal code already includes complete statues that are clearly personal. For instance, President Haim Weitzman Act (Retirement and Estate) 1953 sets the retirement amount that was paid to the first President’s widow. Another example is the Bank Shares Settlement Act 1993, which addressed the nationalization and privatization processes of the four big banks at the time (Leumi, HaPoalim, Discount, and Mizrahi), in light of the bank shares crisis of the 1980s. These examples support the argument that unique situations calls for unique legislation, and may even justify personal statutes.

Strict liability

36.The Petitioner points to another factor that exacerbates the infringement upon its property: the de facto strict liability standard. In other words, the legislature imposed upon Eitanit liability for polluting activity it committed in the past, though on its face these activities did not constitute breaching any duty of care at the time, and in any event no court found otherwise. Eitanit argues this aspect exacerbates the infringement upon its property rights.

It is true that on its face, strict liability raises concerns and warrants examination. In my view though, three factors mitigate, or balance out, the constitutional challenge involved in imposing strict liability.

First, the support for imposing strict liability in comparative law, which I elaborate on further below. Second, imposing strict liability in the context of removing polluters relies on weighty considerations. I mentioned justice and fairness, along with the economic rationales of deterrence and cost internalization. Another justification is the evidentiary challenges that follow from a fault-based standard, and may be avoided through a strict liability standard (see above the discussion of European and American law). Third, I believe that in this case there is a unique element that takes a little bit of the sting out of strict liability. Foreseeability is a relevant consideration when it comes to strict liability. Thus in American law, for instance, The Third Restatement of Torts explains that strict liability for abnormally dangerous activity is desirable. Activity is found to be abnormally dangerous when several cumulative conditions are met including that the activity creates a foreseeable and highly significant risk of harm, and that the activity is not one of common usage even when the actor has taken reasonable precautions (Restatement (Third) of Torts: Liability for Physical and Emotional Harm §20 (2010); see further Gilad, p. 1293-97). In light of this, foreseeability sets the limits of strict liability in one sense, and justifies the imposition itself, in another. It should be noted that the Restatement is not binding law in the United States, but it is considered to reflect the current state of the law and is commonly used in American case law. It is also true that in the United States, waste pollution is regulated in specialized legislation. However, in my opinion, the above is relevant for constitutional challenges to strict liability.

Jewish law may serve to clarify the point. The Mishna states, in the context of torts, that “one will always err, whether by mistake or on purpose, whether awake or asleep” (Babylonian Talmud, Bava Kamma 26a). This is a type of strict liability. Maimonides qualifies the scope of liability:

“When do we say that the person asleep must pay? When two who slept side by side, and one of them rolled over and injured the other or ripped his clothing. But if one was asleep and another joined him and lay by his side – the person coming last is the wrongdoer, and if the person asleep caused the injury, the latter would be absolved. And likewise if a pot were placed next to the sleeping person and the latter broke it, he would be absolved, as the person who placed the pot is the negligent wrongdoer” (Mishneh Torah, Book of Torts, Hilchot Chovel U’Mazzik 1, 11.)

This teaches us that if, for example, a person sleeps in another’s home by a lamp and during their sleep they strike and break it, they must break it. However, if after a person has fallen asleep, someone places the lamp by their side, and during the night the sleeping person breaks it, they are not liable for the damage. The relevance to our matter is that even with a strict liability standard, putting an object in play without the knowledge of the injuring party, may absolve them from responsibility. This approach is reminiscent of the innocent owner defense: under the CERCLA, a landowner is not liable if at the time they purchased the land they “did not know, and had no reason to know, that they had any hazardous substance” (42 U.S.C §9601(35)(A)(i)).

In our case, the material shows that Eitanit’s activity with the waste was not conducted without any foreseeability or knowledge about the harms of asbestos. I have discussed this, when examining the knowledge gaps between Eitanit and the end users. Professor Shilling’s report from 1969 detailed the health risks caused by exposure to asbestos dust, including asbestositis and cancer. An article from 1970, authored in collaboration with representatives from Eitanti’s factory, states that there is “clear awareness of health risks caused by asbestos, and the prevalence of asbestositis cases on one hand, and of cancer on the other.” A letter from 1976 by Mr. Yekutiel Federman, one of Eitanit’s controlling shareholders, addresses the scientific research of the time that discussed asbestos health risks. Additionally, Eitanit, as an employer of asbestos workers, was subject to different labor laws that acknowledged the risks caused by asbestos: defining asbestositis as a vocational disease, prohibitions against employing teens and women in asbestos factories, the requirement for periodical medical examinations, and so on.

This means, in other words, that Eitanit had a certain extent of factual foreseeability or knowledge about asbestos health risks. It should be noted, to clear any doubts, that I am not dealing here with the necessary bar to meet the burden of proof for tort, criminal or other liability. This is not the topic of discussion, nor is it the standard. We are concerned with constitutional review. The issue at hand is what the scope of harm Eitanit has been caused is, and particularly – what weight should be attributed to imposing strict liability. In this view, the indicators I have listed should not be ignored, as they demonstrate Eitanit’s foreseeability or knowledge – even some – and all to the extent relevant for the matter at hand.

As a court comes to examine whether there is constitutionality of the infringement caused by imposing financial obligations on Eitanit, I believe that even partial knowledge lessens the infringement of her property rights. Put differently, even in the absence of liability or in the existence of strict liability, the link between the liable party and the conduct still warrants scrutiny. Put differently still: had section 74 imposed liability on a different company that did not manufacture asbestos in the relevant time period, or did so but not in the Western Galilee, the concerns around section 74 would significantly multiply. And again recall that section 74 does not impose on Eitanit tort or criminal responsibility. The statute does not convict, taint, or even attribute liability to Eitanit. And the means chosen is not a fine or compensation. It is designed to remove asbestos waste from the Western Galilee. Of course, this does not mean that the legislature may impose liability arbitrarily and as it sees fit. Therefore section 74 must be tested according to the limitations clause. We believe, as explained above, that there is a link between Eitanit and the waste that justifies the strict liability standard set in the section.

To summarize, though strict liability poses difficulties, considering the circumstances as a whole, the existence of similar standards regarding removal of dangerous buried waste in many other countries, the justification of “the polluter must pay”, the element of Eitanit’s knowledge or foreseeability about the specific harms and risks, and the type of financial obligation that is not a fine or compensation but the cost of cleaning the area in order to halt the development of serious harms to the residents and the environment, it seems that the benefits outweighs the infringement of the right.

Retroactive Legislation

37.A separate issue arises as to the temporal application of the Act. Eitanit claims that this is retroactive legislation, and therefore increases the infringement of its property rights. By this logic a retroactive statute comes into effect after conduct was complete, but changes the rules of the game for the future. The State, though, believes that the statute applies actively, and thus Eitanit’s claim is mitigated. That State’s position is that retroactive legislation cannot be precluded in every scenario. Who is correct about this? The issue of temporal application is complex. Therefore, first we generally present the relevant terms. Then we analyze the issue in the context for section 74, including the extent of harm to Eitanit.

Retroactive legislation changes for the past the legal status of activity that occurred before the legislation came into effect. Retrospective legislation changes for the future the legal consequences of activity that occurred before the legislation came into effect. Prospective legislation changes for the future the legal statues of activity that will occur after the legislation comes into effect.

To illustrate the differences, consider the following hypothetical: Reuben smokes a cigarette in a public space on January 1, 2012. At the time this was not prohibited. On February 1, 2012, a statute was enacted that imposes a steep fine on smoking in public places. If the new statute applies only on whoever smokes in public places from February 2, 2012 on, this is a prospective statute. If however, the statute stipulates that it came into effect on January 1, 2012, it is a retroactive statue. It alters the legal status of Reuben’s smoking, and subjects him to a fine. However, the statute is retrospective if it stipulates that anyone who smokes between January 1, 2012 and the day the statute was enacted did not commit any offence, but is required to participate in a class offered by the Ministry of Health about the harms of second-hand smoking. The statute did not alter for the past the legal status of Reuben’s smoking – which is not an offense – but did change for the future the consequences of his action. In this case, the unique status of a retrospective statute is obvious: the statute clarifies that Reuben did not commit an offense and the consequences he must face are not a fine or penalty, which is inconsistent with retroactive legislation. Reuben would still have to bear certain consequences for his past conduct, which is inconsistent with prospective legislation. It should be noted that this distinction, between retrospective application and retroactive application, is not acceptable by all, but has been established in the jurisprudence of this Court and in several other legal systems, such as Canada (for more on these definitions, see CA 1613/19 Arviv v. The State of Israel, IsrSC 46(2), 765 (1992); Aharon Barak Interpretation in Law, vol 2 – Legislative Interpretation, 609-45 (1994); Yoram Margaliot, Discrimination in Regulating Financial Savings and its Proposed Solution, Mishpatim 31, 529, 552-56 (2001); Yaniv Rosnai, Retroactivity: More Than Just ‘A Matter of Time’!, Law and Business 9 395 (2008); Daphne Barak-Erez Administrative Law, vol 1, 351-52 (2009)).

Another categorization that may be relevant for our purposes is active legislation: a piece of legislation that changes for the future the legal consequences of a situation that already existed the day the statute came into effect. Obviously, active legislation is closely linked to retrospective legislation. The difference between the two is that active legislation applies to situations that exist in the present, whereas retrospective legislation applies to activity that has already concluded in the past. For the hypothetical above, assume that the new statute would believe the impact of smoking in public places to leave residue for two months, and impose obligations accordingly – this is active legislation. It is another way to justify obligating whoever had smoked in a public place a month prior to the statute’s effect to participate in the course, as the hypothetical goes.

In his book, Professor Barak presents another example to illustrate the difference between retrospective application and active application. The difference depends on the purposive interpretation of the relevant statute:

“Take a new statue that stipulates that anyone convicted of an offense cannot serve as a Knesset Member. Would the term ‘anyone convicted of an offense’ point to an activity or a situation? Would applying the statute on anyone who was convicted of an offense before the law came into effect constitute retrospective application?... If the statutory purpose is to set an additional sanction – beyond the criminal sanction – for anyone convicted, then it addresses the activity that led to the conviction in the past. Applying the new law to such activity constitutes retrospective application of the statute. However, if the statutory purpose is to ensure public trust in elected officials and government institutions, then it addresses the situation of ‘convicted’. Applying the new statute on a situation that existed before the statute came into effect and continues to exist in the present does not constitute its retrospective application” (Aharon Barak Interpretation in Law, vol 2 – Legislative Interpretation, 628 (1994).

38.Equipped with these tools, where does the case before us fall? Section 74 of the Act requires Eitanit to shoulder the costs of removing waste it buried in the ground or passed on to the end users. On one hand, this is not retroactive application: the section does not change the past, and does not define Eitanit’s past conduct as an offense or as conduct that creates liability in torts. On the other hand, this is not prospective application, as we are concerned with removing existing waste and not waste that will accumulate in the future. The question is therefore whether this is active or retrospective application. On one had, arguably, this is active application: the Act addressed a current situation – waste that threatens public health. This is the State’s position. Alternatively, it can be argued that this is retrospective application: the Act changes the legal consequence of the burial and giving away that Eitanit did in the past, and imposes a new sanction on Eitanit. This is, effectively, Eitanit’s position.

The dispute between the parties is not merely theoretical, and the categorization of section 74’s temporal application holds constitutional significance, because the four main categories of temporal application – prospective, retrospective, active, and retroactive – may be organized along a “spectrum of legitimacy”. This spectrum reflects how we treat a piece of legislation. The premise for the “spectrum of legitimacy” is as such: the more the statute sends its tentacles significantly toward the past – so do more concerns come up about the statute’s legitimacy. The intuition behind this has many rationales: the rules of the game must be clearer from the outset, for reasons of justice and fairness, and the legislature should not be permitted to change them retroactively. Additionally, retroactive changing of rules compromises public trust in the legislature, limits the statute’s ability to channel future behavior, and undermines stability and certainty. It should be emphasized that a statute should not automatically struck down only for its location on the spectrum. Yet the justification for a statute’s temporal application must be more persuasive (this is not so for criminal legislation, see section 3 of the Penal Law 1977; a similar state exists in Canada: Canadian Charter of Rights and Freedoms §11(g), in India: Constitution of India, §20(1), in South Africa: Constitution of South Africa, Chapter 2 – Bill of Rights, §35(3)(1), and in Norway: Kongeriket Norges Grunnlov, §97).

On one end of the “spectrum of legitimacy” we find prospective application. This is more acceptable because it has no impact on past actions or past situations. On the other end we find retroactive application. This application is the type most difficult to swallow because it pulls the rug from underneath activity that has already been concluded and changes its legal meaning. Active application is situated between retrospective application and prospective application, because it applies to situations that are rooted in the past but that continue into the present. Therefore, in some sense, it is more acceptable and reasonable than retrospective application, which entirely addresses actions that have ended in the past. Thus the relative importance of the issue before us, about the categorization of section 74 – retrospective or active?

I have given much thought to this question. It is true that the Act applies to an existing situation. We are concerned with removing waste that is already buried in the ground, or is used to cover it in order to create different types of surfaces (roads, pavement, etc.). In this sense, the law applies actively. Yet I believe that categorizing section 74 under active application misses the point. Recall that this is not a case where only several of the factual elements have occurred in the past. Here, all the factual elements have occurred in the past: the waste has already been buried or placed as surfaces. In such a case, I doubt whether active application in the traditional sense is appropriate (compare: CA 6066/97 The City of Tel Aviv-Yaffo v. Even Or, IsrSC 54(3) 749, 755 (2000)). Moreover, section 74 does not address the future at all. Consider, for comparison, the example by Professor Barak that I presented above, about the new law that would stipulate that anyone convicted of a crime would be excluded from serving as a Member of Knesset. Such a hypothetical statute is partly concerned with the past (people who have already been convicted), and partly concerned with the future (people who would be convicted in the future). However, section 74 is not future facing at all. It addresses asbestos waste that Eitanit buried in the distant and not so distant past. The section does not address, and neither does it purport to do so, the burial of asbestos waste going forward. This is the concern of other sections of the Act, but not section 74. It is possible, then, that we are faced with a new category – narrow active application. Going back to the “spectrum of legitimacy”, I believe section 74 and the category of narrow active application are closer to the legitimacy position of retrospective application than to that of active application. Either way, the probability that section 74 is not an obviously retroactive statute, weakens Eitanit’s claim regarding the extent of the infringement of its property rights.

Still, without deciding the theoretical question of the Act’s categorization, we must keep in mind that even were this a strictly retroactive statute – and that is certainly not the case here – it should not mean that statute must be automatically struck down. We would still need to examine the entirety of arguments, factors, and considerations regarding the statute, in light of the limitations clause, including the statutory purpose, its benefits and its infringements of protected rights (compare: HCJ 1149/95, Arko Electric Industries Ltd. v. The Mayor of the City of Rishon L’Tzion, IsrSC 54(5) 547, para 10 of Justice Strasberg-Cohen’s opinion (2000); HCJ 4562/92, Sandberg v. The Broadcast Authority, IsrSC 50(2) 793, para 33 (1996)). In other words, the analysis I have conducted so far regarding temporal application is yet another consideration in the cost-benefit analysis. Indeed, another consideration but not a decisive one.

In my view, balancing benefit against the infringement of rights, there are three considerations that support the former and tip the scale against the harm caused by the statute’s retroactive application. Again, I do not believe this is per se retroactive application, but for purposes of convenience and brevity I will so term it. Of course this is not merely a matter of convenience: section 74 and its unique formulation, reeks of retroactivity, even if it should not be categorized as such.

As for the first consideration, my position above regarding the element of foreseeability characterizes Eitanit’s conduct to a certain extent. This has implications not just for issue of strict liability, but also for that of retroactivity. United States courts, as explained, interpreted CERCLA as having retroactive application, even though this is not explicit in its language, and though American law has a rebuttable presumption against retroactive application. One reason for this interpretation was linked to the foreseeability element: “While the generator defendants profited from inexpensive wasted disposal method that may have been technically ‘legal’ prior to CERCLA’s enactment… it was certainly foreseeable at the time that improper disposal could cause enormous damage to the environment.” (U.S. v. Monsanto Co., 858 F. 2d 160, 174 (4^th Cir. 1988))

Put differently, while it is true that waste removal activity was formalistically permitted at the time, it was still possible even then to expect that such activity would cause grave harm to the health of residents and to the environment. In other words, foreseeability or awareness of the harm is some justification for imposing “retroactive” liability. We see a similar line of thinking in Holland, as I explained above. The Dutch Supreme Court ruled that a law from 1982 applies retroactively from January 1, 1975 onward. This date was chosen because starting then every polluter should have been aware that it was likely to be liable for polluting. Therefore, foreseeability or expectation of harm – not in the criminal or civil sense, but for the purposes of constitutional review – may justify retroactive application.

This is coupled with a second consideration: the extreme harm to the public. This risk is not reduced over time, and it must be addressed. Doing so increases the social benefit that comes out of section 74, even if it holds quasi-retroactive elements. Ignoring the risk caused by asbestos amounts to exposing citizens to a ticking time bomb. No wonder the legislature seeks solutions. Removing asbestos waste is an urgent priority. Failing to do so is not an option – “You shall not overlook” (Leviticus 22, 3). Regardless, the responsibility for an asbestos hazard already created will be quasi-retroactive. Therefore the question is not whether to impose retroactive liability, but whom to impose it upon (including the option of distributing costs between different parties). Of the options to impose financial obligations on the polluting corporation and imposing it on the public, fairness requires that we opt for the former. Indeed, the Israeli legislature’s solution, regulated through section 74, is designed so that at most only half of the expenses are placed on Eitanit.

Regarding the third consideration, we turn again to comparative law. Many countries – though not all of them – have recognized retroactive application. This position, as explained above, is primarily justified by fairness and necessity.

I am not ignorant to the fact that in terms of section 74 there is some link, perhaps even intermingling, of the concerns about retroactivity with the concerns about strict liability. This is understandable. As far as the infringement of Eitanit’s property right, retroactivity and strict liability walk hand in hand. The two, together and separately, raise concerns about imposing financial burdens on Eitanit for actions that were not impermissible when taken, and were not even found to constitute a breach of any duty of care. Ultimately, we must look into the details of section 74. This examination reveals that, on one hand, there is no finding of fault, but on the other hand, there are policy reasons, as mentioned, that warrant the conclusion that the infringement is outweighed by the benefits.

39.For the purposes of the third sub-test, the narrow proportionality test, three of Eitanit’s arguments were emphasized for the difficulties they create: personal legislation, strict liability, and retroactive application. Having analyzed each of these arguments independently, it appears the extent of the harm is not as great as initially thought. The additional conclusion is that Eitanit failed to demonstrate that the infringement upon its property rights surpasses section 74’s extensive benefit to the public.

Remarks Before Summarizing

40.Before I finish applying the limitations clause to this case, I should emphasize two important points. These were weaved throughout the constitutional analysis, but it would be appropriate to bring them to the fore of the discussion in order to acknowledge their significance.

The first point is the comparative law one. We are concerned with a legal area completely new to Israeli law. The issues raised here, were raised in similar dress in many other countries. Asbestos, as a member in the group of dangerous and polluting materials, is a problem that crosses borders. When a court subjects a case like this to constitutional review, I believe there is significance to the fact that many countries have walked a similar path to that of section 74. Caution is warranted when looking abroad as the Israeli system is independent. 65 years from the country’s founding, Israeli law can be seen as a dynamic creation with a life of its own. Israeli law defines the question, and supplies the answer. However, beyond the fact that this is an issue common to Israel and to other countries, I have not seen the matter to be unique – certainly not clearly or obviously – to Israel and distinct from that in other countries around the world. This is not to say that the State has absolved itself by demonstrating that the statue legislated here is consistent with international consensus. But by the same token, it cannot be said that comparative law is an irrelevant consideration, particularly when it reveals that other countries’ constitutional jurisprudence regarding similar statutes enriches our constitutional discussion. The project of comparison supports the state’s argument that section 74 is constitutional. This is a factor that should be taken into account here (and see CA 1326/07 Hammer v. Amit, para. 34 of Deputy President Rivlin’s opinion (May 28, 2012), re wrongful birth). However, this is certainly no substitution for independent constitutional review under section 8 of Basic Law: Human Dignity and Liberty.

Substantively, the above review of the legal state in Western countries reveals one clear point: that a standard of strict liability is common and acceptable in the context of removing dangerous and polluting materials. Thus in the United States, where the courts found the legislative intent behind CERCLA was to establish a strict liability standard. The European Union’s Directive, the ELD, recommends imposing strict liability on harm caused by dangerous activities listed in the third annexure. This type of liability was de facto imposed in Sweden, France, Holland, Germany (to some extent), Finland and the United Kingdom. This is also the case in many other countries that are not members of the European Union, such as Switzerland, Canada and South Africa. Retroactivity is less common, compared to strict liability, but it exists, too. In the United States CERCLA’s retroactivity passed judicial review. So did the statutes of British Columbia. Some European states adopted retroactivity as well, including Spain, the United Kingdom, and Holland (to some extent).

We have seen the commonalities. We have noted that they are material. To the relevance of this, I move onto the second point. We are concerned with constitutional review, rather than administrative. The test is not reasonableness, but the limitations clause in section 8 of Basic Law: Human Dignity and Liberty. The range of possibilities is broader, though in order to remain within this range a statute must meet the specific conditions the legislature set in the limitations clause. A court is aware of its own limits, but also of its responsibility. As noted, there is no single legislative fix for a legal problem. But in our case, it was possible to reach a statutory framework that would have passed constitutional review. Section 8 is the key. In our case, my opinion is that the State is correct that the legislature overcame all the obstacles.

Summary

41.The petition before us focused on the constitutionality of section 74 of the Asbestos Act, and of the project it launched to remove asbestos waste from the Western Galilee.

First, we must locate the rights infringed. My conclusion is that section 74, with which we are concerned, infringes Eitanit’s property rights. Indeed, the State conceded this right is infringed. Still, I do not believe that section 74 discriminates against Eitanit compared with other entities: the legislature did not obligate Eitanit to pay for final asbestos-cement products that were discarded by the end users, nor for asbestos waste that originated from other factories’ manufacturing processes. The “waste population” that is, the waste to which section 74 applies, includes only the industrial waste that came from the production processes in Eitanit’s factory.

In this context, I explained why Eitanit’s participation in removing the waste that was used for covering surfaces is justified over that of the end users. I believe there is a significant and relevant difference between Eitanit and the end users, which is based on three tests: the awareness test – Eitanit had an obvious advantage in knowledge compared to the end users. For decades Eitanit was Israel’s primary importer, manufacturer and marketer of asbestos. By virtue of this position Eitanit was familiar with the scientific research on asbestos risks and was also subject to the different statutory obligations that reflected these health risks. Under the control test, Eitanit is the manufacturer while the end users were the consumers or customers. As a manufacturer, Eitanit controlled the production of waste and its distribution, and in any event there is much logic in placing the financial burden on it. Under the profit test, there is clear justification for requiring the corporation that produces asbestos, and which more than any other entity had profited from the activity that caused the polluting hazard, to shoulder the costs of removal. All these reasons hold even more force in terms of the distinction between Eitanit and the local authorities, which do not even constitute “end users.”

Once I have concluded that Eitanit’s right to property was infringed, the issue became whether the infringement could pass muster under the limitations clause of section 8 of Basic Law: Human Dignity and Liberty. The comparative law in the background of this analysis was reviewed at length, among others because this is a novel legal issue that carries clear universal aspects and because no unique characteristics were presented for the Israeli context. Another point that should be emphasized is that we are charged with constitutional review, not administrative review. This influences the breadth of the Knesset’s discretion.

I first clarified that the infringement was made through primary legislation, that is, a statute that the Knesset passed appropriately and legally. Eitanit’s argument that this is not a “statute” for the purposes of the limitations clause because it is a personal statute is incorrect. It is a formal test that inquires mainly whether the infringement upon basic rights was made in primary legislation or according to such legislation. In this case, the answer is in the affirmative.

In the next step we explore the purpose of section 74. The sections’ primary purpose is to launch a project for the removal of asbestos from the Western Galilee. This is encompassed in the statute’s broader purpose: minimizing asbestos hazards in Israel. There is no doubt that this is an important and worthy purpose, befitting the values of the State of Israel. Indeed, it appears even Eitanit does not dispute this. I tend to think that this is the sole purpose of the statute. However, the State articulates another purpose: realizing the principle of “the polluter must pay.” I, myself, believe that this principle justifies the funding mechanism selected in the Act, rather than its purpose. Yet for the sake of a comprehensive analysis I assumed that “the polluter must pay” was a secondary purpose of the Act. Here, too, I find this to be an appropriate and befitting purpose: “the polluter must pay” principle relies on important and worthy rationales – efficiency considerations, cost internalization, justice and fairness – and it is even reflected in Jewish law and an array of recent pieces of legislation in Israel.

Is the means selected in section 74 proportional? I first examined the issue of the rational connection, in terms of each of the two purposes. As for the primary purpose, the link between the means and the end are obvious: the project directly leads to achieving the end of cleaning asbestos waste from the Western Galilee. As for the secondary purpose – “the polluter must pay” – here, again, I find a fit between the means and the end: placing financial obligations on Eitanit, which profited from burying the waste or passing it on to the end users, achieves the end of “the polluter must pay.” Even the legislature’s choice to impose a kind of retroactive and strict liability advances the principle of “the polluter must pay,” primarily from the perspective of justice and fairness.

The next step is the least restrictive means test. Here, the main alternative that Eitanit proposed is the self-performance, that is, that Eitanit or a contractor it would hire would remove the waste independently. However this option was already discussed by Eitanit and the State for a long period of time and was ultimately rejected. Under such circumstances I was not persuaded that the self-performance alternative would achieve the purpose behind section 74 – cleaning the Western Galilee from asbestos waste. Additionally, from a positive perspective, the mechanism the legislature opted for incorporates checks and balances that limit the harm to Eitanit. Eitanit would not be required to fund more than half of the removal project’s estimated costs, and in any event no more than NIS 150m. The funding mechanism insures that this is not a fine or compensation, but rather a fund dedicated to removing the waste. The removal project is limited to a radius of 15KM around the factory, and in any case there is a mechanism for checking and monitoring the length of the project, which allows Eitanit to challenge any requirement to pay for specific waste piles.

The final step is the narrow proportionality test. In this context I emphasized three points at the heart of Eitanit’s claims. On the generality issue, it is undisputed that section 74 specifically targets Eitanit, and Eitanit alone (aside from the State and the local authorities.) Only that the focus on Eitanit is not a whim that took over the legislature, but an outcome of the reality that was created by Eitanit itself. The section was designed to address a unique situation: a large amount of waste, in a defined geographical area, created systematically by one dominant entity – Eitanit.

On the issue of strict liability, it is true that on its face this is a harsh standard that raises questions and concerns. However, three considerations alleviate these difficulties. First, there are weighty justifications for strict liability, primarily justice and fairness, deterrence and cost internalization, as well as the evidentiary challenges of a fault-based standard. Second, there is support for strict liability in many European countries, in the United States, and in other countries. Third, a certain extent of factual expectation or awareness by Eitanit regarding the risks of asbestos (of course, not in the tort or criminal sense.)

Finally, in the issue of the Act’s temporal application, my conclusion is that the Act carries a narrow active application. Though it does apply to an existing state of affairs, there is no active application in the regular sense. All the factual elements have materialized completely in the past and section 74 does not at all address the future. Regardless, even if this was a completely retroactive statute – this is not a determinative factor, but merely another consideration in the constitutional fabric. At this point I discussed three mitigating elements: first, the expectation or knowledge element regarding the risk. Second, the scope of the risk; the finding that failure to treat the asbestos waste leaves many citizens exposed to a ticking time bomb in terms of their health. We cannot leave things as they are. In weighing imposing costs on Eitanit against imposing costs on the public, Eitanit’s connection to the waste as its producer puts the thumb on the scale, or at least allows for it. And third, the support for imposing retroactive liability in the United States and in other countries (such as Spain and Britain.)

We cannot ignore the infringement on Eitanit’s rights, or that the legislature created a new regime. However, it is my view that the infringement upon Eitanit’s constitutional rights – as an outcome of section 74 – passes the tests of the limitations clause.

Final Thoughts

42.Such is the way of the law. It is challenged by an ever-changing reality that requires the legislature to find solutions for problems that in one way or another threaten society. To achieve this purpose, occasionally there is need to design statutes that rely on new perspectives on legal principles. This was also the case in the past, and we shall present several examples of this.

The common law found it difficult to find legal justification to impose upon a stranger the duty to assist another person in distress. Still, for certain circumstances where official rescue services are far removed, the law has created obligations to rescue, for example the duty to save lives at sea, imposed on ships passing by (Scaramanga v. Stamp, 5 C.P.D. 295, 304-305 (1880); The Beaver, 3 Chr. Rob. 292 (1801); Sophie Cacciaguidi-Fahy, The Law of the Sea and Human Rights, 1 Panoptica Vitoria 1, 4-5 (2007)). Another example is the possibility of filing class action suits. Given the concern that absent a primary injured party who suffered damages in substantial amounts injuring parties would continue their harmful behavior, the law has developed this new procedural tool and recognized the possibility to file suit on behalf of a large group of injured parties. The novelty is both in the legal possibility to create a group of plaintiffs, who in large part did not express any position on the matter, and in the economical consequences even for a strong defendant (see the Class Action Act, 2006). Another example is the development of corporate law, on different levels. First, the recognition of a corporation’s independent status as a separate legal entity and the elimination of stock holders’ personal liability was a legal novelty and was a significant incentive to use the legal tool of incorporation. Later in legal history the pendulum swung back, to some extent. The legislature began imposing various obligations on the organs and office holders of corporations, such as duties of care and trust, based on understanding the web of interests that dictate their actions (Irit Haviv-Segal, Corporate Law, chapter 10 (2007); P. M. Vasudev, Corporate Law and Its Efficiency: A Review of History, 50 American Journal of Legal History, 237 (2010)).

As we can see, the law has gone through an evolution. To fit the it to reality, laws were passed that on their face strayed from the legal norms that were familiar and entrenched up to that point. It seems that our case, too, as part of Israel’s new environmental legislation, joins this list. The great potential for harm that asbestos waste causes and the complexity of the issue demand a solution that does not move on the currently acceptable axis of tort liability. As a rule, finding solutions to intricate problems is not necessarily a legal compromise in the sense of giving in. This is how the law advances. Hand in hand, in the constitutional era of recognizing rights, it is the role of the Court to make sure that the legislature’s selected solution meets the constitutional standards of the limitations clause. The mere existence of a problem does not open the gate for any solution. Judicial work is subtle, but necessary. In a constitutional regime, one would hope that the legislature would exercise better care. It would be aware that Basic Laws look over its shoulder “watches through the windows, peeking through the cracks (Song of Songs 2, 9.) It would strive to withstand constitutional review. This hope does not always materialize. In our case, section 74 includes elements that reflect the legislature’s attempt to meet constitutional standards. This attempt has been successful.

43.Ultimately, I would propose to my colleagues to reject the petition, and under the circumstances and the merits to require Eitanit to pay costs and attorneys’ fees as follows: for respondents 1, 3 and 4 together a sum of NIC 100,000; to respondent 5 and respondents 6-7, a sum of NIS 70,000 for the entire group; and for respondent 2 a sum of NIS 25,000.

 

___________________

Justice

 

 

 

President A. Grunis

I concur.

 

 

___________________

President

 

 

 

 

 

Justice T. Zylbertal

I concur.

 

 

___________________

Justice

 

 

Decided according to the judgment of Justice N. Hendel.

 

Handed down today, April 2, 2013.

 

 

 

 

 

 

 

AAA 343/09

 

Jerusalem Open House for Gay Pride and Tolerance

v.

1. Jerusalem Municipality
2. Mayor of Jerusalem

 

The Supreme Court

Sitting as a Court of Appeals for Administrative Affairs

[17 March 2010]

 

Before Justices E. Hayut, H. Melcer and I. Amit

 

Appeal of an Administrative Affairs decision of the Jerusalem District Court dated 10 November 2008 in AA 8187/08, issued by the Honorable Judge I. Adiel.

 

Facts: The Jerusalem municipality (the respondent) provides financial support to various institutions throughout the city. Institutions requesting funding are required to apply to the different municipality departments that distribute the funds, in accordance with prescribed criteria. The appellant is a registered charity that works for the gay community in the city; it operates a community center in Jerusalem for the gay community, and conducts a series of annual gay pride events in the city, including the annual gay pride parade. During the years 2005 through 2008, the appellant requested financial support from the respondent by filing applications with the respondent’s Culture Department (requesting assistance through both the ongoing support track and the projects track) and from the Social Affairs Department (requesting assistance through the track involving promotion of the status of women until 2007 when all such support was terminated, through the community councils and centers track, through the youth activity track, and from the Division for Youth and Young Adults). These applications were filed in accordance with the criteria established for assistance. All of the requests were denied, on grounds relating to the tests each track established to determine receipt of support. The appellant petitioned the Court for Administrative Affairs in the Jerusalem District Court, on the grounds that the municipality’s decisions were discriminatory. The lower court upheld the municipality’s decisions regarding the denial of funding, and the present appeal followed. As a procedural matter, the decisions regarding all four years are being adjudicated together.

 

Held: The appellant’s discrimination claims must be evaluated in light of a local authority’s duty to distribute funds on the basis of equality. This duty is identical to the statutory duty imposed on state entities regarding the distribution of funds to public institutions through section 3A of the Foundations of the Budget Act. Section 3A dictates that funds must be distributed to categories of institutions rather than to individual institutions and that all decisions regarding the recipients of government funding must be based on clear, transparent, and equal criteria. Thus, all such decisions must be based solely on relevant considerations, and no improper motivations may be involved; the refusal to give weight to relevant considerations is equivalent to affirmatively considering completely irrelevant factors. Furthermore, even a decision based on relevant grounds can be unreasonable if the outcome shows that substantive equality has been denied. For example, statistical outcomes may be particularly relevant when a decision is reached by a collective body and motivations cannot be determined. Relevancy is determined on two levels – first through a determination that the boundaries of the group affected by the decision had been delineated on relevant grounds (a determination which is to be based on constitutional criteria for equality), and second that all those within the group were being treated equally (a determination which is to be based on administrative law criteria for equality).

In light of these principles, a review of the various criteria relied upon in denying the appellant funding shows that the municipality’s decisions were defective only in one respect. Thus, the appeal can be allowed to proceed only with regard to the decision to deny the appellant funding through the community councils and centers track.  That denial was based on a rule that only centers providing services on a geographic-regional basis were entitled to receive funding, meaning that the unique needs of the geographically dispersed gay community would not be met by any source of financial support from the municipality. The rule therefore gave rise to a denial of substantive equality - particularly in light of the fact that other similarly dispersed communities were receiving support through various municipal departments. As such, the Court awarded appellant the support it had requested through this track. The remedy provided is an expansion of an existing criterion used for the provision of support through the community councils and centers track, rather than the addition of a new one.

 

Appeal allowed.

 

Legislation cited

Employment (Equal Opportunities) Law, 5748–1988 (Amendment 1) (5742–1992)

Foundations of the Budget Law, 5745–1985

Libel Law (Amendment No. 5), 5737–1977

Mandatory Tenders Law (Amendment No. 12), 5762–2002

Penal Code (Amendment No. 22), 5748–1988

Prevention of Sexual Harassment Law, 5758–1998, s. 3(a)(5)

Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761–2000, s. 3(a)

 

Israeli Supreme Court cases cited:

[1]       HCJ 4533/02 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality (2004) (unreported).

[2]       HCJ 10903/04 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality (2003) (unreported).

[3]       AAA 5905/06 Jerusalem Municipality v. Jerusalem Open House for Pride and Tolerance (2007) (unreported).

[4]       HCJ 8912/05 Mifgashim – Society for Educational and Social Involvement v. Minister of Education, Culture and Sport (2007) (unreported).

[5]       HCJ 6976/05 Zinman College of Physical Education at the Wingate Institute, Ltd v. Ministry of Education, Culture, Science & Sport (2009) (unreported).

[6]       HCJ 4124/00 Yekutieli v. Minister of Religion (2010) (unreported).

[7]       HCJ 1438/98 Conservative Movement v. Minister of Religious Affairs [1999] IsrSC 53 (5) 337.

[8]       HCJ 59/88 MK Tzaban v. Minister of Finance [1989] IsrSC 35 (1) 421).

[9]       HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister (2006) (unreported).

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

[11]     HCJ 11020/05 Panim for Jewish Renewal in Israel v. Minister of Education (2006) (unreported).

[12]     HCJ 5264/05 Yeshivat Shavei Shomron v. Minister of Finance (2005) (unreported).

[13]     HCJ 11585/05 Israel Movement for Progressive Judaism v. Ministry of Absorption (2009) (unreported).

[14]     AAA 4515/08 State of Israel v. Ne’eman (2009)(unreported).

[15]     HCJ 5325/01 LCN Society for the Promotion of Women’s Basketball v. Ramat Hasharon Local Council [2004] 58(5) IsrSC 79.

[16]     HCJ 10285/04 Haifa Motzkin Municipal Women’s Basketball League v. Haifa Municipality (2005) (unreported).

[17]     HCJ 10104/04 Peace Now – Sha’al Educational Services v. Director of Jewish Settlements in Judea and Samaria (2006) (unreported).

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

[19]     HCJ 4500/07 Yachimovich v. Second Television and Radio Authority (2007) (unreported).

[20]     HCJ 3551/97 Brenner v. Jewish Religious Services Law Ministers Committee [1997] IsrSC 51(5) 754.

[21]     HCJ 6300/93 Center for Training of Rabbinical Court Pleaders v. Minister of Religious Affairs [1994] IsrSC 48(4) 441.

[22]     HCJ 571/89 Moskowitz v. Board of Appraisers [1990] IsrSC 54(2) 236.

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

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

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

[26]     HCJ 7111/95 Center for Local Government v. Knesset [1996] IsrSC 50(3) 485.

[27]     HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94.

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

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

[30]     HCJ 6427/02 Movement for Quality Government v. Knesset (2006) (unreported).

[31]     HCJ 7178/08 Forum of the Druze and Circassian Council Heads in Israel v. Government of Israel (2009) (unreport     ed)

[32]     HCJ 1067/08 “Noar k’Halacha” Association v. Minister of Education (2009).

[33]     HCJ 9722/04 Polgat Jeans Ltd v. Government of Israel (2009) (unreported).

[34]     HCJ 7691/95 Sagay v. Government of Israel [1998] IsrSC 52(5) 577.

[35]     HCJ 205/94 Nof v. Ministry of Defense [1997] IsrSC 50(5) 449.

[36]     HCJ 5304/02 Israel Association of Victims of Work Accidents and Widows of Victims of Work Accidents v. Knesset [2004] IsrSC 59(2) 134.

[37]     HCJ 9863/06 Karan - Society of Combat Veteran Quadriplegics v. State of Israel v.State of Israel - Minister of Health (2008) (not yet reported).

[38]     HCJ 11075/04 Girby v. Minister of Education Culture and Sports - Chairman of the Council of Higher Education (2007) (unreported).

[39]     HCJ 3792/95 National Youth Theater v. Minister of Science and Arts [1997] IsrSC 51(4) 259.

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

[41]     HCJ 720/82 Elizur Religious Athletic Association, Nahariya Branch v. Nahariya Municipality [1983] IsrSC 37(3) 17.

[42]     HCJ 727/00 Committee of Heads of Local Arab Councils in Israelv. Minister of Construction and Housing [2009] IsrSC 56(2) 79.

[43]     HCJ 6407/06 Doron, Tikotsky, Amir, Mizrachi, Attorneys at Law v. Minister of Finance [2007](unreported).

[44]     HCJ 11956/05 Bashara v. Minister of Construction and Housing (2006) (unreported).

[45]     HCJ200/83 Watad v. Minister of Finance [1984] IsrSC 38(3) 113.

[46]     HCJ 986/05 Peled v. Tel Aviv-JaffaMunicipality (2005) (unreported).

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

[48]     HCJ 240/98 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs [2000] IsrSC 54 (2) 164.

[49]     HCJ 8186/03 Tali School Education Fund v. Ministry of Education (2004) (unreported).

[50]     HCJ 528/88 Avitan v. Israel Land Administration [1989] IsrSC 43(4) 297.

[51]     HCJ 4906/98 Am Hofshi Organization for Freedom of Religion, Conscience, Education and Culture v. Ministry of Housing [2000] IsrSC 54(2) 503.

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

[53]     HCJ 721/94 ElAl Airlines v. Yonatan Danielowitz [1994] IsrSC 48(5) 749.

[54]     HCJ 273/97 Protection of Individual Rights Association v. Minister of Education [1997] IsrSC. 51(5) 822.

[55]     HCJ 1778/99 Nicole Brenner-Kadish v. Minister of the Interior [2000] IsrSC 54(2) 368.

[56]     HCJ 293/00 A v. Supreme Rabbinical Court in Jerusalem [2000] IsrSC55(3) 318.

[57]     CA 10280/01 Yaros-Hakak v. Attorney General [2005] IsrSC 59(5) 64.

[58]     HCJ 8988/06 Yehuda Meshi Zahav v. Ilan Franko, Jerusalem District Police Commander (2006) (unreported).

[59]     HCJ 3045/05 Ben-Ari v. Director of Population Administration (2006) (unreported).

[60]     HCJ 5277/07 Baruch Marzel v. Jerusalem District Police Commander (2007) (unreported).

[61]     HCJ 6924/98 Association for Civil Rights in Israel v. State of Israel et. al. IsrSC [2001] IsrSC 55(5) 15).

[62]     HCJ 9547/06 New Fund for Promotion and Encouragement of Film and Television Production v. Israel Cinema Council (2008) (unreported).

[63]     HCJ 1313/01 Keren Yaldenu Merkazei Tikvateinuv. Ministry of Education and Culture (2002) (unreported).

[64]     HCJ 6437/04 Tabouri v. Ministry of Education and Culture [2004] IsrSC 58(6) 369.

[65]     HCJ 7426/08 Tebeka Advocacy for Equality and Justice for Ethiopian Israelis v. Minister of Education et al (2010) (unreported).

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

[67]     HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [1991] IsrSC 46 (1) 191.

[68]     HCJ 5496/97 Mordi et al. v. Minister of Agriculture [2001] IsrSC 55(4) 540.

 

Israeli District Court Cases Cited

[69]     AP(Jer) 526/05 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality (2005) (unreported).

[70]     SFC (Jer) 843/05 State of Israel v. Shlisel (2006) (unreported).

[71]     AP(Jer) 219/06 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality(2005) (unreported).

[72]     AP(TA) 1187/05 Condominium Representation v. Petach Tikva Municipality (2005) (unreported).

[73]     AP(Jer) 1754/09 Jewish Center for Pluralism – Movement for Progressive Judaism in Israel v. Jerusalem City Council (2010) (unreported).

 

     American Cases Cited

[74]     Ricci v. DeStefano 557 U.S. ___ (2009)

[75]     Gay Rights Coalition v. Georgetown University, 536 A.2d 1 (D.C. App. 1987).

 

For the appellant — G. Barnea, E. Horowitz.

For the respondents — E. Got, R. Bar Zohar.

 

JUDGMENT

 

Justice I. Amit

This is an appeal against a judgment of the Jerusalem Court for Administrative Affairs, dated 10 November 2008 (Deputy President Y. Adiel) in AA 8187/08, which denied the petition brought by the Jerusalem Open House for Gay Pride and Tolerance (Registered Charity) (hereinafter: “the appellant”) against the Jerusalem Municipality (hereinafter: “the Municipality” or “respondent 1”) and against its mayor (hereinafter: “the Mayor” or “respondent 2”) (hereinafter, together: “the respondents”).

1.    The petition heardin the lower court related to the rejection by respondent 2 of the appellant’s application for financial support for various activities it conducted during the years 2005, 2006 and 2007. In its petition, the appellant argued that the Municipality, including its various departments, had established criteria for the provision of support which effectively created insurmountable obstacles for the Jerusalem gay, lesbian and transgender community, (hereinafter, and in accordance with the community’s preferred name: “the LGBT community”), which the appellant represents.

In short, the lower court held that although the importance of the appellant’s activity was undisputed, such activity did not meet the criteria established by the Municipality for entitlement to support. As a result, it held and that there was no cause to intervene with the Municipality’s stated criteria, nor in its exercise of judgment in implementing said criteria in determining the appellant’s entitlement to support. This issue is raised before us in the present appeal.

The parties to the appeal

2.    The appellant is a registered non-profit organization, established in 1997; its purpose is the promotion of pluralism and social tolerance. Approximately ten years ago, it established a community center that operates in the Jerusalem city center (hereinafter: “the community center” or “the Open House”) for the city’s LGBT community. According to the appellant, the LGBT community constitutes approximately 10% of the general population, as well as 10% of the residents of Jerusalem. The appellant has stated that it works to integrate the LGBT community within Jerusalem’s urban fabric, as an inseparable part thereof; it offers numerous activities year-round to members of Jerusalem’s LGBT community and these activities have no parallel elsewhere in the city. According to the appellant, it is the only organization providing essential services to the city’s LGBT community, creating a much-needed framework for the community to support each other. The appellant states that among other things, the Open House provides: social and cultural services, emotional-social support services directed specifically at the LGBT community, and approximately seventy events each month including support groups, discussions, lectures, religious and tradition-related events, social get-togethers, and various cultural events. This activity extends to the broader public both in and outside of Jerusalem, such that the activity of the Open House serves other groups within the Jerusalem public who do not identify as LGBT, but who are interested in upholding the values of tolerance, pluralism and liberalism in the city. According to the appellant’s declaration, the individuals who come to its community center represent a characteristic slice of the Jerusalem population, coming from all sectors within the spectrum of that population: secular people, religious and ultra-Orthodox people, Arabs, Christians, Jews, young people, the elderly, men and women. Additionally, since 2002, the appellant has conducted the gay pride events in Jerusalem, which include the gay pride parade, the gay pride “happening” and a series of activities that take place within the framework of the gay pride events.

3.    The respondent is the Jerusalem Municipality, which is responsible for providing services to the city’s residents. Among the other activities conducted by the Municipality, it provides financial support each year to entities that operate in a variety of fields. The support is provided from public funds that are received from various national government ministries, and from public funds from the Municipality itself.

Chronology of the proceedings between the parties

4.    This is not the first time that the parties have met in court, and the appellant has made many appeals to the courts regarding support. In the following pages, we will survey the procedural history between the parties. We apologize to the reader for the lengthy descriptions of the proceedings, which are necessary to provide a proper explanation of the background of the current appeal.

The appellant conducted gay pride events in Jerusalem for the first time in 2002. These events included the gay pride parade, a gay pride “happening,” and a series of additional events such as cultural performances, lectures, discussions, and film screenings. The appellant petitioned this Court when its application for financial support for the gay pride events in 2002 was rejected. The petition was stricken after the Municipality accepted the Court’s recommendation to pay the appellant NIS 40,000 towards funding the gay pride events, though such payment did not constitute the Municipality’s acknowledgement of the appellant’s right to funding for similar events in the future (HCJ 4533/02 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality[1]).

The appellant held the gay pride events in Jerusalem again in the years 2003 and 2004; these events included various activities such as literature evenings, workshops, lectures, exhibits, film screenings, parties, etc. When its application for support from the Municipality for these events was denied, the appellant again petitioned this Court. In this petition, the Court was asked to order the Municipality to provide the appellant with support to finance its activities during the years 2003 and 2004,and to require that the Minister of the Interior and the Attorney General establish new and updated procedures for the provision of financing by local authorities. Following the submission of that petition, the Minister of the Interior began working to publish an updated procedure for provision of local authority financial support as quickly as possible. The new regulations would replace the old procedure, most recently revised in 1985. The petition against the Minister of the Interior was therefore stricken, and the Minister was ordered to pay the petitioner’s costs. With respect to the Municipality, the Court held that if the appellant’s application for support for 2005 was rejected as well, the appellant would be entitled to file a petition against the Municipality regarding its applications for support for that year and for the years 2003 and 2004 as well (HCJ 10903/04 Jerusalem Open House for Gay Pride and Tolerance v. Jerusalem Municipality [2]).

We note that on 23 August 2006, following said decision, the Ministry of the Interior published a Director-General’s directive on the subject of support from local authorities for public institutions (Director-General Directive no. 2006/4 (hereinafter: “the new procedure”)).

5.    Moving backward chronologically, we note that on 24 April 2004, the Mayor appointed a public committee to establish criteria for the distribution of funds to cultural and artistic institutions operating in the city. The committee was headed by Professor Arnon Zuckerman (President of Bezalel and past director of the Israel Broadcasting Authority) and had many members, including senior figures from the fields of art and culture (hereinafter: “the Zuckerman Committee”).

The Zuckerman Committee considered the matter for a year and a half. It was assisted by a financial consulting firm in formulating measurable criteria for assessing the amount of support to be given to each cultural institution. The criteria recommended by the Zuckerman Committee members (hereinafter: “the Zuckerman criteria”) were adopted by the City Council on 10 October, 2006.

According to the Zuckerman criteria, the city provides support through the ongoing support track to institutions that are primarily involved in professional artistic creation, and which have been recognized by the Culture Administration at the Ministry of Education. These institutions are given support on the basis of three key criteria: quantitative activity data; contribution to the establishment of Jerusalem as the cultural capital of the State of Israel and as a global tourist center, based on international cultural and artistic projects; and artistic and cultural importance. An “advisory committee” determines which institutions are potentially eligible for support; the committee is comprised of Municipality employees and of representatives of the public who have relevant skills, do not hold positions with the Municipality, and whose appointment to the committee is not a conflict of interest.

Separate and apart from the criteria for support from the ongoing support track, the Zuckerman Committee recommended that 10% of the budget for support in the area of culture should be allocated for one-time or multi-year projects in the areas of professional art, amateur works, folklore, Jewish tradition, and Arab culture (hereinafter: “the project track”).

6.    As the 2005 gay pride events approached, various groups within the public voiced their opposition to those events being held in Jerusalem. The then Mayor also stated his opposition. The Municipality refused to take various measures for the gay pride events, including the hanging of flags purchased by the appellant along the planned route of the gay pride parade. The appellant then filed an administrative petition in the District Court in June 2005, asking that the Municipality be ordered to make it possible for the gay pride events to be held. This petition included a request that the Municipality be ordered to hang the gay pride flags in a number of Jerusalem streets, and that the respondents, the Minister of the Interior and the Israel Police, be ordered to refrain from any act that would be likely to interfere with the parade and the assembly.

The appellant’s petition was granted. In her decision, Judge M. Arad held that the Municipality must make public areas available to the entire public, including various groups within it. The decision noted that the municipality must enable pluralism and allow the expression of different opinions to flourish. The court ordered the respondents to take all action required in order for the gay pride events to be held, including hanging the flags in the streets, and ordered the Municipality and the Mayor to pay the appellant’s expenses (AP (Jer) 526/05 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality[69]).

As a result of the judgment, the 2005 gay pride events, including the parade, took place in Jerusalem in timely fashion. During the parade, there were a number of confrontations between participants and protesters; these reached their peak in an incident during which three parade participants were stabbed with a knife. (The stabber was convicted, inter alia, of attempted murder, and was given a ten-year prison sentence (SFC(Jer) 843/05 State of Israel v. Shlisel [70]).

7.    The appellant’s applications for support for the year 2005: The appellant applied to the Municipality for support for the purpose of establishing, expanding, and enriching its activity. The application for support from the Municipality’s Social Affairs Department referred to three areas: community centers and councils; advancement of the status of women; and youth and young adults.

The appellant stated that the activity in its community center creates a safe space for all who enter, and offers various opportunities for youth, women, and other sectors within the LGBT community who have special needs (such as elderly men, religious men and women, Arabs, and others).

The appellant’s application noted that it runs two main types of activities advancing the status of women. The first involves varied social activity, including various meetings for women within the LGBT community for the purpose of nurturing friendship and providing entertainment. The second involves the “Women’s Talk” meetings, a type of social activity in which women from the LGBT community discuss a variety of subjects. This is in addition to other activities held on a weekly basis, such as a women’s basketball team and a “do-it-yourself” workshop, designed to empower women in the LGBT community.

The application also noted that the appellant maintains three frameworks providing separate types of content for youth and young adults: a youth group for ages 15-18; a group for young adults ages 18-23; and an open night for young adults. The activity takes place once a week at the Open House, and the community center is open only to youth and young adults while these activities take place, allowing the participants to maintain relative anonymity. The programs are run by a professional youth coordinator, and the appellant’s professional staff, comprising volunteers, social workers and psychologists. The appellant sought to expand this activity and to add a special framework for new immigrant youth, who have additional and particular needs related to their connection to the LGBT community.

8.    The appellant submitted an additional funding application to both the ongoing support track and the projects track of the Municipality’s Culture Department. The appellant listed a number of activities, mostly connected to sexual orientation, in the areas of film, literature, research, theater, lectures and dialogues, art, and more. With regard to the projects track, the application noted in particular the gay pride events for the year 2005, which included, inter alia, literary events dealing with religion, sexual orientation and sector identity, cultural events at the Jerusalem Cinemathèque, parties, a special exhibit, a pluralistic gay pride Sabbath Eve event, a discussion of lesbian sexuality, and more.

9.    The Municipality rejected all the appellant’s applications for support for 2005. Apparently, the applications that were submitted to the Social Affairs Department were not passed on to either the Municipality funding committee nor to the City Council; at the very least, the appellant received no notice from the Municipality regarding these applications. The application addressed to the Culture Department was rejected by the City Council in light of the Funding Committee’s recommendation, which had relied on the recommendation of the Professional Allocations Committee and that of the Advisory Committee. This last committee conducted two discussions of the appellant’s application for support and concluded that the appellant did not satisfy the Zuckerman criteria, either for the ongoing support track or for the projects track.

10.  Because its applications for support in 2005 were also rejected, the appellant submitted a petition to the Court for Administrative Affairs in which it asked the court to order the Municipality to provide the appellant with support for the years 2003, 2004 and 2005, and to order the Municipality to set relevant, transparent and equal criteria for the distribution of the support funds[equal criteria in the sense that their implementation leads to all groups receiving equal treatment — hereinafter: equal criteria].In its petition, the appellant raised, inter alia, claims of favoritism and of conflicts of interest regarding some of the members of the advisory committee —the professional advisory committee that operates in the framework of the Zuckerman criteria. The conflict of interest claim alleged that some members of the advisory committee were connected to entities that successfully requested and received support from the Culture Department. In her decision of28 May 2006, Judge Y. Tzur accepted the appellant’s arguments against the Municipality (AP(Jer) 219/06 Jerusalem Open House for Pride and for Tolerance v. Jerusalem Municipality [71] (hereinafter: “Judge Tzur’s decision”). Judge Tzur held that the Municipality’s decisions regarding the appellant’s applications for support for the years 2003, 2004, and 2005 violated the principle of equality, and failed to comply with both the provisions established in the support procedure and the rules of proper administration. The Municipality was ordered to provide the appellant with support funds for those years.

Regarding the year 2003, the court noted that the municipality’s decision to deny the application was not supported by any reasoning and contradicted the recommendation of the Municipality’s own professional body, which had recommended that the appellant be granted support in 2003. Therefore, the court held that the Municipality had not presented transparent and equal criteria for the provision of support, and had failed to present a proper context to enable a substantive examination of its decision. The Municipality was then required to provide funding to the appellant for the year 2003 in the amount of NIS 100,000.

Regarding the year 2004, the court held that in rejecting the appellant’s application, the funding committee had failed to include its reasoning, ignored the decision of the professional staff and the professional recommendations of the Municipality’s legal adviser and of its comptroller, and violated the principles of equality and transparency. Judge Tzur also held that the committee’s decision was unreasonable and defective in terms of the propriety of its proceeding. The Municipality was therefore required to provide the appellant with support for the year 2004 in the amount of NIS 125,000.

Regarding the year 2005, the court held in favor of the appellant, finding support for the claims of bias and conflict of interest. It also held that the claim that appellant’s funding application was rejected because it did not meet the Zuckerman criteria was discriminatory. It further held that although the criteria were relevant and equal on their face, the unequal outcome indicated otherwise. The court held that the threshold requirement that the main activity of an institution must be in at least one of the fields of professional art to qualify for funding had led to the unequal outcome. The court also found that the Zuckerman criteria were deficient in that they omitted important objectives such as the encouragement and nurturing of cultural and artistic legacies of my raid and unique population sectors. The court therefore directed the Municipality to supplement the existing criteria with new criteria designed to include the development of the values of pluralism, the cultural and social activity of minority groups invested in preserving their uniqueness, and the special needs of minority groups.

The court supported its holdings by noting the Municipality’s conduct towards the appellant and the manner in which the Municipality had handled the appellant’s applications for support in previous years; together, these indicated an unfavorable atmosphere within the Municipality towards the appellant, as well as a reasonable suspicion that the Municipality had discriminated against appellant.

Regarding the appellant’s 2005 application for support from the Social Affairs Department, the court criticized the Municipality for not presenting any explanation or factual background for its decision; the Municipality had failed to submit documentation showing any discussion whatsoever of the appellant’s application for support from the Social Affairs Department. On the substantive level, the court rejected the Municipality’s claim that the application had been denied because the appellant was not an organization whose main purpose was the advancement of the status of women. The court held that the appellant’s application for support from the Social Affairs Department should have been examined on a substantive level, and that at the very least it should not have been summarily rejected. In light of this, the Municipality was ordered to provide the appellant with the sum of NIS 125,000 in financial support for the year 2005, subject to the submission of financial statements.

11.  The Municipality’s appeal of Judge Tzur’s decision to this Court was denied, with the Municipality’s consent, with respect to the years 2003 and 2004. Regarding 2005, this Court held that the matter should be returned to the Court for Administrative Affairs, and that the appellant could submit an amended petition in which it could expand the grounds of the claim, including in relation to support for social activity, for activity directed at youth and young adults, and for “marginal culture” projects, etc. In addition, this Court held that the appellant could supplement the amended petition, to the extent necessary, with a petition regarding the applications for support for the years 2006 and 2007 (AAA 5905/06 Jerusalem Municipality v. Jerusalem Open House for Pride and Tolerance [3]).

12.  In light of Judge Tzur’s decision and of the judgment in Jerusalem Municipality v. Jerusalem Open House [3], the Zuckerman Committee met again on 13 December 2007 to discuss the support criteria that it had recommended. The Committee saw no need to change the criteria, and recommended that the Culture Department direct the limited budget to those institutions focused primarily on professional art in an effort to realize the goal of establishing Jerusalem as a cultural capital; the recommendation was that this should be done by “ensuring the activity of the creative artistic institutions within the city” (emphasis added – I.A.). The Committee went on to clarify that these criteria were not intended “to exclude unique communities and sectors from the ongoing support track, as long as such entities are engaged in regular artistic activity.” As an example, the Committee pointed to a number of entities representing communities or minority sectors that had received support after they were found to meet the professional-artistic requirement, as distinguished from the community-sectoral requirement (such as the “Antea Art Gallery” which operates within the framework of the “Woman’s Voice” organization, and the “Noah’s Ark Theater” which works with actors and artists from CIS countries). The Committee reiterated that the budget for the projects track “did include projects of communities and minority sectors with special needs.”

13.  The appellant’s applications for support for the year 2006: In 2006, the appellant submitted applications for support to the Municipality’s Culture Department and to its Social Affairs Department.

As was the case in 2005, the application for support submitted to the Social Affairs Department related to three tracks: the centers and community councils track; the activity for youth and young adults track; and the advancement of the status of women track. The application for support from the Culture Department was addressed to both the ongoing support track and the projects track, with respect to, inter alia, the world gay pride events that were held in Jerusalem that year.

14. The Municipality’s professional allocations committee approved in principle the appellant’s application for support from the Culture Department for the world gay pride events in 2006, subject to the submission of various documents to the committee. In the end, the appellant’s application for support was denied due to its failure to comply with the Accountant-General’s Directive of 25 February 2004, entitled “Supervision of Entities Receiving Support from the State Budget — Limitations on Administrative and General Expenses”(hereinafter: “the Accountant-General’s Directives”). According to this Directive, financial support may not be given to entities that deviate from the “Management and General” expenses framework. The Municipality also denied the applications for support addressed to the ongoing support track at the Culture Department for the same reason.

The appellant’s applications from the Social Affairs Department were all denied as well, for various reasons, as will be described below.

15.  The appellant’s applications for support for the year 2007: In 2007, the appellant again submitted applications for support to the Municipality’s Social Affairs Department, its Culture Department, and the Division for the Advancement of Youth and Young Adults.

As with the applications for support in 2005-2006, the application for support from the Social Affairs Department related to three tracks: the community centers and councils track, the activity for youth and young adults track, and the advancement of the status of women track. The application to the Culture Department referred to the ongoing support track and to the projects track. The application addressed to the Division for the Advancement of Youth and Young Adults (hereinafter: “the Division for the Advancement of Youth” or “the Division”) was submitted by the appellant after the director of the Division, Mr. Shabtai Amedi, and his deputy, Mr. Reuven Bachar, visited the Open House. Mr.Amedi returned for a second visit.

16.  In its letter of 9 August 2007, the Municipality rejected the appellant’s application for support from the Social Affairs Department on the grounds that the appellant was not recognized by the National Association of Community Centers or by the Jerusalem Association of Community Councils and Centers. The Municipality did not refer in its letter to the application for support from the youth activity track, nor the application for support from the advancement of the status of women track.

In an additional letter dated 9 December 2007, the Municipality responded that it had decided to reject the two applications submitted to the Culture Department, since they did not meet the criteria for the funding of cultural institutions. The letter also noted that parades did not fall within the framework of a recognized project for the purposes of support from the Culture Department’s projects track.

The appellant’s application for support from the Division for the Advancement of Youth was also rejected, on the grounds that the appellant did not satisfy the Division’s alienated youth track criteria for support: only a limited number of young people participated in the appellant’s activity, the activity was of a social character, and the leaders lacked the necessary professional knowledge.

The petition submitted to the lower court and the remedies sought in the context thereof

17.  Following the rejection of the appellant’s applications for support for the years 2006 and 2007, and in accordance with the judgment in Jerusalem Municipality v. Jerusalem Open House [3], the appellant submitted the petition that is the subject of this appeal (AA 8187/08)to the lower court on 10 March 2008. In this petition, the court was asked to order the Municipality, and the City Council and its funding committee to renew its consideration of the appellant’s applications for support for these years. Appellant also asked the court to establish relevant, equal, and transparent criteria for the distribution of support funds, or alternatively, to direct the Municipality itself to promote and fund social, cultural and youth activities for the welfare of the LGBT community.

The judgment in the lower court

18.  Rejection of the applications for support from the Culture Department through the ongoing support track: The lower court held that the Municipality was not implementing the Accountant-General’s Directive in a consistent or orderly fashion, that the Municipality was approving support for entities that did not satisfy the conditions established in the Directive, and that it could not explain the provision of support to some ten organizations that did not meet the conditions in the Directive. The court consequently accepted the appellant’s argument that petitioner’s claim that it rejected appellant’s funding applications in an attempt to comport with the Accountant-General’s Directive in fact did not justify its rejection of its appellant’s applications for support.

The court rejected the appellant’s claims based on favoritism and a conflict of interest. These claims asserted that other entities that had requested and received support for cultural activity had been members of the advisory committee. The court found that the relevant committee members had not taken part in the deliberations concerning the institutions in which they had an interest, and that they had not attempted to influence the views of the other members of the advisory committee. The court noted that even if some interference had been proven, as the appellant had claimed, the effect would have been no more than the nullification of the decisions that were tainted by a conflict of interest, and would not have entitled the appellant to receive the support requested.

19.  On the substantive level, the lower court held that the distinction between “professional art” and the appellant’s cultural activity was a relevant distinction relating to the nature of the activity. The appellant acted as a consumer of culture and not as a producer of culture, and certainly not as a professional producer thereof. The appellant had not demonstrated that the Municipality’s Culture Department had funded any other activities similar to those that it conducts, or any other population group with similar characteristics. Accordingly, the appellant had not established any justification for intervention in the Municipality’s exercise of judgment in reaching its decision to deny support for the appellant’s ongoing cultural activity—a decision that fell within the bounds of the Municipality’s discretion, and which could not, therefore, be deemed a discriminatory act.

20.  Regarding the support for activity concerning “culture on the margins”, as described by the guidelines established in the judgment in Jerusalem Municipality v. Jerusalem Open House [3], the lower court held that even assuming that the term “culture on the margins” does not necessarily refer only to culture in the fields of professional art, there would still be no cause for interfering in the Municipality’s exercise of its discretion. Ignoring the Zuckerman critieria would be tantamount to, forcing the Municipality to also allocate support to cultural activity that does not fall within the parameters of professional art. Even if it were proper to require the Municipality to support activity defined as “culture on the margins”, the appellant’s main area of involvement is not the creation of culture, but rather the consumption of culture, and thus it would not be entitled to support under this heading either.

21.  Rejection of the applications for support from the Culture Department through the projects track: The court held that the “local” gay pride events for the years 2005 and 2007 did not constitute cultural events justifying support; rather, they were events that were intended to deliver a social message to the public.

Regarding the world gay pride events that were held in 2006, the Municipality itself recognized that some of these met the criteria established for support from the Culture Department’s projects track, but it refused to provide financial support on the grounds that the implementation reports submitted by the appellant did not make the required distinction between those elements of the world gay pride events in 2006 that were entitled to support and those that were not. The court held that it was not improper to attach a proportionate part of the general logistical expenses to the application that constituted part of a broader project, to the extent that a more exact calculation was not practically possible, and insofar as such submission did not detract from the Municipality’s right to examine the calculation method —something that it had not done in this case. Nevertheless, the court accepted the Municipality’s argument that the appellant had not responded to the demand that it attach a financial statement certified by an accountant, and that the Municipality was therefore entitled, for this reason alone, to reject the application for support for the 2006 world gay pride events as well.

22.  Rejection of applications for support from the Social Affairs Department through the community centers and councils track: The lower court held that the provision of support to community councils was only justified in light of the strong connection between the Municipality and the community centers and councils that operate in Jerusalem. This connection is expressed on an organizational level in the fact that the Municipality holds 49.7% of the share capital of the Jerusalem Association of Community Councils and Centers Ltd., and that the Mayor is the chairman of the Association’s board of directors. The connection also exists in relation to the content of the activity conducted by the centers and councils, and is reflected in the fact that the community councils operate on a geographic basis, with each council constituting a type of mini-municipality for the region in which it is located, and acting as the long arm of the Municipality in terms of providing the city’s residents with access to municipal services. The court found that this indicated a material difference between the community centers and councils operating in Jerusalem and the Open House, which is the appellant’s community center, and that the latter therefore does not belong to the same category as the former. As such, the provision of support to the community centers and councils but not the Open House does not constitute discrimination against the appellant, and the Municipality should not be ordered to provide support to the Open House, even if the importance of the social activity conducted there is undisputed.

It was further held that the appellant had not proven that the Municipality did finance other institutions that belonged to the same peer group as the appellant. To the contrary: the material presented by the Municipality showed that many institutions that conduct social activity directed at population groups with special needs had also been denied support.

23.  Rejection of the applications for support from the Social Affairs Department through the advancement of the status of women track: Regarding the application for the years 2005–2006, the court held that the appellant could not be viewed as an institution whose primary purpose was the advancement of the status of women, considering that only 1.75% of its expenses were incurred for this cause. It was also held that the Municipality’s decision to carry out its own activities for the advancement of the status of women beginning in the year 2007 was entirely appropriate.

24.  Rejection of the applications for support from the Social Affairs Department through the activity for youth track: The lower court held that this type of support was given to youth movements and organizations that were recognized by the Ministry of Education, and that since the appellant did not fall within the definition of a youth movement or a youth organization, rejection of the application was justified and the appellant was not entitled to support through this track.

25.  Rejection of the applications for support from the Division for the Promotion of Youth: The Division for the Promotion of Youth, which is a municipal body, provides support to two categories of youth. The first consists of young people who are at risk due to involvement with drugs, and the second consists of “alienated youth”, who are defined by the Division as youth who are not included in any full-time educational or occupational framework. The appellant’s application for support for LGBT youth was rejected on the basis of this division into two groups, because the requested support could not be characterized as support for either of the groups. However, the lower court clarified that the purpose of the Division is to operate on behalf of and to support youth who are at risk. Therefore, since it is undisputed that LGBT youth are at risk and that they are therefore a part of the relevant peer group, the court held that the Municipality’s failure to provide support to LGBT youth did constitute a discriminatory act

Nevertheless, the court denied the appellant’s petition because it had not asked, in its petition, to include the youth belonging to the LGBT community within the youth population that was entitled to receive care in the framework of the Division, but had instead sought to receive the Municipality’s support for the appellant’s own activity. In any event, the Municipality is prepared to expand the Division’s activity to include young adults who belong to the LGBT community. The Division’s director indicated as such in a proposal, which appellant subsequently rejected. Once the Municipality had decided to focus the Division’s activity on providing professional treatment for youth, rather than social activity — even if such activity has some therapeutic aspects, such as the activity carried out by the appellant —there was no cause for intervention in the Municipality’s exercise of its judgment.

The court also dismissed the appellant’s argument that it was discriminated against in relation to the “Friends of Bait Ham [Warm Home] Association”, which is the only institution that did receive support funds from the Division. The court also held that although there is a significant similarity between the work of the “Friends of Bait Ham” and that of the Division, the appellant did not conduct any comparison between its own activity and that of the Association. Thus, the court was unable to determine that the appellant had suffered from discrimination vis-à-vis that Association.

26.  In summary, the court denied the appellant’s petition for financial support through any of the tracks. The appeal before us deals with this outcome of the lower court’s decision.

The appellant’s application for support for the year 2008

27.  Even before the lower court rendered its decision, the appellant submitted applications for support for the year 2008. As in 2007, applications were submitted to the Social Affairs Department, the Culture Department and the Division for the Advancement of Youth, and these applications, too, were denied. The appellant therefore submitted an additional petition to the Court for Administrative Affairs(AP 9091/08). During the hearing of that petition, the parties reached an agreement that our judgment regarding the current appeal will also apply to the year 2008. Additionally, the Municipality agreed that if it were ordered to pay appellant, it would not seek to argue that the support budget for 2008 has been distributed already. Subject to this declaration, the petition was withdrawn.

Interim summary

28.  We will review the milestones that led to the appeal before us. The Municipality provided NIS 40,000 in support for the appellant’s activity (the gay pride events for the year 2002), in the context of a settlement of Jerusalem Open House v. Jerusalem Municipality [1]. In accordance with the decision rendered in Jerusalem Open House v. Jerusalem Municipality [2], the appellant filed a petition in the Court for Administrative Affairs regarding the years 2003-2005, a petition which Judge Tzur granted in her judgment. Following an appeal submitted by the Municipality against that decision (Jerusalem Municipality v. Jerusalem Open House [3]), the case was returned to the Court for Administrative Affairs with respect to support for the years 2006-2007. The lower court denied the petitions for all three years, and the appeal before us was brought against this denial. Our decision will have consequences regarding the appellant’s applications for the year 2008 as well, as agreed to by both parties.

Summary of the parties’ arguments based on discrimination and the application of equal criteria

29.  We have noted that all of the appellant’s applications for support over the years were rejected by various bodies within the Municipality (other than an application submitted to the Culture Department’s project track in 2006). The Culture Department rejected the applications in reliance on the Zuckerman criteria. The Social Affairs Department rejected the applications on the grounds that the appellant did not fit within the narrow confines of the criteria established for the purpose of providing support to community centers, to organizations involved in the advancement of women or to those that work with youth. The Division for the Advancement of Youth rejected the appellant’s application on the grounds that it did not satisfy the Division’s criteria.

In light of this and against the background of the LGBT community’s special needs, the appellant focused its arguments on the principle of equality and on a discrimination claim —based on either direct intentional discrimination, or on discrimination that manifests itself in a disparate outcome.

30.  The appellant argues that the Municipality chose criteria and standards for evaluating applications for funding motivated by a desire to exclude the LGBT community from public life in Jerusalem, based on irrelevant and illegitimate considerations. This can be understood from the fact that the Municipality found a variety of indirect routes through which it was ultimately able to finance other activities and events that also did not satisfy the Zuckerman criteria, or which did not satisfy the criteria of the other departments; such funding came either through direct support provided by a different division or department within the Municipality, direct funding of activities, or the “purchase of a service”. The appellant argues that the Municipality’s conduct towards it has been characterized by consistent and direct discrimination against it and against the public it represents. Thus, for example, as the lower court found, the Municipality applied the threshold conditions for satisfying the Accountant-General’s Directive in an arbitrary and discriminatory fashion; the Municipality suspended the distribution of financial support in certain areas for which the appellant had submitted applications for support (i.e., the advancement of the status of women track within the Social Affairs Department, and the activity for alienated youth track within the Division for the Advancement of Youth); and the Municipality itself deals with the needs of other minority communities within the city (the ultra-orthodox and Arabs), either providing financial support for such activity or otherwise, while it does nothing to deal with the unique needs of the LGBT community. This element of the appellant’s arguments was presented in order to expose the apparently illegitimate grounds underlying the criteria upon which the Municipality acted, and the manner in which the Municipality applied them with respect to the appellant. (To use a term that is generally expressed by the members of the community, the appellant wished to “out” these illegitimate considerations, used, it contends, in order to exclude the LGBT community from public life in Jerusalem).

The second element of the appellant’s argument is based on the outcome element. According to the appellant, the use of the Zuckerman criteria in the area of culture and the fact that the appellant was unable to fit into any of the categories used by the Culture Department or by the Division for the Promotion of Youth together led to indirect discrimination against the LGBT community and to its exclusion. The outcome is that the appellant — which is the only institution providing for the special needs of the LGBT community—receives no public funding for its unique activity in the areas of culture, society and work with youth. The Municipality’s criteria have a discriminatory effect in terms of the social reality, such that the appellant “is closeted together” with institutions that do not receive support, even though it is entitled, so it argues, to be “placed on the shelf” alongside those groups within the Jerusalem population that do receive Municipality support.

31.  The Municipality counters that the Zuckerman criteria for culture support lead to equal treatment and are reasonable, and that there are many entities that engage in cultural activity — including entities involved in cultural activities that are unique to minority populations —that do not receive support from the Municipality. Regarding social affairs and youth, the appellant did not fit into any of the relevant categories or activities (such as community centers or the status of women), and is thus no different from many other entities conducting various social and youth activities which do not receive financial support.

32.  This is a much abbreviated summary of the parties’ positions regarding the central question that is to be decided here, i.e., the argument that funds have been allocated in a discriminatory and unequal fashion. I see no need to delineate all of the arguments that the parties have raised before us, and these matters will become clear later on. Before we deal with the main question under discussion, we will dispose of one of the claims raised by the appellant which is unrelated to the discrimination claim.

The appellant’s conflict of interest argument

33.  The appellant’s argument regarding this matter is limited to the application for support submitted to the Culture Department in 2005. According to the appellant, two of the members of the advisory committee (Mr. Aaron Goldfinger and Mr. Yigal Molad Hayo) were tainted by a conflict of interest due to their ties to cultural entities that operate in Jerusalem and have received support from the Municipality. The appellant argues that the recommendations from both the advisory committee and the professional allocations committee were therefore severely flawed; these recommendations formed the foundation of the municipality’s decision to deny the appellant’s application for support from the Culture Department in 2005.In this context, the appellant referred to Judge Tzur’s decision, which recognized the conflict of interest claim and held that the said two members of the advisory committee were disqualified from serving on the committee.

I will briefly note that I do not accept the appellant’s arguments regarding this point, for the following reasons:

a.     We must be cautious with regard to the disqualification of suitable individuals due to a potential conflict of interest. The participation of active professionals in decisions that are tied to the distribution of financial support for culture and art promotes the professional artistic objective involved in the distribution of these funds (HCJ 8912/05 Society for Educational and Social Involvement v. Minister of Education, Culture and Sport [4], per Deputy President Rivlin at para. 12).

b.    The general practice is to allow an individual to serve while imposing various restrictions and rules that limit the possibility of a conflict of interest (compare: Mifgashim v. Minister of Education, Culture and Sport [4] and HCJ 6976/05 Zinman College of Physical Education at the Wingate Institute, Ltd v. Ministry of Education, Culture, Science & Sport [5], per Justice Hayut at para. 13).

c.     The advisory committee, which was established at the instigation of the Zuckerman Committee and for the purpose of implementing the Zuckerman criteria, is a body that makes recommendations regarding the distribution of support funds, but it is not a decision-making body (compare Mifgashim v. Minister of Education, Culture and Sport [4], at para. 14).

d.    Committee members Goldfinger and Hayo refrained from participating in discussions concerning the institutions for which they were interested parties.

e.     Even if it is assumed that Goldfinger’s and Hayo’s participation in the Committee was somehow improper — and I am far from holding that it was — the consequence would be, at most, the nullification of the decisions tainted by a conflict of interest. However, such impropriety would still not provide a basis for allowing the appellant to receive the support it sought.

34.  We will now proceed to examine the central question in this appeal. However, prior to examining in detail the parties’ arguments regarding the Zuckerman criteria for support for culture, and regarding the criteria for evaluating applications to the Social Affairs Department and the Division for the Promotion of Youth, as a basis and platform for discussion, we will first conduct a legal review of the subjects that are relevant to this case.

The normative framework – the provisions of s. 3A of the Foundations of the Budget Law

35.  The provisions of s. 3A of the Foundations of the Budget Law, 5745-1985 (hereinafter: “the Budget Foundations Law”) constitute the normative source for the distribution of funds for the support of public institutions. For more about the history of the Budget Foundations Law, see HCJ 4124/00 Yekutieli v. Minister of Religion [6]. The provisions of the Budget Foundations Law require the authorities to act reasonably and on the basis of equality with regard to the distribution of their budgets, while creating clear, transparent and relevant criteria that uphold these values. The text of the section is as follows:

 

Support of Public Institutions	3A. (a) In this section - “Public Institution” - An entity that is not a government institution, which operates for the purpose of education, culture, religion, science, art, welfare, health, sports or a similar purpose; [ . . . ]
	(d)  The amount set out in a Budget Item for a type of Public Institution shall be divided among Public Institutions of the same type pursuant to equal tests.
	(e)  The party in charge of the Budget Item shall formulate, in consultation with the Attorney General, equal tests for dividing the amount determined in that Budget Item for the purpose of supporting Public Institutions (hereinafter - the Tests).
	(f)  The Minister of Finance shall formulate, in consultation with the Attorney General, a procedure pursuant to which applications by Public Institutions for the receipt of support from the state budget shall be submitted and considered (hereinafter - the Procedure).
	(g)  The Tests and the Procedure shall be published in Reshumot [the Government Gazette].

 (Emphases added – I.A.)

The provisions of s. 3A of the Budget Foundations Law proceed along three axes: the first is a normative-functional axis, meaning that support is given to a type of institution and will not be given, directly or indirectly, to particular institutions; the second axis involves the principle of equality, requiring that support be given according to criteria that are substantively equal; and the third axis involves the administrative authority’s discretion with respect to the distribution of support funds for these and other activities (HCJ 1438/98 Conservative Movement v. Minister of Religious Affairs [7], at p. 384).

Support can only be provided pursuant to clear, relevant and equal criteria “according to the importance of the issue and not the importance of the interested party” (HCJ 59/88 MK Tzaban v. Minister of Finance [8], at p. 707). For further general discussion of the distribution of resources on an equal basis, see HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister[9]. Regarding the principle of equality as applied to the allocation of state budgetary funds for various purposes and subsidies, see HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs [10], at pp. 164, 172, 184.

As a rule, no entity has a vested right in the receipt of support from the state (see HCJ 11020/05 Panim for Jewish Renewal in Israel v. Minister of Education [11], para. 10; HCJ 5264/05 Yeshivat Shavei Shomron v. Minister of Finance [12]). 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 (HCJ 11585/05 Israel Movement for Progressive Judaism v. Ministry of Absorption [13], at para. 10). The same principle applies to both support in general and to any specific benefit. As stated in AAA 4515/08 State of Israel v. Ne'eman [14], at para. 16:

‘In a case in which the authority has discretion to grant a particular benefit, whether to a particular party or to others, then even if it is not required to grant the benefit to anyone, once it has chosen to grant it to others, it may not deny the particular person the benefit if there is no relevant difference between them [ . . . ] This is the general rule, and it is even more applicable when the policy is to provide benefits out of state funds’.

36.  This Court has dealt often with the matter of equality in connection with government authorities’ funding distribution in support of public institutions. Although according to its literal text, the Budget Foundations Law applies to support paid out of the state budget, it has been held that the principle of distributing support according to equal criteria applies to both administrative authorities that are not state organs, and to publicly supported entities (see D. Barak-Erez “Enforcement of the State Budget and Administrative Contracts,” 1 Hamishpat 253 (1993), at p. 254). Additionally, although according to its literal text, the Budget Foundations Law applies only to state institutions, the equal criteria requirement also applies to local authorities who must also follow proper criteria when distributing funds (see: Y. Zamir, Administrative Authority (vol. A, 2010), at p. 248; HCJ 5325/01 LCN Society for the Promotion of Women’s Basketball v. Ramat Hasharon Local Council [15], at p. 89; HCJ 10285/04 Haifa Motzkin Municipal Women’s Basketball League v. Haifa Municipality [16]). One reason for extending the application of the principle of equality to local governments is to cover the distribution of funding from a local authority, in addition to the explicitly covered local projects funded by the central government. (Regarding the distinction between budgeting from the central government and funds derived from city taxes collected by the municipalities, see HCJ 10104/04 Peace Now — Sha’al Educational Services v. Director of Jewish Settlements in Judea and Samaria [17]). Against this background, a procedure regarding the allocation of support by local authorities—discussed below—was prescribed.

The principle of equality in the distribution of resources, funds and support thus applies to a local authority as well. Although under certain circumstances, the central government may implement a practice that violates the principle of equality by virtue of an express discriminatory provision included in the Budget Foundations Law itself, any such violation by a local government will still be prohibited according to the principle that “what is permitted for the teacher is forbidden for the students”. Courts have ruled in accordance with this principle regarding the allocation of land to a public institution by a local authority (AP(TA) 1187/05 Condominium Representation v. Petach Tikva Municipality [72]) and regarding the distribution of support funds to unofficial but recognized schools (AP(Jer) 1754/09 Jewish Center for Pluralism—Movement for Progressive Judaism in Israel v. Jerusalem City Council [73]).

Alongside all the above, we note the obvious: the Basic Laws require the administrative authorities to exercise their powers in a manner that protects the values protected by said Basic Laws. It should also be emphasized that the duty to act in accordance with the principle of equality regarding the distribution of funding applies independently of s. 3A of the Budget Foundations Law, and the courts have applied the principle of equality both before and after the section’s enactment (Yekutieli v. Minister of Religion [6], per President Beinisch at para. 31).

Procedure for distribution of funding to public institutions by the local authorities

37.  Local authorities distribute funds for their support of public institutions in accordance with the new procedure [described above in para. 4].Section 4.3 of the old procedure of 1985 provided that the “authority shall determine for itself, to the extent possible, the criteria for the provision of support from the authority’s various departments”. According to the new procedure (published on 23 August 2006), the local authority’s funding committee discusses applications for support and judged according to equal criteria established in advance by the local authority. The funding committee’s recommendations are then submitted to the local council for a final decision. Section 8.4 of the new procedure provides that the council may not approve the criteria until it has received a written opinion from the authority’s legal adviser confirming that the criteria are indeed equal. Section 8.5 of the new procedure provides that “the criteria to be prescribed by the local authority, after it has reviewed the opinion of the authority’s legal adviser, will be relevant and equal and will take into consideration the needs of the population of the local authority and the need to provide services to all parts of the population.”

In conclusion, the Jerusalem Municipality must distribute support funds to public institutions in a manner that is appropriate for the Municipality as a public trustee, pursuant to the new procedure and the principle of general equality, in accordance with clear, open, equal, and relevant criteria, taking into consideration the needs of the city’s entire population.

The duty to weigh relevant considerations and to refrain from weighing extraneous considerations

38.  The distribution of funding to public institutions by an administrative or local authority, as in the instant case, constitutes an exercise of administrative power. As such, it must be done in accordance with the rules of administrative law, must be free of any illegitimate or arbitrary considerations, and must not violate the principles of justice. The decision must meet the test of reasonableness. It also must be based on a suitable factual background and on the entire range of relevant considerations, and reflect a proper balancing of all of them. From the government authority’s perspective, improper considerations must remain behind a “veil of ignorance” on which all the relevant considerations should be “screened”. Nevertheless, even when an administrative decision is based on proper and relevant considerations, it may still be found to be unreasonable. This would be the case when the authority has not given any weight at all to a relevant consideration that is essential to the matter. The total avoidance of a relevant consideration is the flipside of the reliance on an extraneous consideration, the significance of which is the same as reliance on a factor that should have been completely ignored. In addition, the weight attributed to the various considerations must be examined, since “the dish may yet be ruined, even if the cook adds all the correct ingredients, but does so in amounts which are significantly different from what is required” (see D. Barak-Erez, Administrative Law (2010), at pp. 725-727).

The duty imposed on an administrative authority to weigh relevant considerations and to refrain from weighing extraneous considerations is examined in light of the law that grants it the authority to act. It is also evaluated in light of the context of each case, and in light of the basic values of the legal system. The basic values of the legal system comprise the “normative matrix” – the concepts of good faith and fairness, the principle of equality, and the principle of pluralism, which can also constitute a relevant consideration (Conservative Movement v. Minister of Religious Affairs [7], at pp. 375-377).

Thus, in examining the Municipality’s decision, we must check whether it involved any “suspicious” considerations that were irrelevant under the circumstances. For example, as Justice Zamir wrote in Conservative Movement v. Minister of Religious Affairs [7] (ibid., at p. 374): “There is no doubt that the difference in religious conception. . . is not a relevant consideration; rather, it is an extraneous and illegitimate one for the purpose of the provision of support by the Ministry of Religions . . . ”. And note: a distinction must be made between extraneous considerations and those derived from improper motives. Occasionally, a consideration which is in and of itself a positive and desirable one may be disqualified as extraneous in circumstances in which it is taken into account by an administrative authority that has not been authorized to weigh such considerations (see Barak-Erez, Administrative Law, supra, at p. 358). In this case, if the Municipality’s decisions were based on the identity of the organization requesting support and not on the activity for which the support was requested, the consideration is an improper one; the test should be the substance of the activity and not the identity of the applicant, according to the importance of the matter and not the importance of the interested party (see: Tzaban v. Minister of Finance [8], at p. 707; Panim for Jewish Renewal in Israel v. Minister of Education [11]; Conservative Movement v. Minister of Religious Affairs [7], at p. 358).

39.  A basic difficulty arises in connection with proof of extraneous or improper considerations that have come into play. Generally, when administrative authorities do give weight to such extraneous or improper considerations, an attempt is made to camouflage or cover up the real elements forming the basis of their decisions. The discrimination is not declared publicly or flaunted; it is instead hidden beneath the surface, and the criteria that are disclosed are those “that do not tell us the truth, and are instead acts of hypocrisy. They are not criteria, but a form of lip-service, and they do not reflect the real truth” (HCJ 1/98 Cabel v. Prime Minister of Israel [18], at p. 260). The difficulty in identifying extraneous considerations is exacerbated when a statutory-collective body with many members, such as, in our case, the City Council, makes the administrative decision (see Barak-Erez, Administrative Law, supra, at p.670, n.132). Indeed, it is difficult for a court to examine what is hidden in the intention of an administrative authority, and the court must therefore rely on a circumstantial or statistical body of evidence. Another possible method is to look for external defects that can provide evidence of the administrative authority’s use of extraneous or improper considerations (HCJ 4500/07 Yachimovich v. Second Television and Radio Authority [19]).One example would be a “silent” decision, which itself attests to it having been based on irrelevant considerations(see and compare: HCJ 3551/97 Brenner v. Jewish Religious Services Law Ministers Committee [20], at pp. 771-772); an administrative authority’s unreasonable delays and procrastinations in the process of reaching a decision (HCJ 6300/93 Center for Training of Rabbinical Court Pleaders v. Minister of Religious Affairs [21],at p. 452); and even a high failure rate in a licensing test, which can indicate an intention to cause examinees to fail on the basis of an extraneous “closing the market” consideration (see HCJ 571/89 Moskowitz v. Board of Appraisers [22], at p. 245; compare Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister[9])).

The duty imposed on an administrative authority to act on the basis of equality, and the prohibition against discrimination

40.  The principle of equality has held a primary position as a basic principle within the Israeli legal system from the very beginning, and I will not add to all that has been written to commend equality, so as not to be bringing even more coals to Newcastle. I will therefore limit myself to presenting a small collection of the praises sung in the case law to the principle of equality: it is “the very soul of our entire constitutional system” (HCJ 98/69 Bergman v. Minister of Finance [23], at p. 698); “one of the highest principles in the land—head and shoulders above any of the other principles” (HCJ 2671/98 Israel Women’s Network v. Minister of Labour and Social Affairs [24], at p. 650); “It is the foundation of social existence, it is one of the touchstones of a democratic regime” (see HCJ 4112/99 Adalah Legal Center for Arab Minority Rights in Israel v. Tel Aviv Municipality [25], at p. 415). There are those who see the principle of equality as the common denominator and the basis for all basic human rights, and for all other values forming the foundation of democracy (Y. Zamir and M. Sobel, “Equality Before the Law,”5 Mishpat U’Mimshal (Law and Government) 165 (2000), at p. 166). For more on the principle of equality in scholarly journals, see, for example, F. Radday, “On Equality,” 24 Hebrew Univ. L. Rev. (Mishpatim) 241 (1994); Y. Sapir, “Implementation of the Principle of Equality in the Case Law of the High Court of Justice,” 37 Hapraklit 143 (1986).

The duty to act on the basis of equality means that equals must be treated equally, and that different parties must be treated differently. Thus, the obverse of equality is discrimination, which is a matter of treating equals differently and unfairly. The recognition of a discrimination claim is a practical expression of the high level at which the principle of equality is placed (Barak-Erez, Administrative Law, supra, at pp. 673-678). The violation of the principle of equality has been called “the worst of all evils” (HCJ 7111/95 Center for Local Government v. Knesset [26], per Justice Cheshin at p.503); discrimination can lead to humiliation and a violation of human dignity (HCJ 4541/94 Miller v. Minister of Defense [27]), at p. 132; and “there is no element which is more destructive to society than its sons and daughters having a sense that they are being subjected to a double standard” (see HCJ 953/87 Poraz v. Mayor of Tel Aviv-Jaffa [28], at p. 332; Moskowitz v. Board of Appraisers [22], per President Barak at para. 13). This is certainly the case when what is involved is “generic” discrimination, part of the “essential core” of discrimination, based on a feature of a person’s identity such as, for example, religion, race or gender. Discrimination such as this has been described as “inflicting a mortal blow on human dignity” (see HCJ 2671/98 Israel Women’s Network v. Minister of Labour and Social. Affairs [24], at pp. 658-659; and compare: A. Barak, The Judge in a Democratic Society (2004), at p. 142). It has been said in the same spirit that “ . . . discrimination (either real or imagined) leads to a sense of mistreatment and frustration; a sense of mistreatment and frustration leading to jealousy. And when jealousy appears, understanding is lost . . .We are prepared to bear a burden and suffering and distress if we know that others who are our equals — are like us and are with us; but we will protest and refuse to accept a situation in which others — who are our equals — receive that which we do not receive” (HCJ 1703/92 C.A.L. Cargo Airlines v. Prime Minister [29], at p. 204).

41.  The obligation to allocate support on an equal basis and without discrimination is therefore derived from the principle of equality. In some circumstances, a violation of that principle is also perceived as being a violation of a constitutional right. The case law has held that the right to dignity that is anchored in Basic Law: Human Dignity and Liberty, necessarily includes the right to be treated equally, to the extent that this right is closely and substantively related to the right to human dignity—meaning that it is necessary to examine the nature of a violation of the principle of equality, and the degree of its connection to the concept of human dignity (see HCJ 6427/02 Movement for Quality Government v. Knesset [30]; HCJ 7178/08 Forum of the Druze and Circassian Council Heads in Israel v. Government of Israel [31] at para. 8, and the references cited therein;HCJ 1067/08 “Noar k’Halacha” Association v. Minister of Education [32], per Justice H. Melcer at para. 2; HCJ 9722/04 Polgat Jeans Ltd v. Government of Israel [33]; Zamir, Judicial Authority,supra, at pp. 181-182; Barak-Erez, Administrative Law, supra, at pp. 677-678).

The administrative obligation to act in accordance with the principle of equality is broader than the protection of the constitutional right to be treated equally ,in the sense that it also applies to situations in which the discrimination does not violate the constitutional right to equality, or is not the result of improper motivations and may even be incidental or coincidental (see Barak-Erez, Administrative Law, supra, at pp. 678-680; and see A. Bendor, “Equality and Administrative Discretion — On Constitutional Equality and Administrative Equality: Shamgar Volume - Articles 1(2003) 287). Thus, an administrative act that affects the economic-business activity and the competition between different businesspeople may be considered unequal, even though it does not raise any constitutional questions. The tendency of the court to interfere in an administrative decision in the framework of its exercise of judicial discretion is contingent upon the magnitude of the violation of equality. A light or non-substantive violation will not incur the same treatment as a serious violation; the more important the interest or the right of the victims, the more likely it is that the court will intervene with respect to the administrative decision (HCJ 7691/95 Sagay v. Government of Israel [34], at pp. 611-612).

42.  In order to establish a relevant distinction between legitimate and prohibited discrimination, we must examine the purpose of the differentiation, the nature of the matter, and the unique circumstances of each case. A typical case of an irrelevant distinction would be a decision that is based on an improper group-based distinction. But there are also situations in which a distinction can be irrelevant even if it is not based on an improper group-based distinction; as opposed to this, a distinction may be relevant even if it relates to a group characteristic that is generally considered to be an improper basis for a distinction (see Barak-Erez,           Administrative Law (2010), supra, at pp. 686-688; M. Tamir, “The Right of Homosexuals and Lesbians to Equality,” 45 Hapraklit 94(2000), at pp. 97, 113). For examples in the case law regarding the issue of relevancy, see HCJ 205/94 Nof v. Ministry of Defense [35]; Y. Livnat, “The Individual and the Community: A Communitarian Critique of HCJ 205/94 Nof v. Ministry of Defense,” 31 Hebrew Univ. L. Rev. (Mishpatim) 219 (2000); Cabel v. Prime Minister of Israel [18]; Yekutieli v. Minister of Religion [6]; HCJ 5304/02 Israel Association of Victims of Work Accidents and Widows of Victims of Work Accidents v. Knesset [36]; HCJ 9863/06 Karan - Society of Combat Veteran Quadriplegics v. State of Israel -Minister of Health [37]; State of Israel v. Ne’eman [14]; HCJ 11075/04 Girby v. Minister of Education Culture and Sports - Chairman of the Council of Higher Education [38]). Even when the relevancy test is passed and it is determined that a particular distinction is relevant, a question may nevertheless arise as to whether the weight accorded to it was reasonable (Miller v. Minister of Defense [27], at pp. 132-135).

Substantive equality reflects the values of justice and fairness. The question of whether a distinction made by a government authority complies with substantive equality is decided in two stages: at the first stage, the peer group is defined, and at the second stage, a determination is made as to whether the authority is treating all those within the peer group equally (see HCJ 3792/95 National Youth Theater v. Minister of Science and Arts [39]; Israel Movement for Progressive Judaism v. Ministry of Absorption [13]; Yekutieli v. Minister of Religion [6]; Conservative Movement v. Minister of Religious Affairs [7]). At the first stage, the relevant reference group— the “peer group” — is defined and the boundaries of the group are also the boundaries of the required equality. Sometimes, identification of the group is a simple matter and is even established by statute; in other cases, it is difficult to identify the group. The delineation and definition of the boundaries of the peer group involve a consideration of the purpose of the norm, the substance of the matter, the basic values of the legal system, and the unique circumstances of each case; on the basis of these factors, it is possible to determine whether an administrative authority’s decision has been based on either a relevant or an irrelevant consideration (see HCJFH 4191/97 Recanat v. National Labour Court [40], at pp. 346-347; Conservative Movement v. Minister of Religious Affairs [7], at p. 363 and the sources cited there; Karan - Society of Combat Veteran Quadriplegics v. State of Israel -Minister of Health [37], at para. 10). At the second stage, it is necessary to determine whetherthe administrative authority has treated the members of the peer group equally, or whether it is acting discriminatorily towards individual members of the same peer group.

A “rough” analysis allows us to say that the first stage, involving the identification and delineationof the boundaries of the peer group, requires an examination from the perspective of constitutional equality and regarding the possibility of a “suspect” group affiliation, within the “essential core” of discrimination which is based on race, religion, ethnic origin, gender, sexual orientation etc.The second stage, atwhich the court examines whether the authority is treating all members of the peer group equally, is based on an administrative equality perspective (Tamir, “The Right of Homosexuals and Lesbians to Equality”, supra, at p. 110).

43.  The case law long ago considered the connection between the issue of equality and that of reasonableness (see D. Barak-Erez, Administrative Law (2010), at pp. 689-692). The criteria regarding the elements relevant to equality must be established in a reasonable manner, taking into account the equality that is sought (HCJ 720/82 Elizur Religious Athletic Association, Nahariya Branch v. Nahariya Municipality [41], at p. 21-22). Even when the various considerations are relevant, the weight attributed to them is also examined. Thus, for example, as Justice Zamir wrote in National Youth Theater v. Minister of Science and Arts [39]:

‘A peer group may have been established on the basis of a relevant consideration, but its establishment as a separate peer group may nevertheless be unjustified. How can this be? It may be that in the circumstances of the particular case, the relevant consideration is of such little importance that it cannot be used to justify the existence of the separate peer group. In such a case, the establishment of a separate peer group on the basis of this consideration is defective not because it involves an extraneous consideration but because of the improper weight attributed to the relevant consideration’ (ibid., at p. 283).

(See also: Conservative Movement v. Minister of Religious Affairs [7], at pp. 363-64; HCJ 727/00 Committee of Heads of Local Arab Councils in Israel v. Minister of Construction and Housing [42], at p. 92). Similarly, in HCJ 6407/06 Doron, Tikotsky, Amir, Mizrachi, Attorneys at Law v. Minister of Finance [43], at para. 43, this Court held that the distinction made between the border settlements and the restricted regions, for the purpose of compensation for war damages, was based on relevant considerations and that two different peer groups were involved. Nevertheless, the majority opinion held that the distinction did not justify the substantial disparity in the compensation arrangements for employers in the two different regions, and that the temporary provisions regarding the compensation provided for the month of July during the Second Lebanon War were not reasonable. Regardless, the Court’s ultimate decision was that it would not intervene in the compensation arrangements because the said “unreasonableness” was “cured” in the framework of the overall arrangement.

Realization of the principle of equality through the use of guiding criteria

44.  As is the case with an authority’s internal guidelines, the use of criteria that guide the administrative authority regarding the distribution of support will constitute the high road toward reducing the weight attributed to irrelevant or illegitimate considerations, and toward ensuring equality, while strengthening the objective element in an authority’s decision (National Youth Theater v. Minister of Science and Arts [39], at p. 277). However, such criteria are not a wonder drug that removes all pain of discrimination, either because of a concern that criteria may be “designed” to fit the party who receives the support, or that the criteria may include a hidden preference or “hidden discrimination” (see Barak-Erez, Administrative Law, supra, at pp. 695-697; Jewish Center for Pluralism v. Jerusalem City Council [73]; HCJ200/83 Watad v. Minister of Finance [45], at pp.121-122; Cabel v. Prime Minister of Israel [18], at pp. 259-260). It is therefore necessary to examine, in each individual case, whether a particular criterion does not embody a bias that operates either in favor of or against certain individuals or groups.

45.  The case law criticizes the use of a criterion that can be met by only one single group or entity. Justice Hayut wrote as follows in Zinman College v. Ministry of Education, Culture, Science & Sport [8]:

‘. . . We wish to note that given the fact that the Wingate Institute is the only institution that received support pursuant to it and in light of the well-supported doubt raised by the petitioner regarding the ability of any other body whatsoever to meet the requirements established therein, the respondents did well by canceling it, and earlier would have been better’ (ibid., at para. 18).

See also the decision of Judge Solberg of the Court for Administrative Affairs in Jewish Center for Pluralism v. Jerusalem City Council [73], in which he held that the significance of the application of the criteria adopted by the Municipality was the earmarking of a benefit for certain institutions only, and that by adopting such criteria, the Municipality was effectively referring to those institutions by name.

46.  Just as we may not ignore an inherent connection between a certain group and a criterion that is met only by that group, we are also prohibited from ignoring an inherent connection between a certain group and a criterion that will be satisfied by all, except for one particular group. This is because the use of a particular criterion can be used as a cover for the discriminatory treatment of certain groups within the population. Nevertheless, the legality of a particular criterion will depend on the circumstances of each case. Thus, for example, a distinction based on a military service or national service requirement will be deemed to be either a permitted distinction or a case of improper discrimination, depending on the context and the objective of the arrangement under discussion (HCJ 11956/05 Bashara v. Minister of Construction and Housing [44], at para. 9).

An objective–result based test for discrimination

47.  The discrimination issue relates not only to situations in which the administrative authority intended to violate the principle of equality. An administrative authority decision, the results of which are discriminatory in actual effect, maybe disqualified even if the administrative authority did not act with discriminatory intent, and even if the discrimination was implemented unconsciously. Justice Barak’s comments in Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [9] are pertinent here:

‘Prohibited discrimination may also occur without any discriminatory intention or motive on the part of the persons creating the discriminatory norm. Where discrimination is concerned, the discriminatory outcome is sufficient. When the implementation of the norm created by the authority, which may have been formulated without any discriminatory intent, leads to a result that is unequal and discriminatory, the norm is likely to be set aside because of the discrimination that taints it. Discrimination is not determined solely according to the thought and intention of the creator of the discriminatory norm. It is determined also in accordance with the effect that it has de facto [. . .] The test for the existence of discrimination is an objective test that focuses on the outcome of realizing the norm that is under scrutiny. It is not limited to the subjective thinking of the creator of the norm. The question is not whether there is an intention to discriminate against one group or another. The question is what is the final outcome that is created in the social context’ (ibid., at para. 18).

(See, similarly, ibid., per President Barak at para. 19; HCJ 986/05 Peled v. Tel Aviv-Jaffa Municipality [46], at para. 11; HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of the Interior et al.[47], per President Barak at para. 51; Yekutieli v. Minister of Religion [6] per Justice Levy at para. 3).

48.  It is easier to prove the existence of discrimination in terms of results than it is to prove discrimination in terms of attitude, or discrimination resulting from improper motivation. Nevertheless, an unequal result does not necessarily indicate that there has been discrimination. Each case must be examined separately, in accordance with its circumstances and according to the norm under review, in order to determine whether the result indicates that the norm has a discriminatory effect in the given social reality. It is not at all simple to answer the question of whether an administrative norm whose outcome appears to violate the rights or interests of a particular group is actually discriminatory. An example from American law which demonstrates the difficulty in applying the outcome test is the case of Ricci v. DeStefano [74]. In that case, the judges were divided in their views on the issue of whether a municipality had properly refused to certify the results of an examination for the promotion of firemen, in light of the statistical racial inequality of the results. White firefighters passed the promotion examination at a higher rate than did firefighters belonging to all racial minorities in general, and specifically, at a higher rate than African-American firefighters. The municipality therefore decided not to approve the examination results. The petitioners—all of whom had successfully passed the examination—included a white firefighter who suffered from dyslexia and a Hispanic firefighter. They argued that the municipality’s decision not to certify the test results contravened the principle of equality. The five justices writing for the majority accepted the petitioners’ argument and held that municipality’s decision not to certify the exam results violated the statutorily mandated standard of equality. It was held that the municipality’s refusal to certify the exam results, on the basis of race, did not meet the evidentiary burden required under the circumstances of the case (the strong-basis-in-evidence standard) in order to prove that the promotion examination had been discriminatory. Additionally, the Supreme Court held that the municipality had not carried the burden of proof with respect to the question of whether a less discriminatory, alternative examination method was available. In contrast, the four judges who supported the minority opinion wrote that although support for the petitioners’ position was understandable, the petitioners did not have a vested right to a promotion and the municipality did have the right to invalidate the examination if there was good reason to believe that were it allowed to stand, the municipality would be exposed to discrimination suits. The minority justices also wrote that the majority holding that the municipality did not certify the examination results only because the white firefighters had passed the examination at a much higher rate than the Hispanic firefighters, and especially in comparison to the African-American firefighters, ignored the substantial evidence presented of the many defects in the promotion examination chosen by the municipality. The minority justices noted the existence of different promotion examinations used by other municipalities, which had generated more equally distributed results. (For a critique of the American Supreme Court’s opinion in this case, see L. Guinier & S. Sturm “Trial by Firefighters,” The New York Times (11 July 2009)            (http://www.nytimes.com/2009/07/11/opinion/11guinier.html).)

49. In HCJ 240/98 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs [48], at p. 178, this Court dealt with a petition that attacked the small budget for religious services provided to the Arab public. The analysis was based on a comparison between the percentage of the overall budget given to Arab religious services (2%)and the percentage of the total population the Arab sector constitutes(20%). The petition was denied on the grounds that the arguments were presented only generally, but the Court noted that the gap in the distribution of the budget was an indicator of discrimination against the Arab minority —an example of a self-proving matter. (For a critique of the out come of this decision, see: H. Sommer and M. Pinto, “From Specific Legislation to General Doctrine —The Function of the Judicial Branch in Reinforcing Affirmative Action in Israel,” in Affirmative Action and Ensuring Representation in Israel (2004) 195, at p. 206; Y. Rabin and M. Lodzki-Arad “The Continued Financial Discrimination of the Arab Sector”, 7 Hamishpat505, at p. 508). Thus, when a particular sector within the population receives no financial support or does not receive funding that is commensurate with that sector’s percentage makeup of the total population, the disparity may be evidence of discrimination, based on an examination of the outcome test (Barak-Erez, Administrative Law, supra, at p. 700).However, a minor deviation from a relevant group’s proportionate share will not necessarily indicate discrimination, even according to the outcome test (Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs [10], at p. 182).

Budgetary constraints and the addition of resources

50.  A budgetary consideration is a relevant and important consideration, which, under certain circumstances, may justify a deviation from the principles of equality and pluralism. Nevertheless, a budgetary difficulty will not, by itself, justify the restriction of a service provided to the public in a manner that selectively harms particular sectors, in violation of these principles (HCJ 8186/03 Tali School Education Fund v. Ministry of Education [49], per Justice Cheshin, at para. 29). An administrative authority occasionally may be required to adopt certain measures even if they involve additional effort and additional resources in order to provide equal treatment (see, Conservative Movement v. Minister of Religious Affairs [7], at p. 368; LCN Society v. Ramat Hasharon Local Council [15]; Sommer & Pinto, “Specific Legislation” and Rabin & Lodzki-Arad, “Continued Financial Discrimination”). It has already been said in this context that “the principle of equality, from a social perspective, is no less important than garbage removal” (Conservative Movement v. Minister of Religious Affairs [7], at p. 368).

Equal results — active correction and affirmative action

51.  The equal results standard and the recourse to actively correct existing inferiority or to affirmative action are closely connected, in that the administrative authority will be required to give more to a party that has suffered from inferior treatment in the past (Barak-Erez, Administrative Law, supra, at p. 701-703).

There are those who strongly object to affirmative action, and who view it as constituting reverse discrimination. This approach disqualifies the use of any distinction, either for good or bad, between the majority and the minority, advocating “color-blindness” (see, E. Benvenisti “National Courts and the Protection of National Minorities,” in 3 Alei Mishpat (Academic Center of Law L. Rev.) 463 (2003), at p. 469). According to this approach, the state must maintain neutrality and refrain from supporting or suppressing any particular group. However, according to the affirmative action approach, what is required is “color-consciousness” rather than “color-blindness”, to the extent such consciousness benefits a particular population (see G. Gontovnik, “The Right to Culture in a Liberal Society and in the State of Israel,” 27 Iyuney Mishpat (Tel-Aviv U. L. Rev.) 23 (2003), at p. 46).

Affirmative action is a practice aimed at realizing substantive equality, and the justifications for its use are based on several key arguments: the corrective justice argument, relating to the correction of wrongs that were done in the past to certain groups; the distributive justice argument, concerning the strengthening of certain groups that have been the victims of discrimination; and the pluralism argument, relating to the creation of a heterogeneous society through the introduction of a variety of different views (see Sommer & Pinto, “Specific Legislation”, at p. 198; H. Modrick-Even Chen, Israel Democracy Institute Position Paper 24, Affirmative Action in Israel: Policy Definition and Recommendations for Legislation 9 (2000), at p. 15).

The Israeli legislature has expressed its view concerning the matter of affirmative action in various statutory provisions, such as legislation mandating the appointment of women and minority members as directors in government companies. (Regarding the adoption, in the case law, of an affirmative action policy, see, for example, HCJ 528/88 Avitan v. Israel Land Administration [50], at p. 299; LCN Society v. Ramat Hasharon Local Council [15].)

52. May a court impose an affirmative action policy on an administrative authority, if such a policy has not been enacted through legislation? Judicial intervention intended to prevent discrimination (“Thou shalt not”) is not the same as intervention for the purpose of imposing affirmative-active measures (“Thou shall”) on the authority. It is true that the second type of intervention is more exceptional, but the case law has recognized the fact that sometimes, “when the other’s starting point is an inferior one, it is necessary to give him more in order to bring both parties to an equal level. . .”(see Elizur Religious Athletic Association, Nahariya Branch v. Nahariya Municipality [41], at p. 21; HCJ 4906/98 Am Hofshi Organization for Freedom of Religion, Conscience, Education and Culture v. Ministry of Housing [51], at p. 516). Against this background, there are those who believe that in special situations in which an entire population lacks access to opportunities or to resources, the court can compel the authority to adopt a policy of affirmative action (Barak-Erez, Administrative Law, supra, at pp. 707-708).

Equal results and distributive justice

53.An additional aspect of the principle of equality is the principle of distributive justice, which refers to the equal distribution of social resources. According to the case law, an administrative authority must view the principle of distributive justice as an important consideration (HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of. National Infrastructure [52], at pp. 64-66, and see D. Barak-Erez, “Israel Lands Between Public Administration and Privatization: Distributive Justice in the Administrative Process,” Distributive Justice in Israel 203 (2000)).

54.Way station: The support funds and other allocations of resources are like a playing field set up by the authority, even though it was not originally required to do so. The administrative authority sets up gates at the entrance to the playing field, in the form of the prescribed criteria, and only those who succeed in passing through these gates are able to enter the field. It may be that only one group enters the field, or it may be that several groups do so, and at this point the court examines those “peer groups” that have succeeded in entering the field. The court may find that the gates at the entrance to the field are — either intentionally or unintentionally — too narrow, and it may instruct that the gates be widened so that other groups will also be able to enter the field. The gates are widened by substantive equality from a constitutional perspective, often even invoking “big guns” such as active correction, affirmative action and distributive justice. There may also be cases in which the court finds that the entrance gates are suitable and proper, but that the groups who have entered the field and are already playing are not being treated equally amongst themselves. In those cases, where the court finds that it is necessary to intervene, this is done within an administrative law framework.

We have noted that the principles of constitutional and administrative equality apply to local authorities as well. We will precede our application of these principles to the present case with a few words about the group that was defined at the beginning of this opinion as the “LGBT community”, focusing on the appellant.

The LGBT community as the subject of a “suspect” classification

55.  Discrimination on the basis of sexual orientation is discrimination based on a “suspect” group attribution, and as such it is included within the “essential core” component of the right to equality (Tamir, “The Right of Homosexuals and Lesbians to Equality”, supra, at p. 111). When a particular norm appears to violate the rights or interests of certain groups within the population, the court is required to use the “suspect classification” test and to subject the norm to “strict scrutiny” (ibid., at p. 102). For an extended examination of these rules under American law, see L.H. Tribe, American Constitutional Law (2^nd ed., 1988), at pp. 1456–1553. For the distinction between the various bases for discrimination (race, gender, religion, age, view, sexual orientation, handicaps, etc.), see “Profile of Justice Barak: Equality in a Jewish and Democratic State,” in Aharon Barak Volume (2009) 225, at pp. 226–227.

56.  Israeli law with regard to the LGBT community and the members of that community reflects the changes and transformations that have occurred over the years in Israeli society. Society in Israel has taken the view that the law must deal with the matter of sexual orientation with indifference, in the same way that other details regarding a person or regarding a group, such as age, race, nationality, gender, etc., are treated. There is also a broad consensus that restrictions should not be placed on the activities of the members of the LGBT community, nor should they suffer from adverse discrimination. This position has been expressed in the case law and in legislation that prohibits discrimination on the basis of sexual orientation, and the following is a review of only some of the “milestones” that have been reached in this area.

In 1988, the Knesset amended the Penal Code and repealed the criminal prohibition against sexual relations between men (Penal Code (Amendment No. 22), 5748–1988, SH 62);

In 1992, the Knesset amended the Employment (Equal Opportunities) Law, prohibiting discrimination on the basis of sexual orientation (Employment (Equal Opportunities) Law(Amendment 1)5742-1992, SH 1377, 2 January1992, at p. 37);

In 1994, in HCJ 721/94 El-Al Airlines v. Yonatan Danielowitz [53], this Court held that El-Al’s practice of granting a free airline ticket to an employee’s partner only if the partner was a member of the opposite sex was invalid and illegal;

In 1997, the Knesset amended the Libel Law and introduced a prohibition against the debasement of a person based on gender or sexual orientation (s. 1(4) of the Libel Law (Amendment No. 5), 5737-1977, SH 1612, 28 February 1977, at p. 70);

In that same year, the Court rendered a decision in HCJ 273/97 Protection of v. Minister of Education [54], nullifying a decision by the Minister of Education to prevent the broadcast of a program directed at young members of the LGBT community. (For an analysis and critique of the decision, see A. Harel, “The Courts and Homosexuality — Respect or Tolerance?” 4 Mishpat U’Mimshal (Law and Government) 785 (1998);

In 1998, the Knesset enacted the Prevention of Sexual Harassment Law, which defines “sexual harassment” as including, inter alia, “an intimidating or humiliating reference directed towards a person concerning his gender, or his sexuality, including his sexual orientation” (s. 3(a)(5) of the Prevention of Sexual Harassment Law, 5758-1998, SH 1661, 19 March 1998, at p. 166);

In 2000, in a case involving a lesbian woman who had adopted her female partner’s son in the United States, this Court ordered the Ministry of the Interior to register her as his second mother and to add his name to her identity card (HCJ 1778/99 Nicole Brenner-Kadish v. Minister of the Interior [55]);

In the same year, a judgment was rendered in HCJ 293/00 A v. Supreme Rabbinical Court in Jerusalem [56], in which this Court nullified a decision by the Supreme Rabbinical Court in Jerusalem prohibiting a divorced woman from having her daughters meet with her female life partner;

Additionally, that same year, the Knesset enacted the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000 (SH 1765, 21 December 2000, at p. 58) which prohibits discrimination based on sexual orientation in the provision of a public good or service, or when granting entry to a public place or providing a service in a public place (s. 3(a) of the Law);

In 2002, the Knesset amended the Mandatory Tenders Law and added a prohibition against discrimination based on sexual orientation in the context of a tender (Mandatory Tenders Law (Amendment No. 12), 5762–2002, SH 1824, 21 January 2002, at p. 100);

In 2004, the Knesset amended the Penal Code, adding s. 144F. The amendment increased the penalty for hate crimes, including crimes motivated by hostility towards a particular public because of their sexual orientation (Crimes Motivated by Racism or Hostility Toward a Particular Public — an Aggravating Circumstance) (Amendment No. 82), 5765–2004, SH 1961, 17 November 2004, at p. 14);

The same year, the Knesset amended the Patients’ Rights Law, 5756–1996, and added a prohibition against discrimination on the basis of sexual orientation (Patients’ Rights Law (Amendment No. 2), 5765–2004, SH 1962, 29 November 2004, at p. 26);

In 2005, a judgment was rendered in CA 10280/01 Yaros-Hakak v. Attorney General [57], in which the majority opinion held that being a part of a same-sex couple does not negate a person’s legal capacity to adopt his or her partner’s children;

In 2006, a judgment was rendered in HCJ 8988/06 Yehuda Meshi Zahav v. Ilan Franko, Jerusalem District Police Commander [58], in which petitions opposing the holding of the gay pride parade in Jerusalem were denied;

That same year, the Court decided in HCJ 3045/05 Ben-Ari v. Director of Population Administration [59] that the registration clerk at the Population Registry must register, as married, a same-sex couple who were married in a civil marriage conducted abroad in a country in which that ceremony was recognized;

In 2007, a judgment was rendered in HCJ 5277/07 Baruch Marzel v. Jerusalem District Police Commander [60], in which the Court again denied a petition against the holding of the gay pride parade in Jerusalem;

That year, the Knesset enacted the Equal Rights of Persons with Disabilities who are Employed as Persons in Rehabilitation (Temporary Provision) Law 2007 (SH 2109, 8 August 2007, at p. 450), which prohibits discrimination based on sexual orientation (s. 4 of the Law).

A prohibition against discrimination on the basis of sexual orientation is recognized under certain circumstances even in the framework of private law (see J. Weisman, Property Law: Possession and Use, 357 (2006); B. Medina “Economic Justifications for Antidiscrimination Laws”, 3 Alei Mishpat (Academic Center of Law L. Rev.) 37 (2003), at pp.42–43; H. Keren “In Good Faith But Not In Standard Fashion: The Value of Judicial Action that Knows No (Contractual) Bounds,” in Aharon Barak Volume (2009) 411, 446 n.116).

57.  It is therefore not surprising that scholars have described the 1990’s in Israel as the “gay decade”, and the legal changes that took place in the Israeli legal system during those years, in its legislation and case law, as the “gay legal revolution”. Over the course of time, Israeli society developed various mechanisms that provide protection against discrimination on the basis of sexual orientation, while promoting the rights of the members of the LGBT community to equal treatment, as manifested in the development of the case law and of the legislation, only a part of which was covered by the above survey (see A. Harel, “The Rise and Fall of the Gay Legal Revolution” 7 Hamishpat 195 (2002); M. Mautner, Law and Culture in Israel at the Dawn of the Twenty-First Century (2008), at pp. 230–231; A. Kama, “From Terra Incognita to Terra Firma: The Logbook of the Voyage of the Gay Men’s Community into the Israeli Public Sphere”, 38(4) Journal of Homosexuality (2000), at pp. 133–162). Obviously, the treatment of the members of the LGBT community is one of the indices by which Israel can be considered to be a liberal-democratic state, in contrast to the majority of the countries in the Middle East, both near and far, in which the members of the LGBT community are persecuted by the authorities as well as by society. (And we recall the unforgettable words of Iran’s President Ahmadinajad who claimed that there are no gay people in Iran, while a petition brought by a gay Iranian against the authorities in England who wish to return him to his country is pending before the Supreme Court of the United Kingdom; the petitioner in that case seeks asylum in England, as he fears for his life if he returns to Iran. See            http://www.supremecourt.gov.uk/current-cases/CCCaseDetails/case_2009_0054.html.)

58.  In light of the statutory provisions enacted by the Israeli legislature, against the background of the case law dealing with members of the LGBT community reviewed above, and without making any definitive determination, it would seem that the situation is no longer one in which there are mere “islands” of rights. Instead, there is an overall constitutional conception that includes the right not to suffer from discrimination based on sexual orientation. What is important here is that the case law and the legislation described above indicate that it has been recognized that discrimination against the members of the LGBT community constitutes a “suspect” classification, that they are deemed a group with a distinct identity necessitating protection against discrimination. Additionally, discrimination based on sexual orientation is part of the “essential core” of prohibited discrimination and as such must be subject to strict scrutiny. (For thoughts as to whether discrimination on the basis of sexual orientation or on the basis of physical disabilities is subject to the same rule as discrimination based on national or religious affiliation, see Gotovnik, “The Right to Culture”, supra, at p.28, n.13).

It should be noted that the LGBT community is also relatively weak politically, either because it constitutes a small percentage of the population or because there is no correlation between the sexual identity of its members and any particular type of voter, or for some other reason (compare: Tamir, “The Right of Homosexuals and Lesbians to Equality”, supra, at pp. 102–103). As opposed to other “suspect” classifications, such as women or the disabled, whose aspirations for equality are actively supported by the public, the LGBT community’s struggle has not necessarily enjoyed similar support, and it may even be that among various groups within society, it arouses opposition and emotional rejection that combine stigmas, prejudices and negative stereotypes (compare Sommer & Pinto, “Specific Legislation”, supra, at p. 208, regarding the attitude of Israeli society to discrimination against Israeli Arabs, and HCJ 6924/98 Association for Civil Rights in Israel v. State of Israel et al.[61], at p. 28).

59.  Against the background of the LGBT community constituting the subject of a suspect classification, such that discrimination against it falls within the “essential core” of the types of discrimination proscribed by legislation, we can understand the basis for the appellant’s suspicion that the Municipality was intentionally discriminating against it. There are a number of indications of this: as the lower court found, there is the fact that the Municipality demanded that the appellant comply with the Accountant-General’s Directive but did not require the same of other organizations; the Municipality’s conduct towards the appellant over the years, reflected in the many legal proceedings that the appellant was forced to initiate; public comments made by the previous Mayor against the appellant’s activity; and the fact that the Municipality provided no support, either direct or indirect, for the appellant’s activity. Section 82 of Judge Tzur’s decision also suggested that the Municipality acted inconsistently in order to deny the appellant any support. Thus, in 2003, when the issue of gender was separated from the question of Municipality support funds, the appellant’s application for support for activity for the advancement of the status of the women was rejected because it involved the “fostering of a gender”. However, in 2005, the appellant’s application for support for activity for the advancement of the status of women was rejected because the appellant could not be viewed as being engaged in the advancement and fostering of the status of women in the community. Based on these facts, the appellant argued that over the years, it has been “chasing” the criteria while the criteria have been “running away” from it.

It must be added that the municipal authorities of other major cities in Israel have supported activity involving the welfare of their gay communities or have been conducting such activity themselves. Thus, for example, the municipal governments of Tel Aviv-Jaffa, Beersheba and Eilat, as well as the Upper Galilee Regional Council, have all allocated either cash or cash equivalents (services, buildings or job positions) to organizations involved in the welfare of the LGBT community, just as they allocate budgets to organizations that promote the interests other population groups. For a review of what is done in other cities and local authorities on this subject, see the paper submitted on 16 June 2003to the Committee on the Status of Women: “Integration and Discrimination: The Gay, Homosexual, Bisexual and Transgender Community Vis-à-Vis Local Government”, http://www.knesset.gov.il/mmm/data/docs/m00655.rtf. See also the Public Notices of the Tel Aviv Municipality (Appendix A/112 of the Evidence File) in which the Tel Aviv-Jaffa Municipality invites the submission of applications for support for culture and art, health and welfare, religion, sports, the LGBT community, religious minorities, and more. The Jerusalem Municipality does not support, in any way whatsoever, activity for the welfare of the LGBT community; this makes it an exception among the various large and central Israeli cities.

60.  As the appellant argues, the LGBT community constitutes some 10% of the population(based on a study carried out in 1948 in the United States by the sex researcher Kinsey), and the residents of Jerusalem are no exception to this rule. I believe that it is neither possible nor necessary to make a final determination of the exact percentage of the general population constituted by members of the LGBT community; there are, furthermore, those who are not willing to disclose their homosexuality to the public, and who remain “in the closet” (Tamir, “The Right of Homosexuals and Lesbians to Equality”, supra, at p. 111). For our purposes, it is sufficient to note that this is not a transitory group, nor one that constitutes an extremely small percentage of the population, but rather a group comprising a not inconsiderable portion of the population. Hence, according to the outcome test, the appellant is not receiving support that is proportionate to the percentage of the Jerusalem population that the LGBT community comprises.

In fact, the appellant receives no support whatsoever from the Municipality, and as stated by appellant’s counsel in a hearing before us, the appellant and the members of the LGBT community receive no recognition whatsoever from the Municipality. It appears that this lack of recognition of the members of the LGBT community as an identity group that comprises a part of the Jerusalem public and which has special needs is what brings them to court time and time again, in that their calls for help are not heeded, for a person “cries out for what he lacks”:

 

‘A person cries out for what he lacks

If he lacks security, he cries out for security

If he lacks mutual care, he cries out for mutual care

If he lacks pride, he cries out for pride

If he lacks unity, he cries out for unity

A person cries out for what he lacks

If he lacks nothing – he does not cry out . . .’

 

(Meir Ariel, “Cries Out for What He Lacks”).

 

61.  Moving from the general to the particular: we will examine the appellant’s case against the background of the application of the principle of equality to the provision of financial support. We will examine the equality and reasonableness of the Zuckerman criteria in relation to the appellant’s application to the Culture Department, and we will then examine the rejection of the appellant’s application for support from the Social Affairs Department and from the Division for the Advancement of Youth.

An examination of the Zuckerman criteria for support through the ongoing support track

62.  The Zuckerman criteria focus the support that is provided through the ongoing support track on institutions whose main occupation is creativity within the realm of professional art, and which have been recognized by the Culture Administration within the Ministry of Education, Culture and Sport. There is no professionalism criterion for funding received through the projects track criteria, and support is given to institutions that carry out one-time or multi-year projects in the areas of “professional art, amateur works, folklore, Jewish tradition, and Arab culture” –provided only that the project is a “cultural event”.

The appellant argues that the Zuckerman criteria discriminate against it in light of the diverse cultural activity that it carries out at its community center, and that even if no intentional discrimination is involved, the criteria do give rise, at the least, to result-oriented discrimination.

On the other hand, the Municipality argues that the Zuckerman criteria are equal and reasonable, and that many institutions that carry out cultural activities — including those carrying out cultural activity that is unique to minority populations —do not receive Municipality support.

The Municipality stressed that the Zuckerman Committee, which is a professional and independent public committee, considered the issue carefully for over one and a half years before submitting its conclusions and recommending criteria for the provision of support. The Zuckerman criteria have been adopted, unchanged, by other municipalities, such as Tel Aviv-Jaffa and Haifa, which indicates that the criteria are both equal and reasonable. The Municipality argues that the Zuckerman criteria were also approved by this Court in Jerusalem Municipality v. Jerusalem Open House [3], in which it was held that the “appeal is allowed to the extent that it relates to the right of the respondent [the appellant here — I.A.] to receive support from the Culture and Arts Budget”, and therefore issue estoppel now applies.

According to the Municipality, a “withdrawal” from the Zuckerman criteria threshold requirements is liable to lead to a situation in which a large number of institutions would be entitled to support through this track, entailing a reduction in the support amounts for each institution — down to a level that could be described as mere “crumbs” (hereinafter: “the crumbs argument”) (compare: Panim for Jewish Renewal in Israel v. Minister of Education [11], at p. 957; Jewish Center for Pluralism v. Jerusalem City Council [73], at para. 16).

63.  As stated, the Zuckerman criteria for support for institutions in the ongoing support track focus the provision of support on institutions whose main occupation is creativity within the areas of professional art. These are the institutions that comprise the peer group established through the application of the criteria, as distinct from institutions, including the appellant, whose main occupation is not professional art.

The starting point for a discussion of this matter is that the court must minimize its intervention in prescribed criteria and in decisions that were adopted in reliance on the recommendations of a professional body such as the Zuckerman Committee, and which are based on professional considerations (HCJ 9547/06 New Fund for Promotion and Encouragement of Film and Television Production v. Israel Cinema Council [62], at para. 6, and the references cited there).

Given this starting point, and considering the substance of the activity which is supported and its objective, the Zuckerman criteria are relevant and are not tainted by extraneous considerations. The criteria are based on a three-part foundation of quantity-quality-contribution to the city of Jerusalem, in accordance with three parameters: the scope of the activity; the contribution to the establishment of Jerusalem as a cultural capital; and artistic and cultural importance. Thus, for example, support is provided within this framework to the Israel Museum, the Symphony Orchestra, the Academy of Music and Dance, the Khan Theater, and others. The support to entities whose main activity is creativity within the fields of professional art appears, on its face, to be relevant, in light of the substance of the matter and the goal of realizing the objective of establishing Jerusalem as a cultural capital. Although it can be argued that the concept of “creativity in the area of professional art” is purely subjective and cannot be assessed objectively, this subjective aspect is unavoidable when we are dealing with cultural and artistic matters (National Youth Theater v. Minister of Science and Arts [39], at p. 278; Mifgashim v. Minister of Education, Culture and Sport [4], at paras. 10–11).

64.  It may be argued that a criterion under which support will be given to institutions whose “main occupation” is creativity in the area of professional art does constitute an unreasonable violation of the principles of equality and pluralism. When this criterion is applied, an institution that allocates a certain percentage of its overall budget to creativity in the areas of professional art, and which provides a solution for the special needs of a particular community will not meet the threshold requirement since the artistic creativity is not its “main” occupation, even though that institution does engage in the creation of professional art and contributes to the establishment of Jerusalem as a cultural capital.

In his decision in Conservative Movement v. Minister of Religious Affairs [7], Justice Zamir discussed a quantitative criterion for the distribution of support funds, and the reasons that might justify strict scrutiny of such a criterion, which could occasionally lead to its disqualification. Even if a quantitative criterion is based on a relevant consideration, it can be accorded unreasonable weight and thus negate other relevant considerations. Alternatively, the importance attributed to it may prevent such other considerations from being given their proper weight (compare Jewish Center for Pluralism v. Jerusalem City Council [73], at para. 18). Furthermore, the use of a quantitative criterion creates a suspicion that an institutional or conceptual monopoly of large institutions is being created, as well as a concern that the pluralism principle is being violated. The quantitative criterion “prevents the expression, through smaller institutions, of a different religious perspective. From this perspective, the existing tests do violate the principle of pluralism, which is not only an expression of the principle of equality, but also one of the characteristics of a democratic society” (Conservative Movement v. Minister of Religious Affairs [7], at pp. 364–365). It is therefore sometimes necessary to inject the principles of equality and of pluralism into the criteria and into the threshold conditions established by the authority (Tali School Education Fund v. Ministry of Education [49], per Justice Cheshin at para. 29).

65.  Despite the “suspicious nature” of quantitative criteria, I do not believe that the case before us is similar to that of Conservative Movement v. Minister of Religious Affairs [7], in which the quantitative criterion was the only parameter involved in providing support. That is not the situation in this case, in which the quantitative criterion was only one of the three central parameters of the Zuckerman criteria. Similarly, in Mifgashim v. Minister of Education, Culture and Sport [4], this Court approved criteria that directed financial support only to cultural institutions whose main occupation is professional art. In New Fund for Promotion and Encouragement of Film and Television Production v. Israel Cinema Council [62], the Court approved criteria for funding to be given only to an institution that specialized in documentary cinema, defined as an “entity, at least 75% of whose budget is directed at documentary activity.”

Furthermore, even when the criteria adopted by the administrative authority for the distribution of funds to public institutions violate the principles of equality and pluralism, they are not necessarily invalid, since the principle of equality is a relative value which is to be balanced against other legitimate values and interests, in accordance with the circumstances of each specific case (Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister[8], per President Barak at para. 22). Thus, for example, the principle of equality needs to be balanced against the amount of available financial and human resources (Conservative Movement v. Minister of Religious Affairs [7], at p. 366).

66.  In this case, it appears to me that the Zuckerman Committee— which even the appellant does not dispute is a professional and independent committee — has formulated criteria that are proportionate and reasonable considering the budgetary constraints. These criteria cover only the first, limited circle of institutions that operate at the core of cultural endeavor. The appellant conducts extensive cultural activities at the Open House, but it does not fall within the definition of an institution that engages in “creation” in the area of art and culture; rather, it is engaged in the consumption of culture. As the Municipality argued, even a respected institution such as the Jerusalem Theater does not receive support from the Municipality, because it is a theater that hosts performances and does not produce them itself. Indeed, even the Municipality does not dispute the fact that if the appellant were to engage in a quantity of quality creative activity in the fields of professional art, in a different organizational context whose main activity is cultural creativity (such as an LGBT community theatre), it would be in compliance with the threshold requirements for support through the ongoing support track, and could be included within the peer group that is entitled to support from the Culture Department.

67.  In conclusion, I do not find any grounds for intervening in the Municipality’s decision to focus its support on institutions whose main activity is creativity within the fields of professional art in accordance with the Zuckerman criteria. In light of this conclusion, I will not discuss the question of whether this Court’s decision in Jerusalem Municipality v. Jerusalem Open House [3] has created an issue estoppel. I would mention that that decision opened the door for the appellant to argue for support for “marginal cultural enterprises”, but the appellant did not focus its arguments on this subject. In any event, the appellant has not shown that it acts as a creative factor in this field.

The Zuckerman Criteria for support provided through the projects track

68.  According to the Zuckerman criteria, support through the project track is to be given to entities that conduct one-off or multi-year projects in the areas of “professional art, amateur works, folklore, Jewish tradition, and Arab culture”. Thus, in the projects track, there is no need to comply with the professional threshold conditions, as long as the subject is a “cultural event”. The Zuckerman Committee, which convened on 13 December 2007, also clarified in its decision of that date that the budgeting of that track will “include projects for communities and for minority sectors with special needs.” Thus, the Zuckerman criteria for the projects track do not have any discriminatory effect in terms of the social reality. Even according to the Municipality, some of the gay pride events held in 2006 (i.e., the film festival, various conferences and appearances) potentially entitle the appellant to support.

Nevertheless, the appellant did not receive the support to which it was entitled from the year 2006through the projects track, because it had not attached an implementation report certified by an accountant. At the hearing held before us, the Municipality declared that subject to the production of an accountant’s certification of the implementation report submitted by the appellant, the appellant would receive funding from the projects track for the year 2006, in the amount of NIS 65,000.

In light of the parties’ agreement on this matter, we order that subject to the appellant producing an accountant’s certification of the implementation report, the Municipality will provide the appellants with funding from the projects track for the year 2006, in the amount of NIS 65,000.

As a parenthetical point, we note that the appellant referred in its pleadings to the world gay pride events for 2006 only, so that the question of whether the gay pride events in general constitute a “cultural event” for the purpose of project track support need not be decided in this case. In this connection, I note that the Municipality argued that the gay pride parade, in the context of the gay pride events, is an event through which the right to demonstrate and to march is realized; dozens of parades and demonstrations like it, including those of minority communities, are held in Jerusalem, and these parades do not constitute cultural events that receive support. I will therefore comment only that just as the Municipality found that some of the gay pride events in 2006 did satisfy the definition of a “cultural event” for the purpose of project track support, it may be presumed that each year the Municipality will determine, in similar fashion, which of the annual gay pride events are covered by this definition, and will act accordingly.

At this point, we will proceed to examine the support that the appellant requested from the Social Affairs Department.

The Municipality’s criteria for support from the Social Affairs Department

69.  During the years that are the subject of the appeal, the Municipality’s Social Affairs Department distributed support through three tracks: the youth movements and organizations track; the community centers and councils track; and the advancement of the status of women track. The appellant focused its appeal on the last two tracks, and we will examine each of them separately.

The youth movements and organizations track

70.  The Municipality’s support criteria in this track are the following (emphasis added — I.A.):

1. Support will be provided to community centers and councils— hereinafter, a community center— that have been recognized by the National Organization of Community Centers and/or to the Jerusalem Community Centers and Councils Company Ltd.

2. Any community council must be registered as an independent corporation; its management must include representatives of the community, it must operate in a given geographical area and provide services to the community.

Are these criteria equal and reasonable?

According to the appellant, the Open House serves for all intents and purposes as a community center, and provides a response to the special needs of the members of Jerusalem’s LGBT community. The criteria for support in this track are not equal and they are unreasonable, as the outcome test shows them to be discriminatory, primarily due to the requirement that the applicant operate in a given geographical area. The Municipality’s counter argument is that the purpose of the support in this track is a municipal-geographical one, rather than a functional one. This purpose is indicated both from an organizational perspective, and in terms of the content of the activity that is supported, as the lower court held. Budget constraints would constitute an additional relevant consideration, and the Municipality contends that it is not able to extend the support to many institutions that operate in the social arena for designated and unique functional purposes. The Municipality raised the “crumb argument” in this context as well, contending that any easing of the threshold requirements for the community centers and councils track will lead to a situation in which the number of institutions that will be entitled to support through this track will expand considerably, such that the funding given to the institutions will be so reduced as to constitute only insignificant “crumbs” of support (compare: Panim for Jewish Renewal in Israel v. Minister of Education [11], at p. 957).

71.  A decision as to whether the above-mentioned criteria comply with substantive equality is reached, as described above, in two stages. The first involves the delineation of the peer group, taking into account the statute’s purpose, the substance of the matter, the basic values of the legal system, and the particular circumstances of the case. Using these parameters, it is possible to differentiate between relevant and irrelevant considerations for the purpose of deciding the boundaries of the peer group and the reasonableness of the weight attributed to the relevant considerations (see Recanat v. National Labour Court [40], at pp. 346–347; Conservative Movement v. Minister of Religious Affairs [7], at p. 363). At the second stage, a determination is made as to whether the criteria are in compliance with the principle of substantive equality, i.e., whether the administrative authority is according equal treatment within the parameters of the peer group.

72.  Clearly, community centers and councils that operate in a specific neighborhood for the benefit of the residents of that neighborhood are different from community centers and councils that operate for the benefit of “dispersed” communities, such as the appellant’s community center. The appellant’s community center operates in the city center and although it is open to all who wish to enter, it responds primarily to the special needs of the members of the city’s LGBT community, who constitute a sizeable percentage of the city’s residents.

As we noted above, substantive equality requires equal treatment of institutions when any difference between them has no relevance and does not justify differential treatment by the Municipality. This is proper and justified equality (Conservative Movement v. Minister of Religious Affairs [7], at p. 362). Administrative authorities that wish to establish and argue the existence of a relevant difference must rely on relevant considerations relating to the substance of the supported activity, as distinguished from the identity of the entity that receives the support (MK Tzaban v. Minister of Finance [8], at p. 707). The essence of the distribution of funding through the various tracks covered by the Municipality’s Social Affairs Department is to provide for the welfare of all of the city’s residents in terms of social and community affairs, in as equal a manner as possible. Section 8.5 of the new procedure for the distribution of support funds by local authorities establishes this principle, providing that the “the criteria to be established by the authority’s council, after it has reviewed the opinion of the authority’s legal adviser, will be relevant and equal, and they will take into consideration the needs of the population within the local authority and the need to provide services for all parts of the population” (emphasis added — I.A.).

73.  We must distinguish between the objective that the authority wishes to achieve, and the means it selects in order to do so. The objective of the support in the community centers and councils track is to support institutions that make social and community services accessible to all residents of Jerusalem. According to the criteria, the means used to realize this objective, is funding given to the community councils located in the various neighborhoods throughout the city and which operate as micro-municipalities, on a regional-geographic basis only.

I am prepared to assume that making the Municipality’s social and community services accessible to all residents on a neighborhood-geographic basis is a relevant consideration that realizes the objective of the support. The Municipality responds to the needs of all of its residents — including the members of the LGBT community — within the framework of the community councils that operate on a regional-geographic basis. But the Municipality does not provide any response whatsoever to the unique needs of the members of the LGBT community, which is a “dispersed” community whose members do not all live in a particular geographical region. These unique needs are not addressed in the framework of the community councils, nor in any other framework within which the Municipality operates whatsoever. However, the Municipality does respond to the unique needs of other minorities within the city’s population, such as the city’s ultra-Orthodox community and its Arab community. The needs of these communities are addressed, inter alia¸ by Municipality departments that support institutions that operate for the welfare of these communities, as well as through regionally-geographically based community centers. I therefore do not accept the Municipality’s contention that the provision of support to the Open House that the appellant operates is equivalent to the provision of “double support”.

It is not necessary to “inject” the principles of equality, pluralism and distributive justice into the existing criteria in the community centers and councils track in order to reach the conclusion that the appellant’s application for support through this track should be recognized (or at the least, if it is necessary to “inject” these principles, there is no need for a “high dosage”). The appellant runs a community center that operates for the welfare of a “dispersed” community which constitutes a considerable portion of the population, and it responds to the unique needs of that community — needs that are not met by the Municipality or by other bodies. The measure used by the Municipality does not uphold the principle of substantive equality in that it attaches importance only to geographical-regional responses, while ignoring the special needs of the members of the LGBT community.

I am not unaware of the fact that the community centers and councils that are given support in accordance with the current criteria are involved in areas of activity related purely to the neighborhoods in which they operate, such as the promotion of development and urban planning issues, the expansion of residential units in the neighborhood, levying improvement charges, the establishment or removal of police stations in the neighborhood, and more. However, alongside these activities, the community centers also run cultural and sports activities that are typical of the Culture, Youth and Sport Centers, and the appellant’s community center operates similar clubs and social and cultural activities. The center holds social events for women and for men, events for the elderly, events for English, Arabic and Russian speakers, a travel club, a soccer team and more. Regarding culture, the center maintains a library and holds exhibits; it runs a theatre club, screens films, and holds meetings with artists and creative professionals as well as discussions and lectures. During the relevant years, the center operated a reading club that discussed queer theory research. It also held a discussion on sexuality and Russian culture, and a discussion and community conference on the subject of “Homophobia and Coming Out of the Closet” and more. It also responds to the special needs of the Orthodox members of the community: enrichment programs dealing with Judaism and queerness, Kabbalat Shabbat ceremonies (with rabbis representing various streams of Judaism) and celebrations of key holidays (a Purim party, a seder, a student event for Lag Ba’omer, a Rosh Hashana seder, a gay pride succah, a meeting with rabbis for Hanukah candle-lighting). In the field of psychological-social support, the center has operated support groups for women, for the religious, the transgendered, the elderly, bisexuals, and parents of gay men and women. In short, from a substantive perspective, the Open House serves as a community center for all intents and purposes, for a “dispersed” community. In this context I note that no parallel may be drawn from HCJ 1313/01 Keren Yaldenu Merkazei Tikvateinu [63], on which the Municipality relied. In that case, the petition was denied despite the petitioner’s claim that it maintained activities similar to those held by the Culture, Youth and Sport Centers, for the reasons noted in that decision – which were that the government Culture, Youth and Sport Centers Company is not budgeted through the support budget in accordance with section 3a of the Budget Foundations Law.

74.  I myself had difficulty identifying institutions that represent “dispersed” communities whose unique needs are not met by the Municipality in the framework of the existing community centers and councils, or in other ways in the examples offered by the Municipality in its pleadings. But if they do exist, the remedy to be applied with respect to the “crumb” argument would be to exercise “internal prioritization” among all institutions that meet the threshold requirements in a particular year, taking into consideration the budgetary constraints. Additionally, the case law and the legal literature have also noted the possible alternative of holding lotteries among those institutions that fall within the boundaries of the peer group in a particular year (see and compare Barak-Erez, Administrative Law, supra, at p. 697; Poraz v. Mayor of Tel Aviv-Jaffa [28]; HCJ 6437/04 Tabouri v. Ministry of Education and Culture [64]). These measures would serve to counter the “crumbs” argument discussed above.

75. At the start of our discussion, we mentioned that the LGBT community is a community that can be the subject of a “suspect classification” in terms of the treatment it receives as compared to other specific groups within the general public. Moreover, such concerns are strengthened in light of the relations between it and the Jerusalem Municipality, and in light of the fact that other municipalities do provide support for LGBT community institutions. But even if we presume that the Municipality did not act with discriminatory intent, and even if the discrimination was unconscious, the court may take the outcome test into consideration (see Barak-Erez, Administrative Law, supra, at p. 69; Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [9], per President Barak at para. 18; Peled v. Tel Aviv-Jaffa Municipality [46], at para. 11). Indeed, the outcome test shows that the regional-geographic criterion excludes the appellant, which operates a community center that provides a unique solution for a “dispersed” community with special needs and which constitutes a considerable percentage of the population. These criteria have a discriminatory effect, given the social reality. President Barak’s comments in para. 19 of his opinion in Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [9] are pertinent, mutatis mutandis:

‘ . . . the actual result of using the geographic criterion, with the boundaries that were chosen, is that the map of the national priority areas in education is de facto a map of Jewish towns only. [ . . . ] This is a discriminatory result that cannot stand. This is a result that Israeli democracy cannot tolerate. [ . . . ] Even on the assumption that the respondent had clear reasons when deciding upon the geographic lines that distinguish between national priority areas and other areas, it is not possible to ignore the result arising from these demarcation lines. [ . . . ] The geographic line that was chosen leads to a discriminatory result.

76.  In conclusion, from a substantive equality perspective, the peer group determined on the basis of the geographic-regional test excludes and discriminates against the appellant’s community center. And note: we need not create new criteria especially for the appellant; it is sufficient to expand the threshold condition for funding through the community centers and councils track. This expansion should note that community centers operating for the benefit of “dispersed” communities, which furnish a response to the special needs of communities constituting a considerable percentage of the population and which receive no response from the Municipality or from other entities in some other manner will also be included within the peer group established by the criteria.

The criteria for support from the Social Affairs Department in the Advancement of the Status of Women track

The criteria for support in the Advancement of the Status of Women track provide as follows:

1. Support will be given to organizations whose main purpose is the advancement of the status of women.
2. Preference will be given, in terms of the size of allocations, to an organization that incorporates a significant number of organizations that are involved in the field.
3. Preference will be given to organizations operating from a mainstream perspective in the area of developing female leadership within the community.

The appellant’s application for support for its activity was rejected on the basis of these criteria.

77.  According to the appellant, it advances the status of women by its very nature and by virtue of its activity, and its activity in this field addresses the special needs of lesbian women, who suffer from social repression of two kinds: both because they are women and because they are lesbians. The appellant holds activities for the empowerment of lesbian women in various forms. Among other things, the Open House held a panel discussion dealing with violence among women, a reading and discussion of lesbian poetry, workshops for women, and a series of lectures on the subject of feminism and rights. Additionally, every two weeks, a women’s meeting is held under professional leadership, in which the women discuss intimate subjects through the creation of a listening and sharing space. The appellant argues that the criteria for support provided through this track are not equal and are unreasonable. Regarding 2007, the appellant argues that once the Municipality began to carry out activities for the promotion of women by itself, it is unreasonable that it did not provide for the special needs of lesbian women in the framework of such activities.

The Municipality argues that the appellant is not an institution whose main purpose is to advance the status of women, and it was therefore not entitled to support through this track in the years 2005 and 2006.This is because only 1.75% of the appellant’s budget is dedicated to this purpose. Here as well, the Municipality raised the matter of budget considerations and the “crumbs” argument. According to the Municipality, since the budget for support in the area of social affairs is small and restricted, the criteria are intended to cover only institutions whose main purpose is the advancement of the status of women; if the threshold requirements for the receipt of support were to be expanded so as to include institutions that do not meet this criterion, the number of institutions that would be entitled to support through this track would be very large, and the amounts of support that each institution would be so insignificant as to constitute mere “crumbs” (Panim for Jewish Renewal in Israel v. Minister of Education [11], at p. 957).

The Municipality argues that the main reason for the cancellation of support for this track as of 2007was the Municipality comptroller’s report, which recommended the cancellation, based on, inter alia, the fact that the Municipality had begun to conduct its own activity for the advancement of the status of women, including the appointment of an adviser to the mayor in this field, in accordance with the Local Authorities Law (Adviser for Status of Women Affairs), 5760–2000.

78.  I will first note that our interest is limited to an examination of the Municipality’s denial of the appellant’s application for support for the years 2005–2006, because the Municipality ended all support for the promotion of the status of women track in 2007. As the lower court held, the termination of the support for this track was lawful, in light of the Municipality comptroller’s report. Furthermore, the Municipality was entitled to choose instead to conduct its own activity for the advancement of the status of women, and to cancel the support for this track in the framework of the Social Affairs Department.

79.  Did the Municipality’s criteria for support for the advancement of the status of women track violate the principle of equality?

The voice of lesbian women — like the voice of women belonging to other minority communities within Israeli society such as Arab women, ultra-Orthodox women, women with disabilities, etc. — can be a unique voice. (The claim has been made, within the feminist community itself, that the unique voice of the lesbians has been silenced. See the sources mentioned in Y. Biton, “‘Pain in the Proximity of Honor’ —Compensation for Violation of Constitutional Rights” 9Mishpat U’Mimshal (Law and Government) 137 (2006), at p. 180–181). From this perspective, there may be a basis for the appellant’s contention that as it is the only institution that responds to the needs of lesbian women in Jerusalem, it should receive support for its activity because such activity strengthens this unique voice, and that it would even be appropriate to consider affirmative action for such social activity (see LCN Society v. Ramat Hasharon Local Council [15]; Tamir, “The Right of Homosexuals and Lesbians to Equality”, Sommer & Pinto, “Specific Legislation” and Rabin and M. Lodzki-Arad, “Continued Financial Discrimination”). Budgetary considerations, although relevant and important, may be outweighed by the principles of equality and pluralism (see Tali School Education Fund v. Ministry of Education [49], Conservative Movement v. Minister of Religious Affairs [7], at p. 368).

Nevertheless, I do not believe it is necessary to intervene in the Municipality’s decision or in the decision of the lower court regarding this matter, for three reasons. First, as to the substance of the argument, the criterion that establishes that support should be given to institutions “whose main purpose” is the promotion of the status of women is indeed a relevant and legitimate one and does not violate the principle of substantive equality(compare the decisions in Mifgashim v. Minister of Education, Culture and Sport [4] and New Fund for Promotion and Encouragement of Film and Television Production v. Israel Cinema Council [62], in which a criterion based on a recipient’s “main activity” was approved). As the Municipality argued, there are dozens of entities that are involved in activity for women, including on behalf of minority women, which also do not qualify for support under this criterion because their main activity is not the advancement of the status of women. Second, the entire track for providing support for the advancement of the status of women was cancelled as of 2007, and the subject is thus neither relevant nor forward-looking. And finally, the support to be provided through the community centers and councils track will provide a response with respect to the appellant’s unique activities for lesbian women. These funds are not earmarked for any specific activity, and thus the appellant may allocate whatever it wants from them specifically for activities to promote the status of LGBT women.

80.  In conclusion, I see no need to intervene in the decision of the lower court to uphold the Municipality’s rejection of the appellant’s application for support for the years 2005–2006 on the ground that the appellant is not an institution whose main purpose is the advancement of the status of women.

The Division for the Advancement of Youth

81.  During the years that are the subject of the appeal, the Municipality distributed support funds within the framework of the Division through two tracks: the track dealing with activity for the prevention of drug use and the track dealing with activity for alienated youth — alienated youth being defined as those young people who are not involved in any educational or occupational framework. We note that the track for activity on behalf of alienated youth was cancelled in 2008, because of the Municipality’s interest in focusing on support for institutions working to prevent drug use.

As mentioned, the Division’s managers visited the appellant’s community center, and the appellant’s activity with youth and young adults was explained to them. In the end, the appellant’s application for support for the alienated youth track was also denied. The lower court held that the appellant was doing work on behalf of at-risk youth, but denied the appellant’s petition because the Municipality’s support was only given for professional treatment of youth, and not for social activity for youth, which is the type of activity carried out by the appellant.

The criteria for support in the framework of the Division for the Advancement of Youth at the relevant time were the following:

‘Conditions for provision of support:

1. Assistance will be given to an entity that assists the residents of Jerusalem, and if it assists individuals who are not residents, the support will be conditioned on the assistance being available for the use of residents of Jerusalem.
2. Regarding treatment for alcohol and drug addiction — the assistance will be provided to entities that are legally licensed to provide the service according to the Drugs Law and the Regulations enacted pursuant to it.
3. The entity must act to provide the service according to the provisions of the Youth Law and the Regulations enacted pursuant to it.
4. The entity must hold any license required by law for institutions operating in this area.
5. The entity must have proven knowledge of therapy and it must provide the service through licensed professionals.
6. The representative of the Division for the Advancement of Youth must inspect the entity and form an impression regarding the entity’s work and conduct from a professional-therapeutic perspective. The entity must provide the Division representative with the information needed for the formulation of the Municipality’s position regarding the application for support, including details concerning personnel (size, training); number of patients, etc.
7. The Division will monitor, professionally, the entity’s use of the support funds, in addition to the Municipality’s supervision and control pursuant to the Support Procedure.

Are these criteria equal? Are they reasonable?

82.  The appellant argues that young people who are part of the LGBT community or who are questioning their sexual identity are considered to be at-risk youth, as the lower court also held. While these young people are not in most cases “alienated youth,” their distress may express itself in withdrawal, depression and suicidal thoughts, but it will not necessarily lead them to drop out of school or leave an occupational framework. This target population is defined as “youth at risk”, in view of the antagonism and homophobia that are very often directed at anyone who admits uncertainty regarding this matter, or who affirms that he or she belongs to the LGBT community. This was also noted in the report of the Shamir Committee on Children in Distress and Youth at Risk, which was submitted to the government in 2005. The report stated that gay and lesbian youth suffer from severe distress due to their fears concerning the responses of those around them to their sexual orientation— responses from their parents, friends, teachers and/or the staff at their schools, etc. According to the appellant, this type of distress is not different and is no less important than other forms of distress such as withdrawal from an educational or occupational framework. The Open House provides a safe place for young men and women to work through their doubts in an accepting environment in which they are neither criticized nor judged, and it allows them to mature with relative security, without facing threats or fears. In this context, the Open House activity is a lifesaver; scientific studies have shown that gay and lesbian youth tend to attempt suicide at a rate that is 3 to 7 times higher than other young people their age because of the hostile environment they face.

The appellant further argues that there is a material difference between the activities carried out by the Municipality and the appellant’s own unique activity for LGBT young people. According to the appellant, LGBT youth and young people who have doubts and concerns regarding their sexual identity are very anxious about exposing themselves to institutional entities such as the Municipality. Owing to this anxiety, they do not turn to the Municipality, and in practice, they will be left without any response to their special needs. If the Municipality were to operate a program that created a “safe space” which neutralized the fears of the youth about exposure, the appellant would be happy to cooperate with the Municipality.

The Municipality, on the other hand, supported the lower court’s conclusion for two main reasons: first, because the appellant’s activity is not directed at alienated youth (young people who are involved in neither an educational nor an occupational framework); second, because the appellant’s activity is not professional-therapeutic, but rather purely social in character, and is of limited scope. The Municipality mentioned that applications for support submitted by similar institutions were also rejected, and that the appellant refused to cooperate professionally with the Division on behalf of young people within the LGBT community.

83.  Alienated youth are defined by the Division as youth who are not in any full educational and/or occupational framework. On its face, the support of institutions that work on behalf of “alienated youth” is based on a substantive consideration, but the relevant question is whether this peer group cannot be expanded to include at-risk youth, even if they do not fit within the definition of “alienated youth.” We repeat that substantive equality requires equal treatment of institutions between which there is no relevant difference, focusing on the character and nature of the supported activity, as distinguished from that of the entity that receives the support (Tzaban v. Minister of Finance [8], at p. 707).

In light of these principles, I accept the lower court’s holding that the alienated youth population and the LGBT youth population belong to the same peer group. As the objective of the Division’s activity is to support at-risk youth populations, these different sub-populations may not be treated differently. The Municipality’s refusal to provide support for the LGBT youth population indicates that it is discriminating against that population, at least at the level of a discriminatory outcome. As the lower court wrote:

‘Non-conformity between the identified at-risk youth populations … (which include LGBT youth), and the target population at which the activity of the Division for the Promotion of Youth(a population which does not include this population) is directed, indicates discrimination against the LGBT youth with respect to the provision of treatment that addresses their special needs as an at-risk population.’

84.  As stated, despite the conclusion reached by the lower court, the appellant’s suit was dismissed on the ground that the appellant does not engage in therapeutic activity for young people, and instead carries out social activity.

The appellant pointed out that the youth receive emotional and social support at the community center, and that the support groups often serve as the only refuge that assists them in dealing with difficult sources of stress from within their families, schools and other forums. Various subjects are discussed in these support groups, such as military service, couple-hood, coming out to parents and to those in their immediate environment, dealing with heterosexuals of their own age at school and in other formal frameworks, etc. The emotional-social support is reflected in the training given to the leaders of the youth and young people’s groups; the coordinator himself is a social worker who provides professional guidance on a regular basis; it is also reflected in the referral of the youth, if needed, to counseling at the Municipality’s psychological-social service or to welfare professionals.

85.  I will say, briefly, that I am not persuaded that there is a clear dividing line between therapeutic activity and social activity among at-risk youth, and there is some merit to the appellant’s argument that the distinction between the two is artificial. Nevertheless, taking into consideration the fact that the Municipality’s representative visited the Open House several times and found few young people participating in the activity, I have concluded that we should not intervene in the Municipality’s exercise of judgment regarding these criteria. In any event, from 2008 onward, once the Municipality had decided to limit the peer group such that support is provided only to institutions involved in the prevention of drug use, it cannot be compelled to support the appellant through the at-risk youth track.

‘And just before the end . . .’

86.  We have noted that the following conditions are met with respect to the appellant: the appellant represents a community that constitutes a not- inconsiderable percentage of the population; this is a group the differential treatment of which will constitute a “suspect” classification; the community is dispersed both geographically and among all groups within the public; members of the LGBT community have unique and distinct needs; and these needs are not being met from other sources.

I have therefore concluded that the criteria for the community centers and councils track must be expanded to include a “dispersed” community such as the LGBT community which is represented by the appellant, whereas the appeal against the Culture Department, the advancement of the status of women track within the Social Affairs Department, and the Division for the Promotion for Youth and Young Adults should be denied. And note: we are not calling for the creation of a new criterion, or for an expansion of the peer group, but rather for the expansion of an existing criterion regarding support from the Social Affairs Department that is provided through the community centers track. It may be said that the result we have reached falls on the seam between the first and second stages of the examination of substantive equality, between the stage at which the criterion itself is examined from the perspective of constitutional equality, and the stage at which the equality defined by the criterion is examined from the perspective of administrative equality.

87.  Therefore, the bottom line of this decision, both with respect to the past and the future, focuses on the community center operated by the appellant. As noted above, the Open House runs a variety of activities that respond to the unique needs of the LGBT community, including activities for young people and for women who are a part of that community. Therefore, from this point forward, when the Municipality reaches a decision regarding funding for the appellant through the community centers and councils track, it must take into consideration the fact that such support must also provide a response to the needs of youth and women who belong to this community. I note that the appellant itself described its applications for support as being alternatives to each other, in the sense that if an application was rejected in one of the tracks/departments, that same application should be evaluated within the criteria of another track/department.

If, in the future, support for community centers is terminated, the appellant will again find itself in a situation in which it plays the game “Grandma made cereal; she gave to this one, and to this one, but she did not give to this one . . .” and the court will then be required to consider the question of whether it should order that a new criterion be created especially for the appellant that is not covered by the ordinary criteria. This consideration would be necessary because this is a group for which a “suspect classification” would arise, and at that point, the Municipality would not be providing any response to the unique needs of the city’s LGBT community, in contrast to the standard practice in Israel’s other large cities.

88.  It appears that the appellant itself has asked the Municipality only for recognition—as opposed to esteem, which is to be achieved through social and political channels —for the members of the LGBT community as a group that stands by itself alongside other groups within the spectrum of the city’s populations. The history of the relations between the parties reveals that whenever the appellant stretched out its hand in an appeal for support, it was met, time after time, with the Municipality’s tightly-shut fist. But “even the fist was once an open palm and fingers” (Y. Amichai, “Remember and Recall”), and we can only express our hope that the Municipality will not again close up its hand, and that the parties will learn to shake hands without the court needing to consider this matter again.

The operative remedy

89.  I therefore propose to my colleagues that we order the Municipality to do the following:

To pay the sum of NIS 65,000 to the appellant — subject to the presentation of an accountant’s certification — for the Municipality’s participation in the costs of the 2006 gay pride events, through the projects track in the Culture Department.

To provide the appellant with support through the community centers track in the Social Affairs Department. I see no reason to redirect the appellant to the funding committee for a further hearing in order to establish the exact amounts, given the fact that a number of years have passed since the applications were submitted. Therefore, taking note of the amounts that were ordered in Judge Tzur’s opinion and taking note of those amounts that were “frozen”, I order the Municipality to pay the appellant NIS 100,000 for each of the years 2005–2008 (for a total of NIS 400,000 in current values) for support through this track. In addition, I recommend to my colleagues that we require the Municipality to pay the appellant’s attorney’s fees in the amount of NIS 30,000, plus VAT.

 

Justice E. Hayut

I agree with the decision of my colleague Justice I. Amit, and concur in the result that he reached. I wish to make three additional side points:

(1)   I am not persuaded that we must carry out a multi-stage examination, even on a “rough cut” level, first of the equality considerations from a constitutional perspective and next of the equality considerations from an administrative perspective. Equality is equality, and in my view we do not need to separate between “constitutional equality” and “administrative equality”, as both constitutional law and administrative law are intended to protect the same basic values, including the right to equality. (This is so despite the difference that of course exists between the remedies that are ordered with regard to each of these two areas of law).

(2)   Israeli law has taken a significant step in both its legislation and its case law towards a constitutional conception that accepts a person’s sexual orientation as part of his/her identity, and recognizes his/her right, which is an integral part of human dignity and of the right to equality that it incorporates, to be free from discrimination in this regard vis-à-vis any other person. It is nevertheless difficult, in this context, to remain complacent in light of the fact (emphasized by my colleague) that our law is more liberal than that of our neighbors in the Middle East. It appears that the phenomena of hatred towards members of the LGBT community, which is occasionally translated into intense violence and even acts of murder or attempted murder (see for example the stabbing that took place during the Jerusalem gay pride parade in 2006, and the event in Bar-noar in Tel Aviv in August 2009, in which two people were murdered and many were injured), indicate that there is still a long way to go until these protected values are properly absorbed by the Israeli public.

(3)   The repeated legal proceedings that the appellant was forced to pursue against the respondents in its attempt to realize its right to some financial support for the various activities that it conducts, and the fact that until now—as aptly phrased by counsel during the hearing—“we chase the criterion and it runs away from us”, have all led me to the same conclusion: Although the support that the appellant will receive as a result of the expansion of the community centers and councils track pursuant to this decision will in some degree respond to the needs of the LGBT community, the respondents should nevertheless do some rethinking of the reasonableness of the existing structure that necessitates this chase. The appellant is currently trying to provide, under a single roof, a response to all the varied needs of this unique community, including the empowerment of lesbian women, the care and support of LGBT youth, and queer cultural events. Nevertheless, it repeatedly finds that it is unable to comply with the separate criteria prescribed by the respondents for the different support tracks. It seems that under these circumstances, and in order to provide a true response to the needs of the LGBT community in Jerusalem in the form of financial support, the proper approach is to strive to achieve — as soon as possible —a state of affairs in which the LGBT community enjoys a special classification in Jerusalem, as it does in other large Israeli cities, by virtue of which resources are allocated to it for all the social, cultural and other activities that its members require, such as those that are conducted by the appellant.

 

Justice H. Melcer

1.    I too agree with the decision of my colleague, Justice I. Amit, and with the comments of the head of the panel, my colleague Justice E. Hayut. Considering the importance of the matter, I wish to add several comments and points of emphasis.

2.    A reading of the appeal and of the voluminous material presented to us indicates that the appellant and those associated with it have made it their goal to promote the ideas expressed by, inter alia, the American playwright Larry Kramer. In his famous play The Normal Heart, Kramer called on the community that the appellant represents to fight for its rights “in every house and neighborhood and in every city and country.”

In this framework, the appellant sought to share in the support that the respondents grant to various parties, and was refused repeatedly, even though such support was the appellant’s last resort.

3.    The discrimination (which is the result of these refusals) was camouflaged through the use of allegedly objective criteria. Regarding this type of violation of the principle of equality (based on a different issue), this Court has already held that “camouflage does not redeem discrimination. Substance will determine the matter, not form” (see Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs [10], per Justice Zamir at p. 176). Recently, in HCJ 7426/08 Tebeka Advocacy for Equality and Justice for Ethiopian Israelis v. Minister of Education et al [65],I added to this rule when I stated that “‘the attempt at camouflage’ will in itself prove that the party engaging in the camouflage knows and is aware that the discrimination is prohibited, or inappropriate.”

4.    If we look abroad, we find that a court in the United States, faced with a case that slightly resembles ours, issued a ruling to the effect that even an entity which is not prepared to “recognize” organizations such as the appellant in our case must still accord them equal treatment with regard to the allocation of resources. See Gay Rights Coalition v. Georgetown University [75]; William N. Eskridge, Jr., “A Jurisprudence of ‘Coming Out’: Religion, Homosexuality and Collisions of Liberty and Equality in American Public Law”, 106 Yale L.J. 2411, 2431–2431 (1997); Walter J. Walsh, “The Fearful Symmetry of Gay Rights, Religious Freedom and Racial Equality”, 40 How. L.J.513, 530–553 (1997); Jack M. Battaglia, “Religion, Sexual Orientation, and Self-Realization: First Amendment Principles and Anti-Discrimination Laws”, 76 U. Det. Mercy L. Rev 189 (1998–1999).

From the right to the remedy

5.    The relief that we have ordered — the support that we have directed to be provided through the community centers track— is a “quasi-constitutional” remedy, the essence of which is an “addition to” or an “expansion of” an existing criterion, granted in order to eliminate the camouflaged discrimination (see and compare El-Al Airlines v. Yonatan Danilowitz [53],per President Barak at p. 765. See alsoHCJ 678/88 Kefar Veradim v. Minister of Finance [66]; HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [67]; E. Bar-Natan “The “Inward Reading”/”Expansion” Remedy as a Constitutional Remedy in Anglo-Saxon Law and in Israeli Law, LLM thesis, at pp. 70–88 (1999, Tel Aviv University); Tamir, “The Right of Homosexuals and Lesbians to Equality”, supra, at pp. 109–113). Under such circumstances it is sometimes appropriate to consider budgetary issues as well (see the various views expressed in HCJ 5496/97 Mordi et al. v. Minister of Agriculture [68]; Barak-Erez Administrative Law, supra, (vol. 2), at pp. 714–718); however, seeing that such budgetary issues are relatively moderate in our case, and considering the fact that overall, the respondents have in this case caused intentional delays, there is no justification for ordering a graduated remedy.

6.    It would seem that in the twenty-first century the above matters should be completely obvious, but in light of the manner in which the appellant’s many appeals were handled, it is appropriate to emphasize these points. Our decision is directed at doing that, beyond its immediate result (compare E. Gross “‘Danilowitz’, Steiner and Queer Theory” 1 Mishpat Nosaf 47 (2001).

 

Decided as per the decision of Justice I. Amit.

 

14 September 2010

6 Tishrei 5771

HCJ 5239/11

HCJ 5392/11

HCJ 5549/11

HCJ 2072/12

 

Avneri v. The Knesset

 

The Supreme Court sitting as the High Court of Justice

[15 April 2015]

 

Before President (Emeritus) A. Grunis, President M. Naor, Deputy President A. Rubinstein, and Justices S. Joubran, H. Melcer, Y. Danziger, N. Hendel, U. Fogelman, and Y. Amit

Summary

Translated by Orly Rachmilovitz

This was a petition to strike down the Law for Prevention of Damage to the State of Israel through Boycott, 2001 (“Boycott Law”, “law”). The law establishes tort liability and sets administrative restrictions on anyone who knowingly and publicly publishes calls for a boycott on Israel. The petitioners claimed that the Boycott Law is unconstitutional because it infringes on various constitutional rights, including free expression, equality and freedom of occupation, and because it does not pass the tests articulated in the limitations clauses of Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation.

The High Court of Justice upheld most of the provisions in the law both in terms of the civil tort and the administrative sanction. Regarding the civil tort, the majority decided to dismiss the petitions targeting sections 2(a) and 2(b) while adopting the narrow interpretive position articulated by Justice Melcer. In an extended panel of nine, the Court ruled unanimously to strike down section 2(c) of the Boycott Law, which addresses compensation without proof of damage, for being disproportional, but to dismiss the petitions as far as sections 3 and 4. The majority (written by Justice Melcer, with former President Grunis, current President Naor, Deputy President Rubinstein and Justice Amit joining) decided to dismiss the petitions in terms of sections 2(a) and 2(b), against the dissents by Justice Danziger (with Justice Joubran concurring), by Justice Hendel and by Justice Vogelman.

Justice Melcer found that according to the language of the law, knowingly publishing calls for boycott on Israel could be considered a tort. Additionally, the State may limit participation in tenders by people publishing calls for boycott, and may prevent publishers from receiving different financial benefits, such as government grants, tax exemptions and the like. Therefore most of the sanctions under the Boycott Law target the time of speech and thus the statute infringes upon free expression and is inconsistent with the constitutional right to human dignity. That said, though political speech is at stake, Justice Melcer does not believe this infringement reaches the core of the right to free expression because the limit is relatively narrow and applies only to calls for boycotts against Israel, as defined in the statute, or to anyone who has committed to participate in such a boycott, which is legal action that goes beyond speech.

Additionally, this constitutional right, like other constitutional rights in Israel, is not absolute and may be limited if the infringement passes the tests of the limitation clause. The limitation clause includes four prongs: (1) that limits on constitutional rights are made in statutes or according to statutes; (2) that the limitation fits the values of the State of Israel as a Jewish and democratic state; (3) that the limitation is for a worthy propose; and (4) that the limitation is the least restrictive means necessary. The last prong includes three sub-prongs, which are the rational connection test, the least restrictive means test, and a “narrow” proportionality test. For his analysis here, Justice Melcer relies, among others, on comparative law.

In terms of the first prong, there is no doubt it is met. As for the others, Justice Melcer found that the statute is designed to prevent harm to Israel through economic, cultural or academic boycotts on Israel, anyone else vis-à-vis their relationship to Israel, an agency or institute of the State, or a territory controlled by it. Thus the Boycott Law falls under the “defensive state” doctrine and promotes preservation of the State and its values including equality and liberty. The law then has a worthy purpose and fits the values of the State of Israel as a Jewish and democratic state. Justice Melcer wrote that “calls for a boycott on Israel, as defined in the Boycott Law, do not fall under the classic purposes of free speech.” This approach stems from Justice Melcer’s distinction between speech that is meant to be persuasive and speech that works as a compelling force. In his view, a call for boycott is compelling speech, and therefore should be less protected than other political speech.

However, in terms of the Boycott Law’s proportionality, and applying a narrow interpretive approach, Justice Melcer concluded that sections 2(a), 2(b), 3 and 4 pass the proportionality test. Section 2(c), however, does not because it does not employ the least restrictive means. In this context, Justice Melcer considered the chilling effect doctrine, and suggested reducing the chilling effect through narrow interpretation of what constitutes a tort under section 2(a). Justice Melcer proposed that this “boycott tort” be contingent upon existence of harm and causation between the tort and the harm. Still, merely a potential causation would be insufficient. Awareness of the reasonable probability that the contents of the call and the circumstances of its publication will cause the boycott should be necessary. A further requirement should be that only one directly harmed by the tort may have standing to sue.

This interpretation cures section 2(b) as well. Here, the Court ruled that anyone interested in recovering compensation under section 2(b) would be required to prove – in addition to the element of calling for a boycott – the elements of causing a breach under section 62(A) of the Torts Ordinance, a breach, causation between the call for boycott and the breach, awareness, and monetary harm.

On the other hand, Justice Melcer does not find section 2(c), which deals with compensation that is not contingent upon harm (“punitive damages”) and is not limited in amount, to pass the second sub-test of a least restrictive means. It should therefore be struck down. Under this approach, even if the caller for a boycott has been found liable in torts, the compensation awarded would not exceed the actual harm caused.

As for sections 3-4, Justice Melcer finds that the administrative sanction – limiting participation in tenders and limiting benefits – is only a secondary infringement of free speech. He views these sanctions to be proportional, this in light of the procedure required to place these sanctions and considering the State’s power to withhold benefits from those who use them against it. Justice Melcer equated a boycott on the State and a boycott on a territory. He left the discussion on the constitutionality of sections 3 and 4 and wait until specific petitions against a concrete decision by the Minister of the Treasury based on a concrete set of facts.

Finally, Justice Melcer presents additional approaches supporting his proposal: (1) that an interpretation that maintains a statute’s constitutionality is preferable to striking the statute down; (2) that the Court should show deference to the legislature; (3) the margin of appreciation doctrine; (4) that under a theory of ripeness, arguments by potential parties must be examined beyond the striking down of sections 2(c).

Former President Grunis, President Naor, Deputy President Rubinstein and Justice Amit join Justice Melcer and offer comments.

In his dissent, Justice Danziger found the Boycott Law to materially violate free speech. It is a violation of political speech, which is at the core of the constitutional right to free expression, encompassed in the constitutional right to human dignity. This violation, in his view, does not pass the tests of the limitations clause in section 8 of Basic Law: Human Dignity and Liberty. In his view, the Boycott Law does not pass the third sub-prong of the proportionality test, the “narrow” proportionality prong, because calls for boycotts are clearly within legitimate democratic discourse. He opposes Justice Melcer’s proposal for narrow interpretation as insufficient.

Despite his conclusion, Justice Danziger believes the harsh outcome of striking down the law as unconstitutional may be avoided through interpretation, thus significantly reducing the extent of the Boycott Law’s infringement upon rights and allowing it to pass constitutional muster. He suggest interpreting section 1, which is the gateway to the law, to mean that only a boycott on an “institution” or an “area” vis-à-vis their association with the State and that effectively constitutes a boycott on Israel as a whole would be considered a boycott for the purposes of the statute.

Justice Hendel accepted Justice Melcer’s proposal as legitimate interpretation. However, to him section 2 as a whole should be struck down. Section 2(a) as a tort and section 2(b) in terms of a sufficient justification for causing a breach of contract and section 2(c) in terms of compensation without proof of damage do not pass the third sub-prong of the proportionality test. Therefore, Justice Hendel would strike down the entire section for being disproportional, but for the time being he supports curing sections 3 and 4.

Justice Vogelman joins the interpretation by Justice Danziger, but believes redrafting is more suited relief in this case, and therefore proposes to delete the phrase “an area in its control” from section 1. Still, he believes section 2(c) should be struck down and sections 3 and 4 should be upheld. Additionally, in his view, maintaining the Boycott Law’s validity requires interpreting it to apply only in cases where the singly justification to call for “refraining purposefully from economic, cultural or academic connections with a person or other entity” is that person or entity’s relationship to the State of Israel or any of its institutions.

Justice Joubran finds that section 2(c) should be struck down and that section 1 should be interpreted according to Justice Danziger’s proposal regarding the areas in the State’s control. Additionally, he joins Justices Danziger and Vogelman in distinguishing a call for boycott on a person because of their relationship to the State of Israel or one of its institutions and a call for boycott on a person because of their relationship to an area controlled by the State.

Crim. A. 112/50

 

           

GAD BEN-IZHAK YOSIFOF

v.

THE ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal.

[March 29, 1951]

Before: Smoira P., Silberg J., and Landau J.

 

           

Criminal Law - Bigamy committed by Jews contrary to s. 181 of Criminal Code Ordinance, 1936 - Whether section ultra vires on grounds of discrimination - Jewish Law - Freedom of religion and conscience - Prohibition of polygamy not contrary to Jewish Law.

           

                The appellant, an Israel Jew belonging to the Caucasian community, married in the year 1936. He married a second time in the year 1950 while the first marriage still subsisted. He was convicted of bigamy under s. 181 of the Criminal Code Ordinance, 1936 1) and sentenced to imprisonment for one year. On appeal it was argued that s. 181 was ultra vires the powers of the High Commissioner by reason of Article 17(1)(a) 2)2) of the Palestine Order in Council 1922 (as amended) in that the section introduced discrimination between the inhabitants of Palestine, namely, between Moslems and Jews, and in that it restricted freedom of conscience and worship.

               

                Held:      Dismissing the appeal,

          (1) that as the section did not discriminate against men and women of the same community regarded as one unit there was no discrimination within the meaning of Article 17(1)(a) of the Order in Council.

          (2) The question of freedom of worship did not arise in this case.

          (3) As regards freedom of conscience, religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. The Jewish religion does not compel polygamy, and accordingly no ground exists for the suggestion that there was any infringement of the right to freedom of conscience.

 

          Per Silberg J. Bigamy was never an institution rooted or permanent or favoured in the life of the Jewish people.

 

Palestine cases referred to :

(1)   Cr. A. 85/38 - The Attorney-General v. Ya'acov Ben Yehiel Melnik (Kimhi) : (1939) 6 P.L.R. 34.

(2)   C.A. 119/39 - Pessia Nuchim Leibovna Shwalboim v. Hirsh (Zvi) Shwalboim : (1940) 7 P.L.R. 20.

(3)   M.A. 18/28 - The Attorney-General v. Abraham Alt shuler: (1920-1933) 1 P.L.R. 283.

(4)   M.A. 9/36 - Sharif Esh-Shanti v. The Attorney-General: (1937) 1 S.C.J. 31.

(5)   H.C. 109/42 - Vaad Adat Ashkenazim, Beit Din Hassidim v. District Commissioner, Jerusalem and others : (1942) 9 P.L.R. 715.

 

Israel cases referred to :

(6)   H.C. 10/48 - Zvi Zeev v. Gubernik, the District Commissioner, Urban District of Tel Aviv and others : (1948) 1 P.D. 85.

(7)   C.A. 376/46 - Aharon Rosenbaum v. Sheine Miriam Rosenbaum : (1949) 2 P.D. 235.

(8)   H.C. 8/48 - Shlomo Gliksberg v. Chief Execution Officer, Tel Aviv and others : (1949) 2 P.D. 168.

 

American cases referred to:

(9)        Quaker City Cab Co. v. Commonwealth of Pennsylvania : 48 S.C.R. 553.

(10)      Lindsley v. National Carbonic Gas Co. : (1911) 31 S.C.R. 338.

 

Wiener for the petitioner.

E. Shimron, State Attorney and E. Hadaya, District Attorney of Jerusalem, for the respondent.

 

            LANDAU J.  The appellant, Gad Ben-Izhak Yosifof, was convicted by the District Court of Jerusalem (Halevy P.) of the felony of bigamy, in contravention of section 181 of the Criminal Code Ordinance, 1936, as amended in 1947, and was sentenced to imprisonment for one year. His appeal in directed both against the conviction and the sentence. Upon the suggestion of Dr. Wiener, counsel for the appellant, and with the consent of the State Attorney, we decided to hear the appeal in two stages - the first stage relating to the conviction, and the second stage (should we reject submission of counsel in regard to the conviction), relating to the sentence.

           

2. The facts are set out in detail and with great clarity in the judgment of the learned President of the District Court, and since they are almost undisputed, there in no need for me to repeat them at any length. The appellant, an Israel Jew belonging to the Caucasian community, married ~ woman in the year 1936, and she has born him five children. His marriage with her in still subsisting. In the year 1950 the appellant married a second wife by religious rites with the consent of the office of the Rabbinate in Jerusalem. He obtained this consent by a false declaration which was supported by two witnesses, in which he concealed the fact of his existing marriage.

 

3. Dr. Wiener's submissions in regard to the conviction were directed solely to the legal basis of the judgment of the District Court. Dr. Wiener in fact denies the validity of section 181 of tile Criminal Code Ordinance, as amended. His arguments are these : that in enacting the section referred to the legislature in the days of the Mandate exceeded the powers conferred upon it by Article 17(1)(a) of the Palestine Order in Council, 1922, as amended in 1923, in that :

 

        (a)    Section 181 of the Criminal Code Ordinance discriminates           between the inhabitants of Palestine;

 

            (b)        the section restricts freedom of conscience and         worship.

           

4. In order to understand these submissions it in necessary for me to deal shortly with the history of these sections. Section 181 of the Criminal Code, in its original form, provides :

 

            "Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for five years. Such felony is termed bigamy;"

 

            The section then proceeds to provide for three situations which, if established by the accused, will afford him a good defence. These are:

           

"(a) that the former marriage has been declared void by a court of competent jurisdiction or by a competent ecclesiastical authority; or

 

(b) the continuous absence of the former husband or wife, as the case may be, at the time of the subsequent marriage, for the space of seven years then last passed without knowledge or information that such former husband or wife was alive within that period; or

 

(c) that the law governing the personal status of the husband both at the date of the first and at the date of the subsequent marriage allowed him to have more than one wife."

 

            Special attention should be directed to the opening words of the section which require as one of the elements of the offence that the new marriage shall be void by reason of its having taken place during the lifetime of the husband or the wife of the previous marriage. This is an exceptional requirement, the basis of which was the desire of the legislature to adapt this provision of the Criminal Law to the conceptions of the Moslem religion which permits more than one wife. The second marriage of a Moslem is not void, and the prohibition imposed by section 181, therefore, does not affect him. It was also the purpose of the third defence mentioned in the section referred to, to protect a person whose personal law permits him to have more than one wife.

           

5. The Jewish law of marriage, however, was overlooked by the mandatory legislature from the outset, and the language of the section was not made appropriate for the special position created in Jewish law when a man marries two wives. According to that law, as is well-known, the second marriage remains valid throughout, and may be terminated only by divorce. It follows that the language of the section in its original form imposed no obstacle to polygamy among Jews, as appears from the judgment of the Supreme Court in Attorney-General v. Melnik (1), in which a Jew was acquitted of the offence of bigamy because of the defective drafting of the law.

 

6. Some years passed until the publication in 1947 of the amended section 181, which was drafted with the intention of bringing the provisions of the criminal law in regard to bigamy into conformity with Jewish law. And this is the solution which the legislature found to this problem:

 

(1)       The requirement at the beginning of the section that the new marriage should be void was deleted, and it was provided as to the future that the offence is committed whether the subsequent marriage is valid, or void or voidable. In this way the section was also made applicable to the second marriage of a Jew which is not void. It would appear that as far as Moslems are concerned, it was decided by the legislature that the original language employed at the beginning of the section was not necessary to exclude them from its operation, since they are in any case excluded by "the third defence" provided in the law governing personal status which permits polygamy.

 

(2)       The second and third defences provided for in the original section were restricted. Cases in which the law as to marriage applicable to the wife or husband at the date of the subsequent marriage was Jewish law, were excluded from the second defence, and cases in which the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law, were excluded from the third defence.

 

            In place of these defences which were excluded a new fourth defence was laid down for Jews, namely, the case in which "the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage, was Jewish law and that a final decree of a rabbinical court of the Jewish community ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage. ''

           

7. Dr. Wiener's whole argument, as 1 have said, was directed to the point that section 181 is inconsistent with Article 17(1)(a) of the Palestine Order in Council. The provisions of that Article, in so far as they affect the problem before us, are as follows : -

 

            "The High Commissioner shall have full power and authority..... to promulgate such Ordinances as may be necessary for the peace, order, and good government of Palestine, provided that no Ordinance shall be promulgated which shall restrict complete freedom of conscience and the free exercise of all forms of worship, save in so far as is required for the maintenance of public order and morals; or which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion, or language."

           

            Article 83 of the Order in Council again emphasises that "All persons in Palestine shall enjoy full liberty of worship subject only to the maintenance of public order and morals..." This section is in the general chapter of the Order in Council, and it adds nothing to the provisions of the amended Article 17(1) (a) which deals particularly with matters of legislation. The source of Article 17(1)(a) is Article 15 of the Mandate for Palestine from which it has been copied almost word for word. These conceptions, which were embodied in Article 15 of the Mandate, were not new, but had already found their place in the world of political thought in the French Declaration of the Rights of Man and the Citizen, of the year 1789, and in the days of the first ten amendments of the American Bill of Rights of the year 1791. The principle of non-discrimination reflects the aspiration of the equality of all citizens before the law. Freedom of conscience and worship is one of the liberties of the subject which is guaranteed to him under every enlightened democratic regime. In the declaration of the establishment of the State of Israel it is said:

           

            "The State of Israel... will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex. It will guarantee freedom of religion, conscience, language, education, and culture..."

           

            Dr. Wiener mentioned these words in His argument, but he drew no legal conclusions from them. In this he was correct, for the court has already held in Zeev v. Gubernik (6), that that declaration "contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal". Dr. Wiener agreed, therefore, that if the Knesset of the State of Israel were to enact a section such as section 181, he would not have been able to challenge its validity. His submission, therefore, is limited in scope and touches only upon the situation which existed during the time of the Mandate. I am in agreement with him and with the learned President of the District Court that if it should indeed emerge that there existed an inconsistency between section 181 of the Criminal Code Ordinance and Article 17(1)(a) of the Order in Council and that section 181 was void ab initio, then it was not a part of "the existing law" in accordance with section 11 of the Law and Administration Ordinance, 1948, and would therefore be invalid in the State of Israel as well.

 

8. The learned President of the District Court in his judgment rejected the general submission of Dr. Wiener both in regard to discrimination and also in regard to freedom of conscience and worship. He summarised his opinion in paragraphs 21-28 of his judgment, which read as follows :-

 

            "21. The institution of monogamous marriage is regarded among all peoples, in all faiths and in all communities in which it exists as one of the most valuable conceptions of human culture. The establishment of the family and the peace of the community depend upon it. The institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists. In Palestine, where it exists in proximity to the institution of polygamous marriage, it requires stringent protection."

 

            "22. It cannot be conceived for one moment that the Palestine Order in Council wished to prevent the Mandatory legislature from affording monogamous marriage in Palestine effective protection by means of the criminal law. All that was demanded by the Order in Council in this connection was that the law of bigamy should not prejudice that section of the population whose law of personal status recognised polygamy."

 

            "23. Section 181 was designed to protect the institution of monogamous marriage which existed in a certain section of the population of the country and in no sense prejudices the institution of polygamous marriage which exists among another section of the community. In other words, the object of section 181 is to protect those men and women (and their children) whose marriages, in accordance with their law of personal status, are monogamous marriages. Section 181 takes care not to prejudice the law of personal status (religious or national) of any inhabitant. It does not prejudice liberty of religion (which is included in the guarantee "of freedom of conscience and worship") but, on the contrary, it respects that liberty in all its provisions. Were it necessary for me to base my judgment upon this ground, I also would not hesitate to decide that the criminal law defending monogamous marriage is required "for the preservation of public order and morals". As far as discrimination in favour of the Moslems is concerned, it is not section 181 which created the distinction between the law of monogamous and polygamous marriage in Palestine; this distinction exists and is rooted in fact and confirmed by the Order in Council upon which counsel for the accused relies. It is for these reasons that I decide to reject the general submissions of counsel for the accused to the extent that they do not touch upon the special provisions of section 181 in regard to Jews."

 

            In so far as the special provisions of section 181 relating to Jews are concerned, it was held by the President - after a comprehensive survey of the development of Jewish law in this field - that "Jewish law does not permit a person to take a second wife in Palestine, unless he first obtains permission so to do according to law". In support of this opinion the President cited in his judgment a number of authorities on Jewish law which he culled from Rabbinical literary sources. He therefore rejected the idea that there exist in Palestine Jews of the Eastern communities who are permitted by Jewish law to take more than one wife without special permission so to do, and held that section 181 is in full conformity with Jewish law.

           

9. Dr. Wiener strongly attacked the general theories of the learned President. In his opinion there is no room for these propositions in the judgment of a judge whose duty it is to interpret the law and not express opinions on social problems such as the preference of monogamy over polygamy.

 

            I see no substance in these criticisms of Dr. Wiener. The learned President did not just express opinions. He refrained, for example, from expressing generally any preference for the system of monogamy over that of polygamy, but particularised and said (in paragraph 21 of his judgment) that "the institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists." We find nothing wrong in this expression of opinion. It is not the function of a judge simply to interpret the law mechanically. A judge is sometimes required to interpret abstract conceptions such as, in the case before us, "discrimination" and "freedom of conscience". It is of no avail in such circumstances to attempt to confine oneself within the four corners of legal theory. The judge must make a thorough investigation, must weigh the benefit of the community and that of the individual, the degree of justice and equity, and other considerations such as these in order to reach a correct assessment of the intention of the legislature.

 

10. Dr. Wiener argued his submissions in regard to the merits of the case under two headings - the one dealing with discrimination, and the other with freedom of religion and worship. I shall deal with the submissions in that order. Dr. Wiener confined his argument with regard to discrimination to the following points:

 

            (a) The idea that there exists a distinction in principle between monogamy and polygamy has no basis in the law of Palestine. According to the intention of the legislator who drafted the Order in Council marriage is an institution common to all communities, and the Mandatory legislature could not therefore lay down in subsequent legislation on marriage different principles for different communities. The criminal law relating to bigamy falls within this rule.

           

            (b) An argument that the legislature adjusted the section in question to the religious needs of the different communities cannot be justified, since section 181 is not so drafted, and in any event there was no necessity for a High Commissioner to set himself up as a "policeman" for the religious communities.

 

            (c) The test of discrimination is an objective test and we must not, therefore, enquire into the intentions of the legislator. The prohibition against discriminatory laws is absolute without its being reserved to matters of the maintenance of public order and morals, for these are only mentioned in connection with freedom of conscience and worship.

 

11. Mr. Shimron, the State Attorney, argued against this submission upon the question of discrimination. In his submission the prohibition against discrimination does not mean that the legislature must introduce a mathematical equality between all citizens. Discrimination must not be confused with distinction. The prohibition extends only to discrimination to the disadvantage of a particular group of people. The Palestine legislature, however, did not discriminate in favour of one community or against another community. It found itself faced with a varied social and legal state of affairs in the different communities, with each community having its own way of life. It therefore tried to find a legislative solution which would be in conformity - as far as possible - with this existing situation. The solution which it found is a reasonable and not a capricious one. Mr. Shimron, in his submissions, relied upon judgments of the Supreme Court of the United States which, in interpreting the Fourteenth Amendment of the Constitution of the United States in connection with the equal protection of the laws, decided that this amendment does not prevent classification of different groups within the community by the legislature.

 

12. It must be pointed out at the outset that Article 17(1)(a) of the Order in Council does not provide in general terms that all discrimination is forbidden. The article lays down, however, in a consolidated form, three aspects according to which discrimination between inhabitants of the country is forbidden, and these are on the grounds of race, religion, and language. Does section 181 mention religion as a reason for differentiating between the communities? Counsel for the parties did not deal specifically with this question. It seems to me that the matter is open to doubt. In the time of the Mandate the court recognised Jewish law as "the national law" of the Jews of Palestine (see Shwalboim v. Shwalboim (2)). I do not think that, in speaking in section 181 of the person whose law relating to marriage is Jewish law, the mandatory legislature intended to restrict this conception to Jews who were members of the Jewish community as a religious community. It designedly created a special class of people who are distinguished by their law of personal status. This has little effect, however, as far as Article 17(1)(a) of the Order in Council is concerned, for if the dividing line under section 181 is not religion we shall be compelled against our will to reach the conclusion that the differentiation is based on race, or on a conception of religion and race combined.

 

13. It seems to me that the articles of the Order in Council itself destroy the contentions of Dr. Wiener that marriage under the Mandatory law was considered the same institution for all the communities. The legislature allocated jurisdiction in matters of marriage between the different religious communities, and in so doing it was undoubtedly aware of the wide distinction between the various laws of marriage of the main communities in the country. See in this regard the judgment of this court in Rosenbaum v. Rosenbaum (7). It was only in 1989 that the first step was taken to introduce a unified law of marriage for persons who were not members of the recognised religious communities (see Article 65A of the Order in Council). This provision, however, merely provided the additional legislative framework, but this frame was never filled with content. It is clear to me that the law of marriage which existed in the time of the Mandate and which exists in this country today is not a single one, but is varied according to the different systems of personal law.

 

14. What is the correct meaning of the expression "discrimination", which appears in Article 17(1)(a)?  It is true that according to its etymological source this English word means no more than "distinction" and not necessarily a distinction for good or bad. In the social sciences, however, the word has acquired a more restricted connotation.

 

            I quote from the Encyclopaedia of the Social Sciences, New York, 1948, vol. 14 at p. 131 where it is said: -

           

"The term social discrimination may be tentatively defined as unequal treatment of equals, either by the bestowal of favors or the imposition of burdens."

 

and further on the same page :-

 

"Discrimination should not be identified or confused with differentiation or distinction."

 

and on page 182 :-

"Discrimination carries with it the idea of unfairness."

 

            I have already explained that the expressions which I am considering here are not merely legal terms. They are the common heritage of people with a democratic tradition and we do not hesitate therefore to seek assistance from American non-legal sources. The distinguishing feature implicit in the expression "discrimination" is an attitude which is unequal and unfair - for different classes of people. This is also the opinion of the English judges in the time of the Mandate. In the well-known case of Attorney-General v. Altshuler (3), for example, the court asked in its judgment at p. 286 :

           

"Can it be said because the bye-law in question makes a distinction in favour of the minority ...that there is, therefore, not a discrimination against the majority."

 

and it replies :

 

''.. .it is just as much discrimination when the majority suffers as it is when a minority is discriminated against.''

 

            I quote these passages only for the sake of the linguistic interest which they possess, without expressing any opinion as to the correctness of the view of the majority of the judges on the merits. The same expression, as used in the book of Exodus, (8, 18; 11, 7) 1) is used to connote a distinction for good or for evil.

           

15. I have considered the American judgments cited to me by Mr. Shimron, and particularly the judgment of Mr. Justice Brandeis in Quaker City Cab Co. v. Pennsylvania (9), which interprets the "Equal Defence Clause" in the American Constitution (the Fourteenth Amendment). However I cannot derive any assistance from this judgment for the problem before us, for the amendment referred to does not mention the expression "discrimination" and the American court, in interpreting the amendment, proceeded on the assumption that discrimination (that is to say, actual discrimination either in favour or against a particular class of persons) is permitted subject to the condition that it expresses itself in the form of classification on a reasonable basis (ibid., p. 556), while in our case discrimination is forbidden in all circumstances and is not limited by considerations of public order, and other considerations of a like nature.

 

16. Nevertheless, I am of the opinion that in substance Mr. Shimron's submission is correct. I have said that discrimination means a distinction for good or for bad. Article 17(1)(a) does not forbid a different legislative arrangement in respect of different classes of persons, provided that the arrangement involves no discrimination for good or bad. For example, the Language of Courts Rules provide in rule 4 that every summons, every official copy of a judgment and every official document shall be issued in the language of the person to whom it is addressed. This provision involved a distinction between different classes of people by reason of language. Would it ever occur to us to say that this is discrimination because from an objective point of view one law has not been laid down for all? On the contrary, it would appear that here we have a desire to confer equal status upon all the official languages. And so it is in the case of marriage. The Mandatory legislator decided that the time had come to prohibit bigamy by a prohibition in the Criminal Code. Two roads were open to it. It could have imposed a general prohibition upon the members of all communities or find a compromise between the desire to prohibit bigamy, and the social realities of the country. Dr. Wiener admits that a general prohibition would not have been beyond the competence of the Mandatory legislator, but he denies its power to lay down different laws for different communities. I cannot accept this opinion. A legislature does not operate in a vacuum, but is faced with an actually existing social state of affairs with its various manifestations, and must formulate legal forms to meet that situation, and also direct its development in the future. As far as the institution of marriage is concerned, the legislator found himself confronted, as raw material, with a reality consisting of varied outlooks which were fundamentally different. It found that the population of the country was not homogeneous, but that it consisted of different peoples and communities, each with its own laws and customs. Can we say that the Mandatory legislature committed a breach of the principle of non-discrimination because it did not impose its will on the existing situation but to some extent yielded to reality? There is an even more important factor. I am not dealing here only with a difference between actually existing situations, but a difference which was already established in the written law which applied before the Mandatory legislator began to act. Legislatory recognition of the differences between the outlooks of the peoples and communities in the country was already introduced into the Order in Council itself, which did not introduce one law for all people in the country but in matters of personal status handed over such matters - at least in part " to the jurisdiction of the courts of the communities. The draftsman of the Order in Council also added little that was new, and only recognized a legal situation which already existed previously in the time of the Turks. The Mandatory legislature, therefore, was consistent, and in drafting section 181 not in a single form but in a varied form, continued to build upon legal foundations which had already been laid down for some time.

 

            Counsel for the appellant is correct, however, in submitting that in the ultimate result the test must remain objective. It is possible that the intention of the legislature was desirable, but that it failed in its efforts, and that its solution in fact prejudices a particular class of persons, and discriminates against them in favour of others. We are not, therefore, relieved from the task of examining the details of the legislative arrangement which was made in the matter before us. I shall not be influenced by the dotting of i's and the crossing of t's, and should it appear that in essentials no discrimination has been introduced by the legislature, the court will ratify its actions and not invalidate them.

           

17. The object of respecting the provisions of the law of personal status of each person in Palestine is abundantly clear from section 181. We know from the explanatory notes to the proposed amendment that it was drafted after consultation with the Chief Rabbinate and was intended to satisfy its requirements. Rabbi Ya'acov Baruch, the Principal Secretary of the Office of the Rabbinate in Jerusalem, who gave evidence in this case, also confirmed that the Chief Rabbinate had approved this amendment (see also the article of P. Dikstein, "Ha-Praklit" January, 1946, p. 18). There is therefore no doubt as to the good intentions of the legislature towards the Jews. From an objective point of view as well, however, although there is here a difference in the legislative arrangement, there is no discrimination against anyone. Wherein lies the discrimination upon grounds of race or religion in handing the final decision in regard to permission to marry more than one wife - and thereby the exclusion of a person from the general provisions of section 181 - to the competent Rabbis of the Jewish community? I shall deal later with the question to what extent the contents of this section are consistent which Jewish law and I shall assume for the moment that there is no absolute consistency between them - but that does not mean that the provisions of the section are ultra vires, for in my opinion the legislature was entitled to introduce an innovation in the secular law (and a prohibition of bigamy is a matter belonging to the secular law) by transferring an additional duty to the religious courts of the Jewish community whose power to issue binding decisions is itself derived from the secular law. In so doing the Mandatory legislature did not constitute itself as a "policeman" in matters of religion. It remained within the ambit of its powers, and merely used the existing machinery of the religious courts in order to achieve its purpose after giving full consideration to the feelings of the Jewish community.

 

18. And that is not all. Without expressing an opinion as to the social and moral values of monogamy and polygamy it may in any event be laid down with certainty that that outlook which sees an advantage in a number of wives is basically a "masculine" outlook, for a prohibition against a number of wives restricts, as it were, the liberty of the male. The prohibition of bigamy, however, has the important social purpose of protecting the first wife. To release the man from the prohibition against bigamy contained in the criminal law would be to lower the status of the wife. It is for us to decide whether there exists here discrimination against the members of a particular race or religion, and we may not take a one-sided view of the problem. We must ask ourselves whether the men and women of the same community regarded as one unit are discriminated against. The answer to this question cannot be otherwise than in the negative.

 

19. For these reasons I reject these submissions of Dr. Wiener, and in my view section 181 of the Criminal Code Ordinance, 1936, is not repugnant to the provision against discrimination in Article 17(1)(a) of the Order in Council.

 

20.  I shall now pass to consider the second submission relating to freedom of conscience and worship. In my opinion the question of freedom of worship does not arise here at all. The intention of the legislature was directed to forms of worship among the different religions - in regard to matters between man and his God, and not in regard to matters between man and man.

 

            I shall therefore confine the enquiry to freedom of conscience. This is an ethical conception dealing with knowledge of good and evil. A man may derive his opinions on good and evil from a source which is not religious. A religious man, however, is guided in matters of conscience by the commandments of his religion, and we therefore accept the assumption that the complete application of the principle of freedom of conscience also demands freedom of religion.

 

            Dr. Wiener's main submission was that the Mandatory legislature, in laying down rules relating to marriage, trespassed upon the area of religion since, according to the Order in Council. marriage is a religious institution. Freedom of conscience means freedom to live according to the dictates of religion. Jewish law permits polygamy at least among those communities which have not accepted the Ban of Rabbenu Gershom.1) In certain cases polygamy is even almost a religious duty. The test is objective, and it makes no difference if the appellant belongs to one of those communities. And if section 181 is repugnant to the religious customs of any community, then it must be invalidated completely. The section is prejudicial in particular to those Jews who are not members of the Jewish community, for it compels them to approach the courts and the Chief Rabbis whose authority they do not recognise - in order to secure permission to marry. In explaining these submissions, Dr. Wiener readily conceded, as I have said, that had the legislature introduced the prohibition on bigamy generally by imposing a criminal prohibition, it would not thereby have exceeded its powers, for a prohibition such as this would evidence a desire to regulate the question of bigamy purely from the secular angle.

 

            Mr. Shimron's submission on this aspect of the matter was as follows. The question of marriage is secular and not religious, and legislation regulating this matter has no effect upon religious sentiment. Freedom of conscience and freedom of action are not the same thing, for freedom of conscience is confined to the realm of thought alone. Mr. Shimron supported the conclusions of the learned President in the court below that there is no inconsistency between section 181 and Jewish law, and submitted that the fact that a minority do not recognise the rabbinical courts can have no decisive effect on the matter.

           

2l.  I do not think that freedom of conscience is limited to freedom of thought alone. A man who enjoys freedom of conscience must not be deprived of the right to obey the dictates of his conscience by action. The proviso to Article 17(1)(a) in regard to public order and morals is sufficient to prevent harmful acts which some may seek to justify on the ground of freedom of conscience. Even Esh-Shanti v. Attorney-General (4), upon which Mr. Shimron relied, does not go so far as to hold that freedom of conscience is limited to matters in the realm of thought alone.

 

22.  I reject the remaining arguments of Dr. Wiener in regard to freedom of conscience. I think that Dr. Wiener destroyed his own argument by conceding that there may also be a secular approach to the subject of marriage. If, in principle, the secular law relating to marriage may be imposed upon all the inhabitants of the country, why should legislation which seeks to respect the demands of various religions, according to the grasp of the secular authorities after they have consulted the Jewish religious authorities before enacting the law, be forbidden? This is not trespassing upon the field of religion. On the contrary, as T have said, there was a clear desire to follow the golden mean between the religious sphere - as defined by the religious institutions themselves - and the secular sphere.

 

23. I would add here that it is by no means clear that according to Jewish law, the law of marriage belongs to the field of religion It is true that the Order in Council speaks of religious courts, and the draftsman undoubtedly assumed as a matter which was self-evident that religious courts deal with matters before them in accordance with laws of a religious character. But the draftsman had no power to change the essential nature of Jewish law. It is true that that law is based entirely upon a religious foundation since its source is the Law of Moses. There is, for example, no essential distinction between the law of persons and the law of property from the point of view that one is religious and the other secular, for they are all bound up together in one legal system. It would not be right, therefore, to attribute an essentially religious character just to the law of persons, thus distinguishing it from other branches of Jewish law. In other words, from the point of view of Jewish law (and it is with this law that we are dealing at present and not with the point of view of the secular legislature which drafted the Order in Council), the Law of Moses regulates all branches of civil and criminal law, and there is no difference between the intervention of the secular legislature in the field of the law of persons and its intervention in any other field of the law as a whole. No one will contend, for example, that in laying down the secular law of property the legislature was guilty of trespassing upon the field of religion, and the same applies to the intervention of the legislature in the law of marriage.

 

24. This is not all. Religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. There can be no question of such compulsion in regard to acts which religion merely permits, without any absolute imposition or prohibition. Dr. Wiener must show, therefore, that there exists an inconsistency between an order of the secular legislature and some absolute directive in Jewish law which compelled polygamy. Dr. Wiener did point, indeed, to a number of instances in which such an inconsistency, as it were, would exist were polygamy obligatory under Jewish law. The President of the District Court, however, has shown convincingly that the legislative regulation of marriage introduced by section 181 is in complete accord with the principles of Jewish law as they have developed throughout the ages, and that custom in Palestine, binding all the communities, generally forbids polygamy. A man is not permitted - and certainly is not obliged - to marry more than one wife, on the strength of his own decision alone. He is required for this purpose to procure a special permit which will only be issued on certain conditions now laid down, inter alia, in the Rules of Procedure of the Chief Rabbinate of Palestine of the year 1943. This ground in itself is sufficient to answer any argument about the infringement on the freedom of religion, though this does not diminish the force of the other considerations which we have already mentioned to contradict this argument.

 

25. In conclusion, the submission relating to that minority which did not recognise the Jewish community also cannot stand the test of analysis. Knesset Yisrael was regarded by the Mandatory authorities as the organisation of the Jewish community, and all efforts to secure legal recognition for other bodies failed (see for example the case of Vaad Adat Ashkenazitm v. District Commissioner (5)). The Mandatory legislature was consistent, therefore, in leaving the final decision relating to the issue of a permit in the hands of the Chief Rabbis of Knesset Israel. I have already rejected the submission relating to an infringement of liberty of conscience in its material aspect. Can the undisputed fact that it is necessary to approach the religious courts of Knesset Israel and the Chief Rabbis in order to secure the necessary permit be regarded as infringing freedom of religion?  This contention cannot be accepted any more than the argument of a person that he cannot recognise the authority of the courts of the State at all because of considerations of conscience. The provision relating to freedom of conscience is subject to the condition relating to the maintenance of public order which demands of every citizen that he accept the authority of the courts established by law. A Jew was not obliged to be a member of Knesset Israel, but it cannot be deduced from this that the legislature was unable to confer jurisdiction upon the courts of the Rabbinate over persons who were not members of Knesset Yisrael. Section 181(d) of the Criminal Code Ordinance, 1936, indicates the existence of such a jurisdiction, for this section gives official recognition to a permit of the rabbinical courts in respect of any person whose personal law is Jewish law, that is to say, also in respect of Palestinian Jews who are not members of Knesset Yisrael. It is difficult to see how the legislature could have provided otherwise since the recognition of the State was accorded only to these courts as the religious courts of the Jewish community.

 

26. For the reasons stated above I am of the opinion that the appeal against the conviction should be dismissed.

 

            SILBERG. J.  I am also of the opinion that the appeal should be dismissed.

           

2. In the submission of counsel for the appellant, section 181 of the Criminal Code Ordinance is invalid for two reasons :

 

            (a) It restricts freedom of conscience.

            (b) It discriminates between one person and another on grounds of religion.

           

            The remaining arguments and contentions of counsel for the appellant are merely branches of his two main submissions as set forth below.

           

3. As far as counsel's first submission is concerned, I should say at once that I entirely disagree with the opinion of the State Attorney that the guarantee of freedom of conscience extends only to the protection of freedom of thought. Thoughts are not punishable nor are they subject to other sanctions, and there is therefore no need to protect them. It follows that the freedom of conscience which enjoys the protection of the legislature must necessarily include a man's acts and deeds, the fruit of the exercise of his conscience, provided always that they do not exceed the bolunds of his purely personal affairs. When they do exceed these limits, they again become subject, like all other activity - to the surveillance of the law.

 

4. The question, therefore, is whether section 181 really restricts a person's freedom of conscience. I could, in fact, limit the question and define it in this way: whether the section referred to restricts the individual freedom of conscience of the appellant in this case, in the particular circumstances of this case. I do not wish, however, to divide the problem in this way, since I have in the result reached a negative conclusion in regard to this question even in its full connotation.

 

5. How is there likely to be a restriction on freedom of conscience in the circumstances of the present case?

 

            There is no doubt that freedom of conscience also includes freedom of religion. In order to show, however, that some prohibitory provision of the law restricts freedom of religion, it is not sufficient to establish that religion does not forbid the act in question. It is necessary to go further and prove that the doing of that act is demanded by religion - that religion commands and obliges the performance of that act. Not everything that is permitted by religion need necessarily be permitted by law. These two areas, therefore, are not identical. The one deals with matters between man and God, and matters between man and man, while the other also deals with matters between man and the State.

 

            In making these observations we need scarcely consider the validity in Palestine of the Ban of Rabbenu Gershom, and whether a Sephardi or Caucasian Jew here in Israel is permitted by law to marry more than one wife. Even if we assume - and I do not imagine that that is so - that the Ban of Rabbenu Gershom has no application to a Jew who comes here from tile regions of the Caucasus, the constitutional validity of section 151 will remain completely unaffected. It is not necessary, therefore, for me to enter into an examination of the interesting theoretical problems in which counsel for the appellant involved himself, namely, whether the Ban of Rabbenu Gershom (or its voluntary continuation after the year 5000 A.M.), is to be determined by the place in which a person is situated - in accordance with the opinion of some commentators - and whether it applies, therefore, to all the inhabitants of that place - even to new immigrants from countries in which the Ban is not acted upon, or whether it is only a personal obligation - in accordance with the opinion of other commentators - and has no application to a person who comes to a place where the Ban is accepted from a place where it is not accepted. (See Shulhan Aruh - Even Ha-ezer - I,9, and commentators ad loci Knesset Hagedola - Even Ha-ezer, Annotations Bet-Yosef, 1,22 (in the name of Rabbi Itzhak Hen); compare, however, Responsa of Nissim, 48; Kol Eliyahu, 2, Responsa on Even Ha-ezer, 12, and Knesset Hagedola, 20, q.v.)

 

6. The correct definition of the question, therefore, to put it shortly and yet accurately, is as follows : whether a man from Israel is obliged, by law, to take more than one wife or not. Counsel for the appellant advanced a novel submission in regard to this question, namely, that since the commandment to be fruitful and multiply is the first commandment in the Bible - first in order and in importance - any provision in the law which restricts the number of wives a man may marry is likely to lead to that commandment's being disobeyed. In support of his argument, counsel relied upon "She-elat Ya'avetz" of Rabbenu Ya'acov Gershom as being calculated to prevent a man fulfilling the commandment to be fruitful and multiply, and as preventing the increase of the seed of Israel. It is possible to go further in the spirit of counsel's submission, and to argue that the prohibition against bigamy is also likely to prevent the fulfilment of the commandment requiring a man to marry the childless wife of his deceased brother - in so far as that commandment is still observed in this country. I mean to refer to those Eastern communities who follow the opinion of Rabbi Izhak Alfasi and Maimonides that it preferable for a man to marry his deceased brother's widow than to give her her release, as is done by the Ashkenazi community in accordance with the opinion of Rabbi Moshe Isserlis. (See the dispute between Abba Shaul and the Rabbis, Yevamoth, 39b; Bechoroth, 13a; Rabbi Itzhak Alfasi, Yevamoth, Chapter "Ha-Holets" (Chapter 4); Maimonides "Yibum Vehalitsa" - 1,2; Annotations Rabbi Moshe Iserlis, Shulhan Aruh, even Ha-ezer - 165,1). I refer to those who are of the opinion that the commandment referred to should be observed even by those who are already married (Pit'hei-Tshuva, Shulhan Aruh - even Ha-ezer, 165, subs. (c), which is opposed to the responsum of Rabbi Itzhak Bar-Sheshet, Title 302 quoted in Bet Yosef and in the interpretation Even Ha-ezer at the beginning of chapter 165).

 

            This submission, however, has no substance whatsoever. Without entering into the question of the meaning of Article 17 of the Order in Council - whether it prohibits legislation which is intended from the outset to prejudice the dictates of religion, or whether it also invalidates any law which is likely, in particular circumstances, to prevent the observance of one of the religious duties - without embarking at all upon an investigation of this problem, there is a very simple answer to the submission of counsel for the appellant in this case. That answer is that this section 181 has already concerned itself from the outset with preventing any possible conflict between the law and religion, and has provided a special method for the resolution of any conflict between them. I refer to the "permission" set out in subsection (d) of the section. It is provided in that sub-section that a person who has more than one wife will be free from guilt ("it is a good defence to a charge under this section") if he proves that the law as to his marriage (both his first and subsequent marriage) is Jewish law, and that "a final decree of o rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine, and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage". And since the rabbinical court and also the two Chief Rabbis will certainly, no less than any other person, give proper consideration to the observance of religious duties and, if it appears to them correct to do so both from the legal point of view and the facts of the case, will grant the permission requested, there is a sufficient guarantee of "freedom of religion". Where have we grounds for complaint against the Palestine legislature? Was the Mandatory legislature obliged to constitute itself the guardian of matters of religion, and to impose or permit the fulfilment of a commandment which even the religious court is not prepared to permit? I would be very surprised indeed if that were so!

           

7. But counsel for the appellant continued to urge that it was just this very subsection - subsection (d) of section 181 - which constitutes a serious inroad into the freedom of conscience and religion. He submitted that the jurisdiction of both "the rabbinical court of the Jewish community" (which is the court of "Knesset Yisrael"), and that of the two Chief Rabbis, extends to members of "Knesset Yisrael" alone1) (see Gliksberg v. Chief Execution Officer (8), and judgments there cited), and a man who is not a member of Knesset Yisrael can derive no benefit from a "permission to marry" given by a court such as this. It follows that a man who is about to take a second wife will be compelled, against his will, to join the Knesset Yisrael in order to secure the legal validity of the permission referred to. Can there be any greater religious compulsion than this?

 

            There are two replies to this submission which, in my opinion, is without substance.

 

(a) First, I have grave doubts whether the jurisdiction of the rabbinical court is limited here too, in regard to the defence provided for in section 181(d),to members of Knesset Yisrael only. Without expressing any final opinion I am inclined to think - as was said by the learned President of the District Court in paragraph 48 of his judgment - that by virtue of the provisions of rule 6(1) of the Jewish Community Rules, 2)read together with the provisions of Article 9(2) of the Palestine Order in Council (Amendment), 1939,3) section 181 confers a special jurisdiction upon the court of Knesset Yisrael and upon the Chief Rabbis to grant permission to marry also to a person who is not a member of Knesset Yisrael ;

           

b) Secondly, even if we assume that this is not so, and that a man who is very anxious to marry a second wife is compelled, whether he likes it or not, to become a member of Knesset Yisrael - is this something so very shocking? Is this to be treated as "interference with the freedom of religion"? Is the religion of a member of Knesset Yisrael any different from the religion of a person who is not a member of the Knesset ? Religious "compulsion" such as this  means nothing, and it is difficult to submit with any seriousness that the whole legal force of section 181 is to be destroyed because of this feature.

           

8. Before leaving this subject I wish to touch shortly upon another point which also provides a simple and complete solution, in quite another way, to the problem of the freedom of conscience and religion. It is well known that Article 17 of the Order in Council lays down one proviso in respect of the prohibition on the restriction of freedom of conscience, and that is in so far as is required "for the maintenance of public order and morals" (do not read: "and morals" but "or morals"). Dr. Wiener, for his part, has introduced a proviso to the proviso and contends that the word "public" in this context means the whole public and not only a part of the public. I do not know from where this doctrine is derived, nor whether there was any place for it in the conditions of life which prevailed in Mandatory Palestine. It seems to me that in a heterogeneous society, with its many variations and different cultural groups, we can very well imagine that a particular law was necessary for "the maintenance of order" in only one of the different sectors of the population of the country. It can hardly be imagined that the position was otherwise. And the word "order" does not mean only the prevention of disorder. It includes also the maintenance and regulation of particular forms of living and cultural values in which that particular section of the community is interested, and which it holds dear. And if this is so, the amendment to section 181 - which was introduced under pressure from the Jewish community as a whole - is absolutely valid and completely unexceptionable even if the fullest effect be given to the proviso in Article 17.

 

            It would in fact have been possible to solve the whole problem by the process of reasoning set forth above alone. Since in my opinion, however, there was no restriction whatsoever on the freedom of conscience and religion in the circumstances of this case I found it necessary in the preceding portions of my judgment to deal with other aspects of the problem.

 

9. 1 pass now to the second and more serious submission of counsel for the appellant, namely, that of discrimination. This is an argument of substance which demands careful consideration. The conception discussed in the preceding paragraph can in any event have no place in regard to this portion of the enquiry, for the provisions of Article 17 prohibit discrimination in all circumstances - even if it be necessary for the maintenance of public order, since the proviso has been omitted from the concluding portion of the Article.

 

            Article 17, as enacted in Article 3 of the Palestine (Amendment) Order in Council, 1923, provides as follows :

           

".....no Ordinance shall be promulgated.....which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion or language."

           

            It is Dr. Wiener's submission, stated shortly, that since, in terms of the real and practical application of section 181, bigamy - that is to say, having more than one wife - is permitted for Moslems, but is forbidden to Jews and Christians, the law discriminates between one man and another on grounds of religion.

           

            For the sake of accuracy it must be added that Dr. Wiener does not complain - nor can he complain - that bigamy is permitted for Moslems, and that, as it were, there is discrimination in their favour. It was not this legislative act which permitted them to indulge in bigamy, for they were permitted to take more than one wife before this Act was promulgated. His main argument is that section 181 prohibits bigamy for Jews to a greater extent than for members of any other community, for, differing in this respect from other communities, they are forbidden to contract bigamous marriages even where their religious law permits them to do so (see the language of subsection (c)). It follows that the law has discriminated here, and has discriminated against the members of the Jewish community.

           

10. It is still not clear whether counsel for the appellant complains of discrimination on the grounds of race or on the grounds of religion. It would appear, however, that Dr. Wiener complains of religious discrimination, for he has emphasised before us again and again that section 181 makes the discrimination dependent upon the nature of the law which applies to the marriage of the offender; whether that law is Jewish law, or "some law which is not Jewish law".

 

11. It seems to me that it is just there - in those words and in that definition - that the weakness in counsel's argument appears. The language of the section is as follows : -

 

". . . . . provided that it is a good defence to a charge under this section to prove : -

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

 

(c) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was a law other than Jewish law and allowed him to have more than one wife, or

 

(d) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law and that a final decree of a rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage.''

 

This language leads to two conclusions:

 

(a) That section 181 makes the conviction and sentence dependent - not on the racial or religious affiliation of the wrongdoer, but upon a third test which is different from both of these, namely, what is the law which is applicable to the marriage of the offender;

 

(b) that the whole difference between the two classes of cases expresses itself, as a matter of fact, in one point alone, and that is that while it is sufficient for a man whose law is not Jewish law to prove, even at the trial itself, that his personal law - that is to say, that law applicable to his marriage - permits him to marry more than one wife, a man who is subject to Jewish law is obliged to prove that before his second marriage was celebrated he had produced a certain certificate laying down that he was permitted, individually, to marry a second wife. In other words, in regard to a man such as this - who falls into the second class - a criminal court will not be satisfied with the evidence of an expert with an abstract legal opinion, but will demand the production of an actual personal certificate issued to him, before he is married to the second wife.

           

12. As I have already indicated, the submission of discrimination as advanced by counsel for the appellant is completely destroyed by these considerations. In order to explain the principle we must deal shortly with the question of the special legal situation of "matters of personal status" and the place which they occupy within the framework of the general civil law of the State.

 

13. As everyone knows, the Palestine legislature divested itself of the power to lay down its own new principles in matters of personal status, and for reasons which are understandable and well-known it generally transferred the regulation of such matters - both from the point of view of procedure and from the point of view of substantive law, to the different religious codes of the various communities. Matters affecting the marriage and divorce of a Palestine citizen, who is a member of one of the recognised communities, are dealt with, even in the civil courts (when the question, for example, arises before them incidentally) in accordance with the religious law of the community in question. That also applies in regard to the duty of maintenance by a Palestinian husband in a claim brought against him in a civil court, and also to other similar types of claim.

 

            The matters which I have so far mentioned are simple, plain and well-known, and there is no reason to discuss them at any length. There arises, however, an interesting question which is not so simple, and that is the explanation of the rule which I have stated. Did the Palestine legislature, from the legislative point of view, leave a vacuum, and in respect of these matters employ foreign legal norms which have no place in its own system of law? Or did the Palestine legislature take over these legal norms, and make them an integral part of its own general system of civil law? This question is not, as we shall see, a merely theoretical one.

           

14. Even if there could have been some hesitation on this question up to the year 1945, the problem was completely settled with the promulgation of the Interpretation Ordinance 1945, and the matter is no longer open to any doubt. Section 2 of that Ordinance provides distinctly that the expression "law" also includes "the religious law (both in writing and verbal). . . . . which is in force, or which will be in force in future in Palestine." These words are crystal clear, and any interpretation of them would he superfluous. The legislature has in this section expressed its opinion in unmistakable language that the religious law, to the extent that it is in force in Palestine, itself constitutes an integral part of the law of the State. That is to say, that if a district court deals, for example, with the obligation of a Jewish husband who is a citizen of Palestine to pay maintenance, and it applies - as it is obliged to do - Jewish law, that part of Jewish law which deals with the question is regarded as if it had been enacted as one of the laws of the State. This, moreover, is the only reasonable and the only possible approach to the matter. Religious law is not "a foreign branch" which is grafted onto the trunk of the tree from without, but, to the extent that it was recognised, is itself inextricably interwoven with the boughs of the tree and forms a portion of its boughs and its branches.

 

15. Let us return to our problem, and examine the influence of this approach on the question before us. The effect is patent and clear : the basic idea which lies at the foundation of section 181 - at the foundation of all the provisions of that section - is to prevent an intrinsic and unreasonable conflict between different portions of the law of the State. For since, in the field of the civil law, there is no single arrangement common to all of the laws of marriage and divorce for all the inhabitants of the country, each community having its own laws, and ifs own forms, so it would be inappropriate to lay down one equal law for all sections of the inhabitants in the field of criminal law. It would be insufferable if there were a contradiction between the civil "permission" to commit bigamy, and the criminal prohibition of bigamy, and if these two conceptions did not coincide. The legislature therefore laid down as a general rule that if the civil law - that is to say, the "religious law" in accordance with which civil questions relating to the marriage of the offender are to be determined - permit him to marry more than one wife, it - the legislature - does not wish to prohibit him from so doing from the point of view of the criminal law. Here, however, the legislature was confronted with a difficulty in respect of members of the Jewish community, or to use the language of the legislature, persons the law of marriage applicable to whom was Jewish law. The difficulty was that Jewish religious law in fact recognises the validity of bigamous marriages - that is to say, having more than one wife - but it does not "permit" such marriages in a general and absolutely unrestricted form. On the contrary its general attitude to them is negative, and it only permits them subject to many reservations and conditions. Hence the legislature found itself confronted with a very complicated situation - a situation complicated from the legal point of view. It could not understand the situation in question nor did it believe that it could itself solve the problem. Who would investigate and who would decide if the particular person who married more than one wife was in fact permitted by Jewish law to marry a second wife? Could such an important and complicated question be decided on the basis of experts who would be heard by the court after the event? What, therefore, did the legislature do? It established special machinery, namely, the rabbinical courts of the Jewish community, together with the two Chief Rabbis of Palestine, and it transferred to them - and to them alone - the power of deciding the question whether a second marriage on the part of the husband could be permitted - resulting naturally in his exemption from punishment - or not.

 

            In short, the legislature did not act here with discrimination and did not discriminate in any way on the basis of religion or race. Also in regard to Jews, the legislator did not depart from the basic principle that no distinction should be introduced between the civil and criminal aspects of bigamy, but it refrained from deciding itself upon the civil aspects of the matter - being mindful of its failure in 1988 - and it transferred the matter to more competent hands, namely, to the religious courts and the Chief Rabbis, who were to decide the matter before the commission of the act. This is not a case, therefore, of racial or religious discrimination, or of discrimination at all. It is a necessary consequence of the legal differences between those portions of the law by which the legislature regulated matters of personal status of the citizen. In the field of the civil law of personal status, however, the legislature was compelled to lay down different legal norms for each community by means of the religious laws. No one has ever questioned the correctness of this course. All that the legislature proceeded to do, in the field of criminal law, was to draw the practical and logical conclusions from this distinction in the civil law.

           

16. And now one word on tile question so ably dealt with by the State Attorney relying on judgments given by the American courts, and in particular on the theory expressed in one case, Lindsley v. National Carbonic Gas Co. (10), by Mr. Justice Deventer of the United States Supreme Court. Not all discrimination is discrimination in the full sense, for in some cases it is nothing more than drawing a distinction. Drawing a distinction in which way? - when there exists a real difference between the two persons between whom discrimination is alleged on any reasonable basis, and the discrimination is not capricious (see p. 340, column g, ibid.). The conception lying behind the prohibition against discrimination is that a man shall not be prejudiced only because of his belonging to a particular race or religion, and there is no discrimination when it is not only on the basis of race or religion that the distinction exists, and where there is no prejudice. The discrimination in section 181 is only in the nature of a distinction. A Jew is not punished for polygamy because he is a Jew; but he is restrained by the threat of punishment from taking more than one wife seeing that the society to which he belongs - the Jewish community - has itself laid down that taking more than one wife is inconsistent with its moral and cultural conceptions - that it can no longer permit that practice. It therefore requested the legislature to prohibit the taking of more than one wife in its own interest, and the legislature acceded to this request. What we have here, therefore, is not a discrimination which is prohibited, but a distinction which is permitted, in no way offending the provisions of Article 17. This conception is in fact similar to that expressed above in paragraphs 14 and 15, expressing indeed two sides of the same coin.

 

17. In conclusion I wish to point out that ~ unreservedly associate myself with the conclusions of the learned President of the District Court in regard to the validity of the Ban of Rabbenu Gershom and the extent of its application in this country. It is a widely-accepted principle that that Ban - or the custom which has remained after the year 5000 A.M. (see Responsa of Hatam Sefer - Even Ha-ezer - s. (d)) - is valid in Israel, and binds everyone who enters this country. The authorities for this proposition were cited fully in the judgment of the learned President. I only wish to add that already in tile period of the Amoraim - some 700 years and more before the Ban of Rabbenu Gershom - there expressed itself - here and there - an inclination against polygamy, from the spiritual point of view. If the Amora Rabbi Ami, who lived in the 4th Century, said, "that I say : everyone who marries a second wife shall divorce his first wife (if she so desires) and pay her the sum of her ketuba" (Yebamot, 65a). Pay particular attention to tile strong introduction "that I say !" - this shows there were even in that far off time, people who were in favour of this idea. And even Raba, who differed from the opinion of Rabbi Ami in connection with this principle, said "A man may marry more than one wife if he is able to support them", also expressed his opinion indirectly elsewhere, and took it for granted that it is in no sense a natural thing that a man should marry more than one wife, and that it is necessary - at least from the moral point of view - to procure the consent of the first wife to such an act (see the reply of Raba to Abayeh - Kiddushin - 7a : "So he said to her at the time of the marriage -  that if I wish to marry another woman, I shall do so"). Any one who knows how to read between the lines will find many such expressions of opinion widely spread throughout our ancient literature, but this is not the place to dwell upon this subject at any length.

 

            In short, bigamy was never an institution which was rooted, or permanent or favoured, in the life of the Jewish people. It was merely 'tolerated', if one may use this expression - and what was laid down by Rabbenu Gershom, the Light of the Exile, at the beginning of the 11th Century, was no more than to put the final touches upon a gradual and deep development throughout the generations.

            It is my opinion, therefore, that the appeal should be dismissed, and the conviction confirmed.

           

            SMOIRA J.  I have read the judgments of my colleagues Silberg J., and Landau J., and I have nothing to add. They have both reached the conclusion that the appeal should be dismissed, and I am in agreement with their opinion.

            We therefore dismiss the appeal against the conviction.

            After hearing counsel for the appellant, the appellant himself, and the District Attorney, we find no ground for imposing a lighter penalty. We also dismiss the appeal against the sentence. We confirm the judgment and sentence of the district court .

           

            The appellant will be imprisoned for a period of one year from today.

           

Appeal dismissed.

Judgment given on March 29, 1951.

                                                                                                                LCA 8821/09

 

Pavel Prozansky Physicians for Human Rights

 

v.

 

Layla Tov Productions Ltd

 

 

 

The Supreme Court

[27 June 2011]

 

Before Justices (Ret) E.E. Levi, S. Joubran,Y. Danziger

 

Application for leave for appeal against the decision of the District Court in Central Region, in LSC 21939-06-09 on 19 October 2009 handed down by Hon. Judge A. Yaakov.

 

Facts:

 

Held:

 

Israeli Legislation Cited

Basic Law:  Human Liberty and Dignity

Contracts (General Part) Law, 5733-1973, ss. 12,39

Defense Service Law [Consolidated Version] 5746-1986,

Equality of Opportunities in Labor Law, 5748-1988

Equality of Opportunities for Disabled Persons Law, 5758-1998,

Equal Retirement Age for Female and Male Employees Law, 5747-1987

Retirement Age Law, 5764 – 2004

Prohibition of Discrimination against Blind Persons Accompanied by Guide Dogs, 5753-1993

Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000, ss. 1,2 (a) 3 (a),4, 5,6, 6(3)

 

Adjudication of Small Claims (Procedure) Regulations 5737-1976, r. 11

Civil Procedure Regulations, 5744-1984, rr. 97 (a),  157 (2)

 

Israeli Supreme Court cases cited:

[1]          LCA 292/83 Sergoz v. A. Ofek Ltd ,IsrSC 48 (3) 177 (1994).

[2]          CA 127/52 Roznak v. Dauman, IsrLR 6 722.

[3]          CA 130/74 Rahman Shaadi – Development and Building Company Ltd v. Hillel, IsrLR 28(2) 399, 401.

[4]          HCJ 68/69 Bergman v. Minister of Finance, IsrSC 23 (1) 693 (1969); IsrSJ 8 13

[5]          Peretz v. Kfar Shemarhyahu, IsrSC 16, 2101, 2114 – 2115 (1962); IsrSJ 4 191

[6]          HCJ 104/87 Nevo v, National Labor Court, IsrSC 44 (4) 749 (1990).

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

[8]          CA 239/92  Egged, Cooperative Association in Israel Ltd v. Mashiah, IsrSC 48 (2) 66, pp. 72-73 (1994)

[9]          CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum,  IsrSC 46(2) 464, 530 (1992)

[10]        FH 22/82 Beth Jules Ltd. v. Raviv Moshe and Co.  [  ], p. 441

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

[12]        4948/03 Elhanati v. Minister of Finance  (not reported, 15.6.2008.

[13]        HCJ 5325/01 Amutat L.B.N Promotion of Womens' Basketball v. Ramat Hasharon Local Council,  IsrSC 58(5) 70 (2004); and see comments

[14]        AP 343/09 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality [10], ss. 49-50 (not reported)

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

[16]        HCJ 6051/95 Recanat v. National Labor Court, IsrSC 51(3) 289 (2002)

[17]        FHHC Recanat v. National Labor Court, IsrSC 57 (1) 419 (2002) 330, 351-350

[18]        HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval. Committee [17] [2003] IsrSC 57(1) 419

[19]        HCJ 746/07 Reagan v. Ministry of Transport [   ] (5.1.2011)

 [20]       CA 3414/93 On v. Diamond Stock Exchange Works Ltd , p. 196  (1995)

[21]        CA  294/91 Kehillat Yerushalim Burial Society v. Kestenbaum  (1992)

'[22]       C.A. 10064/02 "Migdal Insurance Company Ltd v. Abu Hana (not reported, 27.9.2005).

[23]      HCJ 528/88 Avitan v. Israel Lands Administration IsrSC 43(4) 297 (1989)

[24]        HCJ 6427/02 Movement for the Quality of Government (not reported, 11.5.2006)

[25]        HCJ 3751/03   Ilan v. Tel Aviv Municipality  at p. 828. 

[26]        HCJ  4124/00 Arnon Yekutieli z”l v. Minister of Religions (not reported, 14.6.2010 .

 

American Cases cited

[27] Craig v. Boren, Governor of Oklahoma, 429 U.S. 190 (1976)

[28]  Koire v. Metro Car Wash, 40 Cal. 3d 24 (1985) 

[29]  Pennsylvania Liquor Control Board v. Dobrinoff, 80 Pa. Commw. 453 (1984)  (Pennsylvania U.S.A)

[30]  Ladd v. Iowa West Racing Association, 438 N.W. 2d 600 (1989) (Iowa, U.S.A)

 

English Cases Cited

[31] James v. Eastleigh Borough Council, [1990] 2 All ER

 

For the petitioners — A. Avidan.

For the respondent — B. Shamker, A. Afriat.

 

 

JUDGMENT

 

 

Justice Y. Danziger

This is an application for leave to appeal the judgment of the Central District Court (Judge A. Yaakov) in LSC 21939-06-09 of 19 October, 2009 which rejected the application for leave to appeal filed by the applicant against the decision of the Small Claims Court in Rehovot (Judge G. Barak) in SC 1274/09, of 16 June, 2009 in which the court dismissed the applicant’s monetary claim against the respondent on the grounds of discrimination under the Prohibition of Discrimination in Products, Services and Entry into Public Places Law, 5761-2000 (hereinafter – Prohibition of Discrimination Law or the Law).

This application for leave to appeal raises two questions that require resolution. The first concerns the interpretation of Regulation 11 of the Adjudication of Small Claims (Procedure) Regulations 5737-1976 (hereinafter: the Adjudication Regulations), which provides that where the defendant fails to attend, “the court will render a decision based on the statement of claim”; the second pertains to the legitimacy of the distinction between men and women with respect to the minimal age for entry into places of entertainment. However, before entering the thick of the fray regarding these subjects, we will review the factual background which brought the applicant's claim before us and the pleadings of the parties.

Factual Background and Previous Proceedings

1.            The respondent operates a clubhouse known as Truman Capote in Rehovot.   As part of clubhouse policy, the respondent fixed the following minimal entry ages for visitors: for men – those born in 1982, and for women – those born in 1984. The applicant was born in 1984.   On 25 April, 2008 the applicant came to the clubhouse operated by the respondent and by reason of his age was denied entry.  On other occasions too the applicant was denied entry by reason of his age.  Accordingly, the applicant filed a monetary claim in the Small Claims Court for the  sum of NIS 30,000, claiming that he had been illegally discriminated against, in contravention of the Prohibition of Discrimination Law.

2.            The respondent submitted a statement of defence and the plaintiff submitted a response, and a hearing date was scheduled. On the scheduled date however, the respondent failed to attend and the Small Claims court decided to examine the pleadings before giving its decision.

3.  In its decision the Small Claims Court ruled that despite the non-attendance of a representative on the respondent's behalf, the claim should nonetheless be dismissed, for the reason that the Prohibition of Discrimination Law does not prohibit age-based discrimination with respect to entry into public places as defined in the Law.

The applicant filed an application for leave to appeal in the District Court against the decision of the Small Claims Court.

The Decision of the District Court

4.            The District Court rejected the application.  At the first stage, the District Court addressed the applicant’s argument that under Regulation 11 of the Adjudication Regulations the Small Claims Court should have accepted the applicant’s declaration affirming the truth of that which was alleged in the statement of claim, and given a decision that accepted the claim.  The District Court ruled that under Regulation 11 of the Adjudication Regulations in the event that the defendant fails to attend, the plaintiff will affirm the truth of his claim before the Small Claims Court, and the court will then give a decision based on the statement of claim. However, this does not prevent the court from exercising its discretion to dismiss the claim in appropriate cases.  The District Court ruled that upon fulfilment of the conditions in Regulation 11 of the Adjudication Regulations the Small Claims Court is obligated to rule on the basis of the facts in the statement of claim, but is not limited to the legal conclusions that the plaintiff draws from these facts.

5.            The District Court then proceeded to address the applicant’s claim that the Small Claims Court erred in deciding the question of whether or not there had been age-based discrimination when the applicant himself had made no claim to that effect as grounds for his action. The applicant claimed that the discrimination in the case at hand was gender-based and that this had likewise been his claim in the Small Claims Court. The District Court ruled that on this point the applicant was correct and that the Small Claims Court erred in failing to address the question of gender-based discrimination.  Nonetheless, it ruled that the application should be dismissed because the conclusion reached by the Small Claims Court was just and correct. In this context the District Court ruled that gender-based distinction is permitted under Israeli legislation in various matters, citing the example of variant ages of men and women for going on pension and [arguing] that in the present context too the distinction between men and woman was justified, for two reasons:

 “In places of entertainment there is a difference between men and women. These are places where they drink intoxicating beverages with the potential for wild behaviour as a result. Experience teaches that the lower the age of the participants is, the higher the probability that youths or young men who drink to a state of inebriation will conduct themselves inappropriately.  This kind of inappropriate behaviour – again in accordance with experience – is more characteristic of men and less of women.

Another aspect concerns the difference between men and woman in terms of mental maturity. Concededly, no expert opinions were furnished, but experience teaches that women reach mental maturity before men. On this point, note the age for the obligatory fulfilment of commandments for  women and for men and their potentiality for sexual relations in accordance with the halakhah [p. 4 of the judgment].

 

In view of the above the District Court ruled that the distinction made by the respondent at the entry to the clubhouse was a permitted distinction and it therefore dismissed the application for leave to appeal. The applicant had difficulty in accepting this ruling, and hence the application for leave to appeal before us, and which in the wake of the hearing conducted on 27 June, 2011, we decided to allow, and to conduct a hearing of the appeal by way of written summations. 

Arguments of the Parties

6              The Procedural Level – Interpretation of Regulation 11 of the Adjudication Regulations

The parties’ dispute in this context concerned the interpretation of the provision whereby in the event of the defendant failing to attend “the court will render a decision based on the statement of claim”.  The applicant - by way of his attorney, Adv. Ayal Avidan – argues that this provision instructs the Small Claims Court to accept the claim in full "automatically". The applicant argues that this manner of interpretation equates the defendant’s standing with that of the plaintiff, whose claim will be dismissed, according to the regulation, should he fail to attend the hearing of his claim;  it realizes the goals of the institute of small claims, which is to provide the citizen with a prompt and efficient legal solution and it embodies an appropriate policy towards litigants who belittle the court.

On the other hand, the respondent argues - by way of his attorney,Adv. Boris Shamkar and Adv. Asher Apriat - that Regulation 11 of the Adjudication Regulations only states that where the defendant fails to attend, and assuming the fulfillment of the additional condition prescribed by Regulation 11, the Small Claims court is permitted to render judgment based on the facts  of the statement of claim, but by no means is it restricted to the legal arguments of the plaintiff.   This being so, argues the respondent, a situation may arise in which despite the defendant’s non-attendance at the hearing, his claim will be dismissed because the facts of the statement of claim do not reveal any legal grounds that could entitle the plaintiff to a remedy.  On the merits, the respondent claims that in the first place there was no real factual dispute, and the central question was of a legal nature, and that his non-attendance at the hearing was exclusively the result of a mishap and not of a belittling of the court.

7.            The Substantive Level – The Claim of Discrimination in Entry into a Public Place.

The applicant claims that the Magistrates Court and the District Court erred when ruling in contravention of the Prohibition of Discrimination Law which prohibits gender-based discrimination in the entry to public places.  As for the respondent's claim and District Court's holding that the distinction between men and women in the entrance into clubhouses is relevant in view of the fact that men are more prone to unruly behavior than women, the applicant argues that this is a generalization with no scientific basis and is tainted by prejudice. The applicant also disputes the holding that women mature faster than men, claiming that the physiological differences between women and men referred to by the respondent have no relevance for the distinction it adopted in the entry into the clubhouse under its management. The applicant argues that the respondent has cynically enlisted these differences between genders in order to legitimate its adoption of an illegal policy of discrimination.  

On the other hand, the respondent argues that the fact of its being a private business which enjoys freedom of occupation, the right to property and freedom of contract, confers it the right to fix a minimum age threshold for those entering the gates of the clubhouse under his management, intended to give it an "adult, orderly character". The respondent cites examples indicating the ubiquity of minimum age limits in our lives, inter alia citing the minimum age for taking out a license, the age of criminal responsibility the minimal marriage age, the legal capacity age and more. The respondent further claims that one cannot view men in general and men under the age of 26 as a "group" to whom the Prohibition of Discrimination Law applies, and whom it is intended to protect. The respondent's argument in this context pertains to the interpretation of the Law, which in its view was not intended to protect powerful groups do not suffer historical discrimination and whose discrimination is not accompanied by elements of humiliation and violation of autonomy.  

On the merits, the respondent denies that the applicant suffered from any humiliation, referring to the holding of the Small Claims Court that the applicant’s repeated visits to the clubhouse were for the purpose of establishing grounds for claim.  The respondent further claims that the distinction between men and women is marginal and temporary, and that the case is not one of discrimination solely based on gender, such as would justify strict treatment, given that men over age 26 are permitted to enter the clubhouse. As for the relevance of the distinction between men and women, the respondent affirms the decision of the District Court, and argues that the distinction is relevant and legitimate given the fact that statistically, among many couples the man is older than the woman. As such – so claims the respondent – there is a commercial justification for determining a lower minimal entrance age for women so as not to lose many potential couples. Finally, the respondent points out that even the legislature distinguished between women and men for specific purposes, referring to the Retirement Age Law, 5764 – 2004 (hereinafter – Retirement Age Law), and the Defense Service Law [Consolidated Version] 5746-1986, from which he deduces a fortiori his prerogative, as a private dealer, to distinguish between women and men.

Deliberation and Decision

 8.           Having examined the application for leave to appeal, the response thereto and the parties’ summations and having heard the parties’ argumentations during the hearing conducted before us, my view is that the respondent’s policy of distinction is a policy of discrimination that is prohibited under the Prohibition of Discrimination Law. This being so, I propose to my colleagues that we should allow the appeal and we should rule that respondent wronged the applicant when it discriminated against him in contravention of the law prohibiting discrimination and that we obligate him to compensate the applicant.  However, before discussing this matter, I wish to devote the following paragraphs to the subject of the interpretation of Regulation 11 of the Adjudication Regulations, regarding which I concur with the view of the District Court.

Interpretation of Regulation 11 of the Adjudication Regulations.

9.            In the dispute between the parties on this matter my view is that the respondent is right and that the wording and the purpose of Regulation 11 of the Adjudication Regulations support the conclusion that the Small Claims Court was authorized and even obligated to dismiss the claim even when the defendant did not attend the hearing on the matter, even if it considers that the facts described in the statement of claim and affirmed in the plaintiff’s declaration, do not establish a grounds of claim.

10.          Regulation 11 of the Adjudication Regulations, the heading of which is “Failure to Attend Trial”

 

“Where the plaintiff attended and the defendant did not attend – the court will decide on the basis of the statement of claim, provided that the plaintiff declared the truth of that which is stated in his statement of claim before the court (emphasis not in source – Y.D.)

 

11.          The purpose of this provision is to alter the burden of proof which is imposed on the plaintiff in a regular claim, given the circumstances of the defendant’s failure to attend.  In a regular civil claim, in similar circumstances in which the defendant fails to attend the hearing on his matter, Regulation 157 (2) of the Civil Procedure Regulations, 5744-1984 (hereinafter: Civil Procedure Regulations) prescribes that the plaintiff must “prove his claim to the extent that he bears the burden of proof and he will then be entitled to the requested remedy and any other appropriate remedy”. Clearly, the legislator sought to be accommodating with the plaintiff in a small claim in a similar situation, and sufficed with a declaration affirming the contents of the statement of claim. This arrangement reflects an appropriate balance that has consideration for the values of prompt and efficient resolution of civil disputes, which become particularly important  in the context of the small claim, and the fact that disputes adjudicated in the Small Claims Court are monetary disputes involving limited sums of money (See:  LCA 292/83 Sergoz v. A. Ofek Ltd, IsrSC [1] at pp. 189 – 191; see also in general, Sinai Deutch, “The Small Claims Court as the Protector of the Consumer”, Tel-Aviv Law Review 8 (1981) 345)

12.          As I see it, the applicant is arguing for an interpretation that attempts to effectively impose upon the court the legal conclusions and the remedies that he seeks in this claim. This approach is at variance with the wording of Regulation 11 of the Adjudication Regulations, nor is it consistent with the basic principles according to which the resolution of the question of whether a particular set of facts establishes legal grounds, and entitles the plaintiff to the remedies he requests is reserved for the court and lies at the heart of the judicial decision. The presumption is that had the legislator sought to limit the court’s discretion with respect to the judicial decision, he would have used explicit and unequivocal language, whereby in the event of the defendant’s non-attendance, the court would “accept the claim”, or some other similar wording which could have attested to the automatic acceptance of the claim with its remedies

13.          Furthermore, comparison to Regulation 97 (a) of the Civil Procedure Regulations similarly teaches us that the District Court’s interpretation of Regulation 11 of the Adjudication Regulations is correct. Similar to the Adjudication Regulations, Regulation 97 (a) of the Civil Procedure Regulations determines that in the event of the defendant’s failure to defend himself (in the current case - by failing to submit a statement of defense within the prescribed period), the “court or the registrar will issue a judgment in his absence, based on the statement of claim alone”. For a long time already, even before the enactment of the Civil Procedure Regulations, this rule has been interpreted in a manner that leaves the court discretion to refuse to grant that which was requested in the statement of claim, inter alia, if it deems that the statement of claim does not show grounds for claim. In this context Justice Yoel Sussman wrote the following valuable comments in Civil Procedure Regulations (2009) (Tenth Edition) 343:

 

Indeed there may be other cases in which the plaintiff will not be given a judgment ex parte, either with or without proof, such as when the statement of claim does not show grounds…[ibid, p. 263. in this context see also CA 127/52 Roznak v. Dauman[2]; and compare: CA 130/74 Rahman Shaadi – Development and Building Company Ltd v. Hillel [3] 401); Moshe Keshet, Procedual Rights and Civil Procedure ,Vol. 1 (2007) 468); Uri Goren, Subjects in Civil Procedure (2009),343.  

 

14.          In view of the above, it is not surprising that the Small Claims Court has full discretion in determining the legal conclusions and remedies stemming from the facts of the statement of claim, even when the conditions prescribed in Regulation 11 of the Adjudication Regulations are satisfied. I should mention that in the absence of a factual dispute between the parties, I was not required to address the question of the extent to which the Small Claims Court is “bound” by the facts set forth in the statement of claim when ruling “on the basis of the statement of claim” under Regulation 11 of the Adjudication Regulations.  The legal arrangement under Regulation 11 differs from the arrangement prescribed for ruling “on the basis of the statement of claim” in a regular claim, and the question will be resolved at the appropriate time.

Prohibited Discrimination or Permitted Distinction in the Entry into the Respondent’s Clubhouse

15.          First, I should mention that in the case before us there is no dispute regarding the applicability of the Prohibition of Discrimination Law to the respondent. Under s. 2 (a) of the Prohibition of Discrimination Law, a “public place” is “any place intended for public use, including a “discothèque”. As such, it is not, nor can it be disputed that the respondent’s occupation is the operation of a public place. The inevitable conclusion is that the respondent is not permitted to discriminate between men and women in the matter of “allowing entry” into the clubhouse that it operates.

16.          I will further mention that I see no reason to address the respondent’s claims regarding the legitimacy of establishing a minimal age for entering the clubhouse, because, as determined in the District Court’s ruling, the applicant did not allege age-based discrimination, but rather gender-based discrimination. In other words, the applicant did not contest the establishment of a minimum entry age to the clubhouse per se, but rather the fact that the respondent prescribed a different entry age for men as distinct from women. This being the case, the respondent’s claims regarding its prerogative to determine a minimal entry age and to that end, its references to laws that prescribe age levels for various goals, such as the minimum age for taking out a license, and the minimal age for marriage, all miss the principal issue, which I will proceed to discuss. The main question relates to the legitimacy of the respondent’s practice, that distinguishes between men and women for purposes of the minimal entry age into the clubhouse that it operates.

The Scope of the Prohibition of Discrimination Law

17.          First, before I address the relevant provisions of the Prohibition of Discrimination Law, I wish to preface with some comments on the application of the principle of equality in private law, which will provide the basis for the task of interpreting the Law. It is well known that the right to equality was already recognized as part of the Declaration of the Establishment of the State of Israel, which promised that "the State of Israel….. will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”. Israeli law similarly recognized the importance of the right to equality, and conferred it the status of a basic right that  must guide the activities of the sovereign authorities. In this context it is impossible not to cite  HCJ 68/69 Bergman v. Minister of Finance, { }[4], and the comment of Justice M. Landau, frequently cited in the decisions of the courts, that: 

 

‘We do not have such an express provision, neither in a written constitution nor in an "entrenched" provision of a basic law. Nevertheless this unwritten principle is the soul of our entire constitutional regime.’

 

See also in the  Equal Rights for Women Law, 5711-1951, which was enacted soon after the establishment of the state, and which guaranteed that ”Women and men shall be equal for purposes of every legal act" [section 1A (a)].

18.          However, the right to equality was not restricted to public law, and in an ongoing process gradually penetrated into private law as well, specifically into Contracts Law. This development reflected a broader transition in private law in general and specifically in contracts law, from individualism to collectivism; from conceptions of pure market economy, in which each individual promotes his own affairs, disregarding the concerns of others, to conceptions that encourage cooperation, recognizing the extra power that certain parties have and seeking to restrict it to prevent its abuse in a manner that violates the freedom of others, in the understanding that freedom without equality is not freedom [see Nili Cohen, "Equality v. Freedom of Contract" HaMishpat 1 (1993), 131-132, 134-135  (hereinafter: Cohen, Equality versus Freedom of Contract); Nili Cohen, "Status, Contract, and Causing the Breach of Contract, HaPraklit 39, 304,304-308 (1990).

Initially, the principle of equality was applied to the actions of the public authority in the private sphere [see HCJ 262/62 Peretz v. Kfar Shemarhyahu, [5] 191; Daniel Friedman,

"The Application of Obligations from Public Law to Apartment Public Authority Operating in the Private Sector" Mishpatim 5 (1975) 598 (hereinafter- Friedman).    Later on, it was also applied to private bodies performing public functions of a public or quasi public status, and was also recognized in labor law and in the law of cooperative associations [see e.g. HCJ 104/87 Nevo v, National Labor Court, [6] (hereinafter: the Nevo case); HCJ 721/94/94 El-Al Israel Airwayw Ltd v. Danielovitz

[7]; and also compare with the application of other norms from public law, in the realm of civil law: CA 239/92  Egged, Cooperative Association in Israel Ltd v. Mashiah, IsrSC 48 (2) 66, [8] pp. 72-73 (1994); CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum  [9] p. 530 ; in this context also see Peter Benson, Equality of Opportunity and Private Law, in Human Rights in Private Law 201 (Daniel Friedmann & Daphne Barak-Erez eds., 2001), according to which the judicial application of the principle of equality in the private law must be limited to those cases in which the private body  has quasi public characteristics, or where it offered an asset for public use.] Finally, there were also some who argued that the principle of equality should also be applied to tenders between totally private bodies, even when the tenderor explicitly released himself from accepting the cheapest bid or any bid at all [ see minority opinion of Judge (former title) A. Barak in FH 22/82 Bet Jules Ltd. v. Raviv Moshe Ltd  [10] at pp. 479 – 485; for critique of this approach, see Gabriella Shalev "The Influence of Basic Law: Human Dignity and Liberty on Contracts Law",  Kiryat Hamishpat 1, 41 (2001); Gabriella Shalev, Contracts and Tenders of a Public Authority (1991) 253-254].

These developments were made possible, inter alia, by the provisions of ss. 12 and 39 of the Contracts (General Part) Law, 5733-1973 (hereinafter: The Contracts Law), which absorbed the doctrine of good faith in Israeli law, and the provision of s. 30 of the Contracts Law which enables the invalidation of a contract the making, contents, or purpose are contrary to “public policy”. Alongside the general legislation, specific legislation too, devoted to specific subjects, found it proper to absorb the values of equality as part of the private law. In the framework of this legislation one can enumerate the Equality of Opportunities in Labor Law, 5748-1988, the Equality of Opportunities for Disabled Persons Law, 5758-1998, the Prohibition of Discrimination against Blind Persons Accompanied by Guide Dogs, 5753-1993, and the Prohibition of Discrimination Law – the focus of the hearing before us, the purpose of which is “to promote equality and prevent discrimination in the entry to public places and the supply of products and services” [s.1 of the Law].

19.          All the same, privacy is not a fundamental value in the private law. On the contrary, in the private sphere freedom is the rule, and equality is the exception – an exception that is usually applied when there is a significant gap between the parties or when one of the parties occupies a quasi public position (see Cohen, Equality versus Freedom of Contract, at p. 137]. This is exemplified by a person’s freedom to enter into a contract with whomever he pleases, for reasons that may be arbitrary and which need not be consistent with the principle of equality. The distinction between the rule and the exception in this context was admirably articulated by Prof. Daniel Friedman as follows:  

‘The law of contracts is based on “the autonomy of the will”. The general principal is that a person is under no obligation to enter into a contract, and a person wishing to enter into a contract is free to choose his partner from among all those who are prepared to contract with him. Accordingly, a person cannot complain that another person refused to enter into a contract with him, to sell him an asset, to rent him an apartment, or to accept him for work. This principle is subject to a small number of exceptions. For example, according to the common law, a person occupied in a “Public  calling” such as a public transporter, must serve all those who come to him.  There may also be legislative intervention in the freedom of contract, which may restrict or annul a person’s ability to refuse to enter into a certain category of contract. This category may also include the laws, which have been enacted in various states, that prohibit discrimination for reasons of race, gender or religion. This prohibition may apply to various activities in the realm of private law, such as the renting or sale of assets." (Friedman, p. 605-606); in this context and with regard to the Prohibition of Discrimination Law, see Moshe Cohen-Alyah “Liberty and Equality from the Perspective of the Prohibition of Discrimination in Products and Services”, Alei Mishpat 3, (2003) 15)].

 

20           The importance of the value of liberty private law, is beyond dispute [see: Daniel Friedman and Nili Cohen, Contracts, Vol. 1 (1991) ss. 3.18 – 3.19; Gabriela Shalev,  The Law of Contracts – General Part (2005) pp. 82-94; for discussion of the tight connection between freedom of contract and human dignity, see Roger Brownsword, Freedom of Contract, Human Rights and Human Dignity, in Human Rights in Private Law 181 (Daniel Friedmann & Daphne Barak-Erez eds., 2001). However, I do not think that in our case one can agree to the narrow interpretation which the respondent argues for regarding the application of the Prohibition of Discrimination Law.  The case before us is unique in the sense that the group discriminated against, at first blush, is supposedly the stronger group which does not suffer from historical discrimination. Naturally, most of the cases in which the court has dealt with discrimination were cases of discrimination against a group in respect of which there is historical ongoing discrimination. All the same, I think that the language of the law, the legislative intention at the time of its enactment, which can be inferred from the explanatory note of the draft bill, and the goal of the Law, all support an approach whereby the applicatory scope of Prohibition of Discrimination Law, proscribes all kinds of discrimination deriving from the reasons mentioned therein, regardless of whether it is directed against a group that suffers from ongoing discrimination, or against a "powerful" group, and regardless of whether it involves elements of humiliation and violation of autonomy or not.  I will elaborate.

21.          The Wording of the Prohibition of Discrimination Law.  Section 3 (a) of the Law establishes the prohibition of discrimination, and states, inter alia, that a person occupied in the operation of a public place is not permitted to discriminate in granting entry into a public place by reason of sex, and in the words of the Law:

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 of religious group, nationality, country of origin, sex, sexual inclination, opinion, political allegiance, personal status, or parenthood.

The language of s. 3 is unequivocal, and makes no distinction between the groups against whom there is a history of discrimination and groups who have not suffered historical discrimination. The word "group" is used primarily in s. 6 which determines that where it is proved that "a group characterized by one of the grounds for discrimination enumerated in section 3" was discriminated against in the ways enumerated in ss. 2 – 4, a presumption of prohibited discrimination arises. These sections too make no distinction between groups that suffered from historical discrimination and others, and this indicates that the silence of s. 3 with respect to the identity of the "group" that was illegally discriminated against is not incidental and that the legislator's view was that any discrimination based on the reasons enumerated in s. 3 is illegal. 

22.          The Draft Bill of the Prohibition of Discrimination Law and its Explanatory Note.  From the explanatory note of the draft bill it is evident that the legislator did not intend to limit the Prohibition of Discrimination Law exclusively to the protection of groups that had suffered from historical discrimination. Hence, the introduction to the Draft Bill of the Prohibition of Discrimination in Products, Services and Entry into Public Places, 5760-2000, Hatz'ot Hok 370 states the following:

 

"A refusal to allow a person to enter a public place or to provide him with a service or a produce purely by dint of his association with a group, and especially a group with a history of discrimination, gives rise to a grave violation of human dignity [ibid., p.370]'

 

 Indeed, the Explanatory Note points out that discrimination based on affiliation with a group that has a history of discrimination is particularly offensive, but it notes that discrimination against a person "purely by reason of his affiliation with a group" by definition, impairs his dignity. This makes it clear that the legislator did not intend to limit the coverage of the Prohibition of Discrimination Law strictly to the protection of those groups who had and continue to suffer from ongoing discrimination.

23.          The Purpose of the Prohibition of Discrimination Law.  The realization of the purposes of the Law – prevention of discrimination in entry into public places and in the provision of products and services, and the promotion of equality between individuals belonging to different groups in the society, and the protection of their dignity – necessitates the rejection of the construction for which the respondent argues. Disqualification of discrimination of men serves the purposes of the Law and contributes to the promotion of equality in a manner that benefits the entire society.

24.          Discrimination based on a person's affiliation with a particular group carries a message of rejection of a characteristic embedded in that person and as such violates his dignity. In this context incisive comments were made by Justice D.Dorner in HCJ 4541 Miller v. Minister of Defense [11], which  discussed women's participation in pilot's course in the I.D.F  and she noted that not every violation of liberty involves human humiliation, but ruled that:.                 

This is not the case with respect to certain types of discrimination against the background of group affiliation, including against groups, including sex discrimination, and also racial discrimination. Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature (ibid., p. 132)

 

In this context also see the comments of Justice (former title) A. Barak in HCJ 953/87 Poraz v. Shlomo Lahat Mayor of Tel-Aviv, 309 (1988) [8]:

 

                The need to guarantee equality is natural to man. It is based on considerations of justice and fairness. One who seeks recognition of his right must recognize the right of the other in order demand a similar recognition. The need to maintain equality is critical for a society and for the communal consensus upon which it is based. Equality protects the government from arbitrariness. Indeed, there is no factor more destructive to society than when its sons and daughters feel that they are being treated unequally. A sense of inequality is one of most unbearable of feelings; It undermines the forces that consolidate society. It erodes people’s self-identity (ibid., p.332)

 

It is clear that the results of discrimination on the basis of affiliation to any particular group, the feeling of exclusion and the erosion of self-identity also gravely violate human dignity. The humiliation and the violation of autonomy is the foreseeable result of the discrimination of the kind under discussion, and contrary to the respondent's claim, proof of this is not a condition for realization of the right that the Law confers upon the discrimination victim.  The violation of human dignity will be particularly severe when the discrimination is based on a stereotype. Stereotypes also exist with respect to those who are included in a group that does not suffer from historical discrimination, and as we will elaborate below, our case in which the discrimination was justified by a stereotype that was imputed to the group of men, is a striking example of this. Offenses of this kind are not consistent with the basic values of the State of Israel as a democratic state, and which the legislator intended to eliminate, inter alia, by the Prohibition of  Discrimination Law, under discussion here.

25.          Moreover, interpretation of the Law so that it  prohibits any discrimination for the reasons enumerated therein regardless of whether the party discriminated against belongs to "strong" side or to the side that was historically discriminated against, may specifically bring about the uprooting of the phenomenon of historical discrimination motivated by different social stigmas. In this context, and in relation to discrimination between men and women the following pertinent comments were made by Leo Kanowitz, one of the pioneers in the research field of women and law in his book Women and the Law: The Unfinished Revolution:

As long as organized legal systems, at once the most respected and most feared of social institutions, continue to differentiate sharply, in treatment or in words, between men and women on the basis of irrelevant and artificially created distinctions, the likelihood of men and women coming to regard one another primarily as fellow human beings and only secondarily as representatives of another sex will continue to be remote. When men and women are prevented from recognizing one another’s essential humanity by sexual prejudices, nourished by legal as well as social institutions, society as a whole remains less than it could otherwise become.” [Leo Kanowitz, Women and the Law: The Unfinished Revolution 4 (1969)]. 

        These comments have retained their force. In order to uproot the phenomenon of historical discrimination, any attempt to distinguish between men and women on irrelevant grounds must be rejected. Any such distinction not only offends the dignity of the party discriminated against and perpetuates the existing stereotype, but also sharpens and preserves irrelevant differences or differences that rely on those stereotypes. This being so, even if in a particular case, such as the one before us, the discrimination is not directed against  party that is historically discriminated against, it will ultimately perpetuate that historical discrimination and above all else be harmful specifically to that group.

25.          A similar case in which the direct victim of the discrimination was a man, and where the discrimination actually reflected the stereotypic approaches to women arose in the HCJ 4948/03 Elhanati v. Minister of Finance [12]  (hereinafter: Elahanti), in the framework of which a number of petitions were heard concerning the policies of the veteran pension funds that awarded a widower less rights in the pension accumulated by his deceased female spouse than it gave to a widow in similar circumstances of the death of her male spouse.  Inter alia, the Funds claimed that the distinction between widows and widowers among parties insured by pensions is justified in view of the relevant difference that stems from the reality of life in which women earn less than men, leave the work market earlier, and have longer life expectancy than men, in a manner that justifies increased support for widows over widowers.  Justice E. Hayut rejected this claim, establishing the following holdings:  

No reasonable explanation was given by the Funds for this discrimination, apart from stereotypic approaches which view the women as the secondary supporter and as having inferior status in the labor market in terms of the salary that she receives; the willingness to employ her; and in terms of the duration of her employment.   Even though, regrettably, some of these approaches still have a foothold in the Israeli labor market it seems indisputable that this is an undesirable reality the total uprooting of which should be pursued unrelentingly. This being so, any arrangement that relies on these stereotypes to justify discrimination between men and women regarding the rate of the survivors pension can only be regarded as an arrangement that violates the dignity of women as workers and as members of the Fund and the dignity of widowers, because it unjustifiably reduces their standard of living after the death of their wives. In that sense this is discrimination that is tightly and substantively connected to human dignity, and the harm occasioned thereby constitutes a violation of the fundamental right of the widowers and their deceased wives to dignity in accordance with the model endorsed by this court…" (ibid., s.  26 of Justice Hayut's decision).

27.  Foreign case law too provides ample evidence of the negation of gender-based discrimination against men, and specifically age discrimination, while stressing the imperative of neutralizing the irrelevant distinctions and stereotypes that perpetuate the historical discrimination.  See for example, in the famous case of Craig v. Boren, Governor of Oklahoma, 429 U.S. 190 (1976)  [27] (hereinafter: Craig) which considered a petition to strike down a law enacted in the State of Oklahoma in the U.S.A. which provided that women would be entitled to purchase a particular alcoholic beverage upon reaching the age of 18 whereas men would not be able to purchase that beverage until reaching the age of 21. The Supreme Court of the U.S.A. rejected the respondents' arguments that relied on surveys showing that young men are more prone to drunken driving than young women and it struck down the law as being in violation of the 14th Amendment of the U.S.A. constitution.  Of special significance is the comment that the stereotypes upon which the law was based also influenced the statistics that the respondent relied upon in that particular case [ibid., note 14 of Justice Brennan's decision].

Further regarding the Craig [27] decision, pertinent comments were made by Prof. Katherin Mackinnon, who relates to the arguments of Justice Ruth Bader Ginsburg, who at the time was the attorney who represented one of the amicus curie and who currently serves as a justice on the U.S.A Supreme Court. The comments concern the covert discrimination against women underlying the discrimination against men:

 

“…in Craig v. Boren, which adjudicated men not being allowed to drink and drive as young as women - that fundamental grinding issue of women's everyday lives that created the leading doctrine under all our claims are now adjudicated - Ruth argued that this rule is ‘part of the myriad signals and messages that daily underscore the notion of men as society's active members, women as men's quiescent companions.’… We are just along for the ride. She shows here how discrimination against men discriminates against them, which is real, while hiding deeper discrimination against women at the same time. ”[Catharine A. MacKinnon, Symposium Presentation: Rutgers School of Law – Newark and the History of Women and The Law: A Love Letter to Ruth Bader Ginsburg, 31 Women's Rights L. Rep. 177, 182 (2010); see also: Catharine A. MacKinnon, Sex Equality 228-29 (2nd ed., 2007)].

 

In another case  James v. Eastleigh Borough Council [28] (hereinafter: James) which was heard by the House of Lords in Britain, the matter discussed was similar to the case before us, based on discrimination against men against the background of a determining different ages for the receiving of benefits. In that case, the appellant and his wife, a 61 year old couple, visited a swimming pool that exempted pensioners from paying entrance fee. The significance of the exemption was that women above 60 were exempted from entrance fee whereas men would only be exempted upon reaching the pension age determined for men in England, which is 65.  The House of Lords accepted the appeal, declaring that this policy constitutes prohibited discrimination in accordance with the Sex Discrimination Act 1975, which is essentially similar to the Prohibition of Discrimination Law forming the subject of our discussion. Lord Gold pointed out that the policy of the law was to promote equal treatment of men and women [ibid., p. 617[

In other cases too, that adjudicated state laws that are essentially similar to the Prohibition of Discrimination Law forming the subject of our discussion, it was held that discrimination against men in private businesses by reason of their sex is prohibited. For example, in the case of Koire v. Metro Car Wash [28] at p. 24, it was held that granting discounts to women in business for washing cars and for entry into a clubhouse constituted prohibited discrimination in contravention of the Unruh Civil Rights Act (Civil Code § 51). In that case the Californian Supreme Court disqualified a practice known as "Ladies Day" or "Ladies Night" as the case may be, ruling that:

 

“…differential pricing based on sex may be generally detrimental to both men and women, because it reinforces harmful stereotypes.” [p. 34].

 

[see also: Pennsylvania Liquor Control Board v. Dobrinoff [29] at 453 the disqualification of a practice whereby women received an exemption from entrance fee to a bar, being in contravention of the prohibition of discrimination law prescribed in the state law); Ladd v. Iowa West Racing Association [30] at 600 – disqualification of policy that grants women discounts in a sprinting installation, in view of the prohibition of the discrimination prescribed in the state law)]

  

We can thus see that also in the states that influenced Israeli law, which enacted laws similar to the Prohibition of Discrimination Law many years prior to its enactment here, they recognized the need to eliminate all forms of discrimination, even in the cases in which it was directed at affiliates of a group that had not suffered from historical discrimination. The rationale for the approaches taken by the courts in the U.S.A. and England is the same rationale that underlay the Prohibition of Discrimination law that I addressed above; promotion of equality by way of uprooting stigmas and stereotypes that provide justification for the distinction between different groups and specifically been men and women.

28.          I will note that a ruling whereby the Prohibition of Discrimination Law also prohibits discrimination against groups that have not suffered historical discrimination, does not preclude the possibility of preferring a particular group in order to totally eliminate discrepancies and to promote substantive equality. Indeed, both in the private sector and in the third sector, to which the Law likewise applies, the promotion of social goals is occasionally permitted in the form of affirmative action. Preference of this kind is not considered as discrimination within the meaning of the Law. On the contrary:  Affirmative action is intended for the realization of equality in the substantive sense, in the recognition that certain groups are separated by primal differences that can only be bridged by way of giving preference, whether in the allocation of resources or by other means, to the group that suffers from discrimination as a result of prolonged discrimination [compare: HCJ 5325/01 Amutat L.B.N Promotion of Womens' Basketball v. Ramat Hasharon Local Council [13]; and see comments of  Justice Y. Amit in AP 343/09 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality [14], ss. 49-50 (not reported). All the same, in a case in which the claim of affirmative action is made, it should be examined whether it is really affirmative action or whether the claim is nothing but a smoke screen to conceal statutorily prohibited discrimination. At all events, in our case, this issue does not arise since the respondent did not claim that the discrimination it had adopted was actually affirmative action and under the circumstances at all events there would have been no basis for such an argument had it been raised.

29.          Summing up this point, the realization of the purpose of the Prohibition of Discrimination Law compels the negation of discrimination based on one of the reasons enumerated therein, even if the discriminated party does not specifically belong to a group that has suffered from historical discrimination, and it is not necessary to prove that in the concrete case the discriminated party suffered from humiliation or the violation of his autonomy.  The negation of all ungrounded discrimination will contribute to the maintenance of the dignity of those included in each one of the groups and will contribute to the overall elimination of discrimination. These comments are consistent with our comments above, as well with the language of the Law and the legislative intention, as it received expression in the draft bill.

Illegitimate Discrimination or Permitted Distinction – the Question of the Relevancy of the Distinction

30. Having concluded that the Prohibition of Discrimination Law also applies to cases such as ours, it remains for us to examine whether there is any basis for the respondent's claim that our concern is with a permitted distinction based on a relevant difference, or whether it is a case of illegitimate discrimination, as claimed by the applicant.

Indeed, discrimination between persons becomes illegitimate only where it is not based upon a substantive and relevant difference between them. It has been ruled more than once that discrimination "means an arbitrary practice of unequal treatment, which has no justification due to the absence of a logical and significant difference under the circumstances between one and the other (comments of Justice T. Or in HCJ 678/88 Kfar Veradim v. Minister of Finance [15]  at p.501

31.          As mentioned, the respondent claims that the distinction it adopted was substantively justified in view of the reality of life, in which with most couples the woman is younger than the man.  The respondent learned of this reality from the data of the Central Bureau  of Statistics, which indicate that statistically, among most of the heterosexual married couples, the man is slightly older than the woman. This claim is supplemented by the difference found by the District Court regarding the actual reality in which there is a "greater likelihood that youths or young men who drank to a state of inebriation would behave inappropriately" and the "different mental maturity of men and women".

32.          It will be recalled that s. 6 of the Prohibition of Discrimination Law establishes presumptions of prohibited discrimination, including the presumption under subsection (3) which arises when the defendant conditions entry into a public place for "a group characterized by one of the grounds for discrimination enumerated in section 3 on compliance with conditions that are not required of persons who do not belong to that group". This is the case confronting us. The respondent conditioned the entry of men into the clubhouse that it operated upon the fulfillment of a particular condition, namely - being 26 or older – this being a condition which is stricter than the one required of women seeking to enter the very same clubhouse, and which was not required of them. Accordingly there arises an automatic presumption of discrimination in contravention of section 3 of the Law.

33.          According to my approach, the respondent’s claim that relies on the different age of marriage for men and women cannot justify the distinction made by the respondent in the context of entry into the clubhouse that it operates.  Presumably the people coming to the clubhouse are not only couples and certainly not only married couples, to whom the statistics relied upon by the respondent relate. This being the case, it would seem that a priori, under the circumstances of the case the difference pointed to by the respondent cannot be classified as a “logical and significant difference” in the words of Justice Or in the Kfar Veradim case [15] case. The respondent did not demonstrate that this data is reflective of its clients, nor did she show that the discrepancy in minimal entry ages into the clubhouse that she operated was derived from these statistics. As such, the respondent has not succeeded in its attempts to refute the presumption of discrimination that arises by force of section 6 (3) of the Prohibition of Discrimination Law.

34.          In my view, the distinctions relied upon by the District Court cannot justify the discrimination in the case at hand. These determinations, which relied upon “life experience” of the court, do not belong to the category of matters that are part of judicial knowledge and no evidence was brought to prove them. Moreover, even if these determinations contain a grain of truth, it may be presumed that it would be limited and narrow and does not reflect the rule, and as such cannot justify the stigmatizing of all men of the relevant age and the discrimination against them. In this context valuable comments were made by Justice Y. Zamir in HCJ 6051/95 Recanat v. National Labor Court, [12], p. 289 (hereinafter: Recanat case):

 

The social norm is the ground from which social discrimination grows: discrimination based on race, religion, country of birth, gender and others. The stereotype is the enemy of equality.  It creates a vicious circle that perpetuates discrimination (ibid. p. 355; see also FHHC 4191/97 Recanat v. National Labor Court, [16]

In this context it similarly relevant comments were made by Justice M. Cheshin in HCJ 2458/01 HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval. Committee [17] p. 419:

At the end of the day, we all live in a particular social milieu, and we assimilate the accepted societal views that enter our bodies and minds through social osmosis. But we must not confuse reality with values, as indeed, the test requiring equality – like the prohibition upon discrimination – were created, and both exist, precisely in order to combat “accepted societal views”. … These and other laws were intended to uproot “accepted societal views” – accepted although improper – and the Court and the legislature will be vigilant and will act to instill in society values of equality that are built upon the abilities of the individual, and not upon a stereotype associated with a group to which a person belongs.[ibid., p. 451].

Were we to agree with the reasoning of the District Court we would find ourselves in a "vicious circle" that perpetuates the discrimination, in the words of Justice Y. Zamir in the Recanat [16] case. To break out of that vicious circle a distinction must be made between a permitted distinction that accurately reflects the members of the group under discussion claiming discrimination, and the stereotype that is attached to that group but which is not reflective of its members. In the case before us, I have no doubt that the determination that 25 year old men, who are not permitted to enter the clubhouse operated by the respondent, are less mentally mature and more prone to wild behavior and inebriation than women of the same age, whose entrance to the clubhouse is permitted - is not reflective of a general rule.  This being the case, a claim to that effect cannot serve as a basis for a distinction between men and women 

35.  I will further add that I found no substance in the respondent's reference to legislation that makes an age-based distinction between men and women. First, the justification of the distinction depends upon the legislative goal and the question of whether in terms of that goal there is a relevant difference between men and women, and it is clear that the law applying to the matters referred to by the respondent does not apply to the case before us.  Second, legislation may be discriminatory and yet retain its validity, whether because of the fact that the discrimination therein does not amount to a violation of constitutional basic rights, or because of other competing interests, or in view of the fact that it preceded the Basic Law. One way or another, the respondent will not be allowed to rely on the statutory distinction between men and women with respect to retirement ages regarding which it has already been held that this Court views it with disfavor [see e.g. Elhanati [12], s. 25 of Justice Hayut's ruling; the case of Nevo [6], at p. 770; and compare to the comments of Lord Bridge in the James case [31], p. 611 where he rejected the claim that a distinction between men and women with respect to the age for granting an exemption from an entrance fee to a public swimming pool is justified in view of its reliance on the statutory  retirement age. I will further add that neither did I find any substance in the claim that the distinction in this case warrants lenient treatment because of its "temporary" character, given that the degree of the offence caused by discrimination is not derived from its temporary nature, and at all events not exclusively so. Rather, it derives primarily from the message it conveys to the party discriminated against and to his environment regarding the characteristics of that party.  I dwelt upon the negative messages of discrimination of this nature in my comments above, and there is no need to repeat them.

36.          After the opinion of my colleague Justice S. Joubran was placed upon my table and having examined it in depth, I find it appropriate to clarify and to make the following comments.

Based on my final conclusion regarding the interpretation of the Prohibition of Discrimination Law, according to which the Law prohibits in principle any gender-based discrimination, both against men and against women, my colleague concludes that I adopted an approach which is "gender blind".  However, this is not the case. In my opinion I did not adopt any particular model, and I certainly did not adopt the "gender blind" model.  Rather, it is based on a number of different reasons, all of which lead to the conclusion that the applicatory scope of the Prohibition of Discrimination Law was intended to prohibit in principle any kind of gender-based discrimination, whether of men or of women.  Accordingly, among my reasons I clarified that discrimination against men frequently involves a discriminative and stereotypic approach specifically towards women [see sections 25 – 27 of my opinion).   Conclusions of this kind are explicitly expressed in the comments of Justice E. Hayut, in the case of Alhanati [12] and of Prof. Mackinnon, which inter alia I relied upon. As I explained, discrimination against men often perpetuates, specifically, discrimination against women. This being so, there is need for a clear rule in order to realize the purpose of the Law in an effective manner; a rule that can ensure the prevention of discrimination as such, and which obviates the need to examine the roots of the discrimination in each and every case.  As explained in my opinion, this conclusion is also consistent with the language of the Law and the legislative intention in its enactment as indicated in the Explanatory Note of the Draft Bill. The normative approach, according to which discrimination against men is prohibited in the same way as discrimination against women, within the defined scope of the Law, is intended to serve an instrumental need and does not rely on the world view that my colleague ascribes to me.

Nor can I agree with my colleague's determination that the case at hand does not necessitate a decision on the applicatory scope of the principle of equality in those cases in which the victim is the member of a dominant social group – i.e. the group of men, because at all events the offense in this case is mainly against women. I should emphasize that while I agree that the clubhouse policy is also offensive to woman, in the case at hand one cannot ignore the simple fact that the applicant is a man and not a woman and he cannot request a remedy for discrimination that does not offend him. Any other determination would pave the way for claims filed by those who are not directly affected by the discrimination and this would contradict first principles concerning the requirement that the plaintiff must demonstrate personal grounds of claim. My opinion therefore focuses on the offense caused to the applicant, whereas the considerations pertaining to the discriminatory policies against women were adduced, as stated in order to support an interpretation that, in terms of the defined scope of the Law, disqualifies gender-based discrimination as such. 

On the merits too, I feel that a real difficulty attaches to the analogy drawn by my colleague between the manner in which the principle of equality was anchored in the constitutional law, and specifically the manner in which this principle was derived from the right to dignity in Basic Law: Human  Dignity and Liberty, and my colleague's determination that "its uniqueness [of the Prohibition of Discrimination Law – Y.D) lies in its formulation of operative tools placed at the disposal of the victim of discrimination when requesting a remedy from the court."

First, the material is entirely different. The Prohibition of Discrimination Law deals with the relations between the person who offers his asset for the use of the public at large or provides a service to the public at large in a defined area of services, and the consumer public. The constitutional principle of equality, on the other hand, as long interpreted in this Court's case law, is intended to apply in the relations between the individual and government, or quasi-governmental entities. As I explained in my own opinion, the application of the principle of equality in the situation of relations between individuals involves weighty considerations, which do not necessarily exist when the duty of equal treatment devolves on a public authority.

Second, and most importantly – the legislative arrangement in the Prohibition of Discrimination Law is absolutely different from the legislative arrangements that anchor the principle of equality in the public law. In particular, there are striking differences between the arrangement in the Prohibition of Discrimination Law, and the arrangement under Basic Law: Human Dignity and Liberty. Thus, for example, Basic Law: Human Dignity and Liberty did not explicitly anchor the principle of equality, and the principle is derived from the right to dignity, in a manner that also outlines its scope of application [in this context see the comments of Justice Dorner in the Miller case [11], at pp. 131 – 132, where she explains that the right to equality was omitted during the process of enacting Basic Law: Human Dignity and Liberty, and the scope of application of the principle of equality derived from this law will be limited to the those cases in which the violation has an element of humiliation that involves the violation of the right to dignity]. Moreover, the balancing mechanisms established in these legislative acts are entirely different. Hence, whereas Basic Law: Human Dignity and Liberty includes a limitations clause in the framework of which it must be considered whether the violation of a protected right is consistent with the values of the State of Israel, is intended for an appropriate goal, and is proportionate, the Prohibition of Discrimination Law establishes a different, more detailed mechanism, that is anchored in s. 3 (d) of the Law.  According to that section, for example, discrimination will be permitted when the discrimination is necessitated by the essence and the nature of the product or when failure to distinguish will result in product or the service being denied to part of the public, having consideration for the nature of the product. Concededly, in the circumstances I did not find it necessary to address the balances that are established in the Prohibition of Discrimination Law. However, I do not believe that one can draw direct conclusions from the manner in which the principle of equality was interpreted when derived from the right to dignity in the Basic Law: Human Dignity and Liberty, without having given the appropriate weight to the different legislative arrangements. However, inasmuch as the case before us does not raise these issues, I have not found it necessary to rule definitively on the differences between the various legislative acts, and these matters can be left for another time.  

Another point which I found problematic in my colleague's opinion was its determination that the principle of equality and the principle of freedom are on the same level of the hierarchy in the private sphere, and that they must be balanced in cases in which they conflict "in light of a complex perspective of property on the one hand, and of state responsibility for the functioning of the civil sector on the other hand." According to my approach, as expressed in my ruling, the starting principle, which is the underlying basis of private law, is the principle of freedom. Indeed, as my colleague correctly points out the contemporary regulations subject numerous private entities to the norms of equality. Nonetheless, even if the principle of equality in private law is subject to many exceptions that extend from the actions of public bodies acting as private bodies, to the activities of quasi public bodies, and finally in the actions of private bodies that have tremendous significance for the broad public, this does not mean that the principle of equality has the same status as the principle of freedom and that each case should be balanced in the light of its unique circumstances. In private law, the principle of equality should only be applied to cases in which private bodies fulfill public functions or when the public authority functions in the private sphere, and to the extent that the issue concerns entirely private bodies, i.e. such as do not have any public or quasi public standing, the principle of equality should be applied pursuant to explicit legislation. I am aware of the considerable difficulty in distinguishing between the private and public sphere, but this difficulty should not affect the basic rule, which is that in commercial contexts, the principle of freedom is the rule, whereas equality is the exception.  In this context incisive comments were made by Prof. Cohen in her article that was cited in the beginning of my opinion, according to which:

 

The distinction between private and public [for determining the scope of the duty of equality – Y.D.] runs like a silver thread through the considerations. This distinction is difficult to demarcate. A public authority is prohibited from discriminating both in the realm of private and public law. But what about the case of the supplier who operates under a standard contract in the private law, as well as in accordance with a license from the authority, and who serves the public in its entirety?

It seems that it is easier to determine when the obligation of equality is obligatory than to determine when the duty does not apply. Accordingly, in a classically commercial context between two "private" contracting parties the court will be wary of imposing a sweeping duty of equality. Such a duty could well impinge upon the important value of competition, which underlies the principle of freedom of contract [Cohen, Equality versus Freedom of Contract, p. 147].

 

                Furthermore, I believe that despite the differences between myself and my colleague on this matter, one cannot ignore the fact that this question has effectively been ruled upon, when the majority ruled in the further hearing in Beth Jules [10] case that:

The public authority’s duty to conduct itself based on equality and in the absence of discrimination in the private sphere as well does not mean that inequality and discrimination in economic competition, as such, constitute a lack of integrity and good faith.  On the contrary – according to our legal and social conception competition is acceptable, honest, and even desirable. Inequality and discrimination are illegal in a tender of a public authority, because as a public authority it is obligated to serve the public on the basis of equality, and it is forewarned not to abuse its authority when dealing with the less powerful individual. The introduction of the obligatory principle of equality into the principle of good faith – as though its absence violates the principle of good faith – is an attempt to give the concept of good faith a meaning that the legislature never considered, and which has no legal and moral justification. Precisely because the principle of good faith is one of the most important and unique value-based norms in our legal system, expressing the additional soul of this system, we must be wary of conferring it a meaning which is remote from its content and which in itself has no justification (ibid, p. 471-472)

 

These words are certainly applicable to the dispute between my colleague and myself. However, since in the case at hand there is specific legislation and it is not disputed that the principle of equality applies to the respondent, then in this subject too it is not necessary to give a definitive ruling

     Final Word

37.  In closing I again wish to stress the obligation incumbent upon all who engage in providing services to the public to grant equal treatment to both genders in relating to all of the sectors of society (compare to the rulings in HCJ 746/07 Reagan v. Ministry of Transport [19] in paragraphs EE and HH of Justice E. Rubinstein's decision, in section 8 of Justice S.  Joubran's decision, and in section 1 of my decision.  Conduct of this kind will contribute to the elimination of stereotypes and will encourage integration, and in doing so will promote a more equal and just society for all sectors of society.

38.          Having concluded that the Prohibition of Discrimination Law also protects men who suffer from unlawful discrimination, and that in the case at hand our concern is with unlawful discrimination given the failure to prove any relevant difference, I would propose to my colleagues to overrule the decision of the District Court and to rule that the respondent discriminated against the applicant, in contravention of the prohibition of discrimination prescribed in s. 3 of the Prohibition of Discrimination Law, and in a manner that constitutes a civil wrong pursuant to s.5 of the Prohibition of Discrimination Law.

39.          Since the determination of compensation pursuant to s.5 of the Law does not require proof of damage, I would suggest to my colleagues to award the applicant compensation for the sum of NIS 20,000 and NIS 10,000 for court expenses and attorneys fees, for his expenses in all three instances.

                                                                                Judge

 

Justice (Ret.) E.E. Halevi

I agree

 

                                                                                Judge (Ret)

 

Justice S. Joubran

There are two questions before us in this case. The first is of a procedural nature, and concerns the appropriate interpretation of Regulation 11 of the Regulation 11 of the Adjudication of Small Claims (Procedure) Regulations 5737-1976 (hereinafter: the Regulations).The second question is a substantive one, going to the very heart of the Prohibition of Discrimination in Products, Services and Entry into Public Places Law, 5761-2000 (hereinafter – Prohibition of Discrimination Law).

In the opinion of my colleague, Justice Y. Danziger, it was held that Regulation 11 of the Regulations should be interpreted in a manner that authorizes and even obligates the court to dismiss the plaintiff's claims even when the defendant does not attend the hearing, if it finds that the facts described in the statement of claim do not establish a grounds of claim. I concur with this holding of my colleague.

Regarding the application of the Prohibition of Discrimination Law, my colleague held that the Law should be interpreted as applying to any kind of discrimination, irrespective of whether the group is a weak or dominant group in society (s. 11 of the decision of Justice Y. Danziger). In doing so, Justice Y. Danziger endorsed what is known as the "difference blind" model for the purpose of interpreting the Prohibition of Discrimination Law.  While I too believe that the necessary result of this decision must be the acceptance of the applicant's appeal, I wish to take a different path than the path taken by my colleague.

The Applicatory Scope of the Prohibition of Discrimination Law

The application for leave to appeal before us invites the court to interpret the Prohibition of Discrimination Law, in a manner that would prohibit any distinction based on sex, gender, sexual identity etc.   In effect, this interpretation asks the court to formulate the application of the Prohibition of Discrimination Law independently of the general rules that prohibit discrimination, which are based on Basic Law: Human Dignity and Liberty (paragraph 43(a) of the application for leave to appeal).

In my understanding, an examination of the Law and the Explanatory Note does not lead to the conclusion that there is a difference between the constitutional conception of equality in our law and the conception of equality embedded in the Prohibition of Distinction Law.  The interpretation given to a specific law, especially when the law is worded in constitutional language such as in the case before us, should be consistent with the general constitutional framework of Israeli Law.  President (Ret) A. Barak made the following pertinent comments on this matter:

A statute is not a one-time act of a transient legislature operating in a legislative vacuum. A statute is a single link in the legislative chain of a permanent legislature. The statutes taken together create the legal system's legislative project. This project is the environment surrounding every statute. The legislative environment influences the interpretation of the statute […] The assumption should be that legislative harmony should be maintained within the legislative system, so that the interpretation to be given to one statute should "seamlessly blend into the texture of the legislation so that they become a unified, single whole" (Aharon Barak, Interpretation in Law (Part 11),Nevo, 5753, 320 328, my emphasis – S.J).

Clearly, this does not mean that the particular law becomes redundant. The particular law creates a legal framework that reflects the manner deemed appropriate by the legislator to confront a constitutional violation in a given context. Hence, the Prohibition of Assimilation Law structures the operation of the right to equality in the civil realm on two levels – the applicatory scope of the right, and the nature of the remedy granted where the right is violated.

First, the Law determines the applicatory scope of the principle of equality in the business sector. The question of balance in the business sector, between equality on the one hand, and freedom to discriminate on the other hand, is a complex question, which this Court has addressed on a number of occasions in the past (see for example: FH 22/82 Beth Jules Ltd. v. Raviv Moshe and Co.  [10], p. 441. In that sense, the Law reflects the clear legislative intention to prohibit discrimination even when practiced by privately owned institutes that serve the public at large. But note: the Law does not impose a blanket prohibition on discrimination. Rather, the legal conception embedded in the Law is that institutes that serve the public at large cannot be regarded as belonging in full to the private sphere inasmuch as their activity takes place in the public sphere. As such, newspapers, clubhouses, service providers etc, are obligated to operate in a manner that upholds the principle of equality.  The conception that privately owned bodies operating in the public sphere are governed by the human rights discourse is deeply rooted in the Israeli legal system, and finds expression in the numerous obligations imposed on these bodies, such as the Stock Exchange, transport companies etc (see for example CA 3414/93 On v. Diamond Stock Exchange Works Ltd [20], p. 196; CA 294/91 Kehillat Yerushalim Burial Society v. Kestenbaum [21]. From a theoretical perspective too, the Law reflects the understanding that in a reality in which significant parts of the individual’s every day life are affected by civil institutions, a demarcation of the right to equality exclusively  with respect to institutions owned by the State would perpetuate a discriminatory reality. Against this background the Law establishes a particular normative framework that defines the constitutional obligations that apply to the activity of a privately owned business. In that context, the following comments of Justice Zamir are pertinent:

It is a mistake to make a sharp distinction between private property and public property. Not all assets can be classified as either “private apartment” or “public building”. Reality is more complex, featuring shades and variations thereof. It also acknowledges assets that combine foundations of private property mixed with varying concentrations of foundations of public property. For example, how should one define a university campus, a sports stadium, or a supermarket?

Property cannot be sharply divided into public and private property, and the same is true for the law applying to property. Private property, while belonging to the realm of private law, is does not exist outside the sphere of public law.  For example, it is subject to planning and building laws. And, there are categories of private property that are governed by the fundamental principles of public law, as if they were public property.  Indeed, in the law of property and in other areas too there is no sharp distinction between private law and public law. Public law spills over into the private law (On v. Diamond Stock Exchange Works Ltd [20], 203-204)

What emerges from all of this is that in numerous contexts the principle of equality is an integral component of the activity of business bodies in the civil realm, and should not be viewed as an exception to the right of an individual operating in the civil realm, to freedom and to owners' caprice.  The relationship between these two values – when in conflict – should be examined in accordance with the specific normative context, and in light of a complex perspective of property on the one hand, and of state responsibility for the functioning of the civil sector on the other hand (on social values as being a substantive part property, see Hanoch Dagan, Property at a Crossroads (2005) (Ramot, Tel-Aviv University) 27- 65. At all events, in our case, given the existence of the Prohibition of Discrimination Law, consideration of the general balance between these two values is not required for purposes of a decision.

Second, the Law establishes  a practical mechanism that enables the individual victim of discrimination to receive a financial remedy for the harm he incurred.  Section 5 of the Law determines that:

Civil wrong

                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

                                (b) In respect of a wrong under this Law the Court may, without proof of damage, adjudge compensation that shall not exceed NS 50,000;

The question of the compensation for a constitutional tort has been the subject of serious and profound debate in legal writing, but has yet to find expression in the case-law of the Court, and it is doubtful whether from an institutional perspective this Court should be the one to formulate the remedies available to victims of constitutional torts (for the institutional advantage of the legislative authority in the formulation of constitutional remedies, see Daphne Barak Erez, Constitutional Torts, Borsi, 5754, 175-178). At all events, in a number of contexts such as violation of privacy and the tort of defamation, the legislators formulated specific arrangements that provide a remedy for the victim of a constitutional tort. This also holds true for the case before us.

The uniqueness of the Prohibition of Discrimination Law is not, therefore, in its creation of a new conception of equality that goes beyond the general conception of equality that applies to constitutional law. Its uniqueness lies rather in its conferral of operative rules to the victim of discrimination seeking a remedy from the court. Justice D. Dorner aptly determined that:

 

I agree with the result reached by the Vice-President. However, in my opinion, the respondent’s right does not derive only from the Equal Opportunities Law, but also derives from the general principle of equality that has, for some time, been a part of our labor law.

 

In my view, the original version of the Equal Opportunities Law reflected the principle of equality but did not establish it. Thus, for instance, in Nevo v.National Labour Court [6], a provision that provided a different retirement age for men and women was disqualified on the basis of the principle of equality. This disqualification was based on the legal position prior to the Equal Retirement Age for Female and Male Employees Law, 5747-1987, which made the retirement age the same for women and men, while preserving the right of women employees to early retirement […]

Similarly, the amending law did not change the existing law concerning equal rights for homosexuals, but merely gave expression to it [7]

(HCJ 721/94 El-Al Israel Airway Ltd v. Danielovitz [6] pp. 778-779, emphasis mine – S.J).

Were my opinion to be accepted, that the concept of equality in the Law should be construed in the light of the general concept of equality in Israeli law, it would not be possible to give a “difference blind” interpretation of equality, as I will presently explain. 

Two Levels of the Right to Equality

As mentioned, my colleague, Justice Y. Danziger endorsed the “difference blind” model of equality in his opinion. According to his approach, the language and the purpose of the law lead to the conclusion that any distinction based on the identity of the individual, as anchored in the Law, is a prohibited distinction. In this context my colleague elaborated on the fact that stereotypic conceptions also exist with respect to the stronger groups in society, and the Law likewise seeks to eliminate them. Furthermore, my colleague opines that the elimination of the stereotypic conceptions will ultimately lead to the elimination of the stereotypic conceptions of the weaker groups of the population. Finally, my colleague’s opinion reiterates first principles, to the effect that affirmative action aimed at promoting substantive equality in society, should not be regarded as discrimination. On the merits, my colleague dwelt on the fact that the respondent failed to prove the existence of factual basis for drawing a distinction between men and women and hence the case is one of discrimination proscribed by law.

It is well known that the court will recognized the existence of discrimination where those who are equal are treated differently. To do this, the court must first determine which equality group to relate to. One way of proving discrimination is to show that two groups that are equal to each other are treated differently. This path was taken by my colleague. The respondent did not prove any basis for its claims that men are more violent or more dangerous and hence failed to discharge the onus imposed on one who seeks to distinguish between a group of men and a group of women.

In my view, the discrimination tainting the respondent's policy is more profound. This kind discrimination arises where the categorization per se reflects a discriminatory point of departure. This point of departure assumes homogeneity between the male and female members of each category, even in the absence of any reason for assuming such homogeneity.  The deconstruction of the point of departure whereby the categories are "natural" exposes the substantive question pertaining to the manner in which the categories are formulated. In this way, feminist researchers demonstrated how "objective" science that identifies biological differences between men and women is actually biased science that assumes that which it seeks to prove (see Sandra G. Harding, Whose science? Whose knowledge? Thinking from Women's Lives, Cornell U. Press. 1991). Similar critiques have been made regarding the characterization of a group in accordance with its sexual inclination (see inter alia, Michel Foucault, The History of Sexuality: The Will to Knowledge, and in the Israeli context see Hedi Viterbo,The Crisis of Heterosexuality: The Construction of Sexual Identities in the Israeli Defamation Law" Tel-Aviv Law Review 33 (2010)  To be precise -  this does not mean that categories are meaningless in an individual or social context. The necessarily artificial nature of any particular category does not lead to the conclusion that these categories are of no significance in the lives of individuals in a society. Individuals are created and world views are formulated in the light of these social categories or in opposition to them.  Simone de Beauvoir's famous statement "One is not born, but becomes a woman. No biological, psychological, or economic fate determines the figure that the human female presents in society: it is civilization as a whole that produces this creature, intermediate between, male and eunuch, which is described as feminine" (The Second Sex, vol. 2, p. – emphasis mine S.J.) does not mean that each person is free to choose any position on the gender continuum.  Rather, its meaning is only that the manner in which the gender identity is conceived is artificial. This being the case, we must be cognizant of the manner in which we establish societal identities and conceptions. In this context, the human rights discourse, and specifically of the right to human dignity and equality is not only meaningful on the level of examination of the equality between groups, but on a deeper level too, relating to the manner in which groups are constituted in a society.  A situation in which a particular group is characterized by homogeneity, so that a negative value is ascribed to each member of the group (even if only statistically) is one that does not respect the individual and which violates the right to equality of the individuals of the group. Regarding this the scholar Orit Kamir made the following valuable comment:        

                "This paper shows that both the equality of liberty (negative) and the Aristotelian formula of equality, are conceptions that are socially conservative; they do not promote – nor even allow – a serious critique of the current societal reality, or the exposure of the deep categories of discrimination on which it based, and which it both establishes and perpetuates.  Both of them perpetuate the division of resources and power in the society and only enable the identification and the rectification of mistakes and domestic injustices in the framework of the governing status quo which is taken for granted.

    It should be noted that this conception has also struck roots in our legal system. Hence in the Abu Hanna [22] case, which discussed the propriety of considering statistical data concerning the earning of various population groups, in determining compensation for a minor's loss of her earning capacity, Deputy President E. Rivlin, held that:

The use of statistical data relies on gender, racial or ethnic affiliation of the victim, giving effect to the resource allocation practiced in a society. It weighs up the past but does not reflect a reality that anticipates the future. It is not normatively appropriate (C.A. 10064/02 "Migdal" Insurance Company Ltd v. Abu Hana [22].

    Obviously, this does not mean that this kind of distinction will be disqualified in each and every case. A distinction between groups based on statistical characteristics may be recognized as a permitted distinction, just as a violation of equality may be found to be permitted. In these cases the offending party will have to prove not only that the different treatment of equal groups complied with the requirements of statute and case law, but also that the actual division into groups and their perception as a relevant reference point complies with these requirements.

   

 

Identification of the Equality Group

In this appeal the respondent's attorney claims that men under the age of 26 are not a homogenous group featuring a defined interest that entitles it to protection under the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places, 5761-2000. His approach is that the appropriate interpretation of the Law leads to the conclusion that the Law's purpose is to protect weaker populations and not to prevent "arbitrary" discrimination against individuals who belong to socially dominant groups.

The respondent's approach is therefore that the point of departure for the discussion in this case is the harm caused to men by reason of the distinction regarding the entry to the clubhouses.  The question of the application of the Law to the majority population is a complex one.  Clearly, any person, even if he belongs to the dominant population of the society, will feel discomfort if he merits treatment that differs from others purely by future of his being part of the dominant population. This is the logic that was the foundation of a long series of decisions from all around the world that prohibited racial preference for blacks in the universities and in professional tests, for women's only parties, and others. This is also the basis of the opinion of my learned colleague, Justice Y. Danziger. All the same, this approach, which is blind to origin, gender etc, has merited a variety of approaches in legal writing.  For example, the scholar Catherine Mackinnon pointed out that the combination of a reality not based on equality and the disregard of basic conditions of inequality in the legal system is a combination that perpetuates the power based relationships and the gender subordination:

I will also concede that there are many differences between women and men. I mean, can you imagine elevating one half of a population and denigrating the other half and producing a population in which everyone is the same? What the sameness standard fails to notice is that men’s differences from women are equal to women’s differences from men. There is an equality there. Yet the sexes are not socially equal. The difference approach misses the fact that hierarchy of power produces real as well as fantasized differ- ences, differences that are also inequalities. What is missing in the difference approach is what Aristotle missed in his empiricist notion that equality means treating likes alike and unlikes unlike, and nobody has questioned it since. Why should you have to be the same as a man to get what a man gets simply because he is one? (Catherine Mckinnon, "Difference and Dominance" in Legal Feminism in Theory and Practice, Resling Pub. 2005 (Eds. Daphne Barak-Erez, translated into Hebrew - Idit Shorer, pp. 29-30)

And further on:

If sameness is your standard for equality, if my critique of hierarchy looks like a request for special protection in disguise. It’s not. It envisions a change that would make possible a simple equal chance for the first time. To define the reality of sex as difference and the warrant of equality as sameness is wrong on both counts. Sex, in nature, is not a bipolarity; it is a continuum. In society it is made into a bipolarity. Once this is done, to require that one be the same as those who set the standard—those which one is already socially defined as different from— simply means that sex equality is conceptually designed never to be achieved.[...] Doctrinally speaking, the deepest problems of sex inequality will not find women “similarly situated” to men. Far less will practices of sex inequality require that acts be intentionally discriminatory. All that is required is that the status quo be maintained. As a strategy for maintaining social power first structure reality unequally, then require that entitlement to alter it be grounded on a lack of distinction in situation; first structure perception so that different equals inferior, then require that discrimination be activated by evil minds who know they are treating equals as less (ibid, p.34, emphasis mine – S.J.)

     For a survey that demonstrates how the laws of the prohibition of discrimination actually operate in the U.S.A. to maintain the societal status quo and provide a remedy primarily to the powerful groups of society, see inter alia: Ruth Colker, Whores, Fags, Dumb-Ass Women, Surly Black and Competent Heterosexual White Men: The Sexual and Racial Morality Underlying Anti-Discrimination Doctrine, 7 Yale J.L. & Feminism 195 (1995); Janice C. Janice C. Title VII and Reverse Discrimination: The Prima Facie Case, 31 Ind. L. Rev. 413 (1998).

This Court too recognized that there are places in which a minority group can exclude members of the majority group without that exclusion being viewed as prohibited discrimination (HCJ 528/88 Avitan v. Israel Lands Administration [23] .The qeustion arose in particularly sharp terms in  the Movement for Quality of Government  case (HCJ 6427/02 Movement for Quality of Government v. Knesset [24] (hereinafter: Movement for Quality of Government case). That case concerned the constitutionality of the Deferral of Military Service for Yeshiva Students Law, 5762-2002 and in an expanded panel of seven justices a profound dispute emerged regarding precisely this issue.  Justice A. Grunis handed down a ruling that rejected the applicability of the principle of equality to the majority group with respect to the judicial review of legislation, ruling that

In my view there is no grounds  for this court to invalidate the law. The reason for this is that there is no justification for this court to exercise judicial review of the law, which is  a law that grants a privilege, and where the majority claims a violation of equality. In other words when a majority acts by democratic means and adopts a law which confers preference to a minority, the court should not become the patron of the majority. A ruling that the act of the majority is illegitimate on the grounds of inequality constitutes an act of patronage that has no place in circumstances such as these (para. 1 of Justice A. Grunis’ opinion)

Justice Cheshin, on the other hand, ruled that in his view the principle of equality should be applied to all of the individuals in society, and not only to minority groups:

The principle of equality is not alien to us. We encounter it quite frequently except that always – to be precise – almost always – it arises in the context of human rights. Equality however (justice, fairness) is not confined to the definitions of human rights; it is also an operative principle in the realm of government and society. These two conceptions of equality – equality in the realm of the individual and equality in the general public realm – are two sides of the same coin.  A society that has chosen a democratic regime to direct its conventions and lifestyle must at all times subscribe to the principle of equality as the principle that regulates relatons between the state, the society, and every individual of that society (ibid, para. 12 of Justice M.Cheshin's opinion, emphasis mine – S.J.) 

The approach taken by President A. Barak, concurred with by the majority of the justices on the panel, attempted to formulate an interim  model, which extended the application of equality to any case involving a violation of individual autonomy, but did not frame a broad rule that would apply the right to equality to all distinctions between individuals in a society. The President ruled as follows:

The interim model does not limit human digntity exclusively to matters of degradation and humiliation, but neither does it extend it to all human rights. Accordingly, human dignity includes those aspects of human dignity that in various constitutions find expression in the form of specific human rights, but which in our view are characterized by their tight and substantive connection to human dignity (whether to its nucleus or its periphery). According to our  approach the definition of human dignity would also include discrimination that does not involve humiliation, provided that it is tightly related to human dignity in the sense of expressing the autonomy of individual will, free choice and freedom of action, and other similar aspects of human dignity as a constitutional right" (para. 38 of President Barak's opinion).

                Regarding the approach taken by Justice A.Grunis he wrote the following:

According to the approach of my colleague, Justice A. Grunis, one must distinguish between protection of the majority and protection of the minority; one must distinguish a between protection of the substance of the democracy and protection of its decision making process. My colleague does not explain the parameters for these distinctions. How are we to distinguish between the majority and the minority and how are we to distinguish between substance and process? For example, in a multiparty parliamentary regime, based on coalitions – who is the majority and who is the minority? A small party that holds the balance of power in the coalition – do its supporters belong to the majority or the minority?  Is a violation of the freedom of speech a violation of the substance of democracy, or of a democratic process? Does strict adherence to equality in the right to elect and to be elected protect the substantive values of democracy or perhaps it protects the democratic process?" (para. 76 of President A. Barak's opinion).

The question of the border between the legitimate exclusion of members of the majority group by the minority group, and exclusion which constitutes discrimination, does not admit of a simple solution.  Clearly, both cases should be assessed in a different manner in different circumstances. Hence, a case in which the majority is discriminated against by force of Knesset legislation, such as in the  Movement for Quality of Government case [24] differs from a case in which the majority is discriminated against by privately owned businesses (in this context, see also Justice M Cheshin’s decision in HCJ 3751/03   Ilan v. Tel Aviv Municipality [25]  at p. 828’; compare also to: [26]  HCJ  4124/00 Arnon Yekutieli z”l v. Minister of Religions (not reported, 14.6.2010 and references).

Even so, in my view, guidelines may be drawn for examining this question as it relates to the discrimination of an individual belonging to a dominant social group, by civil entities. The court must weigh up the scope of the infringement on the ability of the weaker group of maintaining its culture and lifestyle if the exclusion is prohibited. As opposed to this, the court must examine the alternatives available to the dominant population and the harm sustained by members of the majority group by reason of the exclusion. At all events, as I will presently explain, even though the overt harm in our case is caused to men, the clubhouse’s policy involves harm of a more fundamental nature to women. As such, I am not required to decide the question of the applicatory scope of the principle of equality in cases in which the victim is the member of a dominant social group, and my recommendation to my colleagues is to leave the matter pending.

The Respondent's Policy as a Policy that Discriminates Against Women

In another case the Jerusalem Magistrates Court considered the question of whether granting a discount for entry into a clubhouse is permitted affirmative action (SC (Jer) 3043/09 Givon v. Timor (not reported, 5.5.2010). The owners of the clubhouse claimed that the discount granted to women us actually of benefit to men, since men generally pay for their partners and alternatively they claimed that the clubhouse's policy should be viewed as affirmative action.  In his decision, Judge A. Tenenbaum rules that granting a discount to women at the entry to the clubhouse (in that case under the slogan of "Women free and Sushi free") is illegal. The reason is not because it harms the man, but rather because a policy of this kind both assumes and perpetuates the image of the woman as the weaker party, lacking economic capacity, and thus generates a distinction based on stereotypic presumptions.

The question of a distinction between man and women, and whether it is by discriminatory by definition, came before this Court in the context of separation on public transport (HCJ 746/07 Naomi Reagan v. Ministry of Transport [27]. Two values competed for preference in that case – the freedom of religion and conscience of the populations who preferred segregation of sexes in public transport and the right of woman to equality and dignity. The court ruled unanimously, based on the policy of the Ministry of Transport, that forced segregation of men or women who do not want it is prohibited. The question remaining for the court's resolution was whether to allow segregation of the sexes on a voluntary basis and how to ensure that the segregation was indeed voluntary and not coerced.  Against this background the court established a trial period to examine the ability of the Transport Ministry to operate an exclusively voluntary segregation system. It added that should the reality on the ground reflect a reality of forced segregation, this would be weighty consideration for the disqualification of the practice in its entirety (para. 1 in the decision of Justice Y. Danziger).

In the case before us, the respondent wants to preserve a policy of gender-based distinction, forced upon all those who enter his gates, regardless of whether they desire it or not. The respondent seeks to maintain a distinction that lacks anchorage in cultural or religious values, nor does it seek the aegis of the right to cultural autonomy. In fact, even though the respondent aspires to present his policy as motivated by the desire to create a place with a particular atmosphere, the particular atmosphere to which the respondent aspires emits a pungent odor of a gender-based hierarchy. Presumably, the age-based distinction between men and women creates a reality in the clubhouse that is structured on the basis of a stronger and weaker party. The man, who is older and hence, on the average, has the most education, the most money and the mental and emotional maturity that accompany physical maturity, stands in contrast to the woman whose principal relevant feature is the fact of her being younger. This structure reflects a customary social code governing men-women relationships, one which is frequently reinforced by images generated in the theatre, in literature and other forums that perpetuate built in relationships based on power. Even more precisely, whereas various cultural products generate the preservation of the gender-based hierarchy by presenting it as "natural", the respondent forcefully ensures its preservation by obliging those entering the gates of the clubhouse to act in accordance with this patriarchal framework.  Clearly, this is not an exceptional or rare phenomenon. The respondent's  policy is practiced openly in many places of entertainment. An equally large number of entertainment venues adopt a practice of selection among those coming into its gates, granting entry to women who are younger than the "formal" minimal age for visitors and by doing so maintain a gender-based distinction even without its overt trappings.

The policy of distinction practiced by the respondent is implicitly based on essentialist assumptions concerning the connection between sex and gender. According to this approach, men tend to be more violent that women of the same age. These notions are the reverse side of the stereotypic notion that views women as delicate and fragile. Even if the respondent adduced evidence in support of its claims (and the respondent did not bring any support of this kind), it would not have justified the discrimination. Data of this kind could only have justified a situation whereby a greater number of men of  certain ages were denied entry in view of their personal behavior and the fear of violent behavior on their part.  Just as the clubhouse conducts a check of man above 26 and of women above age 24, when entering the clubhouse, it could likewise conduct a check of men between age 24 and age 26.

In this context is bears note that the conclusion of this analysis would not change even against the background of the claim that many women prefer the said arrangement. One of the fathers of liberalism, J.S. Mill points out in his book The Subjugation of Women,  that it is impossible to assess the existence of autonomy and free choice in an environment of gender repression.  In the preface to the Hebrew edition, the scholars Yofi Tirosh and Zohan Kochabi wrote the following:

He (Mill – S.J.) warns men not to delude themselves that they perfectly understand women because they have had romantic relations with them. The romantic and sexual interaction confers very specific roles to women, from which one may learn something about women's femininity but not much about their humanity […] hence the yearning that men should appropriately develop is the yearning for social conditions that enable them to encounter women as people, absent the barriers and limitations of power relations.

 

This understanding is to a large degree pertinent for our times too. Today too little girls, young lasses and women repeatedly receive the message that they are measured and evaluated by virtue of their body and beauty, their success in getting married and maternity, along with their attentiveness, consideration and support for those who surround them, while giving up on their own desires to accommodate the desires of others. Today too we read the columns that advise the woman "to give" even when she is not interested, or that recommend that the learn to dance like a stripper in order to maintain the vitality of sexual relations with her spouse. In other words, we assume that had Mill been writing today he would have inveighed against excessive enthusiasm about  idea such as freedom of occupation in contexts such women engaged in prostitution, or simplistic reliance on the notion of respecting women's autonomy when attempting to understand, explain and struggle  against the physical, mental and financial damage that women do themselves by way of operations and diets. The conclusion is that there is a need to focus on the creation and reinforcement of alternative life paths for women, through which they can earn evaluation, recognition and satisfaction even without being physically captivating or having to offer their sexuality as a consumer product (John  Stewart Mill: "Subjugation of Women"- Translation [into Hebrew] – Shunamit Lifshitz, Resling, 2009, pp. 23 – 24).

               

These comments are relevant for our purposes too. We still live in a social structure that repeatedly conveys a message to women that their central power and the basis of their definition is their external appearance. Our discourse still abounds with images that define the woman based on her age. In the framework of that discourse real equality is not possible. This kind of real equality will be attained on the day that we succeed, as a society and as individuals, in learning to recognize the humanity of every male or female that we meet, irrespective of biological gender, and without interspersing the existing hierarchy among these categories.

Against this background the policy of discrimination according to which the respondent operates cannot continue, not because of the harm caused to men, but rather because of the grave harm embedded the respondent's policy, which is the harm to women.

Epilogue

The phenomenon of selection at the entrances to clubhouses based on prohibited criteria such as gender, origin, and race are first and foremost evidence that discrimination has yet to be eliminated from our country.  The very existence of men and women selectors whose entire role is to screen out those coming for entertainment, and to choose those who are considered "suitable", based for the most part on stereotypes (in contrast to security guards who prevent entry exclusively on the basis of fear of obstreperousness) is a disturbing phenomenon, and I am doubtful as to whether any justification can be found for it, except for in rare cases.  The legislators were aware of this phenomenon in their deliberations over the law at the time of its enactment.  Hence, M.K. Eli Ben-Menachem explained that: "Clubhouse owners, honored chairman, prove that not only do they not give a damn about human morality, which is basic Jewish morality – they continue along the path of discrimination, racism and hatred of the other, intentionally disregarding the Israel lawbook  and continuing the practice of selection with increasing intensity (debate on 10 November 2004, on Draft Bill of Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000, Draft Bill P/4 – emphasis mine S.J).  The ubiquity of this phenomenon and the willingness of countless men and women to blithely ignore it, compels the court to take measures to realize the purpose of the Law in a manner that creates real deterrence against discrimination.

This was the background for the enactment of the Prohibition of Discrimination Law. This law is a central law in a complex and ramified legislative network that has one goal – the promotion of substantive equality in  the State of Israel.  Naturally, being tender in years, the Law has yet to merit a comprehensive and sufficiently serious discussion; indeed, this is the first hearing in this Court that focuses on the Law as the central grounds of the pleadings. As mentioned, the significance of this Law does not lies in the establishment of a new standard of equality, but rather in the  formulation of a practical framework that provides a practical remedy to the victim of discrimination. Once the legislators have had their say it is incumbent upon the court to take measures to realize the legislative purpose in the optimal sense. Obviously, many questions pertaining to the application of the Law have yet to be properly answered and there are disputes between the procedural forums concerning the manner of interpreting the Law. These questions do not necessitate an answer for purposes of our case and will certainly be clarified by this court at some future time.

 

Judge

               

 

It was decided in accordance with the judgment of Justice Y. Danziger