Equality Before the Law

C.A. 525/63

 

           

REUVEN and ZILPAH SHMUEL

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court Of Civil Appeal

[June 30, 1964]

Before Agranat D.P., Landau J., Berinson J., Witkon J. and Cohn J.

 

           

Judges - disqualification - religious bias - Courts law, 1957, secs. 7(a), 7(b)(2), (3) and 36.

 

 

The Attorney-General applied for an order against the applicants to remove their children from a Christian missionary school where they had placed them and to arrange for the children's education in a Jewish school. In those proceedings in the Tel Aviv District Court, the applicants requested that the sitting judge should disqualify himself because he was an orthodox Jew and people might gain the impression that he would therefore not deal with the matter impartially. The judge refused to do so and the applicants moved the Supreme Court to have the hearings transferred to another judge of the Tel Aviv District Court.

 

Held  (1) The statutory provisions regarding transfer of cases go only to change of venue in the strict sense of place of trial and not the personality of the judge, and then only when the judge concerned consents thereto.

 

(2) A judge may certainly possess personal views and beliefs but he must not allow these to pervert his allegiance to the law either in letter and spirit. Judges are presumed to be conscious of and to abide by this obligation.

 

(3) Whilst there is no dispute that a judge's decision not to disqualify himself should be subject to judicial review, there is no room for the notion that a litigant should be able to choose to be tried by a judge whose views please him.

 

(4) The decision of a judge not to disqualify himself may be an administrative and not a judicial act, and as such open to review like any other administrative act by the High Court of Justice especially when no right of appeal against the act exists. As a judicial act, the decision is not reviewable under the High Court's statutory powers. In the absence, however, of any remedy, the decision may be challenged indirectly or incidentally by way of an ordinary appeal against the judge's final judgment in the case.  A decision on a challenge to the composition of a court before it has been constituted is an administrative act.  A like decision after the proceedings have commenced isa judicial act which can only be contested by ordinary appeal.

 

(5) The High Court of Justice will not order prohibition either against a court or a particular judge where the remedy of appeal is available.

 

(6) Interlocutory appeal against a judge's decision not to disqualify himself is in any event only possible under the law in respect of civil and not criminal matters. The legislature might well consider a reform of the law in this regard.

 

Israel cases referred to:

 

(1)   H.C. 295/59 - Moshe Goldenberg v. President of Tel Aviv-Yaffo District Court and others (1959) 13 P.D. 2207.

(2)   Misc. App. 3/50 - Yosef Weinberg v. Attorney-General and another (1950) 3 P.D. 592.

(3)   H.C. 174/54 - Yisrael Shimel v. Competent Authority and Appeal Committee for the purpose of the Law regulating Seizure of Land in an Emergency (1955) 9 P.D. 459.

(4)   H.C. 279/60 - Ulame Gil Ltd. v. Moshe Yaari and another (1961) 15 P.D. 673; VI S.J. 1.

(5)   H.C. 203/57 - Eliezer Rubinski v. Competent Officer under Cooperative Houses Law (1958) 12 P.D. 1668.

(6)   H.C. 23/50 - Yosef Weinberg v. Attorney-General and another (1950) 10 P.M. 85.

(7)   Cr.A. 239/54 - Bess Perah v. Attorney-General (1955) 9 P.D. 397.

(8)   H.C. 49/62 - Aharon Kluger and others v. Inspector General of Police and others (1962) 16 P.D. 1267.

(9)   H.C. 206/59 - Shlomo Gilah v. Jerusalem Magistrate and others (1960) 14 P.D. 1709.

(10) F.H.15/62 - Societe des Ateliers Pinguely Ville Gozet S.A. v. Aharon Kluger and others (1962) 16 P.D. 1539.

(11) H. C. 125-127/50 - Kvutzat HaHugim Bet HaShitah and others v. Haifa Committee for Prevention of Profiteering and others (1951) 5 P.D. 113.

(12) H.C. 91/61 - Israel Film Studios Ltd. v.Jerusalem District Court (1961) 15 P.D. 782.

(13) H.C. 326/61 - Natan Kravchik v. Attorney-General and others (1961) 15 P.D. 2389.

(14) H.C. 142/64 - Carmel Mahviti v. Attorney-General and others (1964) 18 P.D. 449.

(15) H.C. 250/61 - Moshe Dvik v. President of Supreme Court and others (1961) 15 P.D. 2529.

(16) H.C. 66/63 - Attorney-General v. Beersheba Traffic Judge (1963) 17 P.D. 1056.

(17) H.C. 307/51 - Y. Lalo v- Tel Aviv District Court Judge (1952) 6 P.D. 1062.

 

English cases referred to:

 

(18) Dimes v. Proprietors of Grand Junction Canal 10 E.R. 301 (1852).

(19) R. v..Camborne Justices and another (1955) 1 Q.B. 41; (1954) 2 All E.R. 850.

(20) Eckersley and others v. Mersey Docks and Harbour Board (1894) 2 Q.B. 667.

(21) R. v. Rand and others (1865-66) L.R. 1 Q.B. 230.

(22) Colonial Bank of Australasia and another v. Willan (1873-74) L.R. 5 P.C. 417.

(23) R. v. Cheltenham Paving Commissioners 113 E.R. 1211 (1841)

(24) R. v. Recorder of Cambridge 120 E.R. 238 (1857).

 

American cases referred to:

 

(25) No. 721 Jewel Ridge Coal Corp. v. Local No- 6167, United Mine Workers of America and others 89 L.Ed. 2007 (1945).

(26)      Korer v- Hoffman 212 F (2d) 211 (1954).

(27)      Gulf Research & Development Co.v. Leahy and others 193 F(2d) 302 (1951).

(28)      Roche and others v. Evaporated Milk Ass. 319 U.S. 21 (1943).

(29)      Minnesota & Ontario Paper Co. and others v. Molyneaux 70 F (2d)545 (1934).

           

Y. Ben-Menashe for the applicants.

Z. Bar-Niv, State Attorney, and P. Albek for the respondent.

 

LANDAU J. This is an application for leave to appeal against the decision of His Honour Judge Kisser dismissing the applicants' application for consent to transfer to another judge the hearing of a guardianship claim pending before him as a sole judge of the Tel Aviv-Jaffo District Court.

 

            In those proceedings the Attorney-General had sought an order against the applicants to remove their three children from a Christian missionary institution where they were and to arrange for their admission to a Jewish school. The application to transfer the hearing was based on section 36 of the Courts Law, 1957. At the beginning of his decision in question Judge Kister said

           

"Section 36 deals with a transfer from the court of one locality to the court of another locality, and since Mr. Ben-Menashe does not ask for the matter to be transferred to the District Court of another locality, for that reason alone the application is to be dismissed."

 

Nevertheless the judge went on to deal with the application on its merits and found no cause for disqualifying himself from sitting and hearing the action.

 

            On the application for leave to appeal Mr. Bar-Niv, the State Attorney, raised the fundamental question of the correct interpretation of section 36 and the remedy of a party who contends that a judge is disqualified from sitting.

           

            Section 36 provides:

           

"Where a matter has been or is to be brought before a District Court or Magistrate's Court in one locality, the President of the Supreme Court or his Permanent Deputy may direct that it be dealt with by a court of the same level in another locality; but a direction under this section shall not be issued after the commencement of proceedings in the matter save with the consent of the Judge who has begun to deal with it."

 

The learned State Attorney submits that the section is to be read literally: it speaks of the transfer of a matter from the court of one locality to the court of another locality and does not deal with the transfer of a matter from one judge to another in the same court. In this connection he asks us to demur from previous decisions of this Court expressing a view contrary to his. The first of these decisions was given in Goldenberg v. President of Tel Aviv-Yaffo District Court (1) which involved an order nisi to transfer the hearing of a civil action from the judge dealing with it to another in the same court. It was said there by Olshan P. (at p. 2208) that

 

"We are of the opinion that in making the present application the

petitioner erred as regards jurisdiction.

 

The petitioner argues that an application to transfer a hearing fromone judge to another has actually the character of an application for prohibition and for that, he urges, one must apply to the High Court of Justice.

Even if the petitioner is right in assimilating an application under section 36 of the Courts Law, 1957 to an application for prohibition, the answer is that if a given matter for which prohibition is desired is regulated by the legislature in a particular manner, it must be determined in accordance with the manner laid down by the legislature. Clearly, according to the rule found by the President (Zmoira) in Weinberg v. Attorney-General (2) the transfer of a hearing to another locality includes its transfer to another judge. It is therefore obvious that under the legislature's regulation of the matter in section 36 of the Courts Law, 1957, the petitioner's application falls within the section. Hence the course pursued by the petitioner in this instance is not well-founded."

 

In H.C. 282/63 Rehana v. Atory (unreported) this Court followed Goldenberg(1) and held that where the judge who is sitting in a case refuses to disqualify himself and for that reason the applicant cannot obtain a transfer of the proceedings under section 36 of the Courts Law, no jurisdiction is conferred on the High Court of Justice to transfer them to another judge.

 

            Weinberg (2) was decided before adoption of the Courts Law and Goldenberg (1) and the unreported case after its adoption. In both of the latter two this Court accepted the rule in Weinberg as binding without especially examining the effect of section 36 and without argument on the question, both being heard in the presence of the applicant alone. Here Mr. Bar-Niv has argued that section 36 has made a basic change and therefore the rule in Weinberg (2) no longer applies Moreover, he has cast doubt upon the correctness of the Weinberg rule itself at the date when it was given. I accept his argument and also concur in his doubt.

           

            In Weinberg (2) Zmoira P. explained the English concept of "change of venue", found in section 21 of the Courts Ordinance, 1940, and held that it also bears the broad meaning of the transfer of a matter from one judge to another. May I be permitted to say that it bears this meaning with great difficulty. In any event, there is no dispute that the common meaning of "change of venue" refers to the locality of a trial, and historically the particular place to which the jury has been summoned. A change of venue is called for when fear exists that because of conditions prevailing in a given locality, such as inflamed public feeling, a jury cannot be mustered which will be able to deal with the matter impartially (Blackstone's Commentaries, vol. 3, p. 383).

           

            Why, nevertheless, did the Court in Weinberg (2) adopt the forced meaning of "change of venue"? Because "without such meaning it would be impossible for a defendant to apply for disqualification of a judge" (at p. 597), the Court pointing out that section 62 of the Ottoman Civil Procedure Law had been repealed without replacement. It appears to me that even failing express provision of enacted law a source can be found for the rules regarding the disqualification of judges. I shall return to this question later.

           

            Even if it is possible to rely on Weinberg (2) for the meaning to be given to the English concept of change of venue, it cannot be treated as a precedent for the construction of section 36 of the Courts Law which, written in Hebrew, speaks of the transfer from one locality to another. In the course of the enactment of the section both aspects - transfer from locality to locality and transfer from judge to judge - were in the contemplation of the legislature. Clear evidence of that is to be found in the bill of the Courts Law published in Reshumot. Section 46 of the bill contained the substance of section 36 of the Law as finally adopted and section 39 covered "the circumstances in which a judge shall not sit". The latter is omitted from the Law in its final text and we do not know who or what brought about its omission... .

           

            The phrase "a District Court or Magistrate's Court in one locality" is quite clear in its literal sense. It deals with the court as an institution and not with the judge as a person. A "personal" meaning cannot be forced into the word "locality" which it does not possess. From the fact that in Weinberg (2) "change of venue" was held to mean both a transfer of locality and a transfer of judge, one may not deduce that in Hebrew the former means also the latter.

 

            Moreover, section 36 refers to a matter which has been "or is to be brought" before a particular court. The locality of the court before which a matter is to be brought is fixed by law but there is no provision of law which from the outset compels a particular matter to be brought precisely before a particular judge. That is left to the discretion of the President of the court under sections 4(b) and 16(b) of the Courts Law or the Chief Magistrate in consultation with the judges of the Magistrate's Court under section 26. as the case may be.

           

            The latter part of section 36, regarding transfer of a matter after proceedings have commenced, was added (in the Knesset) to safeguard the independence of the judges, so that no matter which they had already commenced to hear should be withdrawn from them against their wishes. That does not go at all to the question of the personal disqualification of the judge dealing with a matter. Furthermore, had section 36 also dealt with a judge's personal disqualification, why distinguish between a trial which has not yet begun and one which has, and only in the latter event require consent of the judge concerned?

           

            Accordingly, I maintain that section 36 of the Courts Law merely prescribes the mode of transferring a matter from one court to another in point of locality, like the classic change of venue, and it has nothing to do with the disqualification of the individual judge. Hence the learned judge was right in the point he made at the beginning of his decision on the subject of the present application, which is enough for dismissing it.

           

            Since, however, the basic question has been raised as to the remedies available to a party seeking to disqualify a judge for reasons of bias, I shall add a number of observations to elucidate this important subject.

           

            The learned State Attorney submits that in Israeli law there is no disqualification of judges at all and the only remedy of a party who feels aggrieved by a judge's bias is to appeal for annulment of his judgment. Mr. Bar-Niv sought to deduce this from the omission of section 39 of the bill, as above, from the final text of the Law, as well as from the judgment of the House of Lords in Dimes v. Grand Junction Canal (18).

           

            I cannot go along entirely with the State Attorney in his submission. We can only deduce from the omission of section 39 of the bill that the Israeli legislature abandoned the attempt of defining in enacted law the grounds for the disqualification of judges, but its silence does not prevent us from referring to the sources of English Common law to fill the gap in our legal system. It is necessary, in my opinion, to have recourse to these sources in this regard since it is unthinkable that a party in this country should be powerless before a biased judge. We may indeed find in Blackstone (vol. 3, p. 361) an extreme view similar to that of Mr. Bar-Niv.

           

"By the laws of England also, in the times of Bracton and Fleta, a judge might be refused for good cause; but now it is otherwise, and it is held that judges and justices cannot be challenged. For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. And should the fact at any time prove flagrantly such, as the delicacy of the law will not presume beforehand, there is no doubt but that such behaviour would draw down a heavy censure from those, to whom the judge is accountable for his conduct."

 

Blackstone's teaching that disciplinary sanction against the biased judge is sufficient did not, however, find favour with the English courts, witness the judgment in Dimes (18). There the Lord Chancellor himself had decided a matter affecting a company in which he was shareholder but the House of Lords did not hold back from setting aside the judgment. In doing so, it adopted the opinion of Parke B. (at p. 312), who said

 

"We think that the order of the Chancellor is not void; but we are of opinion that as he had such an interest which would have disqualified a witness under the old law, he was disqualified as a Judge; that it was a voidable judgment...."

 

            This court has followed English case law when the bias of persons possessing judicial powers was in question (Shimel v. Competent Authority etc. (3); Ulame Gil Ltd. v. Yaari (4)]. Examination of the precedents cited in Shimel, and particularly R. v. Camborne Justices (19) also cited to us by Mr. Bar-Niv, shows that as regards the substantive rules of disqualification by reason of bias no difference exists between judges and other persons possessing judicial powers.

           

            The main question is not as to the substantive rules but the procedural means by which these rules can be effectuated, and more precisely a party's remedy against a judge who refuses to disqualify himself. If the decision on disqualification is left solely to the judge himself, acting in accordance with his conscience, the inevitable consequence will be that if he does not find himself disqualified, he is not to be disqualified subsequently in an appeal against his judgment in the dispute between the parties. We have already seen that this is not the Common law rule and Mr. Bar-Niv also did not suggest that. Of possible solutions of the problem, the extreme one is that a judge must withdraw immediately upon a party raising the question of disqualification. Only in such a case can we speak of the actual disqualification of a judge by a party. That is the position in England with regard to county court judges (see County Court Rules, O.16, r. 2, in County Court Practice, 1963, p. 389). An intermediate solution is that the decision rests initially with some other authority, under the French Criminal Procedure Code (articles 668 ff.) the senior presiding judge of the Court of Appeals (see also articles 378 ff. of the French Civil Procedure Code, which inspired section 62 of the Ottoman Civil Procedure Law) or the court of which the judge whose disqualification is sought is a member (that seems to be the statutory arrangement in the Military Jurisdiction Law, 1955, sections 310-15, 343 ff.). Under Common law the disqualification of a judge is clearly a cause for annulling his judgment after close of the trial. But it is undesirable that a party should be without remedy to effectuate a substantive right of his until that late stage. If the judge is really disqualified, it is a waste of the time and effort fruitlessly invested in proceedings which will ultimately be set aside. In England indeed prohibition may lie against a judge of an "inferior" court which will bar him from continuing to hear a case (Halsbury Laws of England, 3rd ed., vol. 11, p. 114), and this Court so proceeded in Ulame Gil Ltd. (4). As regards courts which are not "inferior" I have not come across any English decision to the effect that the only remedy is appeal at the end of the case. Dimes (18) did not so hold but left the question open. As Parke B. said (at p. 312)

           

"If this had been a proceeding in an inferior court, one to which a prohibition might go from a court in Westminster Hall, such a prohibition would be granted, pending the proceedings, upon an allegation that the presiding Judge of the court was interested in the suit; whether a prohibition could go to the Court of Chancery, it is unnecessary to consider" (emphasis added).

 

 (The necessity for that did not arise because the proceedings before the Lord Chancellor had already terminated when the House of Lords dealt with his disqualification.)

 

            Since the enactment of the Courts Law, 1957, we are no longer bound, in my opinion, to the rules relating to prohibition in England, and the distinction between the Magistrate's Court as an "inferior court" and the other courts with which the Law deals has ceased to exist. Henceforth we must find the answer to the question before us - whether in fact appeal after close of proceedings is the only remedy available to a party who alleges that the judge is disqualified - within the frame of the Courts Law itself. Prima facie matters of this kind come under section 7(b)(3) dealing with the jurisdiction of the High Court of Justice to order that individuals having judicial powers refrain from dealing or from continuing to deal with a particular matter. But what of the proviso which excludes from the application of the Law "courts dealt with by this Law"? I do not find this proviso an obstacle to the exercise of the jurisdiction of the High Court of Justice. A judge who rejects the submission of a party that he is personally disqualified from dealing with a matter brought before him does not thereby exercise the jurisdiction of a court but expresses his opinion on the preliminary question of his personal qualification to sit in trial; and no question arises here of the jurisdiction of the court as such. In other words, the decision of a judge not to disqualify himself (as well as his decision to disqualify himself) is not a judicial decision in the full sense of the word but pertains to "the border country" of judicial administration, similar to the decision of the President of a court that a particular judge should hear a given case. This is patent when a court sits, for example, in a bench of three and a plea of disqualification is raised against one of the three judges. If he does not think himself disqualified and his two colleagues disagree with him, the latter, in my view, cannot force him by a majority decision to withdraw (in the absence of express statutory authority as in the Military Justice Law). The decision to continue dealing with the matter is therefore his personal decision and not the decision of the court. And it makes no difference if the court consists of a single judge since we must still distinguish the court as an institution having jurisdiction and the judge who serves on it. Moreover, a judge's decision not to withdraw is taken by him on the basis of facts relating to him personally and known to him more than to others. Such a decision is accordingly the complete opposite from a judicial decision on the basis of facts proved before the court in the customary manner. It should be noted that in French civil procedure enacted law accords an express right of appeal against a decision regarding the disqualification of a judge (article 391). In discussing the question whether this right of appeal is also available to the side opposing disqualification, Glasson and Tissier, Procedure Civile, (1925) vol. 1, p. 155, say

 

"Il ne s'agit pas ici d'un litige a juger, mais plutot d'une question d'administration judiciaire, de la composition du tribunal qui doit statuer sur un litige."

 

I should add that even if I thought that the matter did not come under section 7(b)(3) I would find occasion in this context to exercise the general powers of the High Court of Justice under the first part of section 7(a), as this Court suggested in Rubinski v. Competent Officer etc. (5) regarding a decision of a District Court which was void ab initio.

 

            In the United States the dominant rule is that a judge can be compelled by mandamus or prohibition not to deal with a matter which he is disqualified to hear (45 A.L.R. 2nd, pp. 938 ff.) and this rule obtains even without express statutory provision (8 A.L.R. pp. 128, 1240).

           

            As will be recalled, it was said in Goldenberg (l) that the High Court of Justice has no power to deal with an application for transfer of proceedings from one judge to another. This view is based on the ground that another remedy exists in section 36 of the Courts Law. I have tried to show above that section 36 does not apply to such an application, and if I am correct, the ground of alternative remedy falls away. It should also be remembered that Weinberg (2) decided in 1950 that no order is to be made against a District Court judge to refrain from sitting in a particular matter because that court is not an inferior court. As I have explained, this decision is not to be followed after the enactment of the Courts Law.

           

            Since the decision of a judge not to disqualify himself is not the judicial decision of a court, no interlocutory appeal lies against it. Apart from that, this remedy creates unjustified discrimination between civil proceedings in which interlocutory appeals are possible and criminal proceedings in which they are not. What is the difference between an interlocutory and a final appeal, for we have already said that the question of the judge's disqualification can be raised in an appeal against his judgment? The answer is that at the end of the trial the submission is not that the judge was disqualified from the outset but that the judgment of the court is defective as a result of his disqualification.

 

            Consequently the correct way to plead disqualification of a judge about to sit is, in my opinion, to apply to the judge to disqualify himself, and if he is not prepared to do so, the remedy is an application to the High Court of Justice.

           

            Nevertheless I wish to observe that the Court will certainly attach great weight to the position taken by the judge concerned and will interfere only in an extreme case with his opinion that he may sit. The court will so act with regard to the facts of the case, as to which the judge is deemed to be trustworthy, as well as with regard to the conclusions stemming from them, since the presumption is that a judge has properly searched himself, remembering his declaration of allegiance "to dispense justice fairly, not to pervert the law and to show no favour". In order, however, to preserve the confidence of the public in its judges of all ranks the possibility of reviewing a judge's decision must not be yielded entirely. I have expressed my view about lex lata as I see it. Possibly, de lege ferenda a more convenient solution may be found, perhaps along the line of the President of the Supreme Court reviewing the judge's decision (without the necessity of the judge concerned giving his consent) or of laying down special procedural provisions for the hearing of petitions of this kind by the High Court of Justice.

           

            Finally, I wish to consider briefly two matters connected with the contents of the application before us, which relate to the substantive law on the disqualification of judges. I do so in order to save the parties from further litigation over the question. The application to his Honour Judge Kister contained six grounds. Among them the following observation occurs six times as a refrain: "Your Honour is known to have no predilection but many persons, not necessarily reasonable people, will draw the conclusion" etc. This very repetition gives the application a vexatious character. The phrase "not necessarily reasonable people" is taken from the judgment of Lord Esher in Eckersley v. Mersey Docks (20) (at p. 671). Later cases have criticized it not once as being too wide. If indeed the court were to take heed of the views of unreasonable people there would be no end to the matter. The criticism is collected in R. v. Camborne Justices (19) where the court preferred the formula of Blackburn J. in R. v. Rand (21) that the applicant must show "a real

possibility of bias", a test which this court adopted in Shimel (3) (at p. 462).

 

The sixth ground of applicant's counsel was as follows:

 

"Your Honour is known to have no predilection but it is also known that your Honour is a judge with orthodox religious views and must decide in this case whether in your opinion being educated in another religion is not detrimental to the children. Apparently many persons, not necessarily reasonable, would conclude that it is not proper for a Jewish orthodox judge to act in a matter involving the school of another religion and requiring him to decide whether being eucated in another religion might be detrimental to a Jewish child."

 

Any one reading these words literally cannot but understand that an attempt is being made here to disqualify a judge from sitting because of his personal outlook - in the instant case his orthodox religious outlook. Mr. Ben-Menashe made a great effort to persuade us that this was not the intention and finally waived this ground in its entirety. He would have done better had he not indited these tasteless words. I would have thought it unnecessary to explain that a judge may have his own personal outlook. Certainly he must guard against his beliefs and opinion about the condition of society under which he lives distorting his fidelity to the letter and spirit of the law. The judges of Israel are presumed to know how to fulfil this obligation of theirs. In no manner is room to be given to the notion that a litigant is only to be tried by a judge whose personal outlook meets with his approval. No legal system could operate on such terms.

 

            Among the five other grounds for disqualifying His Honour Judge Kister, Mr. Ben-Menashe mentions the judge's observations in an interlocutory decision, which according to counsel display preconceptions about the question the judge was to deal with. An interlocutory decision of 26 March 1963 refers to a submission by counsel for the children's parents, that the Attorney-General has no power to intervene with regard to the children's custody and therefore his application should be struck out. Counsel for the parents appeared only after the judge had already heard some of the witnesses. In the said decision the judge dealt at length with some of the general problems involved in the education of children in a religion not their parents' and with the operation of Christian missionary institutions in this country. In this regard he mentions also evidence previously given. The learned judge expressed inter alia a negative view on the free education given to children by missionary institutions. The judge treated as discreditable such material benefits to parents, and he also suggested - basing himself on the evidence of the welfare officer that the father had requested a sum of money for his consent to the children being withdrawn from the missionary institution- that the father might have received from that institution consideration in addition to being relieved of financial expenses. He also expressed his opinion that a religious community seeking to save the souls of members of another community must desist from all illegitimate means "such as deception and bribery and generally to avoid any suspicion of reprehensible activity". Of the father, the judge said that "if a person suggests bribery and is dazzled by it, he can slander all the education provided by the State".

 

            I do not think that all these remarks were necessary for the interlocutory decision on the submission in law of want of jurisdiction. I also doubt greatly whether there was even occasion in response to Mr. Ben-Menashe's concrete request for the observation that "indeed we perceive the corrupt source of the idea of disqualifying an orthodox Jewish judge in this country, the sullied well from which people who so desire draw their views". (What is meant here is Nazi thinking.) So general an observation, written it seems in an angry moment does not, however, give ground for any real fear that the learned judge would not know how to decide impartially between the parties in accordance with the law and the evidence adduced. As for the father "suggesting bribery", I understand that to refer to the benefit which the father obtained from the free education the children received in missionary institution. Although not happily phrased, these words are merely interpretative of what had been said in court down to that point. The judge observes a number of times in his decision that he was for the moment dealing with prima facie evidence and at p. 6 he says:

           

"After going into the question - of education in institutions where there are parents alive and of education in another religion and the influence on the child - in general and without making any finding of the facts in the present case at this stage so long as I have not heard all the evidence and the parties have not made their submissions regarding the circumstances of the case, I must turn to the legal aspect...."

 

These explicit remarks take the sting out of a number of the judge's observations and demonstrate that he approached the matter before him with the required caution and without preconceptions, as a judge should. There is accordingly no ground for Mr. Ben-Menashe's fear that his client will not enjoy a fair trial.

 

            In sum, the application before us was not properly made and for that reason must be dismissed. I would add that it also has no foundation on the merits.

           

WITKON J. With respect I agree to all that my honourable friend, Landau J., has said regarding the non-applicability of section 36 of the Courts Law, 1957, to a case such as the present but I disagree with his proposal to open the High Court of Justice to litigants who are dissatisfied with the refusal of a judge to disqualify himself.

 

            I do not dispute that the decision of a judge not to disqualify himself (and perhaps even his decision to disqualify himself) should properly be subject to review by another judicial body. Such review might well be left to a different court or to a different judge of the same court. What is important is that a judge should not be the final arbiter regarding his disqualification. But to bring the matter within section 7 of the Courts Law we must first determine that a judge's decision regarding his disqualification is an administrative and not a judicial decision. That is not free from doubt. The difference between a judicial and an administrative act is not firmly based and the boundary is a shifting one. In point of classification no absolute difference exists between an administrative act (when imposed on a judge) and a judicial act. We were exercised with this problem, inter alia, in Perah v. Attorney-General (7). There, a Magistrate decided that gold, in respect of which an offence was committed entailing expropriation, should be returned by the police to the true owner who was guiltless of the offence. The question was whether the decision made under section 388 of the Criminal Code Ordinance, 1936, was part of the sentence against which the Attorney-General might appeal or whether it was an administrative act in which only the High Court of Justice could intervene. The question was left open but I wish to say at once that there was no reason to have raised the problem had it not been clear that no appeal lies against a purely administrative decision.

 

            Deeper research was devoted by Berinson J. to the distinction between judicial and administrative acts in Kluger v. Inspector General of the Police (8). That case involved a search and seizure warrant issued in the course of criminal proceedings. The element common to this and the previous case is that in both the order affected a third person not party to the proceedings. Here the High Court of Justice intervened on the application of the third party. Berinson J. had the following to say about its power to do so:

           

"The question arises whether in issuing the search and seizure warrant the judge acted as a court or merely performed an administrative act even though it involved judicial discretion. It seems to me that basically the function was administrative, although not ... a function of executing a judgment like activating conditional imprisonment for instance. Here the judge is not activating another's decision but is deciding in his discretion and on the basis of prima facie evidence adduced to him that the statutory conditions for issuing a search and seizure warrant have been fulfilled. For all that, the issue of such a warrant is unlike a pure judicial act of a court. It can be issued before trial and even before any one is charged and there is no procedure for joining persons concerned in the matter or liable to be prejudiced by the warrant in the proceedings before the judge. Such a warrant may affect the interests of a bystander not directly connected with the matter itself in respect of which the search warrant is claimed and issued. Even when it is issued in the course and for the purpose of a criminal trial, it is still not an integral part of the trial but a side issue secondary thereto. A person prejudiced by it has no way to test its lawfulness or correctness in any court other than this Court which is thus competent to deal with the matter under section 7(a) of the Courts Law, 1957. The present case is closely, if not entirely, similar to Gilah v. Jerusalem Magistrate (9). Here as there the sitting judge held that the matter was within his competence whilst hearing another trial. Here as there the judge's decision was not open to appeal or other judicial review. Here as there the person who felt himself aggrieved by the decision was not a party to the trial within which it was given. Accordingly, here as there the applicants can ask for relief from this Court in pursuance of section 7(a) of the Courts Law" (at p. 1271).

 

In that case application was made for a Further Hearing - Societe des Ateliers etc. v. Kluger (10). Cohn J. summed up the law as follows:

 

"Within the framework of the relief mentioned in paragraph (3) of section 7(b) of the Courts Law, 1957, the High Court of Justice will not take cognizance of judicial decisions of District Courts or Magistrate's Courts, whether or not appeal against them is possible. It is otherwise within the framework of the relief mentioned in paragraph (1) or (2) of section 7(b) or within the wider framework of the relief under section 7(a). When performing an administrative act, a judge is also a state organ and in doing so exercises a lawful function. The rule that the High Court of Justice is competent to interfere with administrative acts even if done by a judge is nothing novel" (at p. 1540).

 

            There is no doubt that in the course of his ordinary work the judge makes decisions having an administrative character, the remedy against them lying with the High Court of Justice. But, as I have already said, a decision may frequently be of a mixed nature with features of both kinds. It can then be said that if the person aggrieved has a clear right of appeal, the indication is that the judicial aspect is decisive. On the other hand, lack of a right of appeal opens the path to the High Court of Justice for the aggrieved person. And where a right of appeal is available against a decision which as such and in what it involves is an administrative decision, the matter can only be resolved by converting the decision into a judicial one. Thus no clear distinction exists between the two.

           

            A judge's decision not to disqualify himself may, no one disputes, be challenged by the aggrieved person by appeal against the decision of the judge on its merits. I am alive to the fact (pointed out by my friend, Landau J.) that disqualification is only incidental to such an appeal and not in itself the subject of appeal. Nonetheless, in my opinion, it is sufficient that a judge's decision not to disqualify himself can be tested in the course of the appeal, even if only in this manner. The decision thus assumes the form of a judicial decision, and once again cannot be contested in the High Court of Justice. Obviously, I can also reach the same conclusion under the express rule in section 7(a) of the Courts Law that the High Court of Justice will not intervene in matters which are within the jurisdiction of any other court. I think that the existence of another remedy in the present case closes the path to the High Court of Justice completely.

 

            The rule is that the High Court of Justice does not order prohibition where the aggrieved person has a right of appeal against the decision likely to affect him. In my opinion, it is immaterial to the application of this rule whether the order is sought simply against a court or a particular judge of a court. As far as I know, prohibition has never issued in this country simply against a court when a right of appeal exists. An attempt at that in Kvutzat HaHugim Bet HaShitah v. Haifa Committee etc. (11) was unsuccessful. Although the Court did not utterly deny the "co­existence" of prohibition and appeal, it should be remembered (a) that a special tribunal was involved in that case, (b) that appeal against the tribunal's decision went only to the District Court and (c) that the Court considered the possibility of ordering prohibition in cases only of manifest want of jurisdiction. (See the precedents cited at pp. 125-28.) It is in this spirit - delimiting the ambit of the applicability of prohibition - that I understand the remarks of Agranat J. in Rubinski (5).

           

            Another attempt to obtain a High Court order against a District Court this time by mandamus requested by a third party in an "administrative" matter - failed in Israel Film Studios Ltd. v. Jerusalem District Court (12). Moreover in Kravchik v. Attorney-General (13) the High Court of Justice dismissed an application for an order against the Attorney-General to discontinue a criminal action (on the ground of autrefois acquit) on the ground that the applicant first had to address himself to the Attorney-General. Although the Court pointed out that because of that its intervention was premature, in a later case, Mahviti v. Attorney-General (14), it refused to intervene in a trial pending in the Magistrate's Court. The question whether prohibition can issue against the President of the Supreme Court was left open in Dvik v. President of the Supreme Court (15). Finally, I should mention Attorney-General v. Beersheba Traffic Judge (16) where the High Court of Justice made an order against a Traffic Judge to refrain from continuing to hear a case after the Attorney-General had ordered a stay; this case is different from the one before us since after a stay order the competence of a magistrate ceases entirely.

 

            Should it be urged that appeal is not a sufficiently effective remedy and therefore the matter merits the attention of the High Court of Justice, I would answer by way of preliminary that cases may occur where a party raises the question of the court's composition even before it has been determined by its President under sections 4(b) or 16(b) or by the Chief Magistrate under section 26 of the Courts Law: and it appears to me that the determination is an administrative act which the aggrieved party might well ask the High Court of Justice to review. After commencement of trial, however, a party unsuccessfully seeking the disqualification of a judge can only seek his remedy on appeal. I would say that on a balance of the instances and convenience that this is more effective and seemly than application to the High Court of Justice, even if in the meantime the party must bear with the judgment and wait for his remedy until the appeal reaches its turn. In practice, however, I see no reason for preventing an interim appeal (after leave) against a judge's decision not to disqualify himself. It is very true that this possibility exists only in civil cases as distinct from criminal. But this difference between the two kinds of trial obtains in any event and the discrimination affects every accused person raising a preliminary issue regarding the charge sheet or the jurisdiction of the court, since he cannot appeal against the decision of the court which dismisses his plea and must stand perhaps lengthy trial with all the distress and hardship that entails.

           

            Perhaps the most important consideration against transferring this jurisdiction to the High Court of Justice is that it is not at all a convenient forum for going into the problem. In this Court the judge becomes the respondent and if the petitioner has levelled against him an empty charge, is it not unbecoming for the judge to enter an affidavit in reply on which he may be examined? And what will happen if the other party concerned is not ready to support the judge's decision not to disqualify himself? Such problems and the like do not arise when the remedy is by way of appeal for then the judge has the opportunity to explain in his decision the position he has taken and the party may contest it and even contradict it by affidavit but cannot compel the judge to debate it with him. I therefore believe that to open the High Court of Justice to a party dissatisfied with a judge's decision not to disqualify himself is not only unnecessary for justice to be done but is also inconvenient and undesirable.

 

            Like my friend Landau J., I also wish to add a few observations on the merits of the case. I join in the view that there was no room for Judge Kister to disqualify himself from sitting in the case or even to ask him to disqualify himself. And I also find that the very request was in bad taste. Nevertheless I would like to explain why I think that the honourable judge was not disqualified. He himself reacted to the applicants' request in an exaggerated fashion and among his reasons for not disqualifying himself there were some that were irrelevant. Nobody argued that a Jewish judge, even an orthodox Jew, is incapable of dealing without preconceptions with matters affecting members of another religion. The argument was confined to the concrete case before the judge of a Jewish child whose parents had sent her to a Christian missionary school. In such a case, the applicants urged, an orthodox Jew has firm views of a wholly negative nature. Is that a reason for disqualifying an orthodox Jewish judge?

           

            In my opinion, it is not. The question whether the State should rightly and properly interfere with the decisions of parents to send their children to mission schools is debatable. On the one hand one need not be an orthodox Jew to regard such action with profound concern. Educationally it is certainly undersirable to create conflict in the minds of very young children and bring them up in a manner which ultimately will erect a barrier between them and the large public among whom they will be living. On the other hand one recoils from any interference in the freedom of parents to educate their children as they think fit; equally one must be careful not to prejudice freedom of religion and to avoid excessive interference by the state in the free competition of opinions and views in the religious and other spiritual fields. It is precisely the Jewish people largely living in the Diaspora which is sensitive to such interference. For the purpose of the present application we do not have to decide which of these two considerations (and perhaps others of the same kind) we should prefer. That is the task of the judge dealing with the case on its merits. Here we are only concerned with the question whether the judge is disqualified. To this end we must emphasise with the utmost clarity that a judge - be his personal outlook what it may - is presumed to know how to give all important considerations their full weight and importance. Such moderation is a characteristic of a judge qua judge. Hence it is wrong and truly prejudicial to the judiciary itself to request a judge to disqualify himself because of his "religious" or "non-religious" views (to use these unhappy terms) or because of his views in other areas. I am sorry that the present applicants could not understand that.

 

BERINSON J. I concur in the judgment of Witkon J. and have nothing to add.

 

AGRANAT D.P. I agree with the conclusions of my honourable friend, Landau J., that section 36 of the Courts Law does not bear the meaning that it is designed to accord a remedy to a party claiming the disqualification of a judge but only prescribes the manner of transferring a matter from one court to another in point of locality. Such conclusion is sufficient to defeat the application before us, but I must add that I also join in the view of my friend, denying the very argument of disqualification raised by applicants' counsel.

 

            On the important basic question over which my friends, Landau J. and Witkon J., are divided - whether the High Court of Justice should be open to a person who quarrels with a judge's decision regarding his personal disqualification to deal with a case - I side with Witkon J., that it is impossible to grant such person the relief provided for in section 7(b)(3) of the Courts Law. My reason for that is that such a decision - and here with all respect I disagree with the view of Landau J. - is of the kind that goes to the Court's jurisdiction to hear and decide a matter, civil or criminal, before it. I shall explain myself.

           

            "Jurisdiction" means the power of a tribunal to conduct a judicial hearing and to decide a matter pending before it; if conditions are set for the exercise of this power, then every decision as to whether these conditions have been met is a decision concerning the tribunal's jurisdiction to try the matter. In this regard, it is clear to me, there is no place for distinguishing between conditions precedent that affect the material and local jurisdiction of the tribunal asked to try a particular matter and conditions that affect the qualifications of the judge about to do so. If the judge concedes the argument of his disqualification, the decision means that the tribunal in the given composition is not competent to hear and decide the matter. If the argument is rejected, itmeans that the tribunal in the given composition is fully competent. Support for this view may be found in the observations of the Privy Council in Colonial Bank of Australasia v. Willan (22) at pp. 442-42:

 

"It is necessary to have a clear apprehension of what is meant by the term 'want of jurisdiction'. There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry... Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which ... are extrinsic to the adjudication impeached."

 

And at pp. 443-44:

 

            "In Reg. v. Cheltenham (23) ... the objection was that the Court which passed the order was improperly constituted, inasmuch as three of the magistrates who were interested took part in the decision. And Reg. v. Recorder (24) proceeds on the same ground... In cases which fall within the principles of the last-mentioned decisions the question is, whether the inferior Court had jurisdiction to enter upon the inquiry, and not whether there has been miscarriage in the course of the inquiry."

           

See to the same effect de Smith, Principles and Scope of Judicial Review, p. 67; Street and Griffith, Principles of Administrative Law (1952) p. 205; and D.M. Gordon in (1931) 47 L.Q.R. 407: "Jurisdiction must be complete before a tribunal can make any move at all... . It is simply a right to take cognizance."

 

            It follows that I am wholly at one with my friend when he says that a judge who rejects a plea that he is disqualified to try a matter "is (merely) expressing an opinion on the preliminary question of his personal qualification to sit in judgment" and therefore "no question arises here of the jurisdiction of the court as such." In my judgment when a judge dismisses such a plea it means that the court in its given composition is competent to deal with the case in hand just as in the reverse it is not. The legal position will not change if the judge against whom the plea of disqualification is directed is sitting in the company of other judges. I would agree with my friend that in this last event the responsibility of deciding on the plea of disqualification rests on the judge alone who is concerned and the others cannot participate therein or force upon him their view of the plea (see the remarks to this effect of Justice Jackson with regard to the practice in the Supreme Court of the U.S., with which Justice Frankfurter agreed, in Jewel Ridge Coal Corp. v. Local No. 6167, United Mine Workers of America (25)). But the decision of the judge to dismiss the plea will bind the entire court and by virtue thereof it will in its given constitution hold the trial; in the same way his decision to withdraw from the case will bind the entire court and it will be unable to sit until it is properly constituted in accordance with the law. In both instances the decision is determinative of the question about jurisdiction to hear and decide the particular matter. Moreover, if appeal is lodged against judgment as a result of one of the judges deciding to dismiss the plea of disqualification against him and the plea is accepted on appeal, the judgment will be set aside because it was given by a court not having jurisdiction by reason of its defective consititution.

 

            It follows from the foregoing that in view of the proviso in section 7(b)(3) - "other than courts dealt with by this Law" - the High Court of Justice cannot possibly intervene with a decision concerning the qualification of a judge to deal with a particular matter in reliance on the first part of the paragraph.

           

            Can the High Court of Justice interfere with such a decision in reliance on section 7(a) of the Law? A condition precedent to such interference is that the matter in which relief is sought does not lie in the jurisdiction of any other court or tribunal. Hence our general approach must be not to open the doors of the High Court of Justice to any one contesting a decision dismissing a plea of disqualification. In contemplation of the view that a plea of this kind is akin to a plea going to a court's jurisdiction to hear and decide a matter before it, the decision may be upset by appeal against the judgment given at the end of the trial. Furthermore, in a civil case, there is the remedy of asking for leave to appeal against the decision forthwith upon its being given, just as it is available against a decision rejecting a plea regarding want of jurisdiction as to subject matter or place. It can therefore be said that in civil matters the necessity will in general not arise of applying to the High Court of Justice, for no one disputes that the remedy of appeal against an interlocutory decision is speedy and effective.

 

            The remedy last-mentioned does not exist in criminal proceedings and I was therefore exercised by the question whether in respect of such proceedings an appeal against judgment should not be treated as an effective means for the accused who protests against rejection of a plea of disqualification he has raised. This plea is different from a plea of want of jurisdiction in that it concerns the judge personally and thus protest against its rejection should be better reviewed immediately by another judicial body totally unconnected with the plea, a course which would help to "clear the air" at the very outset of the criminal proceedings and strengthen the accused's and the public's feeling that the plea has been objectively treated in a manner befitting it. I am, however, of the opinion that this is the ideal situation and so long as the legislature has not prescribed such special procedure we must act on the presumption that it is satisfied with the remedy of appealing against the outcome of the criminal trial, just as it is satisfied with the same remedy with regard to other pleas of want of jurisdiction in criminal matters, in view of the policy of the legislature to avoid interlocutory appeals in such matters. That was the view of the Federal Court of Appeals in Korer v. Hoffman (26) where it refused an application for mandamus against a judge who refused to disqualify himself in a criminal trial before him.

           

"Counsel for petitioner urges that denial of the writ means that petitioner will be forced to continue under the stigma, stress and strain of an indictment, and subject to restriction under bail, until a later day when his case may be reached and tried. Meanwhile, he must pay heavily in time, effort and expense to prepare his case for trial and suffer the ignominies of a trial. This is an appealing argument to which I know of no good answer other than that it is made in the wrong forum."

 

To emphasize all this the court mentioned the following precedents:

 

            "In response to a similar contention, the Court in Gulf Research and Development Co. v. Leahy...(27] stated: 'The mere fact that the petitioners will be put to the inconvenience and expense of what may prove to be a wholly abortive trial is an argument which might be addressed to Congress in support of legislation authorizing interlocutory appeals but does not constitute ground for invoking mandamous power'... . In Roche v. Evaporated Milk Ass. (28) ... the Court stated: 'Where the appeal statutes establish the conditions of appellate review, an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions and thwart the Congressional policy against piecemeal appeals in criminal cases.' "

 

            Although this approach in general should also guide us in matters of the last kind, I must add that I do not exclude the possibility that in rare and exceptional circumstances - as where strong evidence is produced regarding the material interest of a judge in the outcome of a trial - the High Court of Justice will interfere at an early stage so as to grant relief against a decision rejecting a disqualification plea. (See the remarks of the court in Minnesota and Ontario Paper Co. v. Molyneaux (29) and the judgment in Lalo v. Sussman (17).)

           

            Such are my observations on the broad problem dealt with by my two friends, a problem which, as I have indicated, calls for legislative amendment as soon as may be. As regards the application before us I am of the opinion that it should be rejected.

           

COHN J. I am also at one with the view of my honourable friend, Landau J., that section 36 of the Courts Law does not apply to a transfer from one judge to another, as distinct from one court to another. For this reason alone the present application must be dismissed. I myself see no need to enter into the question of the right path a litigant should pursue when he wishes to disqualify a judge in a particular case. It seems to me that the matter is for the legislature to decide, and perhaps one may regret that it missed the opportunity to do so when dealing with the bill of the Courts Law.

 

            Since, however, my learned friends also saw fit to address themselves to the question of what is the proper procedure for disqualifying a judge, I will only say that my view is like that of Witkon J. and Agranat D.P. and for the reasons they have given, that the High Court of Justice is generally not competent in such matters.

 

 

            Application dismissed.

            Judgment given on June 30, 1964.

H.C.J  144/50

 

 

SHEIB

v.

MINISTER OF DEFENCE;

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

ASHER COHEN, PRINCIPAL OF THE REALI MONTEFIORE SCHOOL

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 8, 1951]

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

 

 

 

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

 

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

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

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

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

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

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

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

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

           

Israel cases referred to:

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

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

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

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

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

 

English case referred to:

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

 

Weinshall, for the petitioner.

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

 

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

 

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

 

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

           

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

 

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

           

 

STATE OF ISRAEL

Ministry of Education and Culture,

Jerusalem

Department of Education.

September 8, 1950

The Directorate of

the Montefiore School,

Tel Aviv.

 

Dear Sir

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

                                                                                   Yours faithfully,

                                                                                   (Sgd.)

                                                                                   Dr. M. Hendel

                                                                                   Inspector of

                                                                                   Secondary Schools."

           

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

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

           

STATE 0F ISRAEL

 

            Jerusalem, November 25, 1950

Dr. Israel Sheib,

124, Dizengoff Street,

Tel Aviv.

           

Dear Sir,

            Your letter of October 23, 1950.

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

           

                                                                                 Yours faithfully,

                                                                                 David Ben-Gurion

                                                                                 Minister of Defence."

           

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

           

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

 

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

           

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

           

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

           

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

 

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

 

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

           

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

 

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

 

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

 

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

 

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

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

(3)   the absence of an alternative remedy.

 

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

 

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

 

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

 

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

           

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

 

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

           

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

 

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

           

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

           

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

 

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

 

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

           

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

 

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

 

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

           

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

           

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

           

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Order nisi made absolute against the second respondent.

Judgment given on February 8, 1951.

            HCJ 153/87

         

LEAH SHAKDIEL

v.

MINISTER OF RELIGIOUS AFFAIRS ET AL

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[May 19, 1988]

Before Ben-Porat D.P., Elon J. and Barak J.

 

 

 

Editor's synopsis -

          The Jewish Religious Services Law provides for the establishment of local religious councils throughout the country, charged with the duty to provide Jewish religious services and to allocate public funds in support of such religious services, as are needed in the area. By Law, the membership of such councils is to reflect the general public desire and need for the distribution of such religious services in the locality and the range of interest in such services. In determining the Council's make-up, attention must be given to the different groups represented in the Local or Municipal Council and to their respective strength, but this factor is not conclusive. The members of the religious council are appointed by the Minister of Religious Affairs, the local Chief Rabbis and the Local Council, following a procedure whereby each of the above voices his opinion of the others' candidates. Disagreements between the parties concerning proposed members of the religious council are resolved by a ministerial committee comprised of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior.

         

          This case concerns the makeup of the religious council in Yerucham. The Petitioner is a religiously observant woman, who teaches Judaic subjects in the local school. She is a member of the Local Council, representing the National Religious Party, and was proposed by the Local Council to be a member of the Yerucham religious council. The local Rabbi opposed her inclusion on the religious council on the ground that she is a woman, that women have not hitherto served on religious councils and that her presence would impair the council's functioning.

         

          The Petitioner was not included among the members of the religious council. Her exclusion was explained by the ministerial committee as not based upon any principled objection to a woman serving on such a council but rather as grounded in a tradition that has developed since the establishment of the State, adhered to by all the concerned parties, that women would not be proposed as members of religious councils due to the close working relationship existing between such councils and the Rabbinate. It was also feared that the Petitioner's membership on the religious council in Yerucham would obstruct its proper functioning. The Petitioner contends that her disqualification is based on irrelevant grounds. Since the religious council is an administrative body, concerned with providing and funding religious services to the local community, and does not decide questions of religious Law, there is no reason to disqualify a woman from serving on it.

         

            The court issued an order nisi, directing the Respondents to show cause why the court should not direct that the Petitioner be included as a member of the Yerucham religious council. The Respondents appeared in opposition to the order nisi. In a decision rendered by Justice Elon, the court ordered that the rule be made absolute, holding:

           

1.      The ministerial committee, being a body that fulfills a public function under the Law, is subject to judicial review. As with all such public administrative bodies, it must exercise its discretion in good faith, honestly, rationally and without unlawful discrimination, and must make its decisions on the basis of relevant considerations.

 

2.      The Jewish religious services provided by the religious council are an integral part of the municipal services furnished in the locality and must be provided to all who request them, without regard to sex, ideology, education or any other distinction. Although such services are religious in character, the religious council is responsible only for their provision and is not concerned with the resolution of any questions concerning matters of religious Law. The qualifications for membership on the council are determined by the general legal system. Candidates for membership on the council need not meet such qualifications as are required by religious Law.

 

3.      The exclusion of the Petitioner from membership on the religious council because she is a woman is contrary to the fundamental principle of the Israeli legal system that forbids discrimination on grounds of gender. This principle finds expression in the Declaration of Independence and is one of the principles which has found its expression in the Women's Equal Rights Law, 5711-1951.

 

Justice Barak concurred in the result in a separate opinion.

 

Note - An especially interesting aspect of this case is Justice Elon's exhaustive review of Jewish religious legal literature (halakha) concerning women's qualifications to participate in public communal activities and to hold public office. Justice Elon points out that, even in earlier times, most Rabbinic scholars did not agree with Maimonides' opinion that disqualified women. In any event, he concludes, nowadays, it is the view of the overwhelming majority of Rabbinic authorities that women may so participate and may hold such public office.

 

Israel cases referred to:

[1] H. C. 44, 61/68, Rosh Ha'ayin Local Council v. Minister of interior; Sharf v. Minister of Religions 22P.D. (2)150.

[2] H.C. 191/64, Elbaz v. Minister of Religions 18P.D.(4)603.

[3] H.C. 680/81, Chairman of the Municipal Department of the Confederation of Agudat Yisrael in Israel v. Minister of Religious Affairs 37P.D. (1)709.

[4] H.C. 590/75, Barsimantov v. Minister of Religions 30P.D.(2)636.

[5] H.C. 287/76- unpublished.

[6] H.C. 223/76-unpublished.

[7] H.C. 568/76, Rabbi Harlap v. Ministerial Committee under the Jewish Religious Services Law 31P.D.(1)678.

[8] H.C. 516/75 Hupert v. Minister of Religions 30P.D.(2)490.

 

[9] H.C. 121/86 "Shas" Party Faction v. Minister of Religious Affairs 40P.D.(3)462.

[10] H.C. 392/72 Berger v. Haifa District Planning and Building Committee 27P.D.(2)764.

[11] C.A. 337/61, Lubinsky v. Tel-Aviv Tax Assessment Officer 16P.D.403.

[12] H.C. 202/57, Sidis v. President and Members of the Great Rabbinical Court 12P.D.1528.

[13] F.H. 10/69, Boronovsky v. Chief Rabbis of  lsrael 25P.D.(1)7.

[14] H.C. 148/79, Sa'ar v. Minister of interior and Police 34P.D.(2)169.

[15] P.P.A. 4/82 (M.A. 904/82), State of Israel v. Tamir  37P.D.(3)201.

[16] H.C. 114/86, Weil v. State of lsrael 41P.D.(3)477.

[17] S.T. 1/81 Nagar v. Nagar 38P.D.(1)365.

[18] E.A. 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset 19P.D.(3)365.

[19] H.C. 258, 282/64, Zilonilas Ya'ari v. Minister of Religions; Agudat Yisrael v. Minister of Religions 19P.D. (1)517.

[20] H.C. 241/60, Kardosh v. Registrar of Companies 15P.D.1151; S.J. vol. IV, 7.

[21] F.H. 16/61, Registrar of Companies v. Kardosh 16P.D.1209, S.J. vol. IV, 32.

[22] H.C. 73, 87/53, "Kol Ha'am" Company Ltd.; "EI Ittihad" Newspaper v. Minister of Interior, 7P.D.871; S.J. vol. I, 90.

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

[24] H.C. 163/57, Lubin v. Tel-Aviv-Jaffa Municipality 12P.D.1041.

[25] H.C. 44/86, Butchers Branch of Jerusalem District v. Jerusalem Chief Rabbinate Council  40P.D.(4)1.

[26] H.C. 195/64, Southern Company Ltd. v. Chief Rabbinate Council 18P.D.(2)324.

[27] H.C. 282/51, National Labour Federation v. Minister of Labour 6P.D.237.

[28] H.C. 507/79, Roundnaff (Koren) v. Hakim 36P.D.(2)757.

[29] H.C. 114/78 (Motion 451, 510/78), Burkan v. Minister of Finance 32P.D.(2)800.

[30] H.C. 98/69, Bergman v. Minister of Finance 23P.D.(1)693 S.J. vol. VIII, supra, p. 13.

[31] H.C. 507/81, M.K. Abu Hatzeira v. Attorney General 35P.D.(4)561.

 

Jewish law sources referred to:

            These references are not listed here, since they are given their full citation in the body of the case. On the Jewish law sources in general, see note under Abbreviations, supra, p. viii.

           

Y. Shofman for the Petitioner.

M. Mazoz, Deputy State Attorney, for Respondents Nos. 1-2.

 

JUDGMENT

 

            ELON J.: 1. Once again we are asked to scrutinize the composition of a religious council under the Jewish Religious Services Law (Consolidated Version), 5731-1971, this time the religious council of Yerucham. This court has already commented that "the ways of establishing a religious council ... are clearly very intricate and protracted ..." (H.C. 44, 61/88[1], at 154), as is evident from the numerous judgments delivered by us on the subject. In the instant case, the formation of the religious council was not only complicated and drawn out beyond the "ordinary" or "customary" measure, due to various reasons, but the matter also raises a question never before considered in the judgments of this court. The Petitioner challenges her disqualification as a member of the religious council, for the sole reason, she contends, that she is a woman. That is the heart of the petition, but before considering it we shall briefly examine the sequence of events in this matter, starting with two preliminary comments:

           

            a. The original petition was filed against the Minister of Religious Affairs (Respondent No. 1) and the Committee of Ministers under section 5 of the above-mentioned Law (Respondent No. 2), and in the course of its hearing two additional respondents were joined - the Yerucham Local Council (Respondent No. 3) and the Rabbi of Yerucham (Respondent No. 4);

           

            b. In the original petition, the Petitioner also questioned the delay of the first two Respondents in concluding the task of forming the religious council. In the course of hearing the petition the composition of the religious council was concluded, but the Petitioner was not included among its members. This left us only the first question to deal with, i. e. why the Petitioner was not included as a member of the religious council. We issued an order nisi as well as an interim interdict restraining the first two Respondents from giving notice in Reshumot* concerning the new composition of the Yerucham religious council (without inclusion of the Petitioner), until otherwise ruled by this court. We now propose so to rule .

           

            2. The Petitioner is a resident of Yerucham, an Orthodox Jewess, and a trained, experienced teacher of Judaic studies. She is a member of the Yerucham Local Council representing the Labour Party, and on January 26, 1986, the Local Council proposed her as one of the four candidates nominated on its behalf to the religious council.

           

            3. That election was preceded by several events which are relevant to our discussion here.

           

            The religious council of Yerucham is composed of nine members, like the number of the members of the Local Council (section 2 of the above-mentioned Law). It was first appointed in 1975. Notice of a newly composed religious council was published in Reshumot in 1981, which was invalidated, however, by judgment of this court (H.C. 513/81). The council appointed in 1975 thus resumed its functioning, but with only five remaining members out of nine; one had died, two had resigned and one had left Yerucham. The Minister of Religious Affairs approached the Local Council and the Yerucham rabbinate three times (once before the municipal elections on October 25, 1983, and twice thereafter) requesting them to propose their candidates for the religious council, as prescribed by section 3 of the Law, but to no avail, for reasons that were not entirely clarified. The Minister repeated his request for the fourth time in March 1985, and it was only on September 18, 1985 that he received a response from the secretary of the Local Council, who named four candidates on behalf of the Council, with the Petitioner excluded. It transpired that the list of candidates had apparently been compiled by the head of the Council, but was not confirmed by the Council itself. This need was indicated to the head of the Council, and he submitted the matter to the Local Council for resolution. On January 26, 1986 the Council discussed the matter and elected its candidates for the religious council, among them the Petitioner.

 

            Meanwhile, and before the said decision of the Local Council on January 26, 1986, the Shas party faction petitioned this court (H.C. 344/85) with respect to the reconstitution of 40 religious councils, including that in Yerucham. On November 10, 1985, judgment was given, by consent of the parties, to the effect that the case of each of these religious councils which the Minister of Religious Affairs failed to reconstitute within 90 days, should be referred to the Committee of Ministers under section 5 of the Law. On February 8, 1986, pursuant to that decision, the matter of the formation of 21 religious councils which the Minister of Religious Affairs was unable to reconstitute - including the religious council in Yerucham - was referred to the Ministerial Committee for determination.

           

            The Petitioner contends that the resolution of the Local Council of January 26, 1986, concerning its choice of candidates, was conveyed to the Minister on February 6, 1986 (that is, before the matter of the formation of the religious council was referred for determination to the Ministerial Committee). It is not clear from the evidence before us precisely when that resolution of the Local Council reached the attention of the Minister, but the point is not material since it is not disputed that the Petitioner was included in the list of candidates made known on January 26, 1986, as aforesaid. On March 23, 1986, the Petitioner, as one of the candidates nominated to represent the local authority on the religious council, wrote to the Minister inquiring as to the reason for the delay in the formation of the religious council in Yerucham. In a letter dated May 6, 1986, Mr. Marmorstein, head of the department for religious councils in the Ministry of Religious Affairs, informed the Petitioner that no notice whatever had yet been received by the Minister respecting any change in the Local Council's nominees for the religious council in relation to the list previously submitted. Mr. Marmorstein added the following comment:

 

            If we understand your letter correctly, it appears that you are one of the candidates. In this regard I can already inform you that the matter is not at all feasible; there are no female members on the religious council, only male members can serve on it, and I assume that you would not even want to create such a precedent.

           

            As to the substance of the matter, the letter continued, the formation of the religious council had been referred to the Committee of Ministers, pursuant to the above-mentioned decision of this court in the petition brought by the Shas party faction, and it was to be hoped that the Committee would conclude its task within a reasonable period of time.

           

            This hope was not fulfilled. In response to the above letter, the Petitioner wrote to the Prime Minister, who serves as chairman of the Committee of Ministers (section 5 of the Law), complaining strongly about the suggestion in Mr. Marmorstein's letter that she was unable to serve as a member of the religious council, and asking to speed up the formation of the religious council, with herself included as one of its members, representing the local authority. She also approached other persons, and the matter was even raised for discussion in the Knesset.

           

            In a letter written by Mr. Marmorstein to counsel for the Petitioner, dated October 28, 1986, he described the sequence of events in the composition of the Yerucham religious council. It was stated, among others, that since the decision of the Yerucham Local Council (concerning its candidates for the religious council) had been sent to the Minister on February 6, 1986, neither the formation of the religious council nor the joint opinion (required under section 4 of the Law) could have been prepared by February 8, 1986 (the date on which the matter of constituting the religious council was referred to the Committee of Ministers), "and unconnected with the petition of the Shas faction, the Committee of Ministers dealing with the composition of the religious councils was asked to handle Mrs. Leah Shakdiel's complaint following her approach to the Prime Minister".

           

            The Committee of Ministers did not consider the matter of the religious council in Yerucham. Meanwhile a new Minister of Religious Affairs was appointed and thereafter the composition of the Yerucham religious council was taken up by the various competent bodies. The new Minister asked for time to consider the matter, it was raised again in the Knesset plenum and Internal Affairs Committee, and resolutions were passed. The Minister of Religious Affairs met with the Petitioner, and assurances were given on his behalf that the matter would be arranged and settled (as to which more will be said below), but no solution was forthcoming. In these circumstances, the Petitioner filed her petition before this court, and on March 12, 1987, we issued an order nisi as mentioned at the outset of our judgment.

 

            4. Approximately one month after the order nisi was issued, the Committee of Ministers - composed of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior - began its discussions on the formation of the religious council in Yerucham. On April 21, 1987 the chairman of the Committee requested the three authorities whose nominees compose the religious council - that is, the Minister of Religious Affairs, the local authority and the local rabbinate (section 3 of the Law) - to propose their candidates. The Minister of Religious Affairs submitted his list of candidates in anticipation of a meeting scheduled for May 8, 1987. The meeting was postponed because the local rabbinate had not yet nominated its candidate, and this was done on May 29, 1987. On June 9, 1987 the Committee of Ministers held another meeting, and in view of changes in the list of candidates submitted by the Minister of Religious Affairs, another meeting was scheduled "to allow further consultation between all the parties". This meeting was set for August 5, 1987, but was postponed at the request of the head of the Local Council because, among other reasons, the Council was to discuss again its list of candidates on that same day. In mid-August a letter was received from the Local Council, in which it submitted its final list of candidates, this list including two changes, but the candidacy of the Petitioner remained unaffected. The Local Council also advised that it confirmed the candidates of the Minister of Religious Affairs and the candidate of the local rabbinate. The Committee of Ministers decided, at its meeting on August 28, 1987, to request the opinion of the Minister of Religious Affairs and that of the local rabbinate respecting the candidates of the local authority, as well as the opinion of the local rabbinate respecting the candidates of the Minister of Religious Affairs. On September 20, 1987 the Committee of Ministers received the opinion of the local rabbi, in which he expressed his opposition to the candidacy of the Petitioner (a matter I shall discuss further below). Thereafter the Committee of Ministers held three meetings - on September 30, 1987, October 26, 1987, and November 29, 1987 - at the conclusion of which it determined the composition of the religious council in Yerucham, excluding the Petitioner. The Committee's reasons were set forth in a decision given on November 29, 1987, to which we shall presently refer.

           

            5. We were asked to hold over the hearing of the petition until the Committee of Ministers completed its deliberations, which we agreed to do. In the meantime we decided to join the local authority and the local rabbinate as additional respondents to the petition, as already mentioned. We heard the petition on December 21, 1987, with counsel for all the parties present. On December 22, 1987 we decided to serve a copy of the material filed with the court on the representatives of the local authority who had been appointed members of the religious council by the decision of the Committee of Ministers, since it appeared that if we were to admit the petition and hold the exclusion of the Petitioner from the religious council to be unlawful, one of these four appointees to the religious council might be affected by having to vacate his seat in favour of the Petitioner. We also notified them that if they so wished they could submit their written reply to the petition and the material filed with the court within two weeks. All four representatives submitted their written replies, and the response of one of them is of particular interest here, as will be elaborated below.

 

            6. In the original petition, as already mentioned, the Petitioner complained of the delay in forming the religious council in Yerucham. Mr. Mazoz, learned counsel for Respondents nos. 1 and 2, concedes that the delay was unreasonable, but contends that it was largely attributable to the other two Respondents because they were dilatory in complying with the Minister's request to submit their candidates for the religious council. We have already described the sequence of events and there is indeed no doubt that the inaction of the local authority and the local rabbinate contributed significantly to dragging out the matter. It also appears, however, that both the Minister and the Committee of Ministers were tardy, beyond any substantive justification, in forming the religious council, even after the list of the candidates of the local authority had been submitted, and especially after the beginning of February 1986, when the Committee of Ministers was charged with the task by this court. There can be no justification for the lapse of almost two years until the formation of the Yerucham religious council, even if we take into consideration the workload of the Committee of Ministers in forming religious councils elsewhere too. For fourteen months, from February 1986 until April 1987, the Committee did nothing towards forming the Yerucham religious council, until the lodging of the instant petition. We have listed these details so as to bring the matter to the attention of the competent bodies. Now that the task of composing the Yerucham religious council has been concluded, there is no further need for us to deal with the Petitioner's complaint about the delay.

           

            7. In his summary of arguments, Mr. Mazoz raised a preliminary plea as to the Petitioner's lack of standing before this court, contending thus: Since the period within which the local authority and the local rabbinate were required to propose their candidates for the religious council had expired (according to section 3 of the Law), their right to appoint representatives to the religious council had lapsed and that right passed to the Minister; however, as a result of the Minister's delay in forming the religious council, this court ruled (in H.C. 344/85) that the composition of the Yerucham religious council was to be effected within ninety days, or the matter would be referred to the Committee of Ministers under section 5. The effect of all this, according to Mr. Mazoz, is that because the lists of candidates were not submitted in time by the authorities mentioned in section 3 of the Law, and the entire matter was referred to the Committee of Ministers, there wasn't before the Committee any duly proposed list of candidates whatever, so that it was free to determine the composition of the religious council without being bound by any proposed list of candidates. Indeed, this was expressly stated in paragraphs A and B of the decision of the Committee of Ministers given on November 29, 1987, with respect to the local authority's nominated candidates. Hence, continues Mr. Mazoz, "in these circumstances the Petitioner lacks legal standing, procedural and substantive alike, as regards both the proceedings and the decision of the Committee of Ministers"; and in any event, according to section 5 of the Law, only the three authorities that compose the religious council have standing before the Committee of Ministers -"and the Petitioner does not have any preferred right or standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council". It follows that "the Committee of Ministers did not disqualify the candidacy of someone (the Petitioner) who had been lawfully proposed by the competent body, but decided not to appoint someone whose candidacy was put forward by a body (the local authority) which lacked the legal competence to make appointments at that stage, when that candidacy was also opposed by another body (the local rabbinate) of equal standing (to the local authority)".

 

            8. This argument, for all its subtlety, has no foundation whatever, either in fact or in logic, and Mr. Mazoz wisely did not press it before us.

           

            The religious council is composed of representatives of three bodies - the local authority (45%), the Minister of Religious Affairs (45%) and the local rabbinate (10%), each body proposing its own candidates (section 3 of the Law). The legislature considered this to be the desirable balance for the religious council, which provides local Jewish religious services and which is not elected by the residents in general elections. The three authorities express their opinion concerning all the proposed candidates - "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and the communities interested in the maintenance of Jewish religious services ... in the locality" (section 4 of the Law). We shall refer below to the qualifications required of the candidates. Where the local authority or the local rabbinate fail to respond to the Minister's request to list their candidates, the Minister may propose those candidates in their stead (section 3(b)), and in the event of any disagreement between the three authorities, the matter is referred to the Committee of Ministers for determination, against which decision the Minister may appeal to the Government (section 5 of the Law). The function of reconstituting the religious council and giving notice of its new composition is imposed on the Minister, as specified in section 6 of the Law.

           

            The Committee of Ministers accordingly does not act in a "vacuum", and it too is bound to adhere to the structure and balance statutorily prescribed for constitution of the religious council, including the role of the three authorities. The function of the Committee of Ministers is to consider differences disclosed between the three authorities and to settle them. In other words, it must receive and study the lists of candidates proposed by each of the three authorities, hear their respective opinions on them, all as specified in the Law, and settle the disagreements that arise among them. The Committee of Ministers so acted, precisely and rightly, in the instant case. At its first meeting, on May 8, 1987, there were present, in addition to the members of the Committee representing the Prime Minister, the Minister of the Interior and the Minister of Religious Affairs, that is, the directors-general of their respective ministries, also the rabbi of Yerucham, the head of the Local Council and a senior adviser to the Minister of Religious Affairs on matters of religious councils (as well as the legal adviser to the Office of the Prime Minister). The chairman of the Committee asked the representatives of the three authorities to submit their nominees for the religious council. The head of the Local Council named the four representatives chosen by that body - including the Petitioner. The representative of the Minister of Religious Affairs also named four candidates, and added that there might be changes after consultation with all the proposed candidates, so as to give proper representation to all the bodies and communities. The local rabbi said that he would submit the name of his candidate within two weeks, after considering the names of the candidates on behalf of the local authority and the Minister of Religious Affairs. At the end of the meeting the chairman of the Committee asked the parties to consult among themselves so as to reach agreement on all the candidates. At the meeting of the Committee on June 9, 1987, the representative of the local rabbinate was named, and the representation of the Shas faction on the religious council was discussed, whilst the representatives of the Minister of Religious Affairs and the Local Council asked for another opportunity to study their lists of candidates. On August 6, 1987 the Local Council announced its final list of candidates, which again included the Petitioner, and the local rabbi was again asked his opinion concerning the list of the representatives proposed by the Local Council and by the Minister of Religious Affairs, respectively. The Committee of Ministers thus acted correctly and in accordance with the provisions of the statute and its purpose, when it called upon the three authorities for their lists of candidates and for their opinions respecting all the candidates listed as proposed members of the religious council. In this context the Petitioner's candidacy was repeatedly put forward by the Local Council to the Committee, and despite changes from list to list of the candidates proposed by the Local Council at different times, the Petitioner's candidacy remained unaffected. The Committee of Ministers decided to reject her candidacy and she was excluded from membership of the religious council for reasons that we shall refer to below. How then can it be argued that the Petitioner has no locus standi before us to complain about the wrong done to her, about the violation of her right to be numbered among the members of the religious council? One of the authorities appointed under the Law to propose candidates for the religious council, indeed the most important of the three, in fact proposed the Petitioner's candidacy, while she now claims that she was unlawfully disqualified. How can it be said that "the Petitioner does not have any preferred standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council"?

 

            No less unfounded is Mr. Mazoz's argument that the Committee of Ministers did not disqualify the candidacy of the Petitioner, but merely decided not to appoint a person whose candidacy was proposed by a body (i.e. the local authority) that had no legal competence to make appointments at the time. As already mentioned, the local authority is a body that seeks to propose its candidates for the religious council (also in relation to the Committee of Ministers), and the rejection of any of its proposed candidates amounts to disqualification of that candidate. If that candidate considers the disqualification to be unlawful, as does the Petitioner here, the doors of this court are open to her and we are ready to hear and consider her petition, like any other petition brought against a governmental body that is claimed to have based its decision on unlawful or extraneous considerations. It is true that the parties to the formation of the religious council are the three authorities specified under section 3 of the Law, and not the proposed candidates. Likewise, the party to an appeal before the Government against a decision of the Committee of Ministers, is a Minister and not the person disqualified by the Committee of Ministers. But any person who has a legitimate interest in the composition of the religious council may petition this court, even if not representing one of the three aforementioned authorities (see H.C. 191/64[2] at 610; H.C. 680/81[3] at 713). Certainly this applies to a person who was a candidate to represent one of the authorities that constitute the religious council and whose candidacy was disqualified.

           

            9. We thus arrive at the essence of the petition: the complaint against the decision of the Committee of Ministers of November 29, 1987 to fix the composition of the religious council in Yerucham without including the Petitioner among its members, despite her nomination as a candidate on behalf of the local authority. Mr. Shofman, learned counsel for the Petitioner, claims that the decision of the Committee of Ministers is invalid, because it disqualified the Petitioner from serving on the religious council on the basis of the unlawful consideration that the Petitioner is a woman; that this amounted to discrimination on grounds of sex which is contrary to law and neither permitted nor justified, also not for purposes of membership of a religious council. All the considerations mentioned in the decision of the Committee of Ministers, the Petitioner contends, are incorrect, unlawful or irrelevant. Mr. Mazoz, on behalf of the Respondents, replies that the exclusion of the Petitioner from membership of the religious council did not stem from any principled objection because she was a woman, but was rooted in the special circumstances of the formation of the religious council in Yerucham, namely: the objection of the local rabbi and the Minister of Religious Affairs to the candidacy of the Petitioner because she was unfit for the office, and the fear that the Yerucham religious council would not function properly, and its regular activity would be stymied, if the Petitioner served as one of its members. Mr. Mazoz argued further that the Committee also took into account the nature of the activity of a religious council, which deals with matters of clear religious-halakhic concern, and the tradition in Israel is that women do not serve as members of religious councils. These are material considerations, according to Mr. Mazoz, and the court should not intervene in a decision based on them.

 

            10. The main points of the argument presented by Mr. Mazoz are detailed in the above-mentioned decision of the Committee of Ministers, and we shall now examine them. It is not disputed that the Committee of Ministers, as a statutory body carrying out public functions, is subject to judicial review by the High Court of Justice (section 15 of Basic Law : Judicature), and like any other public administrative body it must exercise its discretion in good faith, with integrity, without arbitrariness or unjust discrimination, and it must reach its decision on the basis of material considerations. As regards the extent of the intervention by this court, it has already ruled that the discretion is the Minister's, and so long as it is not shown that his considerations lacked foundation or that he exercised his powers unreasonably, the court will not intervene in his actions (H.C. 590/75[4] at 640; H.C. 287/76[5]). So too it has been held (per Landau J., in H.C. 223/76[6]) that

           

            the discretion is vested in the Minister of Religions and where there are no clear and persuasive grounds to contradict the opinion of the person entrusted with the discretion, this court will not intervene in the matter.

           

            These statements are as pertinent to the discretion of the Committee of Ministers in settling the composition of the religious council under section 5 of the Law, as they are pertinent to the discretion of the Minister of Religious Affairs in discharging his own function. Thus it was held in H.C. 568/76[7] at 679-680:

           

            ...The matter of the fitness of the candidates lies initially within the discretion of the three bodies that compose the religious council, and if there are any reservations about the fitness of a given candidate, the matter is entrusted to the discretion of the above mentioned Committee of Ministers. This court does not usually interfere with administrative discretion, even in relation to the election of candidates to a representative body, unless it appears that the act was lacking in good faith or done out of improper motives, or on similar grounds for disqualifying an administrative act.

 

            With these rules in mind we shall now examine the decision of the Committee of Ministers (R/15). After noting that this court (in H.C. 344/85) had referred to it the matter of composing the religious council in Yerucham, the Committee goes on to state (in paragraph B) -

           

...the local authority and the local rabbinate did not propose their candidates for the religious council within the statutory period of time; when the local authority first presented its list of candidates, more than two years late, it did not include Mrs. Shakdiel among them. After that the list of candidates of the local authority was changed twice. In light thereof, the Committee considers, from both the legal and the public interest aspects, that it is not bound to accept the recommendations of the local authority, but must rather consider each proposed candidate individually after consulting with the bodies concerned.

 

            We do not accept this determination. The function of the Committee is to settle disagreements that arise between the different authorities, and the fact that these were late in presenting their candidates, or that one of them changed its list of candidates does not allow the Committee of Ministers to ignore the existence of a particular candidate or to reject his candidacy, unless there is a disagreement with respect to that candidate. In that case the Committee must resolve the matter (as indeed it did with respect to the candidacy of the Petitioner), but it may not refuse to accept a candidate agreed upon by all the bodies that compose the religious council, or rest content with mere consultation between them.

           

            11. The Committee further clarified that it had asked each of the three authorities to propose its candidates as well as give its opinion on the candidates in general. In doing so, the Committee acted correctly. The Committee notes that differences of opinion arose in relation to two matters: the absence of representation for the Bnei Torah community, and the inclusion of the Petitioner in the local authority's list. With regard to the first matter the Committee decided by a majority opinion that this community was adequately represented in the overall appointments to the religious council. As to the nomination of the Petitioner, the Committee gave its decision in these terms:

           

            E. The local rabbi, who was asked by the Committee of Ministers for his opinion of the candidates, objected to the candidacy of Mrs. Shakdiel, for reasons of her unsuitability and the proper functioning of the religious council. It became clear to the Committee that the attitude of the local rabbinate, and in fact also that of the chief rabbinate, is that even if the religious council is in theory an administrative body, it acts in practice as a body that ministers to matters of religious principle touching upon classic halakhic issues, and as such serves as a meeting place for the rabbis of the town and the neighbourhood as well as the scholars of the region. The religious council deals with both the administrative aspect of marriage registration and the halakhic aspect of the fitness of the registration; it deals with the building of ritual baths, but also with the determination of their fitness; it supervises the kashrut or fitness of foods, including the slaughter of animals, the setting aside of contributions and tithes and the problems of the shemitta [sabbatical] year with its related laws; it also deals with burial services and a long list of religious matters, among them the local rabbinate and other religious-halakhic concerns.

 

F. The representative of the Minister of Religious Affairs pointed out that in the forty years of the State's existence it became an accepted tradition among all the agencies concerned that the religious council should be a body with strong ties to the rabbinate and the halakha that guides it; hence an understanding evolved that women would not be nominated for membership in this body. He advised that the matter had meanwhile become the subject of public debate, amidst calls for change, various proposals being raised and examined from a broad perspective with a view to appropriate arrangements for promoting understanding and dialogue, along with respect for the view of the Israeli rabbinate. In the circumstances, the representative of the Minister of Religious Affairs asked us not to consider him to have taken any principled position on the issue, and to confine the issue to the case in Yerucham alone.

 

G. Having regard to the objection of the local rabbi to Mrs. Shakdiel's candidacy, and his reasons, and considering her views and position on the subject of religion and state, as publicized by her in the communications media, the Minister's representative was convinced that her appointment would disrupt and impair the functioning of the religious council in Yerucham. There is a reasonable fear that her appointment will lead to a complete break in relations between the religious council and the local rabbi, stir sharp dispute within the religious leadership in Yerucham, and thus prejudice the proper, orderly and regular functioning of the religious council.

 

H. The Committee agrees that this matter should not be decided on grounds of general principle and that it should address only the specific problem of the Yerucham religious council. From this point of view, the Committee is of the opinion that the arguments of the representative of the Minister of Religious Affairs should be accepted, in the hope that the question of principle will be decided in the near future from a broad and general perspective.

 

I. For the above reasons, and having considered the need for the appropriate representation of all sectors of the local population, the Committee has decided to determine the composition of the religious council of Yerucham as follows: [Here the Committee lists the names of the nine appointees, with the Petitioner's name omitted - Ed.]

 

We shall examine these reasons seriatim:

 

            12. The objection of the local rabbi, R. David Malul, is found in a letter written by him to the Committee (R/14), in which he expressed his opinion of the nominees for the religious council in these terms:

           

I have received the list of candidates for the Yerucham religious council. As a rabbi who has known the entire community in all its diversity for many years, candidate Mrs. Leah Shakdiel also being known to me, I have reached the conclusion that she is unsuited to serve as a member of the Yerucham religious council. It is feared that her membership will disrupt the orderly course of activity of the religious council. Furthermore, she is not properly representative of the public which is interested in the maintenance of religous services in Yerucham. I therefore ask the local council to appoint another representative in her stead, in accordance with section 4 of the Jewish Religious Services Law.

 

            Section 4 of the Law, under which Rabbi Malul's opinion was given, provides that

           

the three authorities referred to in section 3 shall express their opinion of the candidates with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities interested in the maintenance of the Jewish religious services (hereinafter referred to as "religious services") in the locality.

 

            The opinion follows the terminology of section 4, and the section is expressly mentioned in its conclusion. The opinion is not, therefore, a halakhic ruling (even were there place for such a ruling with regard to the composition of a religious council), and Rabbi Malul did not purport to act in discharge of a halakhic function. The opinion was given within the frame and under the provisions of the Jewish Religious Services (Consolidated Version) Law, and it is, therefore, subject to scrutiny and review by this court. All the more so once the Committee of Ministers adopted that opinion as one of its reasons for deciding to exclude the Petitioner from membership in the Yerucham religious council .

 

            13. Rabbi Malul did not specify why the Petitioner is not fit to serve as a member of the Yerucham religious council. In fact, his opinion merely reproduces the text of section 4 of the Law. Nor does the decision of the Committee of Ministers offer any explanation of the alleged unfitness.

           

            The functions of the religious council and the qualifications required of its members have been discussed several times in the judgments of this court. Section 7 of the Law, concerning the powers of the religious council, provides:

           

A council is competent to deal with the provision of religious services and for that purpose it may enter into contracts, hold property on hire or lease and acquire immovable property, all in accordance with the items of its approved budget.

 

            The functions of the council accordingly embrace the provision of Jewish religious services. Thus in H.C. 516/75[8], Shamgar P. said as follows:

           

The powers of the council are prescribed in section 7 of the Law, under which it is competent to deal with "the provision of religious services". The Law does not clarify the meaning of "religious services", but the current nature of these services may be deduced, among others, from the regulations concerning submission and approval of the religious council's budget. The schedule to the Jewish Religious Services Budget Regulations, 5728-1968 (K.T. 2177, 1968, 760) lists the religious council's main fields of activity covered by the budget, namely: rabbinate and marriage, kashrut and ritual slaughter, family purity [ritual], burial services, the Sabbath and eruvin and religious cultural activities.

 

And further on, per Shershevsky J., at page 503:

 

...The Law does not speak about religious services in general but about Jewish religious services, that is, about the religious services that are known to be specially and specifically for Jews. What these religious services are, can be learned, inter alia - as my esteemed colleague Shamgar J. has shown - from those listed in the schedule to the Jewish Religious Services Budget Regulations, 5728-1968. These religious services are not a matter of personal outlook, so that their substance can change from time to time according to the subjective view of whoever considers himself competent to express his own so called Jewish outlook, but are matters objectively governed by Jewish law and custom from time immemorial, as such known to be specifically Jewish and distinct from any other religion.

 

            We are thus dealing with known and customary religious services. The religious council is charged with making appropriate budgetary provision for these services (see section 14 of the Law), and is accordingly vested with the requisite powers to discharge its legal functions (section 7 of the Law). The religious services provided by the religious council constitute a substantial part of the municipal facilities in the locality (H.C. 121/86[9], at 466), and it must provide them on call, regardless of sex, worldview, education or any other distinction. The religious council is, therefore, an administrative body created by statute, whose function it is to maintain Jewish religious services and to have an interest in their maintenance, and to assist the local residents in receiving the religious services that they require and wish to have.

           

            To sum up, the services provided by the religious council are of a religious character, but the council is responsible only for their provision and not for making any kind of halakhic decision with respect to them. The latter decisions are entrusted to a body that enjoys the requisite halakhic authority and competence (see the Chief Rabbinate of Israel Law, 5740-1980, section 2, subsections 1, 3, 5, 6, section 5, etc.).

           

            14. The character and functional purpose of a religious council, as outlined in section 4 of the Law, determine also the qualifications required of its aspirant members:

           

Every candidate must have two attributes: personal, that he is a religious person or at least not anti-religious; and public, that he represents a body or community with a religious interest.

(H.C. 191/64[2], at 610.)

 

It is likewise the rule that the interested bodies and communities

 

...be not merely indifferent in the sense they do not care if they [the religious services - M.E.] are provided or not, but must in fact show a positive interest in their existence and that they would be disturbed by the absence of such services.

(H.C. 516/75[8], at 503-504.)

 

            These statements are pertinent both to the bodies represented by the candidates and to the candidates themselves. Candidates for membership of the religious council are not required to have recognized qualifications set by the halakha (see H.C. 568/76[7], at 679-680), as might have been justified were the religious council vested with the power or function of halakhic determination or decision. So indeed has it been contended by the Petitioner (section 36(b) of the petition). Mr. Shofman added in his oral argument before us that if a religious council decided matters of halakha, the Petitioner would not have pressed her petition .

           

            15. We must now examine the Petitioner's alleged unfitness to serve as a member of the religious council in Yerucham, and for what reason she is not properly representative of the public interested in the maintenance of local religious services. It appears from the material before us, and the point is not contested, that the Petitioner is religiously observant, a trained and experienced teacher of Judaic subjects, and that she dedicates her time - in addition to managing her home and raising her four children - to educational affairs in her place of residence. Do these excellent and special qualities not qualify the Petitioner to serve as a member of the Yerucham religious council? The Petitioner states in her petition as follows (paragraph 47):

           

One of the new institutions in the state is the religious council, an institution of great importance in fashioning religious life at the local level. The Petitioner did not confine her candidacy to representing only the women of Yerucham on the religious council. She can certainly bring to bear a new and formerly unrepresented perspective to the council meetings. But as a resident of the locality who is interested in the maintenance of religious services, and as an elected representative of the public, she considers herself a full participant in public activity, and wishes to serve on the religious council as a full partner to decisions in all matters falling within the competence of the council.

 

            These statements are true and sincere, unchallenged by any of the litigants and acceptable to us. Male members of the religious council have never been required to show knowledge of the Torah, scholarship, or strict observance of all the commandments, and never have we heard that the lack of any of these - or even all of them together - should disqualify a man from serving on a religious council. Is it because the Petitioner is blessed with all these virtues that her competence shall be diminished, and she be deprived of her right to serve on the Yerucham religious council? It is clear beyond doubt that the Petitioner is interested in the availability of religious services as defined in the Law, and in the regulations and case law, as already outlined; moreover, that she wishes to devote her time, energy and talent to that end. How can she be regarded as unfit to serve in this capacity and to represent the residents of Yerucham?

 

            Hardly surprising, therefore, is the Petitioner's grave suspicion that the only possible explanation for her "unfitness" to serve as a member of the religious council is the fact that she is a woman, and nothing else. This suspicion is well-founded, since that very explanation was expressly proferred by the competent parties concerned (see the above-mentioned letter of the head of the department for religious councils, of May 6, 1986), and we shall further elaborate the point below.

           

            16. It was also explained, in paragraph E. of the decision of the Committee of Ministers, that even if the religious council is an administrative body in theory, it is in actual practice a body that deals with matters of religious principle, affecting classic halakhic issues. This explanation is unclear and hard to comprehend. The religious council indeed deals with matters of religious principle affecting classic halakhic issues; but does this preclude the Petitioner from contributing to this great and important task her own experience and wisdom? The elaboration of this explanation (ibid, par. E) - that the religious council also deals with the halakhic aspect of kashrut, marriage registration, ritual baths and similar basic questions of halakha - is most perplexing. These are, after all, clearly matters for religious scholars and halakhic decision. Given the usual composition of many of the religious councils throughout the country, are their members, though male, competent and qualified to decide such matters? We have never heard that expertise in the laws of ritual baths and kashrut is a condition for membership of a religious council. Likewise as regards the competence and qualifications of most members of the religious councils to make decisions concerning the setting aside of tithes, the problems of the shemitta [sabbatical] year, and other matters of the kind referred to in the decision of the Committee of Ministers. Mr. Mazoz did not know, understandably so, how to defend this reasoning of the Committee of Ministers, and, with all due respect, better it had been left unuttered. If that reasoning holds good, and that were indeed the situation, then the incumbent members of most of the religious councils in the country should immediately be unseated to make way for religious scholars, knowledgeable in law and rite and familiar with the Talmudic sources.

           

            17. The decision of the Committee of Ministers further states that it accepted the apprehension of the representative of the Minister of Religious Affairs, who was convinced that the Petitioner's appointment "would disrupt and impair the functioning of the religious council in Yerucham", and that there was reasonable ground to fear "a complete break in relations between the religious council and the local rabbi and this would stir sharp dispute within the religious leadership in Yerucham". The reason for this grim forecast was the objection of the local rabbi to the Petitioner's appointment "in light of her views and position on the subject of religion and state, as publicized by her in the media". The representative of the Minister explained that it has been the tradition for forty years, ever since the establishment of the State - because of the strong ties between the rabbinate and the religious council - that women do not serve on this body. Also that for some time now calls have been made for reform and that the matter is under consideration, hence - so it is stated in the decision of the Committee of Ministers - the present decision in the matter of the Petitioner's exclusion from the religious council, should not address general principle but confine itself specifically to the composition of the Yerucham religious council.

 

            18. These apprehensions, some of them convincing to the Minister's representative and the Committee and some of them seemingly reasonable, must be seriously considered and carefully examined. Before doing so we must comment that we find one of the disqualificatory grounds mentioned in the above extract from the decision of the Committee of Ministers, very strange, to say the least. What are those views and perspectives of the Petitioner on matters of religion and state, said to have been publicized by her in the media, which generated the fear of all the anticipated mishaps? In all the abundant material before us we found no mention of these views, no one bothered to explain to the Petitioner and her counsel what was at stake, and certainly no one asked the Petitioner any question about the matter. Even counsel for the state was unable to enlighten the court in this regard. Since we do not know the particulars, it is unnecessary to ask since when do one's views and attitudes on the relationship between state and religion disqualify him from membership of a religious council. We take a grave view of the inclusion of this passage in the decision of the Committee of Ministers, without even bothering to explain the matter. This not only does injustice to the subject, but also injury to the Petitioner, and the controversial statement should never have been made. We return to discuss the fear that the proper functioning of the religious council might be impaired, along with the relations within the local religious leadership.

           

            19. It accordingly seems clear that the above-mentioned fears stemmed from the proposal to include a woman among the members of the religious council. We find no other factor to justify these fears, considering the Petitioner's personality, her way of life and the many virtues with which she has been endowed. One may assume that the Petitioner's gender was the underlying reason for the local rabbi's objection, even if he refrained from so intimating. On the other hand, this ground is perhaps more than hinted at in the reasons given by the representative of the Minister of Religious Affairs, and by the Committee of Ministers, for accepting the contentions of the local rabbi. These reasons refer to a tradition that would exclude women from religious councils, and it is added that the matter is being studied following various calls for reform; also that meanwhile the Petitioner's case was not decided on "principle", the decision affecting only the Yerucham religious council. This is mere semantics without real substance. Since we have found no justification for the Petitioner's disqualification from service on the religious council of Yerucham other than the solitary contention concerning her gender, the decision of the Committee of Ministers to disqualify the Petitioner was necessarily one of principle. In matters such as these it is not the phraseology that counts, nor is the nomenclature assigned by the Committee of Ministers decisive, only the substantive content-which here is clear from the circumstances (see H.C. 392/72[10], at 773). Several events that preceded the decision of the Committee of Ministers further support the conclusion that the Petitioner's gender was the reason for her exclusion from the religious council, as we shall presently see.

 

            20. We have said that a religious council established in accordance with the Jewish Religious Services (Consolidated Version) Law is an administrative body, the composition of which is subject to the pertinent statute and case law (see, in particular, H.C. 568/76[7]). Hence the exclusion of a female candidate from appointment to a religious council, because she is a woman, clearly contradicts a fundamental principle of Israeli law which prohibits discrimination on grounds of gender. This fundamental principle was laid down in the Declaration of Independence, and is among those that have gone beyond recognition in the case law to become enshrined in legislation. I am referring to the Women's Equal Rights Law, 5711-1951, section 1 of which reads as follows:

           

            The law shall apply equally to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act. against a woman as woman, shall be of no effect. *

           

            The Law provides further that it shall not "affect any legal prohibition or permission relating to marriage or divorce" (section 5). Also that it "shall not derogate from any provision of law protecting women as women" (section 6, to which we shall presently refer).

           

            It has been ruled that the Women's Equal Rights Law has the same status as an ordinary statute, with no special standing in the technical sense, so that it can be repealed or amended by an ordinary legislative act of the Knesset (C.A. 337/ 61[11], at 408-409). Nevertheless, by substance and character -

 

            ...This Law is not like any other ordinary Law! We are looking at an ideological, revolutionary Law that changes the social order; its name and its first "programmatic" section indicate that - except for the reservation in section 5 - the Law sought to uproot any matter in which women suffer a legal disadvantage under existing law...

(Per Silberg J., H.C. 202/57[12], at 1537.)

 

            The Women's Equal Rights Law has been given a broad interpretation, in light of its substance, and the words "legal act" in its first section are intended to refer to any legal act affecting a woman, whether she is the subject of the act or its object. The Law guarantees women

           

... equal status before the law not only in terms of competence with regard to an "act", in the narrow sense of the word, but in all legal respects.

(C.A. 337/61[11], at 406, per Witkon J.)

 

            As aforesaid, there may be situations where the principle of equality between the sexes will not apply, for instance, in matters of prohibition and permission relating to marriage and divorce, or where the purpose of the statute is to protect women as women. In the words of Witkon J. (ibid. [11], at 407):

           

            When we seek to examine the meaning of this provision in light of the provision of section 1 of the Women's Equal Rights Law, we must emphasise the word discriminate. Discrimination - as this court has often stated - does not mean every difference or distinction in the law or in its application to different persons, but only a difference that is based on irrelevant distinctions. "The essence of discrimination is that it distinguishes between different people just because they are different, even though the difference between them is immaterial and does not justify the distinction" - so it was held in The Committee for the Protection of Nazareth Lands v. Minister of Finance, H.C. 30/55. And consider further Weiss v. The Legal Council, H.C. 92/56, as well as other sources.

 

And in the words of Agranat P. (F.H. 10/69[13], at 35):

 

This court has held more than once that one must always distinguish - both for the purpose of statutory interpretation and as a standard for the reasonableness of the administrative action of a public authority vested with discretionary power - between wrongful discrimination (hereinafter "discrimination") and permissible distinction. The principle of equality, which is none other than the converse side of the coin of discrimination, and which the law of every democratic country aspires to realise for reasons of justice and fairness, means equal treatment of persons between whom there is no substantial difference that is relevant for purposes of the matter in issue. If they are not treated equally there is discrimination. On the other hand, if the difference or differences between different people are relevant to the purpose under discussion, then it will be a permissible distinction if they are treated differently for that purpose, so long as the differences justify this. The concept of equality in this context thus means relevant equality, and for the purpose concerned, requires an equality of treatment for those characterised by the situation mentioned above. On the other hand, there will be a permissible distinction if the difference in the treatment of different persons stems from their being in a situation of relevant inequality, having regard to the purpose of the treatment, just as there would be discrimination if it stemmed from their being in a situation of inequality that is not relevant to the purpose of the treatment.

 

            Classic examples, in legislation and in the case law, of such distinctions stemming from real differences between men and women, are those relating to pregnancy, giving birth and nursing (see the recent Equal Employment Opportunities Law, 5748-1988, section 3).

           

            One may note the gap in some areas between the declaration as to women's equal rights and the actual implementation of this principle. Opinions are also divided as regards a limitation upon privileges for women, between advocates of special treatment and those advocating greater equality. The matter has been extensively discussed and researched (see, for example, R. Ben-Israel, "Equal Employment Opportunities for Women", 4 Tel Aviv University Studies in Law (1978-79) 142; F. Raday, "Equality of Women and Israeli Law", 27 The Jerusalem Quarterly (1983) 81; H. Shahor-Landau, "Equality for Working Women in the EEC Law and Lessons for Israel", 13 Mishpatim (5743-44) 457 (in Hebrew)). Some of these matters have been regulated by recent legislation of the Knesset - among others, the Equal Retirement Age for Male and Female Workers Law, 5747-1987, and the Equal Employment Opportunities Law.

           

            21. Can one justify the disqualification of the Petitioner from membership of the religious council of Yerucham, despite her lawful nomination by the local authority, on one of the above mentioned grounds for disregarding the principle of women's equal rights? The answer is negative. Discrimination on the basis of religious-halakhic considerations is allowed in matters of marriage and divorce, but such considerations do not operate here. Counsel for the Petitioner agrees that if the religious council were a halakhic body with the function of deciding halakhic questions, the candidates nominated for such a body should meet the requirements of the halakha and the qualifications for halakhic decision-making. However, the religious council is not such a body, but rather an administrative body charged with satisfying religious needs. It follows that even if a woman could not serve on such a body from the halakhic point of view (which is not so according to the opinions of many great scholars, as we shall presently see), this consideration does not pertain to the composition of an administrative body, where the qualifications of its members must be determined solely according to the relevant legislation and case law of the general legal system.

 

            Needless to say, the Petitioner was not disqualified from membership of the religious council in order to protect her as a woman, and her disqualification accordingly constitutes a distinction that is irrelevant to her being a woman, amounting to wrongful discrimination.

 

            22. We must still consider whether those grave fears expressed by the representative of the Minister of Religious Affairs, and in the decision of the Committee of Ministers, serve to outweigh the interest in the fundamental right of women's equality. For we adhere to the rule that fundamental rights are not absolute but relative, that their existence and preservation call for a proper balance between the different legitimate interests of two individuals or of the individual and the public, given that all the interests are founded in and protected by the law (H.C. 148/79[14], at 172; P.P.A. 4/82 (M.A.) 904/82) [15], at 210; H.C. 114/86[16], at 490-491).

 

            After due consideration and deliberation I conclude that given the issues and the facts in the present case, the scale does not tip in favour of those grave fears pleaded by the Respondents. Non-discrimination against a woman, because she is a woman, is a fundamental principle of the legal system in Israel. To warrant the subjection of this fundamental principle to such a balancing process, it should have been contended, at least, that a woman's membership of a religious council is forbidden from a halakhic point of view, with the result that such an appointment would bring the work of the religious council to a standstill. Had this argument been made, there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites. None of the Respondents, however, contended that it is forbidden for women to serve on the religious council, nor was this mentioned in the decision of the Committee of Ministers. Even the local rabbi, the only person to object to the inclusion of the Petitioner in the religious council, does not explain his objection on grounds of a halakhic prohibition, but in terms of unsuitability and non-representation of the bodies interested in the maintenance of the religious services. The Minister of Religious Affairs and his representative on the Committee of Ministers spoke of a "tradition", evolved from an understanding over a period of forty years, "not to propose women as candidates for membership in this body", hence - so it was said in the decision of the Committee of Ministers - the objection of the Minister, and the objection

 

of the Committee which adopted his position, do not constitute a principled decision not to include women in the religious councils. It is true that at an early stage, on May 6, 1986, the head of the department of religious councils wrote to the Petitioner that "it is not possible" for a woman to be a member of a religious council, but this style of speech changed afterwards. Following the appointment of a new Minister of Religious Affairs, the Petitioner was invited to the Minister, and was informed by his adviser on women's affairs, Mrs. Lichtenstein (paragraph 27 of the petition) -

 

... that the Minister had decided to agree to the appointment of the Petitioner, but the Petitioner was asked to refrain from making the decision public for two weeks. Mrs. Lichtenstein asked the Petitioner to delay the filing of her petition [before the High Court of Justice - M.E.] until March 11, 1987, saying that by this date the matter would be taken care of. The Petitioner agreed to Mrs. Lichtenstein's requests.

 

            The Petitioner attested to the truth of these facts and they were not refuted by the Respondents. Why was the promise made to the Petitioner by the Minister of Religious Affairs, through Mrs. Lichtenstein, not kept? The Petitioner answers this question in another affidavit, submitted in M.A. 279/87, on July 21, 1987, as follows:

           

2. On March 9, 1987 there was a meeting of the Chief Rabbinate Council, and the question of the service of women on religious councils was raised at this meeting. The Chief Rabbinate Council adopted a resolution that women are not allowed to serve on religious councils.

 

3. This decision was reached a short while before the date on which the Minister of Religious Affairs (Respondent No. 1) was supposed to announce his consent to my appointment to the religious council (paragraph 27 of the Petition). Respondent No. 1 did not announce his consent to the appointment as promised, and the petition was filed on March 11, 1987.

 

4. On a date unknown to me, Respondent No. 1 [the Minister of Religious Affairs - M.E.] asked the Chief Rabbinate for clarification of the matter. The answer of the director of the Chief Rabbinate Council, dated April 9, 1987 - attached as Appendix P/1- was as follows:

 

In response to the question posed by the respected Minister in the matter of Mrs. Shakdiel as a member of the Yerucham religious council, I hereby notify you that the Chief Rabbinate Council rejected this notion and decided that women are not allowed to be permanent members of the religious council.

 

This opinion of the Chief Rabbinate of Israel is an opinion of Torah [religious learning] like all the religious laws prescribed by our rabbis over the generations, and fall within the halakhic rule of compliance with "all that they instruct you".

 

5. It was the decision of the Chief Rabbinate Council, apparently, that prevented Respondent No. 1 from realizing his intention and expressing his consent to my membership of the religious council. This appears from an interview given by Respondent No. 1 on the I.D.F. radio station, on July 9, 1987. The interview followed upon the decision of Respondent No. 1 to appoint the Tel-Aviv Municipal Council's representatives to the electoral assembly for the Tel-Aviv Chief Rabbi, and to include only men on that list. The full interview, as recorded by the I.D.F. radio station, is attached as Appendix P/2, and excerpts from it follow:

 

Z. Hammer [Minister of Religious Affairs]: ...I firmly believe that a woman can and should contribute to the patterns of religious life except in matters in which the halakha does not so permit.

 

Y. Roeh [Interviewer]: ... Such as this electoral body?

 

Z. Hammer: ... No, no, no! The halakha - I do not think it prohibits [a woman's] service on the electoral body or membership of a religious council. But the point is that for many years it has not been so, and when it is necessary to break through in a new direction, there are difficulties ... And I would say that whoever really wants women to enter the sphere of religious life and its administration - that is, within the limits of the halakha, of course - must be patient and help us do it in a way that will be acceptable to the rabbis as well as the chief rabbinate.

 

            The opinion of the Chief Rabbinate was not included by the Respondents in the material before us, nor did they rely upon it in their arguments, perhaps for the reason that even the Respondents do not believe there is any halakhic prohibition against women serving on a religious council, as was clearly acknowledged by the Minister of Religious Affairs in the above-mentioned interview excerpts (and which he did not deny). In fact, as we shall see below, there is much support for the view that there is no such halakhic prohibition. Given this state of affairs, we regret to say that there is no need to exercise further patience and meanwhile deny the Petitioner her fundamental right not to suffer discrimination, all contrary to the provisions of the Women's Equal Rights Law.

 

            23. We hope and trust that the orderly functioning of the religious council in Yerucham will not be impaired by the inclusion of the Petitioner in this body, and that this will not lead to a "complete break" between the religious council and the local rabbi, nor create a dispute within the Yerucham religious leadership. The local rabbi apprehended that the Petitioner might not be fit to serve as a member of the religious council. I am sure that once the respected rabbi comprehends the laudatory intention and acts of the Petitioner to promote the religious services in Yerucham, he will have only praise for her activity - as the wisest of all men said: "many daughters have done valiantly, but you excel them all" (Proverbs, 31: 29). In our times, when Jewish women are educated and knowledgeable, and most of our children's education - even in the religious schools - is entrusted to female teachers, it is an accepted daily occurrence that men and women discuss together matters of schooling and education around the same table. And there is no reason, whether on ground of halakha, tradition or custom, for the Petitioner not to sit at the table of the discussions of the religious council. Is there anyone more interested than she in the religious fitness of food products and the ritual baths, in the maintenance of synagogues and the dissemination of religious culture?

           

            24. I find confirmation for this expectation-assumption in the letter written by Rabbi David Milgrom in response to our query raised at the end of the hearing. Having regard to the possibility that the petition might be admitted and the order nisi made absolute, we approached the four representatives of the local authority who had been named as members of the religious council in the decision of the Committee of Ministers, asking for their reply, if any, to the petition and material submitted to the court. We did so since one of the four representatives of the Local Council would be prejudiced by having to give up his place on the religious council in favour of the Petitioner, should we hold her to have been unlawfully disqualified. We are especially interested in the detailed response of Rabbi David Milgrom, who wrote, inter alia, as follows:

           

            2. If the order nisi is made absolute in the sense that the Petitioner is included in the composition of the Yerucham religious council, this will be achieved at the expense of excluding one of the members named by the Committee of Ministers.

 

            3. I submit that in such case it would be right to exclude one of the representatives of the Minister or, alternatively, a member of the Labour party proposed by the local authority.

            …

 

            5. I wish to emphasise that in addition to my representing the Shas party on the religious council I also represent the Bnei Hatorah community in Yerucham, in all about one hundred orthodox families who live in Yerucham and I am their sole representative. Naturally, the orthodox community has an especially strong interest in the local religious services.

           

            For this reason Rabbi Milgrom submitted it would be proper for him to continue serving on the religious council, even if the court decided that the Petitioner be reinstated, and that some other representative of the Local Council on the religious council should give up his place on this body, the number of whose members cannot be more than nine. The substance of this submission must be considered by the Committee of Ministers, and we express no opinion on the matter. But we do learn, indirectly, that Rabbi Milgrom, who represents Shas and the ultra-orthodox community in the locality, sees nothing wrong in serving on the religious council together with the Petitioner, if it be so decided; moreover, he wants us to determine that he shall remain a member of the religious council, together with the Petitioner. Rabbi Milgrom is not afraid of disruption or paralysis of the religious council on account of the Petitioner's membership, nor is he apprehensive of any prohibition against serving on a religious council which has a female member. And if this is the view of the representative of Shas and the orthodox community of Bnei Hatorah in Yerucham - and he appears to be the only person bearing the title of rabbi on the proposed religious council - why should we fear that the other members of the council, or the public, might disrupt and paralyse the orderly functioning of the religious council should the Petitioner be elected to serve on it?

           

            25. In summary, it is clear without doubt, from the reasoning in the decision of the Committee of Ministers and from the opinions of the local rabbi and the Minister of Religious Affairs, that their objection (principled or otherwise) to the inclusion of the Petitioner in the composition of the Yerucham religious council, stems from the view of the Respondents that women should not serve as members of this body. That is the underlying view, though some of the Respondents believe that this situation should prevail as a matter of principle in the future too, while some of them hold that it ought to be so for the time being, until it becomes possible to change this state of affairs. Either way, this disqualification and such considerations are improper, and they invalidate the decision of the Committee of Ministers to disqualify the Petitioner from membership of the religious council. The initial refusal to include the Petitioner as a member of the religious council because of her gender was stated clearly and bluntly in the letter written to her by the head of the department for religious councils on May 6, 1986. The refusal was later repeated in somewhat more restrained language by the Minister of Religious Affairs then in office, until finally the incumbent Minister of Religious Affairs has stated that there is no principled halakhic obstacle to women serving on a religious council, though he requests patience until agreement is reached upon the matter by all the parties. It appears that the Committee of Ministers also adopted this position of the Minister of Religious Affairs. This denial of the Petitioner's fundamental right, in anticipation of a process of "maturation" over an unknown and indeterminate period of time (see Minister Hammer's speeches in the Knesset on December 2, 1986 and October 28, 1987) is unjustified, and there is no foundation for disqualification of the Petitioner from service on the religious council.

 

            26. We intimated above that there is strong support within the halakhic framework itself, for the view that the Petitioner, as a woman, should not be barred from membership of a religious council. We shall now elaborate (cf. Me'iri, Sanhedrin 33a). The issue merits inquiry, richly coloured as it is by values that determine the character of the family and the image of society, and it impinges on an area in which the law and the halakha meet. We shall accordingly seek to elucidate the matter as it is reflected in the writings and rulings of the halakhic scholars and thinkers.

           

            The question whether, and to what extent, a woman may serve in public office has been sparsely addressed as such in the talmudic halakha (see e.g. B.T. Berakhot 49a, in relation to women not bearing the crown; and see our discussion below on Sifre, Deutoronomy, Parashat Shoftim, para.157, and Pesikta Zutarta, Pareshat Shoftim). In the Bible, the Talmud and later, there is mention of distinguished female figures - prophets, judges, queens, wise and scholarly (see S. Ashkenazi, Women in Jewish Perspective (2nd ed., 1979/80), especially Part I, pp 115-142; "Women in Jewish Sources", in Hagut - Anthology of Jewish Thought (Religious Culture Department, 1982/3) 25-26). These were isolated phenomena, while the guiding rule - one of great significance in the edifice of the Jewish family over the generations - was: "All glorious is the king's daughter within (the palace)" (Psalms, 45:14), that is, a woman finds respect in educating her children and managing her home, and it is not her way to be involved in public affairs. We find a first, clear and concise expression of this theme in Maimonides' comment on Deutoronomy 17:15 "You shall set a king over you" (Yad, Kings 1:5):

           

            One does not place a woman on the throne, as it was said: "a king over you"- and not a queen, and likewise all offices in Israel - only a man may be appointed.

           

            Maimonides' generalisation with respect to "all offices in Israel" (which might derive from the Sifre commentary on the above verse in Deuteronomy, according to the version before Maimonides - see infra), was disputed among many of the Rishonim* (see infra), but his opinion was accepted in practice.

 

            27. An interesting and wide-ranging debate on the subject took place at the beginning of the present century, in connection with granting women the right of franchise. In our present context the question arose primarily in relation to elections to the institutions of self-government of the Jewish community in Palestine just after the end of the first world war, as well as in different communities in the Jewish Dispersion. It might be recalled that until then women had been denied the right to vote under most world regimes, and only during the latter half of the second decade of this century were women awarded full rights, to elect and be elected, in most of the states and provinces of the United States and Canada, in Russia, England and Germany. In some countries, such as France, this right was awarded only in 1944, and in Switzerland in 1971 (See: L.H Tribe, American Constitutional Law (Mineola, 2nd ed., 1988) 1599; O Hood Phillips and P Jackson, Constitutional and Administrative Law (London, 7th ed. by P. Jackson, 1987) 187; P.W.H. Hogg, Constitutional Law of Canada (Toronto, 2nd ed., 1985) 723; J.F. Aubert, "The Swiss Federal Constitution" Introduction to Swiss Law (Deventer, ed. by F. Sessemontet and T. Ansay, 1983) 1518; Encyclopedia Britannica (vol. 23, 1971) "Women, Legal Position of", at 623-627). We shall refer to this aspect again below. As to the views of the rabbinical scholars in Palestine and in the Jewish Dispersion, these fall into three camps. The majority opinion was that women should not be granted election rights, whether active - that is, the right to vote, or passive - that is, the right to be elected. This was the view of most of the halakhic scholars in the Palestine community (see M. Friedman, Society and Religion (Ben Zvi Publications, 1977/ 8) 146-184) and of the outstanding scholars in the Diaspora; some of the scholars opined that women have active election rights but not passive ones; and a third camp was of the opinion that there was no halakhic impediment to women exercising both active and passive election rights, that is, they are permitted both to vote for and to be elected to public and governmental office.

           

            28. It may be noted that on this matter Rabbi Avraham Yitzhak Hacohen Kook, at the time chief rabbi of Jerusalem and later chief rabbi of Palestine and founder of the chief rabbinate, belonged to the camp that denied women both active and passive election rights. He expressed his view on three occasions in the context of the great debate waged at the time. (See Collection of Essays by Rabbi Avraham Yitzhak Kook (Goldhartz Fund Publications, Jerusalem, 1983/4) 189-194: responsum to the Mizrahi Confederation Committee of 11 Tishrei 5680-1920; also "general response to the many persons who have asked me" of 10 Nissan 5680-1921; and the third time, in "Decision of the Conference of Rabbis of Eretz Israel" of 26 Nissan 5680-1920, which was signed by Rabbi Kook alone. As to variant versions of this decision, see Friedman, op. cit., at 165-167)). Rabbi Kook discussed the matter from three perspectives (Essays, ibid., at 189):

           

a. in terms of the law; whether the matter is permitted or prohibited;

 

b. in terms of the public welfare; whether the people stand to benefit from affirmation of the matter, or from its negation;

 

c. in terms of the ideal; whether our moral cognition negates the matter or affirms it.

 

We must clarify our attitude to these three standards, since I wish this inquiry to encompass people in all walks of life: those wholehearted believers for whom the halakhic ruling is decisive; those for whom the welfare of the nation is decisive, and those who are concerned mainly with the moral ideal per se.

 

            From the legal perspective, Rabbi Kook saw two reasons for opposing feminine participation in public office:

           

Legally speaking I have nothing to add to the statements of the rabbis who preceded me:

 

a. In the Pentateuch, the Prophets and the Writings, in the halakha and the aggada, we hear a single voice, that the duty of the regular public service is imposed on the men because "it is the nature of man to subdue but it is not the nature of woman to subdue" (Yevamot 65b) ... and "all her glory is within (the palace)".

 

b. The endeavour to avoid a mingling of the sexes in public gatherings passes as a beaded thread through the entire Torah, so that the law is certainly against any innovation of public leadership that necessarily leads to a mingling of the sexes in public, in a group or conference, in the regular course of public life.

 

            As to the public welfare, Rabbi Kook advocated maintenance of the connection with the sources of Judaism and the Bible, in the name of which the nations of the world recognized at that time the rights of the people of Israel to the Land of Israel (ibid., at 189-190). And as regards the ideal status of women - that was a vision for the future "of women and mothers, in life in general and in particular ... but this future vision is still entirely unreflected in contemporary cultural life which is rotten from within, though seemingly smooth on the outside" (ibid., at 190).

 

            The above response is characteristic of this great spiritual leader, who integrated in his decisions, along with the halakhic sources, a philosophy on the rebirth of the nation and its return to the Land of Israel, together with a vision for the future, according to his perspective and understanding. He was convinced that it was for the good of women not to be dragged into the whirlpool of public life, and likewise for the good of the nation returning to its homeland. In this manner he sought to persuade also those for whom the welfare of the nation or the moral ideal, rather than the strict halakha, was decisive.

 

            In the two other sources mentioned Rabbi Kook expands the discussion, adducing further reasons for the position he takes. He intimates that even the nations of the world were only then beginning to accept "this modern innovation" of women's suffrage, which was incompatible with the world of Judaism and the special character of the Jewish family. Rabbi Kook perceived the matter thus: (ibid., at 192):

           

The psychological reason for this demand, the call for public elections in the name of women's rights, derives mainly from the miserable status of the masses of women in these nations. If their family situation was as serene and dignified as it generally is among the Jews, neither the women themselves nor the men of science, morality and lofty ideals would demand what they call election "rights" for women, according to the usual formula, which is likely to disrupt matrimonial harmony and eventually must necessarily lead to serious deterioration in national and political life in general. And so, out of the despair and bitterness resulting from the crudeness of men in spoiling family life, it is thought to find succour in some kind of public power of proxy, so to try and mend their faltering domestic situation with little concern for the further stresses thus added, since the whole edifice is already so breached. We have not and shall not stoop to this level, and would not want to see our sisters in such an inferior status. The Jewish home is still a hallowed institution, and we should not dim the radiance of our sisters' lives and allow them to become troubled by the clamour of opinions and controversies in matters of elections and politics.

 

The Jewish woman bases her rights on the delicate content of her special spiritual character, rather than on cut and dried laws formulated in ready moulds, which to her are like iron constraints quite unsuited to her delicate constitution, and which, by her nature, she is generally not strong enough to use, when they cannot even compensate for the damage wrought at the recesses of the spirit that encompass and govern all areas of life.

 

The family is the foundation of our nation, the House of Jacob will build the people of Israel. We are preparing the edifice of the nation - according to our spiritual nature. We are always ready to propound a moral duty to hear the opinion of the woman in every Jewish home, also in relation to general, social and political questions. But the agreed view must necessarily issue from the home, the family as a whole, and the man, the head of the family, is charged with the duty to transmit and make public the family view.

 

            Here too Rabbi Kook notes that there are "great kingdoms that have not yet progressed in this area" and have not granted voting rights to women (ibid., at 193). In his eyes, the meaning of women's suffrage is "to dim the radiance of our sister's lives" with the bitterness and clamour of political life, and this "clamour" and its attendant "obsequies" will lead to "the ruination of domestic harmony".

           

            It is interesting to note the comment made years later by Rabbi Kook's son and spiritual heir - Rabbi Zevi Yehudah Kook, head of the Merkaz Harav Yeshiva - on his father's views concerning women's voting rights (Talks of Rabbi Zevii Yehuda Kook, edited by S.H. Avineri (Ateret Kohanim Yeshiva Publication)):

           

Father, of blessed memory, objected to including women in the election process. The writer Azar complained about this in a small monograph, claiming it was not democratic and respectfully asking my late father to reconsider. The Gaon, Rabbi Haim Ozer [Grodzinski - M.E.] wrote a long paper objecting strongly to women's suffrage, but the word "forbidden" did not appear in it. It is true that those who printed the notice put that word in the heading, but it does not appear in the text itself, because "forbidden" is a responsible term. My late father likewise objected, but did not use the word "forbidden".

 

(See also Friedman, op. cit., at 166.)

 

            29. Rabbi Kook's first above-mentioned letter was addressed to the Mizrahi Confederation, among whose spiritual leaders there were at that time indeed many who advocated giving women election rights, both active and passive. We shall mention here several of these leaders. Rabbi Y.L. Maimon (Fishman), writer and research scholar, later to become the first Minister of Religious Affairs in the State of Israel, wrote:

           

The Mizrahi Confederation in Eretz Yisrael acknowledges the value of the participation of Jewish women in the rebirth of our nation and does not object at all to giving Jewish women the right to vote, neither as a matter of principle, nor on religious grounds.

(Do'ar Ha'yom, 5 Shevat 5680, 25/1/1920; Friedman, op. cit., at 151; note 14; and also at 166.)

 

            Rabbi Y. Nissenbaum defended this position enthusiastically at the second Mizrahi Conference, held in Warsaw in April 1919 (see Hagut, supra., at 77-81). After discussing the political motives affecting the wide controversy over women's suffrage at the time, he stated (at 77-78):

           

For us this question has only national and moral content. The Hebrew people is now in such a situation that it needs to muster all its forces, and it cannot forgo at this time one half of its forces, its women and daughters, leaving them out of all public and national endeavour. All the more so, since this half, consigned as it is to such idleness, is attracted to alien work which only impedes all our Hebrew work! This is the national aspect of our women's issue. And it also has a moral aspect. Now that many Hebrew women have roused themselves to the national resurgence, and seek to participate in all the efforts of our community and our nation, our moral sensibility requires that they be given their sacred wish: to dedicate their powers and talents to their nation. Do men need a national life and women not? Thus we would seem not to have any question about granting women the right to vote. If during all the years of our exile the lives of men and women were equated for the purpose of all penalties, all laws and all deaths, why should not their lives be equal in this period of revival for the purpose of all rewards, all rights and all the nation's work of redemption? ...But among us, followers of Mizrahi, as among orthodox Jews in general, this vital need raises two other questions. The first is religious - whether giving women the right to vote does not violate some religious law that cannot be disregarded; and the second is moral - whether this does not violate some other moral sensibility that should not be taken lightly. This would seem to be the women's issue that is on our agenda and requires a clear and decisive solution.

 

            After reviewing the role of women in Jewish history, Rabbi Nissenbaum went on to say (at 80-81):

           

            It is true that the Sifre comments: "set a king on you, a king and not a queen", and that Maimonides adopts this Sifre as the halakha, even expanding it to say: "likewise all offices in Israel, only a man may be appointed" (Yad, Melakhim chapter 1). But this ruling of Maimonides was not clear to our scholars in France, and they did not decide categorically that "a woman is disqualified from judging" (see Tosafot to Baba Kama 15, Niddah 50, and elsewhere). And from these scholars we may also learn that a woman may competently be chosen to participate in the deliberations of the learned men who clarify the laws, and perhaps even the deliberations of the law makers. Thus they say with respect to Deborah the Judge, that "she used to teach them, the people of Israel, the laws", and accordingly, ipso facto she is competent, by all opinions. Or they say, "perhaps the sons of Israel accepted her over themselves". If so, is "acceptance" greater than "election"? And if a woman is elected as a judge or legislator, perhaps her "acceptance" pertains not only to those who voted for her, but also to the others, for even Deborah was not accepted by all the people of Israel, and she nevertheless judged in her song all those who did not heed her call to fight for the Lord...

 

But I have inadvertently been drawn into the portals of the hsalakha, which I did not think to enter this time but to leave the matter to our esteemed rabbis. If in terms of the halakha the rabbis find no impediment to giving Hebrew women not only the active right to vote - which has already been permitted by the Hassidic rabbis who called upon their followers, and their wives and daughters to take part in the elections to the Polish Sejm (and "should the priest's wife be revered less than the innkeeper's?") - but also the passive right to be elected, then neither, in my opinion, is there any impediment to granting this right on account of our inherent sense of modesty. True modesty will not be affected in any way by the fact that women too participate in meetings and express their views in the governing bodies at the communal, municipal, regional or central levels, or in a Hebrew parliament.

 

            A blunt opinion was expressed at the same time and in the same spirit by Rabbi Y.L Zlotnik (Avida), distinguished research scholar (see A. Rubinstein, Movement in Times of Change (Bar Ilan Publications, 1980/1), at 159-161):

           

I shall now relate to one question that is facing the Mizrahi both inside and outside Eretz Yisrael. This is the question of the right of women to elect and be elected to community and public office.

 

According to the view and opinion of the leaders of official Judaism, it is altogether impossible to agree from the ultra-orthodox perspective to treat men and women equally in relation to these rights, but many people and many rabbis hold a completely different view.

 

This question is now a very actual one. The matter was deliberated in Eretz Yisrael when they wanted to hold a constituent assembly of the local Jews, and they were compelled to accept the position that women could only vote and not be elected. The question is now on the agenda in our country in relation also to elections for the community institutions. It would certainly be easy and convenient for those who wish to show that tradition and the old order are precious in their eyes, to decide dispassionately that women should not be given the right to vote. But anyone who gives the matter serious thought will not rush to make such a decision .

 

It is understandable that a man who lives according to tradition and the ancient customs, accepted and sanctified by the nation with the passage of time, will find it difficult to agree immediately to such a fundamental change in the social order. Nevertheless, a responsible (Mizrahi) Confederation cannot treat these burning questions lightly and solve them superficially without considering all the relevant material.

 

If we look at the matter closely we will find that there is no moral ground to deny women their right to express an opinion on public and community affairs. Factions of the ultra-orthodox community are also known to understand this, hence their eventual agreement to give women active election rights. On the other hand, they do not think it possible for women to have passive election rights, that is, to be elected, because it is not possible for an ultra-orthodox Jew to sit at one table with a woman, this being contrary to the Hebrew modesty.

 

But let us look at things as they really are: even most ultra-orthodox Jews find it impossible in their private and social lives to avoid completely the society of women. There are only a chosen few who are truly capable of averting their eyes from seeing evil; and I can indeed understand and wholeheartedly respect the righteous man who states that because he cannot sit at one table with a woman, he waives his passive election right and does not seek to be elected ... But I cannot understand at all the moral logic of one who declares: "Because I do not want to sit together with a woman, therefore the woman shall not be elected, only myself alone'. Where is the moral content of such a view and statement? And if we cannot rob the individual woman of her right to vote for whoever she wishes, how can we deprive thousands of their right if they find that some woman is the fittest of all for a particular position?

 

And the Mizrahi should make a special effort to enlist the assistance of all sectors of the nation in its struggle for revival. How shall the Mizrahi allow the exclusion of all girls and women from the task of the nation's renascence and from public and community activity? If the Mizrahi were only a small self-contained and self-sufficient group, without outside links and interests, it could restrict its work to its own circle of members alone. But if the Mizrahi wishes to influence other segments of the people, how can it exclude girls and women from public work? After all we can see that the time has long passed since "All glorious is the King's daughter within (the palace)". The Hebrew woman no longer wants to leave all the matters of life and the nation in the hands of the men alone, and if the Mizrahi wants to fight against her, she too will join the struggle to overcome the Mizrahi. We cannot turn back the march of life, so who will gain from this vain and pointless war - the Torah? Judaism?

 

Even in my imagination I cannot picture a Jewish state with laws that limit the rights or constrain the activities of any person.

 

            30. At that time many halakhic scholars in the Diaspora believed that women should not be granted suffrage, among them Rabbi Haim Ozer Grodzinski, of Vilna, Lithuania, a leading responsa writer of his generation, and Rabbi Israel Meir Hacohen of Radin, near Vilna, known as the Hafetz Hayyim, foremost halakhic decider of his generation (see the comment of Rabbi Zvi Yehudah Kook, supra, and of Rabbi Yehiel Weinberg, infra).

           

            Another interesting contemporary debate took place between Rabbi Professor D.Z. Hoffman, head of the Berlin Rabbinical Seminary, an important responsa writer and Judaic research scholar, and Rabbi Dr. Ritter, chief rabbi of Rotterdam. (The debate is quoted in Jeschurun, vol. 6 (a German-language journal, edited by Rabbi Yosef Wohlgemut, 1919) - Hoffman's article at 262-266, and Ritter's at 445-448. Hoffman's article was translated into Hebrew, in The Kibbutz in the Halakha (collection of essays, Sha'alvim Publications) 286-290, but the extracts below are my own translation). As already mentioned, the question of women's suffrage arose at the time also in relation to the leadership of the Jewish communities in the Diaspora (see Friedman, op. cit., at 150; Rubinstein, op. cit., at 159, note 3, and the bibliography cited), and the above debate apparently took place in that context. Rabbi Hoffman's view was (Jeschurun, loc. cit., at 262) -

                

   According to the Talmudic halakha and the later scholarly statements, women should not be granted passive election rights. Active election rights can be given to women once the community so decides.

 

            Rabbi Hoffman based his negation of passive election rights on Maimonides' above-mentioned statement (Yad, Melakhim, supra), which he believed founded on Sifre, Deutoronomy, Shofetim, para. 157, according to a version that was possibly before Maimonides, considering the version found in Pesikta Zutarta (see Jeschurun, loc. cit., note no. 3; and see also the above passage from Sifre, Deutoronomy, in ed. Rabbi Meir Ish Shalom, and notes thereto, as well as in ed. Finkelstein-Horovitz, and notes). Rabbi Hoffman considered this view founded also on other laws, among them that a woman cannot serve as a dayyan [a religious court judge] (shulhan Arukh, Hoshen Mishpat, 7:4). The latter rule is subject to a difference of opinion, the matter depending on the circumstances (see also the commentaries to the Shulhan Arukh on this rule, and specifically in Halakha Pesuka (Harry Fischel Institute Publications, 1961/2) 47-48; Responsa Mishpetei Uziel, Vol. 3, Hoshen Mishpat, 5).

           

            Rabbi Hoffman deals with the question discussed by the commentators - how was it that Deborah served as a prophet and judge? - and with the answer suggested by the Tosafists (Tosafot to Shavuot, 29b; and see below on the responsum of Rabbi Uziel). Interesting are his views on the fact that Shlomzion [Salome] sister of Shimon Ben Shetah, head of the Sanhedrin served as a queen, and was considered by the scholars as righteous (see B.T. Berakhot 48a; Leviticus Rabba, 35:10; and see also B.T. Ta'anit 23:1). Hoffman explains that Shlomzion reigned after the death of her husband, King Yannai a Saduccee who persecuted the Pharisee scholars of the law and abolished their cherished tradition; that she restored the former glory, bringing the Pharisees back into the community and reinstating the tradition of the halakha (see Josephus, Antiquities of the Jews, 13,16, 1-2). Thus he writes (Jeschurun, loc. cit., at 263-264):

           

and it is not surprising, therefore, that a woman was permitted to serve as queen, as an exception to the rule, especially since she thus served according to the will of her husband King Yannai.

 

On the other hand (ibid., at 264) -

 

one cannot find any argument in the traditional sources against permitting women active election rights. It is indeed possible that this is contrary to ancient custom, so that one must take care to obtain the consent of the community as is customary in relation to communal enactments.

 

            Rabbi Ritter took a different view, holding it was true that until then there had been no explicit halakhic discussion of the matter, but -

           

            it is clear that according to custom only men were given the right to vote, and women were never given the right to vote throughout the thousands of years of existence of the Jewish communities.

           

            Hence, he held we cannot change the custom (Jeschurun loc. cit., at 445). Rabbit Ritter went on to cite testimony which, in his opinion, supported this position indirectly (see also the comments of Rabbi Uziel, infra).

           

            31. A completely different approach is found in an instructive responsum written by Rabbi Ben Zion Uziel, to the effect that women have both active and passive election rights. Rabbi Uziel served as the chief rabbi of Palestine and then Israel, during the years 1939-1953, and at the time of the halakhic and public controversy over women's suffrage in the early 1920s, he was the chief rabbi of Tel Aviv and Jaffa. His responsum, published in 1940 (Mishpetei Uziel, vol. 3, Hoshen Mishpat, 6) opens with this comment:

           

I wrote this responsum at the time so as to clarify the halakha for myself, and I did not want to publish it and rule on the question in practice. But now, after the question has become resolved of itself, I decided to publish it to aggrandize the Torah.

 

            The comment, "the question has become resolved of itself", is noteworthy, also in the world of halakhic decision, and we shall discuss it below. The responsum is very detailed and we shall refer to several passages which are generally instructive and illustrative of the paths of decision in the halakha. (The responsum was reprinted in Piske Uziel (selected responsa of R. Uziel on contemporary issues, Rabbi Kook Institute Publications, 1976/7, 44); the following extracts are cited according to the pagination in both the original and the later edition.)

           

            R. Uziel opens as follows (ibid., at 32; at 228):

           

This question became a controversial issue in Eretz Yisrael and it rocked the entire community. Manifestos, adjurations, pamphlets and newspaper articles were published daily calling for the entire preclusion of women from participation in elections. Some rested their argument on religious law and some on preserving the bounds of morality and modesty, and others on domestic harmony, and they all rested upon the same maxim "the new is forbidden by the Torah" [see Responsa Hatam Sofer, Orah Haim, 28, 181; idem., Yoreh De'ah, 19-M.E.]. Unfortunately I do not have at my disposal now all the accumulated material on this question, but we are indebted to that distinguished "receptacle" of the Torah [Rabbi Hayyim Hirschenson], who collected the essence of all that material in volume 2 of his book Malki BaKodesh, and this makes it possible to consider all the prohibitory views within my reach.

 

            The author of Malki BaKodesh, Rabbi H. Hirshenson, was born in Safed in 1857 and was educated in the yeshivot of Jerusalem. He was an eminent halakhist and corresponded with the outstanding rabbis and halakhic authorities of his generation on questions of the halakha. In the second part of his book (Minister Publications, 1921, 12-15, 171-209), he discusses at length the question of women's election rights, reaching the conclusion that they have both active and passive such rights. He thus takes a diametrically opposite position to Rabbi Kook (supra). The correspondence between the two reflects the great respect Rabbi Kook had for him (see Letters of Rabbi Kook, Vol. 4 (Rabbi Kook Institute Publications, 1984/5) 23-25 and at 102-103; Hagut - Anthology of Jewish Thought, supra, at 92-93).

           

            In his responsum, Rabbi Uziel deals first with the question of women's active right to vote, in the following terms (Mishpetei Uziel, supra, at 32-33; Piskei Uziel, supra, at 229:

           

With respect to the first [i.e. the active election right-M.E.], we have not found any clear ground for a prohibition, and it is unthinkable to deny women this personal right. For in these elections we appoint our leaders and empower those we have chosen to speak for us, to manage the affairs of our community and impose taxes on our property, and the women either directly or indirectly accept the governance of these elected representatives, and heed their instructions and their public and national enactments. How then shall we hold the rope at both its ends: to impose on them the duty of obedience towards the nation's representatives and yet deny them the right to elect them? And if we are told to exclude them from the electoral body because they are light-minded and do not know how to choose worthy leaders of the community, we will also say: if so, we should exclude from the electoral body all those men who are lightminded, the like of whom can always be found among the people. But reality shows that in past as well as present times, women are as educated and knowledgeable as men to conduct negotiations, to sell and buy, to manage their affairs in the best fashion. And whoever heard of appointing a guardian for an adult woman without her consent? As for the dictum of our rabbis:

 

            "women are light-minded", (B.T. Shabbat 33b, Kiddushin 80b) it has a completely different meaning; and the statement "a woman's wisdom is only in her spinning wheel" (B.T. Yoma 66b) was merely a nice phrase to evade answering the question a woman had posed, the Talmud itself testifying that this same woman was wise: "a wise woman asked Rabbi Eliezer". And our rabbis stated expressly, "and God made the rib" (Genesis 2:22), teaches us that the Holy One ... endowed the woman with greater understanding (T.B.Niddah 45b). As regards licentiousness, what licentiousness can there be in an individual going to the voting booth and casting a ballot? If we have come to fear this - we will have suppressed all of life, and it will be forbidden to walk in the street or enter any shop, men and women together, or it will be forbidden to do business with a woman because this will lead to familiarity and then to licentiousness, whereas no one has ever said this before.

 

For the sake of domestic harmony? As the distinguished rabbi wrote: "if so, we should also deny sons and daughters who are dependent upon their father the right to vote; whenever the scholars feared antagonism, they compared women to grown sons who are dependent on their father (T.B. Baba Metzia 12a). Still a disputant might say: two wrongs do not make a right. But, in truth, the notion of antagonism is inappropriate here, for difference of opinion will find expression in one form or another, and one cannot suppress his outlook and opinions. In any event, family love that is based on a joint effort is strong enough not to be affected in any way by such differences of outlook.

 

            Rabbi Uziel then analyses the "indirect" reasons given by Rabbi Ritter for denying women also active election rights:

           

The illustrious Dr. Ritter makes an innovation, to deny women the right to vote because they are not a community or a congregation and were not counted in the census of the children of Israel, and were not named as progeny of their families (the text of the article is not before me, but I deduce this from what he writes). Let us suppose that they are not a community or a congregation or a family or part of the census or anything else. But are they not creatures formed in His image and with the faculty of reason? And do they not have common affairs that are pertinent to the assembly of representatives, or the committee that it elects, and the directives of which bodies they heed with respect to their property and the education of their sons and daughters?

 

       Rabbi Uziel sums up this part of his responsum thus (op. cit., at 33; at 229-230):

           

If so, having failed to find any hint of such prohibition, I find no positive reason to object to or to say no to the answer sought by a part of the public. And perhaps it was with reference to such cases that it was said "even if ninety nine urge distribution and one only favours individual snatching, this one is listened to since he spoke the halakha" (Mishna, Pe'ah 4:1). [That is, if ninety nine say that the landowner should reap the grain that he left as pe'ah* and distribute it to the poor, and one says that the poor should take the pe'ah themselves while it is attached to the soil, we heed the one, because that is the law - M.E.] But it is also said: "and the women laid their hands on it"**, to gratify the women (T.B. Hagiga 16), even though it appears to be prohibited [see infra - M.E.]. In any event, in the instant matter, where there is no prohibition and the barring of their participation would seem to them insulting and oppressive, certainly in a matter such as this we should give them their right.

 

            In summary, Rabbi Uziel is of the opinion that there is no halakhic rule, express or implicit, that denies women active election rights. Expressions such as "women are lightminded" and "a woman's wisdom is only in her spinning wheel" should not be interpreted literally. The fear of women mingling in gatherings of men has no validity in the contemporary reality, and the concern about domestic harmony following possible differences of opinion among spouses as to whom to vote for, is unconvincing, because the same situation pertains to differences of opinion among other members of the family. Particularly instructive is Rabbi Uziel's reasoning that the duty to obey and comply with the leadership should not be imposed on a person who lacks the right to vote for the leadership that will direct him: "whoever heard of appointing a guardian for an adult woman without her consent?"

           

            Noteworthy too is Rabbi Uziel's method of adducing "indirect" testimony from the spirit of the halakha, to indicate the desirable decisory policy. According to the halakha a person bringing a sacrifice lays his hands on the head of the animal. On this matter it is said in Sifra, Vayikra, par. 2 "and he shall lay his hands on the head of the burnt offering" (Leviticus 1:4) -"the sons of Israel lay their hands and the daughters do not lay their hands", that is, the rule of laying one's hands on the animal sacrifice does not apply to women. And the commentary continues:

           

            Rabbi Jose said, Abba Elazar told me: we had a calf for a peace offering and we took it out to the women's court (in the Temple) and the women laid their hands on it. Not because the laying on of the hands is their function, but to gratify the women.

 

            And if it is proper so to act with respect to a matter prohibited by law - laying one's hands on the head of the animal sacrifice - all the more so, says Rabbi Uziel, is this proper with respect to giving women voting rights, which is not legally prohibited, whereas "precluding their participation [in the elections - M.E.] would seem to them insulting and oppressive".

 

            Rabbi Uziel then proceeds to discuss the second aspect of the issue-passive election rights, a woman's eligibility for public office. On the face of it, says Rabbi Uziel, an express prohibition is reflected in the statement of the Sifre and of Maimonides (Yad, Melakhim, supra), that "likewise all offices in Israel - only a man may be appointed", and he cites additional authorities to the same effect (ibid., at 33-34; at 230). At first he suggests that since this rule is not mentioned either in the Mishna or the Talmud, and since it is implicit in the works of other scholars of that time (Rishonim) that they did not hold the same opinion, one should not rule according to it. But this did not satisfy him, and he arrived at an interesting distinction between Maimonides' ruling and the issue of passive election rights concerning a woman's eligibility for public office. He holds (ibid., at 34; at 231-232):

           

And if the heart still hesitates on the matter, which is only right since one should not dismiss the Sifre and the ruling of Maimonides on the basis of evidence and nice points not expressly contrary to their opinions, yet one may qualify women for election on a different ground, which is: that this halakhic rule applies only to appointments by the Sanhedrin, whereas here there is no question of appointment only an acceptance, since by way of the elections a majority of the community expresses its opinion, consent and trust as regards the elected persons, empowering them to supervise all public affairs, and even Maimonides admits that there is no tinge of a prohibition in this respect.

 

So too we find that Rabbi Nissim Gerondi wrote (Commentary to tractate Shevuot, at the beginning of chapter 3):

 

and the verse about Deborah, that she was a judge of Israel, does not mean literally a judge but a leader, and despite what is said in Sifre: "You shall set a king over yourselves, not a queen", there they did not appoint her but obeyed her decree; and even if she was a judge, they accepted her in the manner that a person accepts a relative [who is otherwise not qualified to judge the case - Ed].

 

And thus Rabbi Solomon b. Adret wrote: "one should say (that Deborah) was not really a judge but a leader like the judges that judged Israel [that is, led Israel, which is the simple meaning of the term judge in the Book of Judges - M.E.], and even though it is said in Sifre, you shall set a king over yourselves, not a queen, there they did not appoint her but treated her like a queen and obeyed her instructions" (Commentary to tractate Shevuot, at the beginning of the chapter on the oath of testimony). And Rabbi Hayyim David Azulai quotes from the Zikhron Devarim of Rabbi Hacohen Perahyah: "and Deborah was a leader just like a queen", which is what Rabbi Solomon b. Adret said (Birkhe Yosef, Hoshen Mishpat 7:11). From which one learns that the entire prohibition against appointing women to public rule applies only to appointments by the Sanhedrin.

 

For it is clear that even according to the Sifre it is permitted to accept her as a judge, that is, as a leader and she judges in the same way that it is permitted to accept a relative. And therefore, where appointments are made by elections, which is acceptance of the elected persons as leaders, one may by law elect women too, even according to the view of the Sifre and Maimonides. And we have not found anything to the contrary in the statements of the Rishonim.

 

            Rabbi Uziel proceeds to discuss the view, much emphasized in the comments of Rabbi Kook and other scholars on the present issue, that a woman's involvement in public functions violates her modesty, since she becomes embroiled in the turmoil of the public and political debate. He writes (ibid., at 34; at 232) :

           

There is still, however, room for questioning, because even if in terms of the halakha the acceptance is effective and she can be elected under the rule "they accepted her governance", yet in terms of morality and the bounds of modesty, perhaps the matter is forbidden?

 

            The answer Rabbi Uziel gives to his own question is a lucid illustration of halakhic policy in decision-making:

           

Reason would have it that there is no licentiousness in any serious conference or useful discussion, and every day men meet with women on commercial business, and negotiate with each other, and none of this produces any alarm or outcry. And even those given to sexual abandon do not contemplate forbidden acts while they are seriously bent on their business affairs. And the admonition of our rabbis "do not converse too much with a woman" (Mishna, Avot 1:5) refers to unnecessary idle talk, it being this kind of conversation that leads to sin. Not so, however, as regards a conversation or debate about important public affairs; and sitting together for the purpose of public work, which is divine service, does not engender sinful habits or lead to levity, and all Israel, men and women are holy and are not suspected of breaching the bounds of modesty and morality. In answer, do not quote this statement of the scholars: "at first women sat within and the men were without, and were led to levity, so they instituted that women should sit in the gallery and men below" (Sukkah 50a). This was said with reference to a mass gathering of both worthy and licentious people together, in which case we are apprehensive of the licentious minority, especially when they are immersed in the festivity and ruled by the evil inclination. But this was not said in reference to a gathering of elected representatives, whom it would be wrong to portray as sexually licentious, and the like of which Israel shall not know.

 

Rabbi Uziel ends his responsum thus: (ibid., at 35; at 234:

 

Conclusion: A. A woman has a full right in elections so as to come under the disciplinary duty owed the elected persons who lead the people. B. A woman can also be elected if so consented to and enacted by the public.

 

            32. Rabbi Uziel's responsum was apparently written during the 1920's, but was published only in 1940, at which time - so it was stated at the beginning of the responsum -"the question had resolved itself". That statement was largely true, but not entirely so. In this respect it is illuminating to look at two brief responsa written by Rabbi Yehiel Weinberg, a prominent responsa writer of his generation, who served with the Hildesheimer Rabbinical Seminary in Berlin and later resided in Montreux, Switzerland. The first responsum, written in 1932, reads as follows (Responsa Seridei Esh, vol. 2, 52):

           

And in the matter of women's election right - in the Halakhic Commission of the Association of Rabbis in Germany I showed that in terms of religious law there are no grounds to prohibit suffrage, and I refuted the evidence brought by the great teacher, the late Rabbi Hoffman. In any event we all agreed that the election of women is against the custom in Israel as well as the Israelite morality in public life, which always tried to preserve "all glorious is the king's daughter within (the palace)", since the Jewish woman should guard her home and the education of her children, and should not be vociferous or a gadabout to squander her strength, destroy her modesty, and lose her charm and appeal through political and public disputes and quarrels.

 

It is, therefore, certainly appropriate to do all that is possible to prevent the participation of women in the leadership of the communities as well as in the elections. However, the peace and unity of the community should not be broken, if its powerful and persuasive members prevail to introduce suffrage. But in principle one should not depart from the ruling of the late Rabbi David Hoffman, who was a great teacher, and the only one to write words of reason founded on the rabbinical sources.

 

            According to Rabbi Weinberg, Jewish religious law accords women both active and passive election rights. But he considers the election of a woman to an office of community leadership as "against the custom in Israel", so as not to lead her into political and public disputes and quarrels, and it is therefore appropriate, in his view, to abide by the decision of Rabbi Hoffman, who supported giving active but not passive election rights. He adds, however, that if those in favour of giving women also the passive election right prevail, it should not be opposed so as not to disturb the peace and unity of the community.

           

            Nineteen years later, in 1951, Rabbi Yehiel Weinberg wrote his second responsum on the same subject (ibid., vol. 3, at 105):

           

With respect to his question on women's election right, Rabbi D.Z. Hoffman allowed them to vote but not to be elected; but the rabbis in Eretz Israel, as well as the Hafetz Hayyim and Rabbi Hayim Ozer Grodzinski and others, barred the active election right too. And Chief Rabbi Uziel, in his Mishpetei Uziel, permits women both to vote and to be elected. And why should I thrust myself into the controversy between those who permit and others who prohibit; let time take its course and resolve the matter. Those who prohibit have a moral ground, that it violates modesty for a woman to deal with affairs of the public and the community. And they also bring suporting testimony ... and it is sought to reject and dispute. But there is no benefit in the disputation, for the matter has deeper implications.

 

            This passage is instructive. The writer acknowledges the difference of opinion on the matter, yet does not wish to enter the controversy, nor considers it necessary. In this responsum he no longer supports Rabbi Hoffman's view that in terms of the religious law women do not enjoy the passive election right. His decision is - "let time take its course and resolve the matter".

           

            That expression should not be regarded as an evasion of the decisory duty; rather it embodies one of the methods employed in the world of halakhic decision-making. As is known, custom is one of the halakha's legal sources (in this regard see my book Jewish Law (2nd ed. at 212 ff., 219, ff.; 3rd ed., at 203 ff., 210 ff.). Sometimes custom serves to decide the law where there are different opinions among the halakhic scholars; sometimes it decides the law on a question that has arisen in practice and to which there is no known answer in the existing halakha (a lacuna), and sometimes custom does not merely add to the existing halakha but even alters one of its rules. This latter function of custom is limited to civil or monetary law (dinei mammonot) only, and, with certain exceptions, does not apply to matters of ritual permission and prohibition. Elsewhere I have elaborated further on this subject (see Jewish Law, 2nd ed. at 726 ff.). As for the role of custom in deciding the religious law where there are differences of opinion among the halakhic scholars, it is said in the Babylonian Talmud - in response to the question how to decide the law where the scholars are divided: "go out and see what is the usage of the people" (B.T. Berakhot 45a; Eruvin 14b; see also the Jerusalem Talmud Pe'ah, chapter 5; and see my book, op. cit. (2nd ed.), at 728-730, and the footnotes there). "Let time take its course and resolve the matter", in the words of Rabbi Weinberg, is thus an accepted method of decision according to the custom followed by the public.

           

            33. Another interesting responsum on this issue was given by Rabbi Moshe Feinstein, a leading responsa writer of our generation. He does not discuss the general question of women's election rights, only that of the appointment of a woman to a specific public office, that is, her appointment as a kashruth (dietary laws) supervisor. He relates the facts thus (Responsa Iggerot Moshe, Yoreh De'ah, vol. 2, 44):

           

            In the matter of the widow, the wife of a scholar who was a kashrut supervisor, who has been left penniless and lacking means of sustenance for her orphan sons.

           

            And her being a modest woman and truly godfearing, and also wise, understanding and responsible, whether one may rely upon her to take the place of her husband as a supervisor, in this manner to provide for herself and her sons.

           

            May it please the esteemed scholar to advise me on the matter.

           

            Rabbi Feinstein first discusses the question whether a woman can be trusted to fill the position of a kashrut supervisor, and after a detailed discussion concludes -

           

            that as regards her trustworthiness there is no reason for apprehension, for if she is regarded as a worthy woman, who knows and understands how and what to supervise, she may be relied upon.

 

            Rabbi Feinstein then considers an additional question that arises, i.e. according to Maimonides (as we have already noted) only men can be appointed to public office and "it appears that kashruth supervision is such an appointment". Rabbi Feinstein finds support for this in the Talmudic statement that the task of supervising weights and measures among the merchants is an appointment, "and that is exactly like supervision of kashrut, because what distinction is there between the fitness of weights and measures and the fitness of food under the dietary laws". Rabbi Feinstein makes an interesting distinction between a position to perform a task that is not an appointment to "office", that is, to a position of authority, and a position that is an appointment to office or authority. This is an important distinction because Maimonides' prohibition relates to an appointment to a position of authority and not to a labour in general, which a woman is permitted to do. He writes:

           

And the reason is that the difference between considering one a labourer or as appointed to a position of authority has nothing to do with the importance of the task. But if one was hired to do the will of his workgiver he is a worker even if the work is important, and if he was hired to act also contrary to the wishes of the proprietor, as in the supervision of weights and measures where the proprietor might want him to approve imperfect weights and measures whereas he is appointed to condemn and confiscate them from the proprietor, then he is in a position of authority over the proprietor, since the proprietor is bound to do what the supervisor tells him.

 

And the very same applies to an appointment as kashrut supervisor, for his task is to act even against the will of the proprietor and not to allow him to procure forbidden items. And if so, according to Maimonides, one should not appoint a woman for this task.

 

            Though he concludes that the office of kashrut supervisor is an appointment to a position of authority, Rabbi Feinstein rules that a woman may be appointed to this office. In his opinion, Maimonides' view that only men may be appointed to "office" does not originate from a Talmudic source, but from "his own reasoning", and he shows that the author of the Hinnukh (R. Aaron Halevy, 13th century Spanish halakhist), and the Tosafists, as well as Rashi and Rabenu Nissim all disagree with him, holding it is permitted to appoint a woman to an office of authority. The conclusion is -

           

            therefore, for reason of a great need, for the sustenance of a widow and her orphan sons, one may rely on those who disagree with Maimonides and appoint her as a supervisor in her husband's stead .

 

            In other words, in a situation of "great need", such as the livelihood of a widow and orphans, one may rely on the opinion of those who disagree with Maimonides and appoint her a kashrut supervisor. I might add that Rabbi Feinstein subsequently finds a way to reconcile the appointment also with the view of Maimonides, by making the rabbi himself the formal supervisor even if in fact it is the woman who discharges the function.

           

            A later responsum of Rabbi Feinstein (Responsa, ibid., 45) throws light on the contemporary communal background and the controversy surrounding the issue here discussed. It appears that Rabbi Feinstein's above-mentioned ruling on the woman's appointment encountered opposition from other rabbis, one of whom complained about it in a letter written to Rabbi Feinstein, apparently in strong language. Rabbi Feinstein responds:

           

I do not know why the esteemed scholar needs to apologise for differing from my opinion. Certainly every one must seek the truth according to his own understanding, whether it be lenient or stringent, even if he is a pupil who opposes his teacher's reasoning, all the more so when the disagreement is not between the teacher and his pupil.

 

And if he meant to apologise for the critical language he used against me, it is well known, mercifully, that I am not, Heaven forbid, demanding with anyone, and certainly not with a learned scholar. So I shall confine myself to the substance of the matter.

 

Comments worthy indeed of their author!

 

            34. The question of women's election right also occupied the religious kibbutz movement in connection with the election of female members to fill various "offices" on the kibbutz (see The Kibbutz in the Halakha, supra., at 277 ff.). Kibbutz Hafetz Hayyim, an affiliate of the Poalei Agudat Yisrael movement, posed that question to Rabbi M. Auerbach, whose responsum, given in 1934, was the basis for the directives which were set as a "middle course" between the divergent views, for instance, by distinguishing between the different organs of the kibbutz (ibid., at 285 ff.; and cf. the essay of Rabbi Y. Efrati, at 277 ff., who endorsed this course). A slightly different and more lenient tone was sounded in the essay by Rabbi Yonah Dovrat (ibid., at 291 ff.) and amidst some of the kibbutzim belonging to this movement (see Amudim, Religious Kibbutz Journal, 1955/6, at 16-17). On the other hand, the religious kibbutzim affiliated with the National Religious Movement - which form a clear majority of the religious kibbutzim - give female members the full election right, both active and passive, with reference to all the bodies and institutions of the kibbutz and the movement (see Amudim 1987/8 (month of Iyar) containing the resolutions of the 20th Council of the Religious Kibbutz on the status of women, inter alia "calling upon the Minister of Religions to confirm the election of women as members of religious councils").

 

            Finally we shall mention the opinion of Rabbi M. Steinberg, rabbi of Kiryat Yam, that "women have the right not only to vote but also to be elected to public institutions, because election is not the same as appointment" (Hilkhot Nashim (1983/4)). As authority he cites the ruling of Rabbi Uziel (supra) and explains his reasoning thus (ibid., footnote 5):

           

            Therefore this is not appointment but acceptance, for by virtue of the elections the majority of the congregation voices its consent to the elected representatives acting on its behalf in supervising the public affairs.

           

            (And he also cites the above-mentioned ruling of Rabbi Feinstein that a woman may be accepted as a kashrut supervisor.)

           

            35. The differences of opinion encountered in the course of our inquiry are characteristic of the world of the halakha and, moreover, should be seen as integral processes of thought and decision-making, and reflective of the primary rule and guiding principle long ago determined in the Talmudic disputation between the academies of Hillel and Shammai: "both these and those are the words of the living God" (Eruvin 13b). I have discussed elsewhere the origin of this phenomenon and its import in the world of the halakha (see M. Elon, Jewish Law (2nd ed.) at 870 ff.) and shall not elaborate here. One of the characteristics of the ancient halakha, as it has come down to us, is its anonymity and uniformity; the halakha as decided in the Sanhedrin by majority vote, became the general ruling of the entire Sanhedrin. Towards the close of the period of the Zugot* (at the beginning of the first century) there was increasing difference of opinion in all branches and fields of the halakha, with not only theoretical but also practical implications, each school acting according to its own ruling. External political forces, and internal factors (the dispute between the Pharisees and the Saduccees, and the differences of opinion among the Pharisees themselves - between the Houses of Shammai and Hillel) divested the halakha of its directive and regulatory authority, as well as its decision making capacity:

 

 

            When the disciples of Shamai and Hillel who had not studied diligently, increased, disputes multiplied in Israel and one Torah became as two.

(T.B. Sanhedrin 88b; a slightly different version appears in the Jerusalem Talmud, Sanhedrin 1:4 and 8:2.)

 

            These disputes introduced the phenomenon of a practical pluralism in halakhic decision. At first, during a certain period, this was a tolerable situation (Tosefta, Yevamot 1:111; Mishna, Yevamot 1:4; Mishna Eduyot 4:8), but this pluralism could not endure, and differences of opinion in various areas of family law and the laws of purity and impurity led to bitter dispute, threatening to divide the nation (See Jewish Law, supra, at 872-874). One generation after the destruction of the Second Temple (at the beginning of the second century), with the consolidation of the new center of study at Yavneh, headed by Rabban Gamliel the Younger, the unity of the halakha was restored in practice -

           

            and at Yavneh a heavenly voice was heard, saying: both these and those are the words of the living God - but the halakha is according to the House of Hillel.

           

            And with this decisive determination, that the system of the "halakha cannot tolerate pluralism in actual practice, the principle of a pluralism of views in the halakha, was recognized. Though conceptually, "these and those are the words of the living God", yet for practical purposes -

           

            what was it that entitled the House of Hillel to determine the halakha? because they were kindly and modest... [tolerant - according to Rashi; see Jewish Law, supra, at 874-875, ff.]

           

            36. I am not a halakhic decider, nor the scion of such, and I know all too well that that title does not befit me. But there is the Torah, and I must study it. And I wrote as I did on the halakhic discourse for no other reason than to study, and to draw from the springs of our scholars, whose wisdom we imbibe and by whose mouths we live. And I too, if it were at all possible, would follow the example of the late Chief Rabbi Uziel, keeping what I have written to myself, to be published at some other time. But what choice have I, when the decision on the sensitive and complex issue before us entails deliberation of the halakhic discourse and clarification of the opinions of our rabbis on the subject, one that continues to stir public debate. This is not, therefore, the time for a "hidden scroll".

 

            Consider the wisdom of Rabbi Weinberg's perspective on this controversy, to "let time take its course and resolve the matter", for time has indeed brought resolution. Thus, the three luminaries of the previous generation, all considered and held that women were not even entitled to the active election right, namely: the former Chief Rabbi of Eretz Israel, Rabbi Kook; the most prominent of the responsa writers in the lands of the Dispersion, Rabbi Hayyim Ozer Grodzinsky; and the greatest halakhic authority of his generation, the author of the Mishnah Berurah, Rabbi Yisrael Meir Hacohen of Radin (known as the Hafetz Hayyim). Many other rabbis and scholars also held the same view. But time has wrought changes to resolve the issue otherwise. In all the observant communities, without exception, among Hassidim and Mitnagdim, ultra-orthodox and national-religious, in all their camps and factions, women participate in all the elections for the state institutions and organs. And we have not heard, for many years now, of any halakhic authority warning religiously observant Jewish women against voting on the ballot day. That is the custom, and no one sees need any longer to ascertain what the practice of the public is.

 

            Rabbi Weinberg's above-mentioned statement pertained also to the passive aspect of women's election right, that is, their eligibility for public office. Here, too, it seems that time has resolved the matter for the majority of the observant community: religiously observant women have served as members of the Knesset; they have served and continue to serve as members of local authorities and discharge a variety of public functions, thus conducting themselves consistently with the view of great halakhic scholars, as explained above. It is true that in some sectors of the religious public, women do not serve as members of local authorities and in similar public offices. But how can one deny a religious woman this right, if she wishes to follow the opinion of leading scholars who permit the election of women to public office, as well as the practice of many hundreds of Jewish women who keep the Torah and its commandments yet serve in a variety of public offices? And is it possible to say in this day and age that a woman who sits in the Knesset, or on a local council or a kibbutz secretariat, is lacking in the modesty that befits a daughter of Israel? Thus we see all the matters and premises stated in the instructive and detailed responsum of late Chief Rabbi Uziel realized in practice.

 

            The Petitioner seeks to take her place among the members of the religious council in Yerucham, and the Local Council, i.e. the public, chose her and proposed her candidacy for that office. The religious council, as we have seen, exercises no halakhic authority whatever, it makes no halakhic decisions and - having regard to the male component of its membership - it is incapable of making halakhic decisions. For the first requisite for ruling on the law is to study and know the Talmud and the halakhic codes, and to have the appropriate qualifications for so doing. All that the religious council does is to provide religious services, construct and maintain ritual baths, facilitate study of the Torah and Judaism by the public, and also see to proper arrangements for observing the dietary laws. And if it is permissible for a woman who is known to be observant to act as a kashrut supervisor - as we saw in the responsum of Rabbi Feinstein - shall it be forbidden to the petitioner to see to the budget and other requirements for maintaining proper kashrut arrangements in Yerucham?

 

            37. I have not overlooked the opinion of the esteemed Chief Rabbinate Council, that women may not be permanent members of a religious council. We all hold dear the dignity and standing of this supreme state halakhic institution, which is headed by the two chief rabbis of the State of Israel and whose members are learned halakhic scholars. And I reiterate that all I have written is for no other purpose than to elucidate and deliberate concerning the halakhic discourse. To this end, I have cited the opinion of authoritative halakhists, the Chief Rabbi of Eretz Yisrael and other rabbinical scholars, all of whom hold that a woman may serve in public office if elected thereto by the public - with which view the Chief Rabbinate would seem to disagree. With great respect, however, I venture to suggest that perhaps the Chief Rabbinate Council does not really differ from those who believe that a woman may serve in public office, but believes that it is the function of the religious council to deal also with halakhic aspects of the provision of religious services. I find support for this suggestion in the fact that the Committee of Ministers likewise erred in this respect, which was one of the reasons for it deciding as it did, as I explained in detail above. And if that is indeed the case, and there is ground for my supposition, it is possible that the Chief Rabbinate Council may want to reconsider the matter of the Petitioner's seat on the Yerucham religious council.

           

            38. Before concluding I might profitably mention a comparable phenomenon of halakhic controversy and debate on a related issue coming to the fore in recent generations. I refer to the matter of women studying the Torah. I have already had occasion to discuss the issue in this court (S.T. 1/81, Nagar v. Nagar [17]), in relation to the duty to teach and educate sons, which is imposed equally on the father and the mother, and I shall retrieve from that decision some of its main points of interest in the instant context.

           

            According to the halakha in the Mishnah and Talmud, the father must teach his son Torah, and the woman is exempted from this obligation. The explanation for this rule is that the father, who is himself obligated to study the Torah, must likewise teach his son; but the woman, who is not herself obligated to study Torah is accordingly not obligated to teach her son. And women are not themselves obligated to study Torah, because others are not enjoined to teach them Torah, as we learn from the verse, "And you shall teach them to your sons" (Deutoronomy 11:19), which the rabbis interpreted - "not to your daughters" (Kiddushin 29a, Mishna and Talmud). And Maimonides summarizes the rule thus (Yad, Hilkhot Talmud Torah 1:1):

           

            Women... are exempt from studying the Torah; but the small son, his father must teach him Torah, for it is said: "and you shall teach them to your sons and speak of them". And the woman is not obligated to teach her son, for whoever is obligated to study is obligated to teach.

           

            As regards the substance of women's exemption from study of Torah, and the farreaching change of attitude that has occurred in latter generations, we stated in Nagar v. Nagar ([17], at 404-406):

           

This "threefold" exemption of the woman - who is exempted from teaching her son and from teaching herself, while the father is exempted from teaching his daughter - has prompted differences of opinion ever since the time of the Tannaim*. According to Ben Azzai -"a man is under an obligation to teach his daughter Torah", whereas Rabbi Eliezer ben Hyrcanus thought otherwise - "whoever teaches his daughter Torah teaches her frivolity" (Mishnah, Sotah 3:4). The reasons for this dispute and for Rabbi Eliezer's harsh comment have been variously interpreted, but we shall not elaborate here ... Various talmudic and post-talmudic sources do indeed speak in praise of wise, scholarly and learned women... but the halakha was decided according to the view of Rabbi Eliezer (see Maimonides, Talmud Torah 1:13; Shulhan Arukh, Yoreh De'ah, 246:6 ...). With the passage of time the prohibition on study by women underwent various and relaxations, whether relating to the nature and scope of the material studied - the written Torah and practical commandments - or to the depth of their study, and so on.

 

A material change of perspective on this socio-halakhic matter has occurred in recent generations, concurrently with the profound socio-ideological changes. The halakhic scholars have justified this change of perspective on various grounds, the extent and nature of the change in approach varying according to the character of the reasoning. Thus a generation or two ago Rabbi Yisrael Meir Hacohen of Radin, author of the Hafetz Hayyim, related to Rabbi Eliezer's statement about the prohibition of teaching Torah to his daughter, as follows:

 

         It appears that all this applies to past times ...

          when the tradition of the fathers was very strong and every one acted according to the way of our ancestors ... we could say that the daughter should not study Torah, but should rely on the guidance of her righteous fathers. But now, when, sinfully, tradition has weakened greatly with the fathers... especially among those whose practice it is to study the writings and language of the nations, it is certainly very meritorious to teach them the Five Books of Moses, as well as the Prophets and the Writings and rabbinical ethics...

(Collection of Halakhot of the Hafetz Hayyim, Sotah, 21.. .)

 

This ruling gained wide acceptance in Israel, both prior to the establishment of the State and thereafter. Rabbi Zalman Sorotzkin, a leading yeshiva figure wrote (Moznayyim La-Mishpat, 1955/6, par. 42):

 

It is only in relation to the study and disputation of the Oral Law that it was said "whoever teaches his daughter Torah...". But even with respect to the Oral Law a woman is permitted to study the final conclusion, without questions and analysis ... It is not the same today as in former times: in former times Jewish households conducted themselves according to the Shulhan Arukh and it was possible to learn all the Torah from experience... But now ... in this generation not only is it permitted to teach Torah and piety to young girls, but it is also an absolute obligation and, as we explained, it is a very meritorious act to found schools for girls and to implant genuine faith in their hearts as well as knowledge of the Torah and the commandments.

 

It is the nature of halakhic decision - as is the case with all adjudication - that it does not detach itself from the existing law but narrows it or distinguishes it from the new law in the making. Hence the restrictive interpretation of the prohibition against teaching one's daughter Torah as applying only to the study and disputation of the Oral Law. A significant proportion of the contemporary halakhic scholars have shed even this reservation. Thus Benzion Firer, rabbi of Nir Galim, was asked whether the heads of the religious education system were correct in teaching the Written and the Oral Law to girls. He responded unequivocally, distinguishing between former and contemporary generations -

 

When the headlong chase after the tree of knowledge has gripped all human beings, men and women alike, who will stand up and stop this mighty current ... For it is inconceivable to prevent girls from studying precisely the Torah and Judaism, every part of it.

 

Rabbi Firer outlines the existing reality:

 

Like it or not, the fact is that the place of the melamed [male tutor] has been taken by the [female] teacher, and this teacher hands down the Torah to the boys and girls in the primary schools ... And, since it is she who imparts knowledge of the Torah in the primary school, and to boys also, it follows that the observance of the commandments by the boys depends on her knowledge. And since, in any event, they regard all the religious laws equally today - those that pertain to her as a woman and those that pertain to her as the teacher of boys... I would wish for all the daughters of Israel to study the Torah ...

(No'am (halakhic publication, Jerusalem), vol. 3, 134.)

 

Also in point is a responsum of Rabbi Moshe Malka, a former leader of the Moroccan Jewish community and present head of the Petah Tikva rabbinical court (Responsa Mikveh Ha-Mayyim, vol. 3, Yoreh De'ah, 21):

 

The dispute between Ben Azzai and Rabbi Eliezer had reference to their times, when the norm was "all glorious is the king's daughter within the palace", and a woman never went outside the home, nor participated in worldly affairs, when her entire enterprise and wisdom were confined to managing her home and educating and raising her sons ... Not so in current times, when women play a large role in all walks of life, penetrate the depths of the secular sciences and occupy the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs ... Rabbi Eliezer would certainly admit that there is no prohibition against teaching her the Oral Law too, so that she may know how to take care and observe all the laws of the Torah that are pertinent to her affairs and work. Moreover, we are actually obligated to teach and impart to her as much as possible...

 

Rabbi Aaron Lichtenstein, head of the Har Etzion Yeshiva at Alon Shvut, writes in like vein ("Fundamental Problems in Women's Education", in The Woman and Her Education" (Kfar Sava 1980/1) 158-159; a question and answer transcript):

 

In my view it is desirable and necessary, and not only possible, to give girls intensive education, even from the sources of the Oral Law, be it because women engage in all occupations, leaving no reason to withhold the Torah from them, or be it because of the statement of the Hafetz Hayyim...

 

...In my opinion what girls need in order to receive a practical religious training far beyond their instruction today, is an intensification of girls' studies, in quantity and in quality and with instruction in all spheres of the Torah...

 

...One should strengthen study of the Oral Law. In practical terms, it would be beneficial to teach them the [Mishnaic] orders of Zeraim, Mo'ed and Nezikin, as well as the relevant minimum of Nashim, Kodoshim and Tohorot. And when we teach, we should do so in depth... I have no objection to teaching girls Gemara [Talmud]... and it should even be institutionalised as an integral part of school studies, in the form of a proper lesson ... and this seems to me to be the recommended course for the daughters of our generation...".

 

            Now the above reasoning in relation to study of the Torah by women, applies a fortiori to the matter here in issue. With respect to the former issue, there is an express rule in the Talmud, generally upheld in the halakhic codes, that a woman is not only exempt from studying the Torah but even forbidden to do so, this rule being derived from the Biblical verse "and you shall teach them to your sons", and not your daughters. But the profound socio-ideological changes experienced in latter generations, has radically altered also the outlook on the issue of women studying Torah, and it has been determined that not only is there no longer any prohibition, but women are even obligated to study Torah; and not only do they study it for themselves, but they even teach it to the sons of others. And if this is the outcome of the controversy concerning women studying the Torah, then the issue of the election of women to public office should have the like outcome, a fortiori, since most rabbinical scholars are of the opinion that the matter is not expressly prohibited in the Talmudic halakha, and some of the codifiers and Rishonim differed from Maimonides' opinion that only a man may be appointed to all public office. And if so radical a departure as abrogation of the grave prohibition against women studying the Torah could result from social and ideological changes, why not a much less radical departure that permits a woman to serve on a religious council? Should we not see Rabbi Malka's assessment of the contemporary situation (supra) -

           

...in current times, when women play a large part in all walks of life, penetrate the depths of the secular sciences and fill the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs

 

            - as constituting decisive reason to permit modern women to take part in developing and maintaining religious services in their place of residence, by serving on the council charged with implementation of the task? At a time when women actively take part in diverse educational, cultural, social and political pursuits, is not a woman's preclusion from serving on a religious council, in particular, a harsh insult to her dignity and standing, precisely as a religious woman? She may discharge a public function in all areas of social, cultural and political life, but not in a public body that caters to her religious way of life? Is the native-born to be on the earth and the foreign-born in the highest heavens? (T. B. Baba Kama, 42a).

 

            It need scarcely be said that in the world of the halakha we do not discuss purely legal-halakhic questions, in the sense of juridical rights and duties. Rather the ideological and normative values of Jewish religious life are inherent in and inseparable from the subject of the discourse. For we are taught "do not read ways of behaviour [halikhot], but legal rules [halakhot] (cf. T.B. Megilla 28b) and by way of paraphrase we could equally well say, "do not read legal rules [halakhot] but ways of behaviour [halikhot], since legal rules and ways of behaviour come inextricably linked. We have seen clearly reflected - throughout the scholarly passages here cited-in addition to the legal exposition of our subject, also lengthy and detailed discussion of the conceptual implications of Jewish family life; the roles of the father and the mother, of the woman and the man, domestic harmony, the concept of modesty, and so on. All this because examination of these concepts is essential to the juridical-halakhic ruling on our subject. However, these important concepts must be addressed according to both their original significance and their contemporary setting, as we have learned from the passages quoted. Take, for example, this last concept [of modesty - Ed.] and its deep significance in Jewish life, for all persons, as stated by the prophet Micah:

           

            You have been told, man, what is good and what the Lord requires of you - only to do justice, and to love mercy, and to walk modestly* with your God. (Micah 6:8; and see B.T. Makkot 24a.)

           

            It is fitting to cite a passage on the subject written by Rabbi A. Lichtenstein

(see The Woman and Her Education, supra, at p. 158):

 

            The question is, to what extent do we want to perpetuate the original position we find in the halakha or to modify it by legitimate halakhic means, having regard to historical developments. This is a question of outlook affecting not only our present problem but also many others, such as the sabbatical year, the transactions permit**, and so on. When we circumvent the halakha, by halakhic means of course, should we say that the halakha wanted one thing then and now wants another? Or does the halakha still require the same today, except that we cannot meet its standard? To discuss this problem we must consider not only the specific question on the agenda but also the normative ramifications of the problem. When we seek to circumvent the halakha today, by legitimate means, we must ask whether or not it is for attaining a meaningful purpose, religiously and normatively speaking. There is a difference between using a circumvention in order to feed a number of poor women, as in the example of Rabbi Tarfon given in the Jerusalem Talmud (Yevamot, 4:12), or so that someone can gain a few extra pounds.

 

As for the problem of changing or reforming the status of women, if it is feasible to build a sounder and more perfect society, one that is mindful of the values of the Torah and the halakha, then it must be contended that what once was, was suited to those times, but today there is reason to relate to contemporary reality detached from the past. It is impossible to bring back the past-that is not realistic. It is not possible to revive the simplistic naivete of women that was then. Hence it is needed to replace the Ze'ena Ure'ena*, with a tractate of the Mishna, such as Hullin, to teach women more and lend their lives a content closer to that of men, so that women can derive benefit from the existing reality. But to have neither the one nor the other, that certainly is inconceivable. If there is to be neither innocent belief as in past times, nor serious study of the Torah, women will fall between two stools, and that clearly will not be good.

 

            Such is the way of the halakha from ancient times. On this score we wrote elsewhere (see Jewish Law, supra, p. 9; also p. 38):

           

...The history of the Jewish nation is reflected in the history of Jewish law, its institutions and subject matter. For the development of Jewish law was intertwined with the problems that arose in reality, the law and reality reciprocally influencing each other. The halakhic scholars and the community leaders faced a twofold task: on the one hand, a continuing concern to create and develop the Jewish law, and on the other hand, a great responsibility to preserve the spirit, purpose and continuity of the ideas that were central to each legal institution. The performance of this twofold task - to find and determine legal solutions that were founded in the past and also served the many needs of the current generation - is clearly evident to anyone who studies the history of Jewish law in its different periods...

           

            To the above end, the system of Jewish law has drawn upon its own legal sources - those very sources recognized by the halakha as means to create and develop the rules of the system (ibid.). Thus the statements of the responders and codifiers cited above show that they invoke all of the five creative halakhic sources - midrash [exegesis or interpretation], takkanah [regulation or enactment], minhag [custom], ma'aseh [(an act of) precedent], and sevara [logical reasoning].

           

            The status of women in the halakha serves as a classic example of the development of a central subject in the world of Jewish law, the subject being rooted in and intimately tied to daily life and its exigencies, guiding that reality at the same time as it is guided by it. We see, on the one hand, a constant concern for the continued development and creativity of the halakha, and on the other hand, the great responsibility of preserving its spirit, purpose and continuity, along with its central, fundamental values.

           

            39. From the above survey we also discern, incidentally, another facet of the concept of "Israel's heritage", relevant to the interpretation of this concept as used in section 1 of the Foundations of Law, 5740-1980, forming part of the modern Israeli legal system. This is the facet of Israel's heritage-as found in the halakhic sources and as consolidated under contemporary realities.

           

            40. We must now turn to the adjudication of the issue before this court. The decision of the Committee of Ministers to exclude the Petitioner from the composition of the religious council in Yerucham, was founded on erroneous factual premises and on extraneous considerations, and it is therefore null. The Petitioner, having been lawfully elected by the Yerucham local authority as a candidate on its behalf for membership on the religious council, is entitled to inclusion as a member of that council, and we have not found any ground to disqualify her.

           

            We are aware of the sensitivity of the halakhic, social and public aspects of the matter, and are aware of the grave reservations accompanying the matter and which are entertained by those entrusted by law with its determination, who have sought-and justly so-to avoid any ideological or quasi-halakhic confrontation with the halakhic authorities in Israel today. We are also mindful of the possible mishaps, for a certain period, in the orderly and uninterrupted functioning of the religious council. But none of this is sufficient to free us from the decree of the law in Israel, which prohibits discrimination against the Petitioner so as to exclude her from membership of the Yerucham religious council. It is regrettable that notwithstanding the protracted period of discussion of this matter, or the fact that the course for its proper resolution was marked out from both the legal and the public perspectives, there was lacking the courage to make the necessary and inevitable decision. In particular it pains us that no decision was taken in favour of the Petitioner, a result sanctioned by the halakha in the opinion of prominent authorities.

 

          41. We therefore decide that the Petitioner shall be included in the composition of the religious council in Yerucham, as a nominee on behalf of the local authority. As a result, one of the four representatives of the local authority nominated by the Committee of Ministers to serve on the religious council will be required to vacate his seat in favour of the Petitioner. For this purpose, and for this purpose alone, we remit the matter of the composition of the religious council in Yerucham back to the Committee of Ministers, for it to decide - after hearing all the interested parties and considering the balance required in the representation of the different bodies on the religious council - which of the four representatives of the local authority on the religious council shall vacate his seat in favour of the Petitioner. The Committee is called upon to make such decision within thirty days of the delivery of this judgment.

         

          Respondents shall pay the costs of the Petitioner in the amount of NIS 7,500, with linkage and interest increments from this day until the day of actual payment .

         

          BARAK J. I have read the judgment of my colleague, Elon J. I concur in his opinion, of which I would say, as Agranat P. once said (see E.A. 1/65, at 384) "I have read with great interest the instructive, and I might add, courageous, judgment of my learned colleague...". Yet I wish to denote the essentials of my own perspective on the present matter, since we have a difference of "emphasis" in several respects.

         

          1. The decision in the matter of the Petitioner was made by a ministerial committee, acting by virtue of section 5 of the Jewish Religious Services Law (Consolidated Version) - (hereinafter "the Religious Services Law"). Under this Law, the Minister of Religious Affairs nominates 45 percent of the members of the religious council, the local authority 45 percent, and the local rabbinate 10 percent (section 3(a)). Each of the three authorities must express its opinion concerning the candidates proposed by the other two authorities "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities [edot] interested in the maintenance of Jewish religious services (hereinafter referred to as "religious services') in the locality" (section 4). If there is any disagreement between the three authorities, it is referred to a committee of ministers for determination (the Prime Minister, the Minister of Religious Affairs, the Minister of the Interior or their representatives - section 5). In the present case there were differences of opinion, and for this reason the determination of the Committee of Ministers was sought. Under review here, is the validity of the decision of the Committee of Ministers, although we could equally have examined the validity of the list of candidates proposed by the Minister of Religions and that of the local rabbinate.

 

          2. The Committee of Ministers is a statutory body acting by virtue of a Law of the Knesset. The rules of administrative law that apply to all administrative discretion, apply also to the discretion of the Committee of Ministers. Therefore, if it transpires that the act was done in bad faith or from improper motives or other such factors that may disqualify an administrative act, the decision of the Committee of Ministers will be invalidated (per Berinson J. in H. C. 568/76[7], at 679-680). This court's judicial review of the decisions of the Committee of Ministers is the ordinary judicial review which it exercises. The question before us is the legality of the decision. We do not assume the function of a ministerial committee. We examine whether such a committee, acting reasonably, could have reached the decision actually made (cf. H.C. 258, 282/84[19], at 520).

         

          3. It appears from the decision of the Committee of Ministers, that it adopted the considerations urged by the representative of the Minister of Religions (paragraph H of the Ministers' decision, cited in paragraph 11 of the judgment of my colleague, Elon J.). The Minister of Religions on his part took into consideration the objection of the local rabbi and his reasons, noting that he was convinced that "her appointment would disrupt and impair the functioning of the religious council". As for the local rabbi - whose view persuaded the representative of the Minister of Religions and the Committee of Ministers-his objection was based on the fact that the Petitioner is a woman, for which reason the orderly functioning of the council's activities would be disrupted. It was indicated that the chief rabbinate also opposed the appointment. It follows that the decision of the Committee of Ministers to reject the Petitioner's candidacy was founded on the conviction that, being a woman, her service on the council would disrupt its activities. It is true that the Committee of Ministers noted, and this was also the attitude of the Minister of Religions, that the issue was not necessarily to be decided "as a matter of principle". Yet such a principled decision was in fact made, to the effect that if the local rabbi or the chief rabbinate object to the election of a woman to the religious council, in any particular locality, her election should not be confirmed. The question before us is whether that consideration is a valid consideration, one that a reasonable ministerial committee may take into account. The answer is dependent upon the purpose and objective of the Religious Services Law. It is impossible to determine the legality of a particular consideration unless one examines the question within the context of the statute that establishes the body exercising that discretion. A particular consideration may be illegal within the frame of one statute and legal within the frame of another. Every statute sets its own bounds and considerations (see H.C. 241/60[20]; F.H. 16/61[21]). Sometimes it is difficult to cull from a statute's legislative background any identifiable legislative purpose that is relevant to the solution of the problem in hand. In such a case one may assume that the legislature favoured recourse to the customary values of the legal system (see H.C. 73, 87/53[22]; H.C. 262/62[23], at 2113). Thus,

 

...in the absence of an express provision one should not assume that the legislature intended to depart restrictively from principles that are axiomatic...

 (Per Olshan P. in H.C. 163/57[24], at 1050.)

 

            4. The purpose of the Religious Services Law is to fix a framework for the provision of religious services to Jews. For this purpose a religious council is established, which sets a budget and organizes activities for the provision of religious services. All Jews, men and women, religious and secular, avail themselves of these services. It is sufficient to note that the council organizes burial services, which everyone needs, and marriage registration, which every Jew needs if he wishes to marry. Against the background of these activities we have ruled more than once that the qualifications for serving on a religious council are "secular" and not necessarily "religious". Thus, Berinson J. has held (in H.C. 568/76[7], at 679):

           

            The religious council is appointed not by the Torah law but under a statute enacted by the Knesset. This statute does not determine special personal qualifications for members of the religious council, except that they must be "fit" for the position both personally and in terms of their being representative of the bodies and the communities interested in the provision of Jewish religious services in the locality. This being so, I think that it is not this court's function to examine the minute details of the candidates' fitness in terms of the halakha and to impose upon them qualification standards that are not written in the statute.

 

Cohn J. rephrased the same idea as follows (ibid at 680):

 

...The Petitioner and his learned counsel assume as self-evident that a person who is unfit to hold a public office by religious law, should also be disqualified from serving as a member of a religious council under the Jewish Religious Services (Consolidated Version) Law, 5731-1971, which is, as we know, a secular law. It seems to me that the qualifications and competence under the above Law should be determined according to secular criteria, and are in fact a matter for the discretion of the authorities who make the appointments.

 

            Indeed, there is nothing in the Religious Services Law to indicate that only persons learned in matters of the faith and its law may serve on the religious council, and even a person who is not religious is competent, in principle, to serve on the council (see H.C. 191/64[2], at 610). There is nothing in the Law or in its purpose from which to deduce that the halakhic rules of competency are also the legislative standards, and, therefore, even if a woman is not competent to serve as a member of the council according to the halakha, this does not mean that a woman is not competent to serve on the religious council under the Religious Services Law. The two competencies are entirely separate matters. For all that, I am not contending that a religious consideration is extraneous to the Religious Services Law. It is only natural for religious considerations to be relevant to a statute dealing with the provision of religious services. Thus, for example, the religious council provides services in matters of dietary rules and ritual slaughter. It is only natural for these concepts to be interpreted, in the broad sense, according to the halakha, since there is no secular law concerning dietary rules and ritual slaughter. Furthermore, the "religious consideration" is itself subject to judicial review, both as to the very existence of a halakhic consideration and to its content (H.C. 44/86[25]; H.C. 195/64[26]). But that question does not arise in the instant case. The question here is whether the religious laws that determine one's competency to serve as a member of the religious council are the laws that apply within the frame of the statute. To this my response is in the negative, because the statute is secular, it deals with religious services for all Jews - religious and secular alike - and the council itself is an administrative body, which must provide religious services in the most efficient way. In these circumstances - and in the absence of any contradictory provision in the Religious Services Law - there are no grounds to assume that the religious criteria, whatever they may be, are criteria sine qua non. To the contrary: the assumption ought to be that all persons whose personal traits would enable them to perform the task in the optimal way, are competent to serve on the religious council. This test does not negate the competency of any man or woman a priori. All are fit to discharge the function; from among the fit one must choose the most suitable. Therefore, and assuming that all other factors are equal, I would not necessarily find it wrong to prefer a religiously observant candidate over a secular candidate, because one may assume that the former would perform his function better. But it may possibly be otherwise. There may be a secular candidate who, despite his secularity, would perform his function better. It all depends on the circumstances of the matter. Therefore, a woman is competent to serve as a member of the council, and her selection is dependent on her personal qualifications.

           

            5. We have seen that there is nothing in the Religious Services Law to prevent a woman from serving as a member of the religious council. One might contend that it does not follow that to bar the membership of a woman, as such, is unlawful. Hence, what is the source of the rule that disqualification of a female candidate, merely because of her gender, contravenes the Religious Services Law? This conclusion stems, in my opinion, from the general principles of our legal system, in the light of which every law must be interpreted (per Cheshin J. in H.C. 282/51[27]). One of these general principles is that of equality. Every statute must be interpreted in a manner ensuring equality for citizens of the state (see C.A. 507/79[28], at 794; H.C. 114/78, Motion 451,510/78[29], at 806). Landau J. said in this connection (H.C. 95/69[30], at 698):

 

            ... This unenacted concept is of the essence of our entire constitutional order. It is therefore only just - precisely in the borderline cases, where a statutory provision can be construed in two ways-that we prefer the construction that supports and does not undermine the equality of all persons before the law.

           

            And I took the same approach elsewhere (H. C. 507/81[31], at 585), holding:

           

            The fundamental principle that serves as a legislative objective for all actions of the legislative body, is the principle of the equality of all persons before the law ... We must therefore assume that legislative enactments are designed to attain this objective and not to contradict it, and so we must construe them.

           

            Accordingly, we must construe the Religious Services Law in such manner as to guarantee the equality of all persons before the law. Between two possible interpretations, we must choose that which guarantees equality in the optimal manner, and reject the interpretation that contradicts equality. It follows that we must interpret the Religious Services Law in a manner that guarantees equality of the sexes. Indeed, it is a fundamental principle of our constitutional regime that equality between men and women be ensured, and that the male should not be discriminated against because he is male, nor the female because she is female. This principle is found already in the Declaration of Independence, which states that the State of Israel "will maintain complete equality of social and political rights for all its citizens, regardless of religion, race and sex". The importance of the Declaration of Independence is that it embodies fundamental principles of the regime. It is true that it is not a constitution and it does not have any entrenched force. But it does not follow that it lacks all legal efficacy. To the contrary: it constitutes the charter of the nation's values, since it embraces, among others, several principles that underlie the foundations of the regime as well as a number of basic premises to which legislation must conform. The charter of values has legal effect, since rights are derived therefrom and every law is interpreted in its light. Thus (per Sussman J., H.C. 262/62[23], at 2116)

           

            It determines the way of life of the citizens of the state, and every state authority must guide itself according to its principles.

           

            Indeed, the attainment of equality is the "umbrella-purpose" of each and every statute, and every statute must be interpreted accordingly, so long as there is no particular purpose that is clearly intended to negate this "umbrella-purpose".

           

            6. The principle of equality between women and men found explicit expression in the Women's Equal Rights Law. This statute provides (section 1) -

           

the same law shall apply to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act, against a woman as woman, shall be of no effect.

 

            This provision not merely reiterates and emphasizes the principle of equality that was laid down in the Declaration of Independence - in which respect it is not very innovative - but gives it "teeth", in the sense that any legal directive which serves to discriminate against a woman as such with regard to any legal act, is not to be followed. In this respect one must regard it as "an ideological, revolutionary law that changes the social order ..." (per Silberg J. in H.C. 202/ 57[12], at 1537). It is true that in the absence of a rigid constitution the Knesset may amend and repeal - whether expressly or by implication, wholly or partly - the provisions of the Women's Equal Rights Law, and may enact a discriminatory provision (see C.A. 336/61[11], at 408). Such a provision will of course be given effect, so long as it is understood that it was intended to depart from the fundamental principles of the system, on the one hand, and from the Women's Equal Rights Law, on the other. Such departure may be gathered from the language of the statute and its purpose. In other words, we would be dealing with the interpretation of the new Law. The interpretative process would entail overcoming the presumption in favour of the principle of equality, and the presumption against repeal by implication (full or partial) of statutes. It follows that the discriminatory provision must be phrased in "potent" language, and its legislative history must be clear, in a manner that is powerful enough to overcome the various contrary presumptions that guarantee equality.

 

            7. The assumption as to equality, on the one hand, and the Women's Equal Rights Law, on the other, create a normative "umbrella" under which every statute must be so interpreted that the principle of equality in general, and equality of the sexes in particular, shall be realized. Of course, the language of a statute and its specific purpose might lead to the conclusion that the particular statute was indeed intended to realize special objectives that are not consistent with the principle of equality. The judge, as a faithful interpreter, will give full effect to such a statute and will construe it in the light of such objectives. In order to arrive at this conclusion, however, one must point to "potent" language in the statute itself and a "clear" legislative history, from which one may deduce a rebuttal of the presumption of equality and the presumption against repeal by implication (wholly or partly) of the directive of the Women's Equal Rights Law. In the absence of such indicators, the general assumptions regarding equality and nonrepeal by implication of a statute will stand. Now I am not suggesting that in order to negate the presumption of equality there must be express language to that effect. In my view, even in the absence of such express language the presumption of equality may be negated, so long as this is founded on "potent" linguistic ground and an "unequivocal" legislative purpose. Thus, for example, it seems to me that it would be legitimate discrimination - and perhaps not discrimination but rather distinction - if there were a principled position to appoint only Jews to the religious council. Even though the Religious Services Law does not state expressly that only Jews may serve on the religious council, it seems to me that the "potent" language of the Jewish Religious Services Law allied to its legislative purpose (to provide religious services to Jews), suffice to negate the presumption of equality in this matter with regard to any person who is not Jewish.

 

            8. The Religious Services Law does not contain any "potent" language oriented towards discrimination against women as regards appointments to the religious council, and its legislative history discloses no "clear" basis for a discriminatory approach. It may be assumed that this matter was not even considered. In these circumstances it is to be presumed that the Religious Services Law, too, was intended to realize the principle of equality between the sexes, thus excluding the assumption that this statute was designed to repeal by implication the Women's Equal Rights Law. Each of these premises taken separately, and the cumulative weight of both, lead to the conclusion that appointments to the religious council must be made in observance of the principle of equality. Therefore, each of the three authorities that nominate candidates to the religious council must propose its candidates without violating the principle of equality. Likewise, the Committee of Ministers, which resolves any disagreement between the three authorities, must make its decision in observance of the principle of equality. It follows that the candidacy of a woman should not be disqualified for the sole reason that she is a woman. Each and every candidate must be appraised "on the merits", that is, according to the degree of his or her fitness to serve as a member of the council, on the one hand, and in accord with the representation of the bodies interested in religious services, on the other (section 4). Of course, there is no obligation to appoint a woman to every religious council. If there are no women suitable for the position, there is no obligation to appoint one that is unsuitable. The appointment of an unsuitable woman, for the sole reason that she is a woman, would be an improper consideration. Thus, just as it is wrong to refrain from appointing a woman for the sole reason that she is a woman, so by the same token is it wrong to appoint a woman for the sole reason that she is a woman. The appointment must be on its merits. The decision of the Committee of Ministers did not meet this requirement. It refrained from deciding in favour of appointing the Petitioner for the sole reason that she is a woman. There is no substantial argument that the Petitioner is unfit for the position for any reason, other than her being a woman. Thus, the dominant consideration of the Committee of Ministers was an extraneous consideration, the effect of which, in the existing circumstances is to nullify the Committee's decision.

 

            9. My colleague, Elon J., examines the question (in paragraph 21 of his opinion) whether the Petitioner's disqualification from service on the religious council can be justified on grounds specified in the Women's Equal Rights Law for exclusion of the provision concerning equality. As for myself, I would prefer to leave this matter for further consideration. As I indicated, the instant case involves the interpretation of a statute concerning appointments to a religious council, and to that end, it suffices to rely on the principle of equality that is an element of the "credo" of our state. The reference to the Women's Equal Rights Law furnishes additional grounds for an approach that may be employed independently. It is a nice question, what the law would be were one conclusion reached under the one heading (the fundamental principles) and a different one under the other (the Women's Equal Rights Law). As aforesaid, there is no need to resolve this question, and I wish to leave it for another occasion. Likewise I wish to leave open for further consideration the distinction suggested by my colleague between an administrative body and a halakhic body, since such a distinction creates many difficulties with respect to an administrative body that is also a halakhic body. A person's competence to serve on such a "hybrid" body will also be determined - in the absence of an express statutory provision - by way of construing the pertinent statute in light of its purpose. The halakhic character of the body will be one of the elements, though not the only one, taken into account in interpreting the legislative act. But, as I have said, we do not need to address this question here, and it should be left for another occasion.

           

            10. My colleague, Elon J., examined the position of the Committee of Ministers that there are grave fears concerning the efficient functioning of the religious council if a woman serves on it. He proceeds on the assumption (paragraph 22 of his opinion) that the fundamental right of women's equality is a relative and not an absolute right, and it should be balanced against legitimate interests of the individual and the public. He concludes that the grave fears of the Respondents should not act to tip the balance, since a woman's membership on a religious council is not prohibited by the halakha, and there is therefore no fear that her appointment would paralyse the religious council's work. He goes on to state that had it been contended that a halakhic prohibition bars women from serving on a religious council -

           

            ... there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites.

           

            In this respect I wish to note that whatever the nature of such balancing, it cannot be based on negation of the equality principle, and the balance must always be based on the premise of equality. Furthermore, the act of balancing can be done only if there is evidence that the public interest in the maintenance of religious services will be actually affected if full effect is given to the principle of equality. Mere apprehension is not sufficient. It must be shown that insistence on the principle of equality alone will affect the functioning of the religious services. Only if there is actual proof of this, will there be room to consider whether such consideration should be weighed along with the principle of equality. Finally, it will be possible to take such consideration into account only after having exhausted all the legal processes that would ensure the proper functioning of the religous council in full observance of the principle of equality. Striking a balance with the principle of equality is a means of last, not first, resort. Therefore one must first inquire whether all legal measures have been exhausted to ensure that the chief rabbinate (from whom the rule issued that women should not be included in religious councils) shall also act within the frame of the law. One should not forget that the chief rabbis also act within the frame of the law, and the principle of equality which applies to everyone, applies to them too. There is equality even in applying the principle of equality.

           

            M. BEN-PORAT, D.P.: I agree that the petition should be admitted, which is the conclusion reached by my esteemed colleagues, albeit with some differences of "emphasis".

           

          Order nisi made absolute and petition granted as stated in the decision of Elon J.

      

          Judgment given on May 19, 1988.

            HCJ 141/82

           

AMNON RUBINSTEIN M.K. ET AL

v.

CHAIRMAN OF THE KNESSET ET AL

 

 

The Supreme Court Sitting as the High Court of Justice

[June 16, 1983]

Before Kahan P., Shamgar D.P., Barak J., S.Levin J. and Sheinbaum J.

 

 

           

Editor's synopsis -

            The Elections Financing Law set limitations on the amounts which the various party groups were allowed to spend. as a condition of their obtaining public funding of their election expenses. A party that exceeded the established amounts, was denied part of such public funding. to an extent determined by the degree of such excess.

           

            In the course of the elections for the tenth Knesset, in 1981, several party groups exceeded these limits, some by substantial amounts After the elections, the Knesset amended the above Law, retroactively, raising the allowable spending limits and reducing the sanctions applicable to those parties which exceeded the new higher limits, so that these changes in the financing Law applied to the elections previously held. This amendment was passed by an ordinary majority of the Knesset members participating in the vote, rather than by an absolute majority of all Knesset members, required by Basic Law: The Knesset, in the case of an amendment that infringes the principle of equality in elections. See the Bergman case, supra. p. 13.

 

            The individual Petitioners are members of the Knesset who represent the Shinui party, the third Petitioner. They assert - and this assertion is not contradicted - that the Shinui party adhered to the spending limits as fixed in the original legislation which was in effect at the time the elections were held. They contend that the retroactive amendment of the Law raising these limits violates the principle of equality in the elections and is void because it was not voted by the absolute majority of the Knesset required in such cases.

 

            The court issued an order nisi. directing the Chairman of the Knesset and the Minister of Finance to show cause why it should not declare that the amendment is of no legal validity and should not be acted upon. The Respondents, in opposition to the order, argue that the Law satisfied the requirements of equality before it was amended, and that the amended Law, judged on its own, also meets these requirements. The retroactive application of the Law, whatever else might be said about it, does not violate the principle of equality and its enactment did not require an absolute majority.

           

            The court, composed of five Justices, ruled unanimously that the order nisi be made absolute, on the ground that the amendment violated the requirement of equality. The lead opinion was delivered by Justice S. Levin, who was joined by two additional Justices. He held:

              

1.      Equality does not have a single unitary meaning. It is a substantive, not a formal concept, which cannot be weighed without taking into account other values, which may differ from one society to another. It is a derivative concept, and one may sometimes replace it with other terms, such as reasonableness, justice and rationality. One must examine in each case the nature of the rights, in the broad sense, which the legislature has required to be applied equally, and judge what is the most reasonable, fair and just way in which they can be applied, taking into account the particular social conditions prevailing.

 

2.      With regard to elections, equality means not merely "one man, one vote", but also equality of opportunity to be elected.

 

3.      Legitimate expectations that are worthy of protection create protected rights. Retroactive legislation violates the principle of equality when it changes the relative rights of those entitled to share benefits. The amendments to the Election Financing Law, which altered the rules of the game retroactively, violated the Petitioners' legitimate expectations, which are entitled to legal protection, and must be enacted by an absolute majority as set forth in Basic Law: The Knesset.

 

            Justice Kahan, the President, concurred in the decision in a separate opinion. He pointed out that a party that receives public financing of its election expenses but exceeds the amount of expenditure permitted by the Law may have contravened section 286 of the Penal Law, 5737­1977, which makes it an offense to deliberately violate a legislative provision, by doing an act forbidden under that enactment, if the matter concerns the public. Each party list participating in the elections is entitled to assume that the limits fixed by the Law for the public financing of the elections will be observed by all of the lists, and that any list which violates such limitations will suffer the consequences of such violation, whether these be the criminal sanctions set forth in section 286 or the financial sanctions provided in the financing Law itself. When the parties that have the power to do so, amend these limitations retroactively, they nullify these sanctions, which is a violation of the principle of equality, in its broad sense.

           

            The Deputy President, Justice Shamgar, also concurred in the result, in a separate decision. There is no need in this case, he writes, to consider the abstract and theoretical meanings of the term equality. In the context of elections, as set forth in section 4 of Basic Law: The Knesset, equality means formal equality, to be determined by as basic and simple a standard as is possible. There is no reason to assume that such formal equality, as it relates to both the right to vote and the right to be elected, is always optimal from the viewpoint of a democratic regime. It may occasionally conflict with other significant social interests, equally important. Section 4 of Basic Law: The Knesset provides the framework for the solution in such situations, by permitting a deviation from such formal equality upon the vote of an absolute majority of the Knesset.

           

            This approach is preferable, in Justice Shamgar's opinion, to one that subordinates the equality principle to other values and treats as equal that which is not equal, in order to serve such other values. The latter approach runs the danger that, in the long run, the judges may approve inequality because in their judgment, such inequality is necessary in order to protect other democratic values.

           

            In this case, the amending legislation violated the requirement of equality by converting that which was forbidden to that which was permitted with respect to those parties that exceeded the limitations. It is not the retroactivity of the legislation that renders it unequal, but the fact that it set different limitations for some of the parties. Legislation setting such different limitations would have been no less unequal had it been prospective.

 

Note - Professor Rubinstein reports, in the most recent addition of his book on Israeli constitutional law (vol. 1, p. 377), that the party lists which exceeded the permitted spending limits arranged to return the excess to the Treasury. However, after the elections to the Twelfth Knesset, the Knesset once again amended the Law retroactively to increase the permitted spending limits. By a series of legislative enactments, the Knesset confirmed the validity of this retroactive change by an absolute majority.

 

Israel cases referred to:

[1] H.C. 98/69, Bergman v. Minister of Finance 23P.D.(1)693; S.J. vol. VIII, supra p. 13.

[2] H.C. 246,260/81, "Agudat Derekh Eretz" v. Broadcast Authority 35P.D.(4)1; S.J. vol. VIII, supra p. 21.

[3] H.C. 306/81, Flatto Sharon v. Knesset Committee 35P.D.(4)118.

[4] H.C. 652/81, Sarid v. Knesset Chairman 36P.D.(2)197, S.J. vol. VIII, supra p. 52.

[5] Cr.A. 5/51, Steinberg v. Attorney-General 5P.D.1061; 6P.E.26.

[6] C.A. 2/77, Azuggi v. Azuggi 33P.D.(3)1.

[7] A.L.A. 232/75, Atabe v. Razabi 30P.D.(1)477.

[8] H.C. 632/81, 19/82, Migda Ltd. v. Minister of Health 36P.D.(2)673.

[9] H.C. 688/81, Migda Ltd. v. Minister of Health 36P.D.(4)85.

 

English case referred to:

[10] Winter v. I.R. Comsr. (1961) 3 All E.R. 855; (1961) 3 W.L.R. 1062(H.L.).

 

American case referred to:

[11] Regents of the University of California v. Bakke 438 U.S.265(1978).

 

M. Cheshin for the Petitioners.

M. Shaked, Senior Deputy State Attorney, for the Respondents.

 

JUDGMENT

 

          S.LEVIN J.: 1. The Political Parties (Financing) Law, 1973 provided, in its original version, that every "party group" represented in the Knesset was entitled, under certain conditions, to financing for its election expenses incurred during the election campaign and for its running expenses. According to section 4 of the Law, the financing is to be given in three parts: a) a 60% advance on "one financing unit" in respect of each Knesset Member belonging to the party group; b) 85% - after deduction of the advance - immediately after publication of the election results; c) the balance of 15% - immediately after the State Comptroller submits to the Chairman of the Knesset a report certifying that the party group has fulfilled the statutory duties imposed on it. A party group may not receive the balance of 15% if the State Comptroller notes in his report that it did not keep a proper system of accounts as directed by him, or if its expenses incurred or income received exceeded the limits prescribed in the Law. In that event the Chairman of the Knesset must return such balance to the Treasury (section 10 of the Law). It follows from section 7(a) of the original Law that a party group is not entitled to receive the 15% balance if the amount of its election expenses exceeded one and one third financing units in respect of each Knesset Member belonging to the party group on the determining day, or one and one third times three financing units, whichever is more. In anticipation of the elections for the tenth Knesset, the ceiling was raised from 1-1/3 to 1-1/2 financing units, as regards the first part, and from 1-1/2 to 1-4/5 as regards the second part of the section (Political Parties (Financing) (Amendment No. 2) Law, 1980).

 

            The original Law made special provision for the financing of party groups that were not represented in the outgoing Knesset but gained representation in the new Knesset. Such a party group is entitled to receive immediately 85% of the election expenses according to the prescribed rate and on conditions that are immaterial here. It is entitled to receive the 15% balance on condition that its incurred election expenses do not exceed by more than one third one financing unit for each seat it obtained, or three financing units, whichever is more (section 16 of the Law). This section was not amended in 1980.

           

            2. On March 15, 1982, the State Comptroller submitted a report to the Chairman of the Knesset, as statutorily provided, noting that

           

               in this election campaign there was a very substantial overrun of the expenditure ceiling prescribed under the Financing Law, as in effect during the election period; five party groups - Likud, Alignment, Tehiyah, Telem and Tami - exceeded their prescribed ceilings by a total amount of 80,617.621 shekels.

 

            On March 11, 1982, after the elections to the tenth Knesset, the Knesset passed the Political Parties (Financing) (Amendment No. 5) Law, 1982 (hereinafter - "the Amending Law"), section 2 of which amended section 7(a) of the original Law to read as follows:

           

7(a). A party group shall not incur elections expenses of an amount exceeding the larger of these:

 

(1) twice one financing unit for each Knesset member belonging to the party group on the determining day; (2) twice one financing unit for each Knesset member belonging to the party in the incoming Knesset; (3) an amount exceeding by more than 1/2 three financing units;...

 

            Section 7(a) as amended raised the ceiling of allowable expenses from 1-1/2 to 2 financing units for each Knesset member, and an alternative was added in subsection (2) which permitted the ceiling of allowed expenses to rise according to the number of Knesset members belonging to the party group in the incoming Knesset. However, even if the party group exceeds this ceiling of expenses it is no longer denied the full 15% financing balance. Section 6 of the Amending Law added subsection (2) to section 10(e), reading as follows:

           

(2) Notwithstanding the provision of paragraph (1), if the election expenses of a party group exceed that mentioned in section 7(a), the Chairman of the Knesset shall return to the Treasury -

 

(a) for the first 15 million shekels of such excess or any part thereof - 12% of the balance mentioned in section 4(b)(2);

 

(b) for the next 15 million shekels of such excess or any part thereof - 15% of the said balance;

 

(c) for the next 5 million shekels of such excess or any part thereof - 22% of the said balance;

 

(d) for the next 5 million shekels of such excess or any part thereof - 25% of the said balance.

 

            It follows that even if the party group exceeds the allowable election expenses by more than 40 million shekels, it is not denied with respect to the excess more than 74% of the [financing] balance. Once again, section 16 of the Law, relating to new party groups, was not amended. In section 9 of the Amending Law, sections 2 and 6 of this Law, relating to the election expenses for the tenth Knesset, were given retroactive effect.

           

            It transpired that notwithstanding this retroactive provision, three party groups had exceeded their allowable expenses. The State Comptroller wrote in the above mentioned report:

           

            Even after the passage of Amendment No. 5, according to which the ceiling of allowable expenses was raised retrospectively in significant measure, the expenses of three of the said party groups still exceed the ceiling by a total amount of 43,951.388 shekels...

 

            3. Petitioner no. 3, the Shinui Party, was a party group in the ninth Knesset and is such in the tenth Knesset. Petitioner no. 1 is chairman and Petitioner no. 2 a member of this party group. Both were members of the ninth Knesset and are members of the tenth Knesset. In an affidavit in support of the petition, it was claimed (in par. 16) - and not disputed- that "the Shinui party group observed the provisions of the Financing Law and did not spend on election propaganda for the tenth Knesset any sums beyond those prescribed in the Financing Law, even though there still remained considerable sums of money in its fund ..." On the Petitioners' motion an order nisi was issued against the Respondents, who are the Chairman of the Knesset and the Minister of Finance, respectively, to appear and show cause:

           

a. Why the High Court of Justice should not declare that the provision of section 9 ... (of the [Amending] Law), insofar as it concerns the amendment of section 7(a)... and the addition of section 10(e)(2) of the Law, is void of legal effect and should not be acted upon;

 

b. Why the above mentioned Respondents should not exercise their powers and discharge their duties according to law ... and as provided in section 9 of the [Financing] Law.

 

            The Petitioners do not put in issue the public aspects of the amendments under deliberation here, in respect to which the State Comptroller wrote in his report:

           

6. Amendment No. 5 also contains far-reaching retroactive provisions which raise significantly the ceiling on expenses applying to the election campaign just concluded, and which lighten the sanction imposed on party groups exceeding the ceiling, so that some party groups are effectively released from the original sanction, and others are subject only to a nominal sanction.

 

Since the scrutiny of the State Comptroller in relation to the Financing Law focuses mainly on ascertaining whether the election expenses of the party groups were kept below the ceiling known and set at the time of the expenditures, the raising of that ceiling retrospectively, after the expenses were incurred and known, and the easing of the sanction in cases of excess, render the statutory limitation and review void of content.

 

            The Petitioners' grievance is a purely legal one. Section 4 of Basic Law: The Knesset provides that

           

            the Knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law.

           

            This section further provides that it cannot be changed except by a special majority of 61 Knesset members, which majority is required at all the stages of legislation (section 46). The Amending Law passed its first reading by a vote of 32 to 5, and the condition of a special majority was not met at the second reading.

           

            The Petitioners also do not complain that sections 7 and 10 of the Law as amended violate per se the principle of equality or any other principle embodied in the above mentioned section 4, and they do not question the distinctions made in the mending Law between the old and the new party groups represented in the incoming Knesset. Their sole complaint is against section 9 of the Amending Law, and their argument is that its provisions-which change retrospectively the financing norms in force before the elections - violate the principle of equality and are null and void because they were not passed with the requisite majority. Their submission is that the equality in section 4 of the above Law is not limited in duration to the day of the elections; that the Amending Law discriminates against party groups that observed the financing limitations in the expectation of being paid the balance under the Law, and in favour of party groups that acted without restraint before the elections, now to be rewarded under the Amending Law. Had the Petitioners anticipated the enactment of the Amending Law before the elections, they would have planned to act differently, and in the circumstances the Amending Law prejudiced their legitimate expectations. It is further contended that the Amending Law also violates the principle of equality between the various party groups with respect to the next Knesset, since parties which exceeded the expenditure ceiling under the original Law would face a deficit towards the next scheduled Knesset elections; and funding of these party groups would reduce the deficit and fortify them, as compared with party groups like Petitioner no. 3, which received nothing.

           

            4. As in previous cases where the question of equality under section 4 of Basic Law: The Knesset was deliberated (see Bergman v. Minister of Finance [1] and Agudat Derekh Eretz v. Broadcast Authority [2], the Attorney-General has not raised a plea of non justiciability, and does not seek any judicial pronouncement upon the relationship between a basic law and an "ordinary" law - although "retaining the right to raise these and similar questions in future cases" (par. 5 of the notice of legal arguments on behalf of the Respondents). We have accordingly been asked to dismiss the petition on its merits. It should be noted, in parentheses, that the more the cases in which this court discusses on their merits petitions involving constitutional issues of the stated kind, the less the prospect that this court will refuse to hear them in the event that the Attorney-General decides in the future to raise "these and similar questions" (cf. Shamgar J. in Sharon v. Knesset Committee [3], at 141; and, more recently, Barak J. in Sarid v. Knesset Chairman [4], at 201-202).

 

            The Respondents argue that the determining time for purposes of the equality mentioned in section 4 of Basic Law: The Knesset, is the time of the elections; that the Basic Law does not promise equality in expectations, and since the original Law applies equally to all party groups, as does the Amending Law, there is accordingly no violation of the principle of equality. And if you wish, so it is argued, perhaps the principle of equality is violated but not the principle of equal opportunity to be elected, and only the latter violation requires a special majority under section 4 of the Basic Law. Ms. Shaked, on behalf of the Respondents, further argued that the Bergman case [1] should be distinguished from the present one. The former concerned a violation of equal opportunity in relation to payment of public funds to the party groups, whereas this case concerns the independent expenses of the party groups, the sum of which merely rises in consequence of excessive expenditure, and this matter is unrelated to the principle of equality. Finally, Ms. Shaked reiterated the court's warning in Bergman [1] that a Law should be presumed to be valid, so as not to be voided except for weighty reasons which, so she argues, do not pertain in the present instance.

           

            5. There is no single definition for the term equality. We use it in mathematics, ethics, philosophy and law, and it has no uniform meaning in any one of these areas. One researcher has found 108 different connotations of equality (see P. Westen, "The Empty Idea of Equality" 95 Harv.L.Rev. 537 (1982), at 539, note 8). Here, in this petition, we are concerned with the meaning of the term "equal elections" in Basic Law: The Knesset. First, however, we must make some preliminary remarks on the general legal import of the notion that a legal rule or a complex of legal rules should be applied in equal fashion.

           

            To start with, I am in agreement, with all due respect, with the majority opinion in H.C. 246, 260/81[2] that the equality in question is substantive and not merely formal. Formal equality is possible only in relation to geometrical forms, and not human beings, for no two persons are absolutely alike. In Steinberg v. Attorney-General [5], a person subject to the duty of military service argued that the Security Service Law, 1949 should be held void because it discriminates between men and women, inasmuch as it exempts from military service a woman who declares that she is unable to serve in the army on grounds of conscience or religious conviction but does not extend the exemption to a man who seeks to make a like declaration. This argument was based on the Declaration of Independence, which promised "complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex...". In dismissing the argument this court held (per Sussman J., at 1068):

              

          When the circumstances of the two cases are different, the legislature may and sometimes must relate to them in different fashion, and any discrimination that originates from a difference in the circumstances should not be challenged. In order to disqualify an act on grounds of discrimination it must be made clear whether the discrimination is unjust or unfair, that is, whether identical circumstances were treated differently by the legislature. Distinction between cases involving different circumstances, on the other hand, does not constitute discrimination.

 

          Thus, for example, where the law provides that income tax shall be imposed on an equal basis, can one say in a modern society that the imposition of a per capita tax, regardless of the taxpayer's income, subjects citizens to an equal tax obligation. Would a law be invalid if it entitled pregnant women to buy food they specially need for pregnancy at a discount price, contrary to a hypothetical governing provision against discrimination in granting discounts, since men -let alone women who are not pregnant - will not receive those benefits? The correctness of the majority view in H.C. 246, 260/81[2] is especially apparent in those cases where the law calls for distributing public resources in an equal fashion, but those resources are limited. Thus if two children fall sick, one suffering from a fatal disease and the other from a minor illness, and the public resources permit medication for only one of them, does the principle of equality dictate that we deny both the medicine, or that we divide it in two or give it all to one of them by way of lottery or in any other way? Is it relevant that the child who is fatally ill will die anyway? Is it relevant that one of the children is a genius? (See J. Stone, "Justice in the Slough of Equality", 29 Hastings L.J. (1978), 995 at 1012, note 31.) All these examples, and others too, illustrate that it is impossible to weigh considerations of equality without making value judgments. These judgments may change from society to society and from time to time.

         

          Second, Kelsen and others have already pointed out that the principle of equality is essentially derivative, and one can often use other terms in its stead, such as rights, reasonableness, justice and common sense. Westen (supra) goes so far as to argue that "equality" is a superfluous term which can always be replaced by other terms; if you say that a legal rule must be applied equally, you have said nothing, because every legal rule must, by definition, be applied equally. He writes (op. cit., at 548-9):

         

To say that two people are "equal" and entitled to be treated "equally" is to say that they both fully satisfy the criteria of a governing rule of treatment. It says nothing at all about the content or wisdom of the governing rule.

 

            Third, and flowing from the foregoing, one must examine in each instance the nature of the "rights" (in the broad sense) in respect to which the legislature wishes to act in equal fashion, and consider the most reasonable, just and fair normative way to apply them equally, taking into account the prevailing social conditions. Indeed, the source of the rights matters little for purposes of the logical analysis; they might derive from express legislative provision or emanate from the courts, and they could be absolute or contingent rights (cf. Westen, ibid., 554-5), so long as they merit protection and application.

           

            6. The meaning of political equality in general and of equality in elections in particular, are questions that call for separate discussion. As the social, economic and technical concepts undergo change, so does the substantive content of the rights that are the subject of equality. More and more frequently we come across problems that arise from the behavior of a majority trying to adapt political norms to its needs (cf. Dickson, "Justice and Equality", Nomos, vol. IV, 44, 51). The development of the communications media and technological advances present to the lawyer new problems of justice and equality, unknown in the past.

           

            That development is especially marked in relation to elections. We no longer speak of "one man, one vote", but of "equal prospects" or "opportunity" for the candidates lists (see H.C. 98/69[1] and H.C. 246, 260/81[2]), and we construe accordingly the term "equal elections" in section 4 of the Basic Law. There arises the normative question of how far we must reach in applying the principle of equality in this matter. One writer lists six different tests for establishing whether a given election system is equal (Still, "Political Equality and Election Systems", 91 Ethics 375 (1981): all have an equal right to vote (defined in section 4 of the Basic Law as "general" elections); each voter's ballot has the same weight as another's (termed in section 4 as "proportional" elections); an equal statistical probability for each voter to influence the election results; anonymity; the election results must reflect the will of the majority; proportional parliamentary representation of the groups competing in the elections. It appears, therefore, that some of the components of section 4 of the Basic Law, other than equality, are derivatives of that principle.

           

            The development of the communications media has created a hitherto unknown predicament relating to the allocation of equal broadcasting time for all the party lists competing in the elections. This court faced such a situation in the case of Agudat Derekh Eretz v. Broadcast Authority [2]. There is a growing recognition that the different levels of economic power held by the various lists might result in inequality. A list that is supported by a circle of wealthy sponsors may obtain electoral achievements surpassing those of an opponent of small means. The legal system can prohibit or restrict the receipt of contributions, either directly or indirectly, but in that case it must make available to the various lists reasonable economic resources for conducting an election campaign. That is how the idea of public financing for the election campaign was conceived, along with the concomitant question of how to distribute such financing "equally". One rule in this context was determined in Bergman v. Minister of Finance [1]: one may not discriminate between veteran party groups and new lists. In the instant case that question does not arise, but a more difficult one does: how is the public cake to be divided "equally" among the existing lists?

 

            7. To start with, it should be noted that it is an indirect "incentive" which the Financing Law offers the various lists with respect to the allocation of public resources, in return for the limitation on elections expenses and contributions. Section 17 of the Law provides that its provisions shall not apply to a party group which notifies the Chairman of the Knesset that it does not wish to have its election expenses financed under the Law; but a party group that wishes to benefit from public funding must comply with the provisions of the Law, otherwise it will be denied a small portion of such funding under the original Law, and an even smaller portion under the Amending Law. The fact that this is an "indirect" incentive does not release the authority from the duty to apply it on an equal basis. Thus, for example, a provision exempting party contributions from taxation might be invalidated, if it has a disparate effect on the opportunity of "poor" parties to attain electoral achievements, compared to parties with wealthy sponsors (Leibholz, Rinck, Grundgesetz-Kommentar, 6 Aufl. 637-639). For that reason we can dismiss outright Ms. Shaked's argument that one should distinguish between public funding given to the party groups, which must be distributed equally, and increased independent party expenses where there is no public funding - which does not affect equality. Also to be dismissed is Respondents' argument that even if the Amending Law affected equality, it did not affect equality in the elections. With respect to these two arguments, suffice it to say that even an indirect violation of the principle of equality mentioned in section 4 of the Basic Law, is still a violation by reason of which this court might invalidate a statutory provision as incompatible with the Basic Law, so long as the violation is substantial.

           

            8. Since the concept of equality is a derivative of the right it is designed to protect, I must discuss another argument of the Respondents. They submit that the Amending Law did not affect any right of the Petitioners: all party groups are equal as regards financing under the original Law; all party groups are equal as regards financing under the Amending Law. If so, what is the Petitioners' grievance? The Petitioners argue that had they known in advance of the Amending Law they would have planned the financing of their election expenses differently. Ms. Shaked's reply is that the principle of equality in section 4 of the Basic Law was not intended to ensure equality in the expectations of the various party groups, but rather equality in rights, whereas no right of the Petitioners was violated; further, the question whether the pertinent statutory provisions meet the test of equality, should be examined prospectively and not retrospectively.

           

            The term "expectation" or "hope" in the context of the Law has its origin in the Roman civil law. Only a concrete and defined right merits protection, which is not the case with an "expectation"- something that is not sufficiently defined and the realization of which is always uncertain. The term "expectation" has been used in the same sense in American law: a mere expectation of a future benefit, based on the assumption that the law will remain as it is, does not give rise to rights (see 16 C.J.S. 1173 (New York, 1959); cf. C.A. 2/77[6]). Thus it was held in A.L.A. 232/75[7] that the potential right of a statutory tenant to receive key money, not yet activated through the statutorily determined procedures, is not sufficiently certain to qualify it as attachable. On the other hand, we do find use of the phrase "reasonable expectation" or "legitimate expectation" in the case law (see, e.g., H.C. 632/81, 19/82[8], at p. 680). What distinguishes a mere "expectation" from a "reasonable expectation"? The former does not merit protection while the latter does. Thus with regard to the filing of a debtor's claim in bankruptcy proceedings, we see that the "expectation" of a debt creates rights (see the definition of "liability" in section 1 of the Bankruptcy Ordinance [New Version] 1980; cf. Winter v. I.R. Comsr.[10]). Accordingly, an "expectation" that merits protection generates a right or interest (in the broad sense) meriting protection. An expectation that does not merit protection does not generate any rights.

           

            9. A retrospective provision might or might not violate the principle of equality. It might do so if it changed retrospectively the relative rights of those claiming a portion of the benefit, be it a general or a political one. It might not violate the principle of equality if it changed retrospectively the rights of only one claimant, or where the question of equalizing the rights of various claimants does not arise (although the retrospective character of a legislative enactment might violate another principle).

           

            Take, for instance, the case of a public tender in which the authority decided retrospectively to change its conditions in a material way. We have held such a decision to be invalid.

           

            The participants in the tender made their calculations on the basis of data provided them by the public authority, and it is their reasonable expectation that the decision be made on the basis of that data (H.C. 632/81, 19/82[8], at p. 679; cf. H.C. 688/81[9]).

           

            The same would apply to the hypothetical case in which the Knesset retrospectively raises the ceiling of expenses allowed to a new party group, which was a precondition to funding under the original Law, or retrospectively cancels altogether the financing for new party groups. In such cases there is no doubt that the legitimate "expectations" of the new party groups would be affected. Should the corresponding "expectations" of the Petitioners in the instant case be treated differently? Are we not to hear their argument that had they known about the provisions of the Amending Law they would have planned their actions differently? I am aware of the fact that the answer to these questions is a matter of legal policy. Likewise, I do not overlook the fact that if we recognise the Petitioners' interest as meriting protection, we are going beyond the ruling in Bergman [1], to recognise indirect inequality as a ground for declaring invalid a Law of the Knesset. As far as I am concerned there is no fault in this approach: provisions of law establishing an inequality in the distribution of public funds, create a financial inequality among the various party groups. Financial inequality among the various party groups creates inequality in political rights. Inequality in political rights is no less bad - perhaps worse - than inequality in other contexts.

 

            I have reached the conclusion that the provisions of the Amending Law, which retrospectively changed the rules of the game as laid down in the norms of the original Law, substantially affected the Petitioners' legitimate expectations - which merit protection - in a way calling for this court's intervention. To the best of my understanding this petition must be admitted. In light of this conclusion I refrain from expressing an opinion on the Petitioners' weighty argument, that the Amending Law has a continuing discriminatory effect that extends also to the forthcoming elections.

 

            Therefore, my opinion is that the order nisi should be made absolute, and the Respondents shall make every effort to return to the State Treasury all excess funds already paid.

           

            The Respondents shall pay the Petitioners counsel's fees in the amount of 30,000 shekels.

           

            KAHAN P.: I concur in the result arrived at by my esteemed colleague, Levin J., and wish to add the following reasons:

           

            The Respondents' main argument is summarized in section 7 of Ms. Shaked's notice of arguments, as follows:

           

7. The Respondents will argue that a contest which offered equal opportunity before the elections cannot become unequal in opportunity consequent to an amendment enacted after the elections. For cautionary reasons, however, Respondents will argue that if elections, which offer equal opportunity at the time, can be rendered unequal retroactively, by later developments, that would be only in the most unusual circumstances, which the Petitioners have not illustrated by any example.

 

            The difficulty facing the Petitioners here is that if the amendment had been passed before the elections, there is no dispute that it would not have constituted a violation of equality, but would have been completely valid without the special majority required under section 46 of Basic Law: The Knesset in order to change section 4 of that Law. The only legal blemish the Petitioners have found in the amendment, is its retroactive effect. The question before us is, therefore, whether this retroactivity violates the principle of equality, despite the indubitable validity of such an amendment had it been adopted before the elections. It appears to me that this question should be answered in the affirmative. In section 7 of the Political Parties (Financing) Law (hereinafter-the Financing Law), which was fully cited in the judgment of Levin J., the Knesset forbade a party group from incurring election expenses in excess of the amount specified in the section. A party group expending amounts in excess of the prescribed ceiling acts in contravention of the statute, and such conduct might constitute an offence against section 286 of the Penal Law, 1977, which reads as follows:

           

            Where a person willfully contravenes an enactment by doing an act which it forbids or omitting to do an act which it requires to be done, and such act concerns the public, such person is liable to imprisonment for two years unless it appears from the enactment that some other penalty was intended for such contravention.

           

            It is possible that the penal provision of section 286 should not be applied to a contravention of section 7 of the Financing Law, because the provisions of this Law concerning the withholding of public funds where the conditions of section 7 are not complied with, could be regarded as "some other penalty ... intended for such contravention." There is no need for us to express an opinion on this question, because whether or not section 286 applies, the prohibition in section 7 against the incurrence of excessive election expenses, still remains in effect.

           

            We are guided by the precedent in Bergman [1], that the principle of equality in section 4 of Basic Law: The Knesset must be reflected in equal opportunity for the various candidates lists competing in the Knesset elections. And since this equality might be violated as a result of discrimination in state funding for the elections, it must be concluded that every list competing in the elections is entitled to assume that the prohibitions and restrictions imposed by the Financing Law as regards election fundraising and expenditures will be observed by all the lists, and that those violating those prohibitions will bear the consequences, whether as determined in section 286 of the Penal Law or only as determined in the Financing Law itself. If party groups that hold enough power in the Knesset for the purpose, were free to change the Law retroactively without the special majority required under section 46 of the Basic Law, and used that power to remove retroactively the prohibitions imposed by the Financing Law or to dull the sting of the criminal provisions for violating the law, the prohibitions imposed by the Financing Law would become meaningless. And that would violate the principle of equality in its wide sense, as construed in the precedents, which are not challenged here. Take, for instance, the prohibition in section 8 of the Financing Law, according to which a party group "shall not ... receive any contribution from a body corporate in Israel". It is inconceivable that party groups should be able to violate this prohibition, and thus enjoy an advantage in financing the elections, in the expectation that subsequent retroactive legislation -without recourse to the provisions of section 4 of the Basic Law-will validate such violation. In my opinion, we cannot tolerate a situation that allows for amendment of the Financing Law with retroactive effect, as in the instant case, without meeting the requirements of section 46 of the Basic Law as to a special majority in every stage of the lawmaking.

 

            In the report submitted by the State Comptroller, Mr. Y. Tunik, to the Chairman of the Knesset on March 15, 1982, following audit of the party group accounts for the period of the elections to the tenth Knesset, some critical comments were made concerning the retroactive effect of the Political Parties (Financing) (Amendment No. 5) Law. I shall not repeat those comments, which were cited in the opinion of Levin J., but will merely add that the State Comptroller went on to endorse the opinion of his predecessor, Dr. Nebenzahl, that retroactive legislation in connection with election funding "leaves no significant deterrent role to the Law or the audit prescribed under it, and this consequence in itself is a disservice to the standing and dignity of the Law". This criticism commends itself to me, with all due respect, and my opinion is that the retroactive provision of the Political Parties (Financing) (Amendment No. 5) Law cannot be validated in this case, but must be held legally void.

           

            BARAK J.;

I concur in the opinions of my esteemed colleagues, Kahan P. and Levin J.

           

            SHEINBAUM J.:

I too concur.

           

SHAMGAR D.P.:

 

1. Defining the Issue

            The Political Parties (Financing) Law is one of the Knesset election laws, in the sense of this term in section 4 of Basic Law: The Knesset (H.C. 246, 260/ 81[2], at p. 17). It was passed by the Knesset on January 24, 1973, by a majority of the Knesset members (D.K. 66 (1972/3) 1360-1362). Section 7 of the Law sets a limitation on the expenses allowed a party group during the election period, and section 10 of the Law prescribes the measures to be taken against a party group in consequence of its failure to abide by the limitations set in section 7.

           

            The Political Parties (Financing) (Amendment No. 5) Law (the "Amending Law") changed the provisions of sections 7 and 10, and section 9 of the Amending Law lent the amendments retrospective effect, i.e., applicable to the elections to the tenth Knesset, which had already passed at that time. The nature of the Amendment - which was adopted by a simple majority falling short of a majority of all the Knesset members - was such as to benefit retrospectively some of the party groups, specifically those that violated the provisions of section 7 concerning the limitation on expenditures, because the permissible limits were drawn a new retroactively, and the sanctions in case of breach were restricted in their scope of application. Since the Amending Law was adopted after the elections to the tenth Knesset, the question arises whether this retroactivity, which benefits only a section of the party groups that participated in the elections, does not offend the element of equality provided for in section 4 of Basic Law: The Knesset.

           

            The essential question before us, therefore, is whether or not a retroactive change in the laws of political party financing, that retroactively benefits only some of the party groups, is devoid of legal effect if it was not adopted in the Knesset by a vote of a majority of the Knesset members as required under section 4 of the Basic Law?

           

2. Equality

            (a) In H.C. 246, 260/81[2] I outlined my perspective on the nature of the equality principle that is among the attributes and elements of our election system included in section 4 of Basic Law: The Knesset (ibid. p. 18 ff.). I noted there that I interpret the words "equal elections" as importing formal equality, that is, they determine as basic and simple a standard as is possible, any deviation from which is contingent on the affirmative vote of a majority of the Knesset members. I would not return to this matter were it not for a growing apprehension that removing the subject of equality from its concrete constitutional context increases ambiguity and vagueness, and might create blurring of the normative boundaries that would devoid the constitutional norm, to a greater or lesser degree, of the content imparted to it by the legislature in formulating the two main parts of the stated section 4.

           

            (b) The Basic Law provides, inter alia, that the Knesset shall be elected by equal elections and that this provision shall not be varied save by a majority of the members of the Knesset. A variation, in this respect, means either explicit or implicit (conclusion to section 46 of the Basic Law). In the provisions of section 4 the legislature did not lay down abstract principles, for all purposes or matters, as if its purpose was to supplement our Declaration of Independence, the preamble to the U.S. Declaration of Independence or the French declaration on human and civil rights, in all of which the principle of equality was emphasized as a primary political, social and moral point of departure. The matter before us concerns equality in its limited application to the election system and must therefore be examined as it impinges upon the stated conceptual framework. There is no need for us to delve into the verities concerning the eternal relativity of the abstract concepts. One does not need this court's rulings in order to understand that beauty, justice and equality are relative values. In the present context it is therefore best that we focus on the question as to what constitutes equal elections according to the Basic Law: The Knesset, and what was the legislative purpose in fashioning the stated constitutional principle.

 

            (c) The decisions of this court recognize that equality, insofar as it concerns the election system, has a twofold implication. In H.C. 246, 260/81[2] it was stated (at p. 19):

           

[T]he principle of equality has two facets: the first expression of equality concerns the right to vote, and this element is the concise translation of the rule "one man, one vote"; Secondly, the element of equality also relates to the right to be elected, finding concrete expression in the right to equal opportunity of the various candidates' lists competing among themselves in the elections to the Knesset.

 

            Equality in the two above main forms (which are not necessarily exhaustive), finds expression in an identity of substance and form, that is, its attire is formal: despite the different characteristics and capacities of human beings, each voter has only one vote, and that is the formal expression of equality in the right to vote. So too, it follows from the equality in the right to be elected, that is, equality of opportunity, that the legislature envisioned the adoption of an equal standard also in the distribution of resources among those competing for the voter's ballot. It is possible, of course, that with respect to such equal distribution there will be doubts or reservations in terms of its justness and logic, as Landau J. pointed out in Bergman [1], at p. 699):

           

As we draw away from this fundamental meaning of equality before the law, so it clashes with other important principles to which it must defer ...all agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. ... We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond. ... All these restrictions inevitably derogate from absolute equality.

(Emphasis added - M.S.)

 

            This implies that the different perceptions as to application of the equality principle in its plain sense stem not from the relativity of equality but rather from the meeting, and at times collision, between the norm of equality and what appears to be just and fair in the special context of the election laws, i.e., other legitimate interests also designed to serve the good of our constitutional regime. There are those who argue, for example, that every party list should be given identical broadcast time, because the new, still unknown, party list claims that it is making itself and its platform known to the public for the first time, and, in any event, the presentation of its views and personalities requires the same amount of time as is needed by an existing party. One of the counter arguments proffered is that total equality would unbalance the stability of the democratic government and foster harmful and excessive fragmentation. We need not take a position on these different approaches, because that is not the question before us. However, if at the time of choosing between the above alternatives a distinction is made between political bodies according to their existing relative power and greater rights are granted to party groups whose representatives were elected in previous elections, then matters should be stated as they properly are and the unequal should not be couched in the language of equality. In other words, we must abstain from an Orwellian substitution of concepts that leads to normative distortion, and rather conclude that under certain circumstances and in the way appointed in the Basic Law - the legislature sanctions a deviation from absolute equality.

           

            Of course, it is not difficult to lay down an identical yardstick for both the above matters, i.e. the active as well as the passive election right. The many facets of the equality principle, in its various senses, mentioned by Westen and referred to by my esteemed colleague, Levin J., need not be a burden in the practical determination of the full formal equality of the right of election and of equal opportunity to be elected, if we indeed wish to adopt such yardstick. My approach is not to confuse the concepts of equality, justice and reasonableness, which are neither coextensive nor derivative, but different normative concepts, and the conclusion that formal equality would not achieve a just result still does not imply that it was technically impossible to formulate a plain standard of equality.

           

            (d) As already indicated, the Israeli legislature anticipated a possible need for deviation from the statutory principles, and in an attempt to ensure that the deviation not be made arbitrarily but only under circumstances where it would be just and fair to do so, the legislature set the requirement of a special majority. This in turn arouses the attention of the general public and the special alertness of the elected representatives to the significance of their actions. When a majority of the Knesset members exercise their power and, in accord with sections 4 and 46 of the Basic Law, vary the plain application of the principle of equality, that does not mean that the statutory provision in its new form still represents equality - substantive or formal - but quite the opposite; the variation that requires a special majority now constitutes a deviation from equality. In other words, the legislature provided a statutory arrangement that attains a twofold objective:

 

            (1) the Basic Law allows change where necessary, if, for example, absolute equality impairs what is just, fair or reasonable;

            (2) a deviation from equality should not be casually or inadvertently done, hence the requirement of the special majority.

           

            As already noted, fostering the view of a constant and regenerating relativity of equality in all areas and matters, and especially of the impossibility of an a priori definition of its clear and simple scope, may open the door to attempts at manipulating the rule of equality to its limit, and at times, even beyond.

           

            3. (a) My esteemed colleague, Levin J. , is of the opinion that formal equality is possible only with respect to geometrical forms, but not human beings, since no person is absolutely the same as another. If this argument is developed to its theoretical end, it would seem that even geometrical forms are not absolutely equal. However, the point is that equality in the right to elect and the right to be elected does not at all require as a prior condition that one person be absolutely the same as another. The constitutional directive merely prescribes that equality be ensured in the rules that are applied to those who elect and are elected as such, that is, with respect to the right to vote and, likewise, to actions that affect the right to be elected. The Law does not purport to create identity and equality in the attributes of the candidate or the voters - that is not the subject under deliberation. It is obvious that from a practical point of view there is no need for a candidate or voter to be "absolutely the same as another" for the purpose of extending publicity time or financing for elections. The lack of alikeness, as an expression of the diversity in human traits, does not create any practical difficulty in applying rules of equality in the above-mentioned areas, if that is what we desire, and if the rules are not considered unreasonable or unjust in the circumstances.

           

            This is how the Knesset understood the purpose and objective of the above-mentioned section 4, in both its parts, and it accounts, among others, for the enactment of the Elections (Confirmation of Validity of Laws) Law, 1969.

           

            The reference to Cr.A. 5/51[5] is also not in point. The question there was whether discrimination existed in a certain area, and the court noted, inter alia, that discrimination which stems from a difference in the background situation cannot be challenged. That is to say, it was precisely the absence of equality that was the reason for dismissal of the discrimination argument, and that is common knowledge.

           

            With reference to another example brought by my esteemed colleague, I know of no general rule of law that requires an equal distribution of public resources; but if there were to be a provision in a Basic Law - along the lines of the example given by my esteemed colleague - that "every patient is entitled to an equal dose of medicine", one could only hope that the legislators would have the wisdom to reserve the possibility of a deviation from the set norm when the medical conditions so require. In the absence of legislative forethought - which is hardly reflected in an enactment of the above kind, and without the stated qualification - formal equality might indeed have an unjust effect.

           

            As I have said, we need not digress to spheres that are remote from the matter before us, but should examine the question of equality within the contextual framework here defined, that is, the election laws. The difference between elections and any other context can be illustrated by a realistic example. Thus there are renowned egalitarian frameworks that distribute their available resources to their members according to need, and that too is one expression of equality; on the other hand, it is obvious that a similar approach in regard to the election laws, i.e. funding of each party group according to its needs, would not deserve the title of equality, even according to those who adhere to a material standard .

           

            All one can learn from these examples is that in matters of the kind here discussed, as in any other, it is wise first to examine the principle in light of the substantive area in which it is to be applied; also that the existence of a flexible constitutional norm which allows for the preference of what is just, fair or reasonable in the specific circumstances - in those cases where it is incongruent with total equality - is, at times, an imperative of the constitutional reality.

           

            (b) My esteemed colleague, Barak J., writes in H.C. 246, 260/81[2] as follows (at pp. 15-16):

           

I have expressed my opinion that the Amendment No. 6 Law contradicts the principle of equality in that it fails to grant new as well as small veteran lists the minimal time required for proper election propaganda, while it grants the large veteran lists additional time beyond the minimal requirement. One might ask what grounds there are for this conclusion? The answer is that the tools at the disposal of the judiciary in this matter are limited, and the task difficult. Ultimately one can only resort to common sense, life-experience and the lawyer's expert sense. In principle this decision is no different from judicial decisions frequently made as to the reasonableness and fairness of acts done by state officials. Indeed, if we do not have the tools to decide whether a reduction in the new lists' television broadcasting time from ten to eight minutes violates the equality principle, then neither do we have the tools to decide whether a reduction to six or four or two minutes violates the equality principle. Is such a result conceivable? And if common sense, life experience and the sense of expertise can set a boundary between the forbidden and the permitted, between equal and unequal, then why should it be possible to distinguish between four and two minutes (for example) and not between ten and eight minutes (for example)? I am indeed aware that in exercising judicial discretion we are not acting in an exact scientific manner, but I fear there is no better alternative.

 

            I am of the same opinion, so far as concerns the capacity of this court to exercise its discretion in separating equal from unequal; but I doubt whether the delicate distinctions required in such matters - measured in the above example in terms of a few minutes - one way or the other - help to clarify the guiding constitutional principle. Furthermore, as we mentioned before, we are not removing an obstacle from before the legislature, because to focus on the court's capacity to scrutinize a legislative act is to put the cart before the horse. The question is, primarily, whether the principle of equality is construed in a clear, straightforward and understandable way.

           

            Of course it is not always possible to simplify constitutional rules, even where they concern the rights of the entire body of citizens - who are not initiated in the art of interpreting the law-but in those cases where it is possible to do so in accordance with the written word of the law, it is correct to take that course. When one takes a course that is blemished with inequality in the short term so as to attain equality in the long term (Regents of University of California v. Bakke [11]), or where formal equality is rejected for the good of the democratic regime (see the West German constitutional judgment, 2 BVR. 158/ 62 of May 30, 1982-referred to in H.C. 246, 260/81[2], at 20), one should name the choice for what it is in substance and follow the constitutional course thus indicated. One should not hide behind the relativity of the equality concept and thereby blur the constitutional import of a statutory enactment, with the result that the procedure laid down in sections 4 and 46 of the Basic Law will be circumvented. As stated in H.C. 246, 260/81[2], at 21-22:

           

            The theoretical question that arises in this context is whether ... the concept of equality should be regarded as a broad concept that extends beyond its plain formal sense to include an entire range of circumstances in which full equality is not maintained for various, seemingly justified, reasons; or, whether the concept of equality should not be given a flexible meaning, amenable to the influences of other constitutional or state needs. In other words, are we to say that equality is preserved even when we do not meticulously maintain the principle of full formal equality, but the deviation from perfect equality is done on justifiable grounds rooted in the existential interest of the democratic regime? The alternative, as we said before, is not to distort the plain sense of the principle of equality, but to acknowledge that deviations from that principle are allowed if effected in the way provided in the conclusion to section 4 of the Basic Law-when it appears just and fair to do so, or if there are grounds to do so for the maintenance of a stable democratic regime, such as those mentioned by the esteemed President in the Bergman case [1] or by the German Constitutional Court, as mentioned above. I am aware of the fact that proponents of the method of broad and flexible construction prefer it to the other, because in terms of constitutional terminology it preserves the appearance of maintaining the equality principle. The contrary view is that the concept of equality is distorted if the mantle of equality is thrown over circumstances which are not such. Furthermore, the effect is to negate the existence of any clear standard for determining the border posts of equality. Mathematical or simple formal equality could be quite clear; for instance, it could find expression in the allocation to each party of equal and identical broadcast time. Needless to say, such equality is neither reasonable nor just, especially when 31 lists are competing in the Knesset elections.

 

            In summary: the abstractness and relativity of the principle of equality, in general, do not imply that formal equality in the election laws is meaningless and unattainable; but nor can one conclude that formal equality in the election laws is coextensive in each case with what is desirable according to the nature of the democratic regime. The resolution of this predicament is outlined in advance in the concluding part of section 4, as above mentioned.

           

4. Retroactivity

            The complex of legal rules that governs the procedure and the ancillary arrangements in democratic elections (propaganda, financing, etc.) rests on the principle of equality, also as regards its application. Even where differences exist between various party groups as regards the scope of their rights, equal application of the law finds expression, inter alia, in the fact that once the rules have been determined they apply in identical measure to all the participants in the elections. Clearly, this extends not only to the positive directives but also to the prohibitions and qualifications. In terms of equal opportunity, it follows that whoever competes for the voter's ballot must act within the confines of the rules concerning what is permitted or forbidden, as prescribed in the pertinent laws.

           

            The practical meaning of the retroactive change in the area under consideration is a kind of amnesty for part of the contestants; what was forbidden in the past now becomes permissible for them (and for them alone), and in particular, whoever acted in violation of the prohibitions and restrictions before the elections and offended equality in the sense of failing to observe the legally prescribed bounds, is now regarded as having acted within permitted bounds because of the statutory amendment. In other words, the sanction that was to be imposed upon a party's failure to act in the same way as the other contestants, in transgression of a given prohibition, will not be applied against him.

           

            The retroactive amendment concerns the functioning of the party groups prior to the elections and the conclusions required to have been drawn in their regard, had they violated a given rule. In this respect it is immaterial that the elections have meanwhile passed, because converting the forbidden into the permissible for only a section of the candidates or party groups, that is, only for those who deviated from the restrictions, does injury to the equality that should have governed the election contest.

           

            From the aspect of equality as a binding norm, it is therefore irrelevant whether the statute was amended retrospectively, or prospectively, with reference only to some and not all of the party groups. Therefore, apart from the public and moral blemish pointed to by the State Comptroller and referred to by my esteemed colleagues, the retroactive amendment constitutes a violation of equality, and if the Amending Law was not adopted by the requisite majority prescribed in section 4 of the Basic Law, then it cannot have any legal effect.

           

            Hence, I am in accord with the opinions of my esteemed colleagues with respect to the outcome of the deliberation.

           

            We accordingly make absolute the order nisi, stipulating that if the excess sums have already been paid, the Respondents shall make all effort to return them to the State Treasury.

           

            The Respondents shall pay the  Petitioners counsel's fees in the amount of 30,000 shekels.

           

            Judgment given on June 16, 1983.

 

 

 

 

 

 

Justice Y. Danziger

I concur in the comprehensive and scholarly opinion of my colleague, Justice E. Rubinstein, and in the operative result proposed by him.

1.    At the outset I will emphasize that in my opinion, our willingness to allow an additional trial period, in which the effect of the “door-opening” arrangement on the coercive application of separation and dress codes will be examined, cannot legitimize coercion as stated; and if it transpires that such coercion persists, this will obviously constitute a very weighty consideration that may lead to the conclusion that this arrangement should be terminated because, in effect, it promotes patently illegal coercion, as stated. I also find it appropriate to emphasize the importance of maintaining a broad, efficient and effective control mechanism to check for the existence of coercion during the trial period. At the end of the day, the respondent’s decision at the conclusion of the trial period will be based on the results of this control mechanism and on reports that will be provided by male and female inspectors on behalf of the respondent (and, hopefully, also on the direct impression of the general public which makes use of the relevant lines). If the trial period is not properly utilized for the compilation of a well-established factual base as aforesaid, it will be truly difficult for the respondent to make a reasonable and proper decision in the matter.

In addition, I believe that the role of respondent 2, together with its managers and its employees, in ensuring the implementation of the arrangement recommended by the Committee should be emphasized. Respondent 2 must not contribute, indirectly or tacitly, to the forcible application of separation or dress codes, and it is subject to the duty — as a company providing a public service — of maintaining absolute compliance with the guidelines laid down by the Committee, to which we have added in this ruling.

I welcome the fact that ultimately, the respondent accepted the conception that structured and enforced separation in the public arena in which public transportation is provided is illegal. This restricted the scope of the dispute to the question of how to implement this conception and to ensure that there are no arrangements that force separation or a certain type of attire on women. Nonetheless, I cannot stop at this point, and I would like once again to briefly emphasize some basic concepts regarding dignity and equality.

2.    Israel’s Declaration of Independence states that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” Separation of people on the basis of gender (as on the basis of race or religion) violates the principle of equality and constitutes discrimination. In HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94, Justice D. Dorner emphasized in her ruling — which some believe is perhaps the most important ruling she ever handed down (see: Mordechai Kremnitzer, Khaled Ghanayim and Alon Harel, “Portrait of Dalia Dorner,” in The Dalia Dorner Volume (Shulamit Almog, Dorit Beinisch and Yaad Rotem, eds., 2009) 418 (Hebrew)) — the humiliation that accompanies gender-based discrimination as a basis for her position that discrimination against that background constitutes a violation of the right to dignity which is anchored in Orsdin. In that ruling, she referred to the ruling of the United States Supreme Court in Brown v. Board of Education 347 U.S. 483 (1954), which rejected the “separate but equal” approach to education that had been generally accepted up to that time. In that context, Justice Dorner stated, inter alia:

‘Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature. This, of course, entails profound humiliation for the victim of the discrimination’ (ibid., at 132).

The humiliation that accompanies gender-based discrimination was also pointed out by (then) Justice M. Cheshin in HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Welfare [1998] IsrSC 52(3) 630 , who stated as follows:

‘Discrimination against a woman — for being a woman — is generic discrimination... Generic discrimination, as  already stated, is discrimination that mortally wounds human dignity’ (pp. 658-659).

3.    This humiliation becomes gross humiliation when violence — verbal or physical — is used to enforce it, or when the state authorities legitimize it, even indirectly and certainly directly. As a man, I suggest that every man ask himself if he would want one of the means of coercion which my colleague described in his opinion (see para. 20 of the opinion) to be used against a woman in his family, and if he would want a woman in his family to be forced to dress in a way that is not in line with her beliefs whenever she seeks to use a public service. Even more importantly, I would suggest that all the men in question ask themselves how they would feel if, merely because they belonged to a certain group, people were to fence off the public area in which they are entitled to be present and to require them to wear a certain type of attire. I would ask those women who support coercive separation to ask themselves the same questions — for example, whether forcing them to dress in a way that is not in line with their beliefs as a prerequisite for using public transportation, would not humiliate them and violate their dignity. In fact, there were periods — dark ages — in which norms such as those that constitute the object of the petition before us were applied throughout the entire world (and, unfortunately, there are places in which they are still applied). Nonetheless, such norms cannot apply to, and cannot be binding upon a public area within the State of Israel, merely because that public area also serves, inter alia, the religious and ultra-Orthodox population.

4.    I cannot refrain from commenting that many generations of Jews lived in societies in which separation of the type that some people are now seeking to enforce was not practiced. Were they less devout in their belief than those who now seek to enforce such separation? Did they have the audacity to enforce separation in the public space that they shared with all those people who did not desire such separation? Are the solutions that were found by the great sages of those generations inferior to the solution of coercive separation? In my view, the answers to these questions are obvious, and the fact that some people are seeking to exploit their power, including their consumer and political power, in order to apply and even to establish the said coercion, gives rise to real discomfort, especially against the background of these circumstances. 

Even without relating to the situation from a historical perspective, in the Jewish and democratic State of Israel, the state authorities cannot support the establishment of the said coercion, and the state must take action — positive action — to uproot it. The coercion in question reflects a violation of human dignity and individual autonomy; it is nothing but the oppression and humiliation of women, for which there is no place in our society, either in the name of multiculturalism or under any other banner. On this matter, the message that must be voiced by the state authorities, in all areas in which the state has influence, must be unequivocal and insistent: there shall be no such coercion. 

5.    I feel bound to conclude by citing a statement of (then) Justice M. Cheshin in Israel Women’s Network v. Minister of Labor and Social Welfare [23]. His words should be recalled by all those who seek to enforce separation and certain types of attire on any man or woman who does not want them:

‘Both the male and the female were created — created together — in the image of God. Woman and man are one: she is a human being; he is a human being; both are human beings.

Thus it was — and was rightly; thus it is — and is rightly; thus it shall be — and shall be rightly. We shall remember and we shall be on guard’ (at p. 663).

 

 

Held as per the opinion of Justice E. Rubinstein.

29 Tevet 5771.

5 January 2011.    

 

IN THE

SUPREME COURT OF THE STATE OF ISRAEL

SITTING AS THE

HIGH COURT OF JUSTICE

HCJ 1758/11

 

Before:           Hon. President D. Beinisch (Ret.)

                        Hon. Justice N. Hendel

                        Hon. Justice I. Amit

 

Petitioners:               1. Orit Goren,

2. The Women’s Lobby of Israel

v.

 

Respondents:             1. Home Center (Do It Yourself) Ltd.,

                                    2. The National Labor Court in Jerusalem

 

Argued:                      28 Elul 5771 (27 September 2011)

 

Decided:                     25 Iyyar 5772 (17 May 2012)

 

On behalf of Petitioner 1:               Adv. Orna Lin; Adv. Odeliah Ettinger; Adv. Barak Calev

On behalf of Petitioner 2:               Adv. Yaniv Wiseman

 

On behalf of the Respondent 1:      Adv. Dror Gal; Adv. Carmit Levi Zamir; Adv. Sima Golin

On behalf of Representatives for Equal Opportunity in the Workplace:        

Adv. Tziona Kenig-Yair; Adv. Janet Shalom

 

                        Judgment

President Dorit Beinisch (Ret.)

            Petitioner 1 (Orit Goren; henceforth, “Petitioner”) won a lawsuit against Respondent 1 (Home Center Ltd.; henceforth, “Respondent”) under the 1996 Equal Pay Act, upon the determination that the salary she received from the Respondent was lower than that of a male employee who performed the same task, and given that the Respondent could not justify the discrepancy.  The issue decided by the National Labor Court, among others, in this case was whether proof of discrimination under the Equal Pay Act automatically gives rise to a cause of action under the 1988 Equal Job Opportunities Act.  The main issue arising from this question is the fact that under the Equal Job Opportunities Act, unlike the Equal Opportunities Act, it is possible to award damages without proving actual damage.  A majority opinion in the National Labor Court determined that a successful claim under the Equal Pay Act does not automatically give rise to claim under the Equal Job Opportunities Act; hence, this petition.

 

Facts

1.         Petitioner worked as a consultant in the tool department of the Respondent’s store at the Ayalon Mall in Ramat Gan from August 25, 1997 until December 27, 1997, where she was paid NIS 17/hr.  Along with the Petitioner in the tool department worked Steven Mor, a male, who earned a salary of NIS 5000/month (which amounts to approximately NIS 26/hr.).  The two were hired after filling out a questionnaire and an interview by the department head.  When asked before their hiring how much they wanted to be paid, the Petitioner requested NIS 3500/month while Mor requested NIS 6000/month.  When the Petitioner discovered that Mor received a higher salary than her, she wrote a letter, dated November 16, 1997, to the department head asking for a raise to the effect of either NIS 5000/month or NIS 26/hr.  Her letter went unanswered. On December 14, 1997, the Petitioner wrote another letter to her department head pointing out that to the best of her knowledge other employees in her department earn more money than she does.  She requested information regarding the salaries of the other employees in her department and provided notice of her resignation effective December 27, 1997.  2.      After her resignation, Petitioner filed a lawsuit against the Respondent in the Labor Court for the District of Tel Aviv, claiming the difference in salary between her and the other employees on the basis of both the Equal Pay Act and the Equal Job Opportunities Act.  On April 1, 2004, a panel consisting of Judge M. Nachtomi and Public Representatives T. Braffman and Y. Eldar found in her favor.  The panel determined that both the Petitioner and Steven Mor worked as consultants in the tool department in the Respondent’s Ramat Gan branch, and that the Respondent did not sufficiently establish either a distinction between the job done by the Petitioner and the job done by Mor; or that Mor had any superior abilities to those of the Petitioner; or that the reason Mor received a higher salary was because he was in line for a managerial position.  However, the court determined that the Respondent sufficiently proved that, generally speaking, its male employees do not receive a higher salary than its female employees. 

Given the circumstances of the case, the court also had to decide what reference group to use in determining whether the Petitioner was discriminated against..  Should the court compare her salary to all those working in the Respondent’s tool departments across the country or should it compare it to the salaries of those working in the Ramat Gan branch?  Regarding this question the court looked to Section 2 of the Equal Pay Act which says that any discrepancy in wage should be calculated against employees employed “by the same employer” and “at the same place of employment.”  In light of the fact that the Respondent’s policy in this case is to leave all salary decisions to the discretion of the manager of each branch, the labor court determined that the Petitioner’s loss due to discrimination should be calculated against the salaries of her coworkers at the Ramat Gan branch.  Since the Respondent did not provide information regarding the wages of the other workers in the tool department of the Ramat Gan branch, and the court determined that the services provided by the Petitioner were equal to those Mor was hired to do, the court concluded that the Petitioner had sufficiently proven that the disparity in salary between herself and Mor constituted discrimination.  The court noted that the fact that the salary offered to the Petitioner was a result of negotiation between her and the department head during which she requested a lower salary than that which Mor requested does not justify the disparity in their salaries.  Therefore, the district labor court determined that the Petitioner successfully established a claim under the Equal Pay Act and awarded her NIS 6,944, which is the difference in salary earned between the Petitioner and Mor. 

Additionally, the district labor court determined that once it has been found that the Respondent violated the Equal Pay Act, the Petitioner has a legitimate claim under the Equal Job Opportunities Act.  The court held that since the Petitioner’s salary was set as a result of her salary request and not at the behest of the Respondent, the Petitioner could not be awarded the full amount under the Equal Job Opportunities Act.  Therefore, the court set the amount of compensation owed to the Petitioner under the Equal Job Opportunities Act at NIS 6,944, equal to the compensation awarded to her under the Equal Pay Act.

3.         The Respondent appealed the decision to the National Labor Court, and the Petitioner filed a counter-appeal.  The Respondent claimed that the Petitioner should not be entitled to compensation under either law, while the Petitioner claimed that she should be entitled to higher damages than those awarded to her under the Equal Job Opportunities Act.  In a November 20, 2007 decision, the National Labor Court decided to affirm the lower court’s ruling awarding the Petitioner compensation under the Equal Pay Act, but, in a split decision, held for the Respondent with regards to the Equal Job Opportunities Act and reversed the lower court’s decision to award damages under the Equal Job Opportunities Act. 

 

The Decision of the National Labor Court

4.         Judge V. Wirth-Livnah delivered the decision of the National Labor Court.  In the decision, Judge Wirth-Livnah interpreted the relevant provisions of both the Equal Job Opportunities Act and the Equal Pay Act and compared the claims available under both statutes.  Regarding the Equal Pay Act, Judge Wirth-Livnah agreed with the ruling of the district court according to which the Petitioner’s loss should be calculated against the salaries of those working in the tool department at the branch at which she worked in Ramat Gan, because every branch of the Respondent acts independently, as the manager of each branch determines each employee's salary. Judge Wirth-Livnah added that in this case the information provided by the Petitioner regarding the disparity in salary between her and Mor and the fact that they performed the same task sufficiently fulfilled the Petitioner’s burden of proof in establishing her case.  With regards to the exceptions to the Equal Pay Act listed in Section 6 of the statute, Judge Wirth-Livnah determined that it is the responsibility of the Respondent to prove that the case falls into one of the exceptions, and in this case, the Respondent did not meet its burden. Judge Wirth-Livnah pointed out that there may be exceptions to the right to equal pay not listed in the Act, and noted that the right to equal pay is not absolute.  Therefore, the right to equal pay must be balanced with the right of employers to privately contract and negotiate a salary with its employees.  Thus, Judge Wirth-Livnah determined that if an employer can prove that any discrepancy (so long as it is not extreme) between the salaries of its male and female employees who perform the same task is due solely to the individual salary negotiation the employer has conducted with each individual employee, the right to contract will outweigh the right to equal pay.  The employer, however, is required to ensure that the differences in his employees’ salary are reasonable.  Additionally, Judge Wirth-Livnah pointed out that if the court were to take away an employer’s right to contract, there could be a negative effect on women, as it could cause employers to avoid hiring women altogether as a means of avoiding the problem of wage gaps.

In this case, Judge Wirth-Livnah determined that because the difference between the Petitioner’s salary and that of Mor stood at 35% and because the Respondent failed to provide information regarding the salaries of other employees working at the branch, this is not a situation in which the right to contract trumps the right to equal pay under the Equal Pay Act.  Therefore, Judge Wirth-Livnah concluded that the Petitioner sufficiently established a claim under the Equal Pay Act, and upheld the lower court’s decision in this regard. 

While the other members of the panel joined Judge Wirth-Livnah in her decision, it is important to note that Judge S. Tzur (and employer’s Rep. D. Blumberg who joined his opinion) and President S. Adler (with whom employer’s Rep. Y. Shilon joined) did not agree with Judge Wirth-Livnah regarding the circumstances in which the right to contract trumps the right to equal pay.  President Adler held that an employer acting in good faith cannot take advantage of the weakness or unfamiliarity of female employees of the appropriate wage rates for the job she is seeking when requesting a lower salary than what a male applicant is requesting.  Finally, President Adler noted that the difference in bargaining power between the genders cannot serve as a valid justification for a difference in salary. 

5.         The main disagreement between the judges in the National Labor Court, however, surrounds the question of the relationship between a claim based on the Equal Pay Act and a claim based on the Equal Job Opportunities Act.  Judge Wirth-Livnah, together with  Judge Tzur and Employee's Rep. D. Blumberg, held that an award under the Equal Pay Act does not automatically trigger a claim for damages under the Equal Job Opportunities Act.  In her opinion, Judge Wirth-Livnah focused on the difference between the two statutes.  Under the Equal Pay Act, the plaintiff can be awarded damages for the difference in salary up to the 24 months prior to filing a complaint, whereas under the Equal Job Opportunities Act, a plaintiff can be awarded damages as the court sees fit without the need to establish any monetary loss.  Judge Wirth-Livnah noted that compensation under the Equal Job Opportunities Act are aimed at educating employers and deterring discrimination. Therefore, judges have wide latitude in determining what the compensation should be.  Furthermore, Judge Wirth-Livnah added that the two Acts are different with regards to the evidence a plaintiff must provide in order to establish a prima facie case of discrimination thus shifting the burden of proof over to the defendant.  Under the Equal Pay Act, all that is required of a plaintiff filing suit is to provide the court with information regarding a difference in salary between her and a male employee who performs the same task and in the same workplace; whereas a plaintiff filing suit under the Equal Job Opportunities Act must present actual evidence of discrimination, despite the fact that the Equal Job Opportunities Act does not require the plaintiff to prove that the discrimination was intentional.  Judge Wirth-Livnah adds that there are various pieces of legislation intended to protect equality in the workplace, among them the Equal Pay Act, the Equal Job Opportunities Act, the 1954 Women in the Workplace Act and the 1998 Law to Prevent Sexual Harassment.  The fact that there are different statutes to this effect calls upon us to look upon them as complimentary of one another as opposed to redundant in which fulfillment of the elements of one claim will automatically fulfill the elements of another.  Judge Wirth-Livnah noted that under Section 2 of the Equal Job Opportunities Act, the plaintiff-employee must prove actual discrimination.  The importance of this requirement is that any lawsuit filed on the basis of the Equal Job Opportunities Act requires the plaintiff to first and foremost establish that there was gender discrimination, because only proof of discrimination can result in punitive damages. 

Judge Wirth-Livnah added that the differences in the evidentiary requirements between the Equal Pay Act and the Equal Job Opportunities Act necessary to establish a cause of action is whether the facts of the case are branded as “discriminatory” and entail punitive damages, which is the case in a Equal Job Opportunities Act lawsuit, but not in a claim filed under the Equal Pay Act.  Therefore, Judge Wirth-Livnah concluded that successfully establishing a claim under the Equal Pay Act does not necessarily mean the plaintiff will be successful in a claim under the Equal Job Opportunities Act.  Hence, in this case, Judge Wirth-Livnah found that the fact that the lower court concluded that the Respondent’s business did not have a discriminatory policy in place meant that it was not deserving of the punitive measures consistent with a claim under the Equal Job Opportunities Act and that the compensation awarded to the plaintiff under the Equal Pay Act sufficed. 

6.         President Adler, with whom Employees Rep. Y. Shilon joins, disagreed with Judge Wirth-Livnah and held that a successful claim under the Equal Pay Act gives rise to a claim under the Equal Job Opportunities Act.  President Adler ruled that an unequal salary demonstrates discrimination in the workplace which violates Section 2 of the Equal Job Opportunities Act.  President Adler pointed out that under both statutes the plaintiff must provide evidence of a difference in salary and unequal treatment between herself and a male employee, thereby shifting the burden of proof to the employer-defendant to prove that he acted legally.  Accordingly, an employer who successfully shows that the difference in salary is justified under Section 6(a) of the Equal Pay Act has sufficiently proven that the difference in wage is not a result of the plaintiff’s gender as required by the Equal Job Opportunities Act.  Therefore, President Adler held that so long as the employer cannot show that the difference in salary is justified under Section 6(a) of the Equal Pay Act, the only conclusion is that the difference in treatment is a result of the employee’s gender.  Furthermore, President Adler added that neither Acts requires the plaintiff to prove that the discrimination was intentional and that every case is to be decided objectively.    Additionally, the situations in which a plaintiff can file a claim under the Equal Job Opportunities Act are no less than those available under the Equal Pay Act, and the defenses available to an employer under the Equal Job Opportunities Act are no more than those available under the Equal Pay Act.  Thus, concludes President Adler, the two statutes complement one another when they are interpreted in a consistent manner. 

With regards to this case, according to President Adler’s approach, the fact that the lower court agreed that the Respondent did not discriminate as a matter of policy is not a good defense against the claims stemming from the two statutes.  Paying an employee less than what others, performing the same task, are earning, even if it is against company policy, is a violation of both these laws.  Finally, according to President Adler, the question of whether a company policy results in discrimination is a factor in determining the amount of damages to award under the Equal Job Opportunities Act. 

 

The Parties’ Claims

7.         The main claims of the Petitioner and of petitioner no.2, The Women's Lobby of Israel (henceforth, “the Petitioners”) touch upon the nature of the relationship between the cause of action under the Equal Pay Act and the cause of action under the Equal Job Opportunities Act given the circumstances of this case and the evidentiary threshold necessary to prove a claim under the Equal Job Opportunities Act.  According to the Petitioners, the fact that the Petitioner’s salary was 35% less than that of Mr. Mor is reflective of the deep rooted problem of wage discrimination in the Israeli economy and is sufficient to meet the burden of proof necessary to establish a successful claim not only under the Equal Pay Act, but also under the Equal Job Opportunities Act.  The Petitioners further argue that the court cannot deny the Petitioner's compensation under Section 10 of the Equal Job Opportunities Act solely because she could not prove widespread discrimination.  According to the Petitioners, the majority ruling in the National Labor Court requiring that a claim of discrimination under the Equal Job Opportunities Act to be "because of" the employee’s gender, is, for all intents and purposes, the same as requiring proof that the employer "intended" to discriminate.  Such a burden is, according to the Petitioners, unrealistic.  The Petitioners point to the decision of the district labor court (upon which the National Labor Court relied) that there was no company-wide policy resulting in discrimination and argue that the decision of the National Labor Court essentially requires proof of widespread discrimination in the workplace as a condition for relief under the Equal Job Opportunities Act.  Additionally, the Petitioners argue that when a court determines that there is a discriminatory effect that cannot be explained by relevant considerations, such as the case at hand, it must not be required to rule on whether the source of the result is a deliberate policy of discrimination.  The Petitioners also argue that the National Labor Court’s interpretation of the Equal Job Opportunities Act does not fit with its plain language.  The statute itself contains no language suggesting that courts should deviate from the established test for determining discrimination, namely, determining whether there is disparate treatment between two entities that are otherwise equal.  The Petitioners further allege that the interpretation of the National Labor Court goes against the purpose of the Equal Job Opportunities Act, which is to serve as a deterrent to discrimination.  They argue that in Section 10 of the Equal Job Opportunities Act the legislature permitted punitive damages to be awarded without any proof of damages as a deterrent measure.  However, they claim, the National Labor Court’s decision to refrain from imposing such a penalty by setting a high burden of proof for the plaintiff effectively makes such a claim worthless and creates an incentive for the employer to act with indifference towards the Equal Job Opportunities Act.  The Petitioners add that parties may not waive the provisions of either the Equal Pay Act or the Equal Job Opportunities Act; therefore, an employee's agreement to take a lower wage should not be looked at as consent to unequal treatment on the part of the employer. 

            Finally, the Petitioners argue that under the circumstances, this Court should not reject the petition because it was filed three years after the decision in the National Labor Court.  The Petitioners claim that the public interest in eliminating discrimination against women and blocking their path up the corporate ladder and the need to permit the use of the Equal Job Opportunities Act to advance this objective outweigh the interest of the Respondent’s reliance on the decision of the National Labor Court.  The Petitioners conclude that the Petitioner never gave up her right to compensation and the reason for her delay in filing is due to her lack of financial resources. 

8.         The Respondent argues that the petition should be dismissed outright due to the long period of time it has taken the Petitioner to file, and thus, the Court cannot accept her factual or legal arguments because of the prolonged time lapse.  The Respondent also claims that this case does not justify review by this Court, sitting as the High Court of Justice, based on the rules set forth by Court precedence.    The Respondent argues that the claims of the Petitioners regarding the proper interpretation of the relationship between the Equal Pay Act and the Equal Job Opportunities Act with regards to the plaintiff’s burden of proof does not justify this Court’s intervention in a decision of the National Labor Court. Furthermore, the Respondent argues that the effect of reducing the burden of proof required under the Equal Job Opportunities Act to that of the Equal Pay Act, as the Petitioners request, is contrary to the legislative intent.  The Respondent points to the fact that the 1996 amendment to the Equal Pay Act expanding the grounds on which a plaintiff may file a claim entered into force eight years after the Equal Job Opportunities Act was enacted.  Therefore, had the legislature intended for the burden of proof required by the Equal Pay Act to be sufficient for a successful claim under the Equal Job Opportunities Act, it would have explicitly said so in the amendment, but it did not.  The Respondent adds that the two laws complement one another in that while the focus of the Equal Pay Act is the difference in salary between a male and female employee, the Equal Job Opportunities Act focuses on the cause of the difference in salary. 

Additionally, the Respondent argues that the Petitioners' argument suggesting that the majority opinion in the National Labor Court decision requires a plaintiff to prove intent to have a successful claim under the Equal Job Opportunities Act should be rejected.  The Respondent argues that the Petitioners confuse between the lack of a requirement to prove intent and the requirement to show a causal connection to prove the existence of discrimination.  The Respondent adds that the difference in salary between the Petitioner and Mor was a result of, among other things, the salary requests they made to the department head during the course of negotiating their salary.  The Respondent adds that granting a specific salary request is not one of the things forbidden to an employer under the Equal Job Opportunities Act, as opposed to the Equal Pay Act which grants am employee the right to equal pay to other employees performing the same task or a job of the same value, even if the difference in pay does not stem from the gender of the employee. 

Another point raised by the Respondent concerns the fact that the discrimination prohibited by the Equal Job Opportunities Act is discrimination based on the employee’s membership in a specific protected class (for example, religion, gender, race, etc.).  Thus, claims the Respondent, in order for an employee to prove discrimination on the basis of his/her membership in a protected class, (s)he must establish that the employer in question has a policy which results in discrimination against that particular class.  In this case, the Respondent claims that it has sufficiently proven that it does not discriminate against its female employees, and even in the same tool department in which the Petitioner and Mor both worked, there were male employees who earned less than Mor.  Under these circumstances, the Respondent argues that the earnings difference between the Petitioner and Mor is not enough for a successful claim under the Equal Job Opportunities Act, even though she was granted damages for her claim by the National Labor Court under the Equal Pay Act.        

9.         In addition to the claims of the parties in this case, we also received an amicus brief filed by the Equal Opportunities Commission of the Ministry of Industry, Trade and Labor.  In light of the commission’s interest in this case and its role in the statute involved, we decided to allow its intervention into the proceedings.  The commission claims that significant wage gaps between men and women are common in both the public and private sectors.  It argues that both the Equal Pay Act and the Equal Job Opportunities Act should be interpreted in light of the existing realities in which significant wage gaps are a commonplace in society.  It further argues that the difficulty in proving the existence of discrimination has led us to the point where the Equal Pay Act test is simply a showing of a wage gap between employees and does not require any showing of intent, and that under the Equal Job Opportunities Act, in certain circumstances, the burden of proof is shifted to the employer.  The commission claims that the majority opinion in the National Labor Court has serious implications as to the implementation of the Equal Job Opportunities Act, which go against the prevailing theory as to the ability of the plaintiff to prove discrimination under the Equal Job Opportunities Act. 

Given the circumstances, the commission argues, the Court should adopt a middle ground between the majority opinion in the National Labor Court and the dissent.  It argues that when an employee successfully establishes a difference in salary between her and another employee, despite the implementation of an equal employment policy, the burden of proof would then shift to the employer to prove that there was no discrimination on the basis of gender.  If the employer cannot withstand this burden, it would be assumed that it is a case of gender discrimination. 

 

Analysis

10.       Before discussing the main question presented by this case regarding the relationship between the Equal Pay Act and the Equal Job Opportunities Act, we will first address the issue raised by the Respondent with regards to the dismissal of the petition.  The two issues presented by the Respondent’s claim are (1) whether the amount of time that has elapsed between the date of the decision of the National Labor Court and the filing of this petition has any bearing on whether this Court may hear this case; and (2) whether this Court, in its capacity as the High Court of Justice, can review a decision by the National Labor Court. 

            Regarding the delay in filing, it seems hard to dispute the fact that filing a petition more than three years after the judgment of the National Labor Court poses a significant hurdle to the Petitioners.  Such a delay can be grounds for immediate dismissal when filed with the High Court of Justice.  When determining whether such a delay is grounds for dismissal we analyze the delay in three ways: (1) subjectively; (2) objectively; and (3) the effect upon the rule of law if such a claim is allowed to proceed.  See HCJ 170/87 Assulin v. Mayor of the City of Kiryat Gat [1988] IsrSC 42(1) 678, 694-95.  The subjective test looks to the behavior of the petitioner to determine whether, during the elapsed time, the evidence shows that the petitioner gave up his right to contest the ruling.  The objective test asks whether the delay has any impact on the rights or interests of any administrative bodies or third parties.  The final test requires the Court to determine whether the delay negatively impacts the rule of law.  This is  done by balancing the aforementioned considerations consistent with the relative weight of each circumstance.  The balance is especially cognizant of the private or public interests impacted by the objective test and the impact on the rule of law.  See AA 7142/01 Haifa Local Committee for Planning and Building v. Organization for Protecting the Environment, [2002] IsrSc 56(3) 673, 679. 

            In this case, it seems that the Petitioner’s delay in filing is evidence of her willingness to forgo her rights in the case, and that the Respondent may have legitimately relied on the decision of the National Labor Court, which is up for review now by this Court.  However, due to the importance of the question arising from this petition, which concerns the relationship between various pieces of legislation and the prohibition against gender discrimination in the workplace, we conclude that we should review this petition despite the delay in filing.  See HCJ 244/00 Organization for Democratic Discourse v. Minister of National Infrastructure IsrSc [2002] 56(6) 25, 80 - 81.  The importance of our decision concerning the parties in this case may have a considerable impact on the rights and obligations of all employers and employees.  Additionally, we should add that the Petitioner through her learned attorney, Adv. Orna Lin, has left to this court’s discretion whether it should adjudicate the case of the Petitioner or merely address the underlying legal question.

            Furthermore, it is well known that this Court, when sitting as the High Court of Justice, will only intervene in a decision of the National Labor Court when the decision contains a clear legal error, whose correction justice demands.  See HCJ 525/84 Hatib v. National Labor Court [1986] IsrSc 40(1) 673, 693; HCJ 3512/04 Shezifi v. National Labor Court [2004] IsrSc 59(4) 70, 74.  In light of the importance and implications present in the questions arising from this case, we decided to adjudicate this case.       

11.       The main question before us is whether proving the elements of a claim under the Equal Pay Act will give rise to a claim under the Equal Job Opportunities Act.  In other words, whether proving a difference in salary between a male and female employee performing the same, or substantially the same, task or one equal in value in the same workplace can serve as a basis for a claim under both statutes.  In order to answer the question we will look to the language and purpose of the two statutes and determine the relationship between them. 

First, the relevant language of Section 2 of the Equal Pay Act which stands at the center of this claim:

The Right to Equal Pay: 2. A male and female employee who perform the same task, or substantially the same task or one which is worth the same, at the same place of employment have the right to equal pay… 

Once it has been proven that the employees work at the same workplace (this element has been discussed in the decision of the National Labor Court, but is not relevant to the question before us), the burden of proof shifts to the defendant to prove that the difference in salary is justified under Section 6 of the Equal Pay Act, which states:

Difference in Salary: 6(a) The provisions of Section 2 meant to prevent discrimination in pay, does not prohibit wage differences based on the character or nature of the work under consideration, including productivity, quality of work, seniority at work, training or education, or geographic location of the work, which do not constitute gender discrimination. 

(b) In an action under this Act, the Labor Court has determined that when, in the dispute in question, the employees perform the same or essentially the same task or a task of equal value, the burden of proof shifts to the employer to prove that the difference in salary is justified under subsection (a)

 

            The Equal Job Opportunities Act prohibits gender discrimination in the workplace.  The basic point of the law is in Section 2(a) of the Equal Job Opportunities Act which states:

The Prohibition of Discrimination: 2(a) An employer may not discriminate between employees or between job seekers on the basis of their gender, sexual orientation, marital status, pregnancy, infertility treatment, in vitro fertilization treatments, parenthood, age, race, religion, nationality, country of origin, worldview, their political party, reserve duty, their potential to be called to reserve duty or duration of reserve service… regarding any of the following work decisions:

(1) hiring;

(2) work conditions;

(3) promotions;

(4) professional development;

(5) dismissal or severance pay; and

(6) retirement benefits.

 

            Subsection 2(a) is qualified by subsection 2(c) of the Equal Job Opportunities Act which states, “There is no discrimination under this Act, when it is required by the nature or character of the task or the position.”  Regarding the burden of proof in claims filed under the Equal Job Opportunities Act, Section 9 states:

Burden of Proof: 9(a) In an action filed by a prospective employee or an employee filing a claim under Section 2, the employer must prove that he acted in accordance with Section 2 when:

[(1)]Regarding  hiring, promotion, working conditions, professional development, severance pay - if the employer established conditions or qualifications, and the employee proves that he or she fulfills the said requirements;

[(2)]Regarding dismissal - if the employee proves that his conduct did not amount to grounds for dismissal.

 

12.       In this case, the Petitioner has proven, as the National Labor Court determined, that her salary was 35% lower than that of Mor – a male employee who performed the same task as the Petitioner.  Given the circumstances and the fact that the Respondent did not justify the disparity under Section 6 of the Equal Pay Act, the Petitioner successfully proved her claim under the Equal Pay Act.  The question in this case is now whether the disparity automatically gives rise to the conclusion that the Petitioner was discriminated against unlawfully by the Respondent (regarding her salary) because of her gender under Section 2(a) of the Equal Job Opportunities Act.  To decide this, we must look to the purpose of each law to determine the relationship between them. 

13.       Both the Equal Pay Act and the Equal Job Opportunities Act were enacted for the purpose of advancing equality in the workplace by prohibiting an employer from discriminating on the basis of irrelevant or illegitimate considerations.  The principle of equality and the prohibition against discrimination is an essential principle in our legal system and is a prerequisite for any democracy based on fairness and justice.  As Justice M. Landau noted with regards to the principle of equality, “This notion, which is unwritten, is the essence of our entire constitutional system of law.”  HCJ 98/69 Bergman v. Minister of Finance and State Comptroller [1969] IsrSc 23(1) 693, 698.  This Court has upheld this principle on more than one occasion, and has even determined that this principle enjoys constitutional protection.  See HCJ 6427/02 The Movement for Quality Government in Israel v. The Israeli Knesset [2006] IsrSc 61(1) 619, 688 - 89 (2006).  Regarding the essence of this principle and the prohibition of discrimination in our system of law, then-Deputy President A. Barak stated:

[P]eople are different from one another. ‘...No person is completely identical to another’…Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences. Moreover, the presumption behind the Basic Law: Human Dignity and Liberty is that every person is free to develop physically and spiritually as he sees fit (see HCJ 5688/92 Wechselbaum v. Minister of Defence [15]). This underlying freedom is the basis for the principle of equality. It means equality before the law and the law being impartial to the differences between people. It means equality in applying freedom. It means equality in opportunities. This equality presumes a normative arrangement that is applied uniformly to all individuals, irrespective of the factual difference between them. However, the principle of equality does not presume only one rule for everyone. Indeed, the principle of equality does not rule out different rules for different people. The principle of equality demands that the existence of a rule that treats people differently is justified by the nature and substance of the issue. The principle of equality therefore presumes the existence of objective reasons that justify a difference (a distinction, dissimilarity). Discrimination — which is the opposite of equality — exists therefore in those situations where a different law for people who are (de facto) different from one another is based on reasons that are insufficient to justify a distinction between them in a free and democratic society....  Therefore a particular law will create discrimination when two individuals, who are different from one another (factual inequality), are treated differently by the law, even though the factual difference between them does not justify different treatment in the circumstances. Discrimination is therefore based on the factors of arbitrariness, injustice and unreasonableness.

HCJ 721/94 El Al Israel Airlines Ltd. v. Danielowitz [1994] IsrSc 48(5) 749, 760 - 61.

           

The principle of equality and the prohibition of discrimination have been applied in different ways in the labor market, and have been explicitly mentioned in labor legislation.  This is because of the presumption that labor relations is one of the main areas of society in which members of certain groups in society are prone to unjust discrimination affecting their economic and social status on the basis of unjustified stereotypes or prejudices.  Preventing discrimination in the labor market will therefore prevent unjust prejudice based on assumptions which are irrelevant to the position in question.  Furthermore, it stands to reason that in the long run, a ban on discrimination in the labor market, as has been implemented, will undermine stereotypes and prejudices that largely form the basis for illegal discrimination in society.  As then-Justice E. Matza appropriately states,

[D]iscrimination against women in the employment and economic sectors has a cumulative effect on their negative image, as a class which is supposedly inferior, in other spheres as well. Thus, for instance, the lack of proper representation of women in various fields and various workplaces contributes to fostering a negative image of their ability to manage their lives independently. It follows that discrimination against women in economic spheres in its own way nurtures the long-term entrenchment of distorted social outlooks.

 

See HCJ 453/94 The Women’s Lobby v. The Minister of Transportation [1994] IsrSc 48(5) 501, 524 (henceforth, “In Re The Women’s Lobby”).  In order to achieve these objectives and prevent illegal discrimination, the two statutes at issue here restrain an employer’s general right to contract and limit his discretion in managing his business. 

14.       The Equal Pay Act was enacted to decisively combat one of society’s greatest expressions of illegal discrimination, namely, compensating men and women differently for the same, or substantially the same, task or for a job of equal value.  The statute was first enacted in 1964 and then reenacted in 1996.  Section 1 of the Equal Pay Act explains the law’s purpose,

Purpose: 1. The goal of this law is to advance the principle of equality and prevent gender discrimination with regards to wage or any other aspect of the workplace.

 

            The right to equal pay arises when the employees perform the same, or substantially the same, task or one of equal value.  The law establishes a legal presumption of gender discrimination when there is a difference in salary between a male employee and a female employee.  It is important to note that despite the amount of time that has passed since the law was enacted, gender discrimination with regards to wages is, unfortunately, still in practice.  A 2010 Knesset survey, released by that National Center for Statistics on September 7, 2011 stated that women earn on average 66% of what men earn a month and 84% of what men earn per hour.  See http://www.cbs.gov.il/reader/newhodaot/hodaa_template.html?hodaa=201115219.

            Furthermore, it is important to note that lower wages is only one method of discrimination against women in the labor market. Others include not hiring women, sexual harassment, the inadequate representation of women in senior positions and the mistreatment of pregnant women and mothers.  Throughout the years, the Knesset has attempted to deal with these various expressions of gender discrimination whether through the two laws at issue in this case or by other pieces of legislation (see, e.g., The 1951 Equal Rights for Women Act, the 1954 Women in the Workplace Act, and the 1998 Law Against Sexual Harassment in the Workplace).  This Court has also acted to protect the rights of women and to prevent discrimination against them (see, e.g., HCJ 153/87 Shakdiel v. The Minister of Religious Affairs [1988] IsrSc 42(2) 221; In Re The Women’s Lobby; HCJ 2671/98 The Women’s Lobby in Israel v. The Minister of Labor and Welfare [1988] IsrSc 52(3) 630).  Regarding the laws in place to advance equality between men and women we quote the words of then-Justice M. Cheshin in HCJ 2671/98 at 657 - 58:

We reviewed statutes and established rules based on our interpretation of the law.  The common denominator of these rules was and is the pressing social need to recognize the equal status of women and to strengthen this notion of equality.  These laws are progressive and the rules are no different.  When seen from afar, these laws and rules may seem strange and indirect, but I assume that a day will come when these laws will seem like child’s play, laws which are praised by the great ones of today.  Here we have a woman's right to "equal pay for the same job" as per Section 2 of the Equal Pay Act, does this law not state the obvious?  Does it matter whether 500 boxes are packed by a man or a woman?  Was this legislation not obvious and self evident even before its enactment?  Had this law not been passed would we have not established it as a rule stemming from the (constitutional) principle of equality? The same can be said about the Equal Job Opportunities Act.  There is no law which states that which we already know, namely that it is wrong to discriminate against women for no reason other than her gender.  This can be said for these two laws and any other law enacted with the same purpose.  These statutes have been enacted solely to explain illegal discrimination which has taken root in society, and the instructions therein are only to spell out to the masses what norms should prevail.  The legislator explicitly warns us of the need to eliminate illegal acts that have taken hold and place women in the place they should have been in to begin with.  The legislator has not declared new norms that are not self evident, rather, it has taken its time to spell out what exactly our legal and societal norms should be.  After having done that, the legislator correctly sanctions anyone who violates the law.  These laws are like rays of light, and the light in this case is equality, or, more specifically, gender equality in all matters.  If we go from one ray of light to another, the doctrine of equality will reveal itself in all its glory.   

            Unfortunately, even today, the second decade of the 21st century, we still need legislation to protect women from gender discrimination.  I would have hoped that today we would be in the era in which these laws would be, as Justice Cheshin described, “child’s play;” however, this era is still far, perhaps even very far, away from us.

15.       The Equal Job Opportunities Act is broader than the Equal Pay Act and was enacted to deal not only with gender discrimination, but with other forms of discrimination as well (such as age, sexual orientation, race and religion).  Likewise, the purpose of the Equal Job Opportunities Act is to prevent discrimination not only in pay, but in other aspects of the workplace as well (like hiring, work conditions and promotions). These two statutes have different definitions for what constitutes illegal discrimination.  The Equal Pay Act looks to the end result by requiring only a showing of difference in pay between a male employee and a female employee in order to have a successful claim.  Under Sections 2 and 6 of the Equal Pay Act, the labor court adjudicating such a claim must see if there is a difference in salary between the female plaintiff and a male employee to whom she is comparing her salary and who performs the same, or substantially the same, task or a one of equal value.  Once this is successfully established, the burden of proof shifts over to the employer to prove that the difference in salary is justified under Section 6(a) of the Equal Pay Act.  As President Adler pointed out in his decision, the list provided in Section 6(a) is not exhaustive.  However, any considerations not listed in Section 6(a) of the Equal Pay Act must be of the same kind as those listed and must be ones that demonstrate a difference in the “nature or the character” of the job in question.  If the employer cannot meet his burden of proof, the court must conclude that the plaintiff has a valid claim under the Equal Pay Act. 

I must note that I cannot accept the opinion of Judge Wirth-Livnah - who on this point was a lone opinion – arguing that the employer’s freedom to contract is a consideration which may, under certain circumstances, justify a difference in salary between a male employee and a female employee, even when it is not in the framework of one of the considerations listed in Section 6(a).  Through the considerations outlined in Section 6(a), the legislature determined what the balance should be between the freedom to contract and the protection of equality by listing relevant considerations which can justify a difference in salary between a male and female employee performing the same task.  Due to the importance of the principle of equality in our legal system and the need to prevent unjust gender discrimination, I believe that the freedom to contract cannot, on its own, be a legitimate consideration justifying a difference in wage between a male and female employee.  Recognizing the freedom to contract by itself as a legitimate defense to a claim of gender discrimination may lead to its utilization as a fig leaf to cover up real discrimination, completely undermining the purpose of the Equal Pay Act.  Allowing this as a defense ignores the fact that there are actual gaps between the genders in the labor market with regards to salary demands and salary negotiation.  See Sharon Rabin-Margaliot, The Market Explanation to Wage Differences: In Light of the Home Center (Do It Yourself) Ltd. v. Orit Goren, 50 HaPraklit 501, 512 – 20 (5770) (henceforth, “Market Explanations”). 

In order to deal with the difficulty women have in the labor market, the legislature decided to limit the employer’s freedom to contract in order to advance the principle of equality.  In the absence of any other considerations affecting the worker in question (as outlined in Section 6 of the Equal Pay Act), the employer may not differently compensate a male and female employee who are performing the same task.  Therefore, the legislature made a value judgment to limit the contractual freedom of an employer in order to reduce gender discrimination in the labor market.  To further this goal, taking into account the imbalance of power inherent between employees (especially females) and employers, the legislature lightened the burden imposed on the employee-plaintiff by shifting the burden of proof onto the employer under Section 6 of the Equal Pay Act.  Accepting the idea that the freedom to contract may justify a wage gap is contrary to the fundamental purpose of the Equal Pay Act, which is reducing the impact of gender discrimination on market forces in determining the salaries of women. 

Additionally, I reject the argument of Judge Wirth-Livnah according to which allowing the right to equal pay to supersede the freedom to contract will cause employers to avoid hiring women.  By instituting such a policy, an employer will violate the Equal Job Opportunities Act, which prohibits an employer from considering gender in making personnel decisions.  Such an employer would be liable to both civil and criminal penalties.  Therefore, the method by which we can prevent gender discrimination in the labor market is by enforcing the laws in place to that effect and not by avoiding these laws by taking into account market conditions. 

16.       Unlike the Equal Pay Act, a claim under the Equal Job Opportunities Act requires the plaintiff to establish causation.  Illegal discrimination under the Equal Job Opportunities Act is discrimination committed “because of” the plaintiff’s identity as a member of a protected class.  In order to prove a claim of discrimination under the Equal Job Opportunities Act, a plaintiff must prove that the employer acted discriminatorily when making one of the employment decisions listed in Section 2(a) of the Equal Job Opportunities Act.  We must point out that the Equal Job Opportunities Act does not require the plaintiff to prove the defendant acted intentionally to be successful in her claim. 

Regarding a policy requiring different retirement ages for men and women, Justice G. Bach stated:

I am prepared to assume that Petitioner's employer did not intend to discriminate against [the petitioner] and the other female employees when it signed the Labor Constitution. However, the Respondent's intentions are not conclusive as to the question that we are called upon to determine, because the test for assessing the existence or nonexistence of discrimination is objective and not subjective. The motive for creating a distinction between men and women is not determinative in the matter addressed, and for the purposes of determining the existence of discrimination, it is necessary to examine the final outcome as it appears in social reality.

 

HCJ 104/87 Nevo v. National Labor Court, IsrSc [1990] 44(4) 749, 759.

 

            Therefore, an employer taking into account one of the considerations listed in Section 2(a) of the Equal Job Opportunities Act when making an employment decision can trigger liability.  Even without any intent to discriminate, taking into account an employee’s gender, age, religion or any of the other protected classes listed in Section 2(a) of the Equal Job Opportunities Act is prohibited, unless the nature or character position in question reasonably requires such discernment as provided by Section 2(a) of the law.  Furthermore, in light of the difficulty in proving that the employer took into account the employee’s membership in a protected class in making a personnel decision, Section 9 of the Equal Job Opportunities Act allows the employee to merely prove that he or she meets the qualifications of the position in question in order to shift the burden of proof onto the employer to rebut the claim of discrimination and prove that his decision was not based on any illegal consideration.  See HCJ Rehearing 4191/97 Recanat v. National Labor Court [2000] IsrSc 54(5) 330, 351 – 52; Sharon Rabin-Margaliot, The Elusive Case of Employment Discrimination – How to Prove its Existence, 44 HaPraklit 529, 539 – 43 (5758 - 5760).

            In short, in a claim filed under the Equal Pay Act, one needs to establish that there is a difference in salary between herself and a male employee performing the same (or substantially the same) task (or a task of equal value), and if the employer cannot prove that the difference in salary is justified, the plaintiff will be successful.  However, to file a claim under the Equal Job Opportunities Act, the plaintiff must prove that the employer took into consideration the plaintiff’s membership in a protected class when making the employment decision in question.  In other words, the Equal Pay Act creates a legal presumption of discrimination if the plaintiff can prove that there is a difference in salary between her and a male employee and the employer cannot legally justify the difference.  Such a legal presumption does not exist under the Equal Job Opportunities Act, and therefore, the burden upon a plaintiff in such a claim is much heavier.  However, the Equal Job Opportunities Act does not require proof that the employer intended to discriminate, only proof that there is causation between the employer’s consideration of the plaintiff’s membership in a protected class under Section 2(a) and the employment decision in question. 

17.       Another important distinction between the Equal Pay Act and the Equal Job Opportunities Act is the remedy prescribed by the legislature for the violation of the laws.  Under the Equal Pay Act, punitive damages may not be awarded, and Section 8(a) of the law limits the time in which an affected employee can file a claim for back pay to 24 months.  By contrast, under Section 2 of the Equal Job Opportunities Act, a labor court may, pursuant to Section 10(a)(1) of the law, award damages as it sees fit given the circumstances, even in the absence of any proof of loss. These damages serve as a deterrence and are not available under the Equal Pay Act.  Under Section 10(a)(2) of the Equal Job Opportunities Act, a labor court may even, under certain circumstances, issue an injunction or a direct order if it determines that a monetary award is not sufficient.  Additionally, under Section 15(a) of the Equal Job Opportunities Act, a person in violation of the statute may be fined up to double the fine established by Section 61(a)(3) of the 1977 Penal Code.    

18.       The purpose of the Equal Pay Act is to deal with one of the more common expressions of gender discrimination in the workplace; therefore, the plaintiff has a considerably lighter burden of proof.  However, the law limits the damages that can be awarded in such a case.  The purpose of the Equal Job Opportunities Act is to deal with different types of discrimination that affects different classes of people and requires proof of causation between the illegal consideration taken into account and the employment decision in question.  Additionally, the Equal Job Opportunities Act permits an award of damages even without any proof of economic damages on the part of the plaintiff and allows for punitive measures to be taken against the discriminating employer.

19.       In this case, the Petitioner’s claim under the Equal Pay Act is not in question considering the salary difference between her and Mr. Mor who performed the same task as the Petitioner.  The issue we must decide is whether this claim is enough for the Petitioner to also have a claim under the Equal Job Opportunities Act.  The majority opinion in the National Labor Court decided this question in the negative, when determining that it is not one of the circumstances in which a plaintiff can shift the burden of proof over to the employer in accordance with Section 9 of the Equal Job Opportunities Act.  The National Labor Court determined that in order to shift the burden, the plaintiff must bring evidence that the employer discriminated against or treated his employees unequally.  Furthermore, Judge Wirth-Livnah determined that the employee must provide evidence adequately demonstrating discrimination on the part of the employer.  The mere fact that the plaintiff has a successful claim under the Equal Pay Act does not fulfill this requirement. 

By contrast, the dissenting opinion of President Adler held that a successful claim under the Equal Pay Act suffices to create a prima facie case of discrimination under the Equal Job Opportunities Act.  Because the employer could not successfully rebut the claim of the employee under Section 6(a) of the Equal Pay Act, it stands to reason that the cause for the pay difference is the employee’s gender.  We will now determine whether this is so. 

20.       In light of the differences between the two laws, a successful claim under the Equal Pay Act will not automatically trigger a claim under the Equal Job Opportunities Act.  Each statute is meant to safeguard against different forms of discrimination in the workplace; each have different ways of testing whether discrimination has occurred; and each provide for different penalties for their respective offenders.  It seems, therefore, that allowing for the laws to overlap would be inconsistent with the respective purposes of the statutes and the problems they are designed to address.  The Equal Pay Act deals with one common example of gender discrimination in the workplace and the cause of action created by the law fits this type of discrimination.  This cause of action is not the same as that of the Equal Job Opportunities Act, which sets a higher bar for establishing a successful claim against an employer and relates to various types of employment decisions.  However, the Equal Job Opportunities Act recognizes, so to speak, the difficulty an affected employee may have in demonstrating the considerations taken into account by the employer, and allows, under certain circumstances, for the burden of proof to be shifted over to the employer to prove that he did not act out of wrongful discrimination.  The question is, what is the evidentiary minimum necessary to shift the burden of proof over to the employer under the Equal Job Opportunities Act, and whether a successful claim under the Equal Pay Act fulfills this requirement. 

21.       Section 9 of the Equal Job Opportunities Act deals with the circumstances by which a plaintiff may shift the burden of proof over to the defendant.  Under Section 9(a), the burden may be shifted if the plaintiff can prove that he fulfills the conditions and requirements set by the employer to be considered for the employment decision in question.  The burden placed upon the plaintiff is relatively light.  A close reading of Sections 2 and 9 of the Equal Job Opportunities Act leads to the conclusion that a plaintiff claiming discrimination on the basis of his membership in one of the protected classes listed in Section 2 must prove that he fulfills the conditions and requirements set forth by the employer for the employment decision in question in order to shift the burden onto the employer to prove that his decision was not influenced by any wrongful considerations.

22.       The circumstances established by Section 9 of the Equal Job Opportunities Act are only one example of where the burden of proof may be shifted, and I accept the argument made by the Equal Opportunities Commission that there may be other circumstances in which the burden of proof may be shifted as well.  Because the question of whether or not the employer discriminated against the plaintiff is not necessarily related to whether or not the employee was fit for the position in question, Section 9 of the Equal Job Opportunities Act is not a complete list of methods by which a plaintiff can shift the burden of proof.  Therefore, in light of the difficulty in proving the considerations of the employer in making his decision, it stands to reason that the burden should be shifted in a case where the employee can prove that the employer had discriminated against him in the past.  Furthermore, because of the power imbalance inherent in an employer/employee relationship, the burden upon the plaintiff should not be particularly high.  Hence, the establishment of a prima facie case of discrimination will depend on the independent circumstances of each case.

            Therefore, I do not believe that the opinion of the National Labor Court requiring the plaintiff to prove discrimination on the part of the employer, as is the opinion of the National Labor Court, is correct.  As will be explained below, it is sufficient for the plaintiff to prove that there is a significant wage gap between her and a fellow male employee in order to shift the burden of proof to the employer under the Equal Job Opportunities Act. 

Additionally, the plaintiff can also shift the burden by demonstrating a policy of discrimination on the part of the employer based on the criteria outlined by Section 2 of the Equal Job Opportunities Act.  The evidence provided may have the same effect if it can prove that the result of any decision or policy undertaken by the employer has a discriminatory effect, even if it is not based on one of the prohibited considerations.  The evidence the plaintiff must provide in order to meet the requirements of this evidentiary test must relate to the relationship between the employer and the plaintiff employee in comparison to the employer’s relationship with the other employees who are not members of the same protected class as the plaintiff.  The evidence should also compare the employer’s behavior towards employees who are members of the plaintiff’s protected class to his treatment of employees who are not members of the class in question.  Once the plaintiff has successfully demonstrated disparate treatment, the burden of proof will shift onto the employer to prove either that the disparity in treatment stems from the nature of the position under Section 2(c) of the Equal Job Opportunities Act, or that it stems from a reason unrelated to any of the illegal considerations listed in Section 2(a) of the Equal Job Opportunities Act.  It is important to note that the Equal Job Opportunities Act explicitly lists the considerations which an employee may not take into account when making certain employment decisions.  If he can prove that the discriminatory result was not based on any wrongful considerations, he will successfully establish that he did not discriminate “because of” any wrongful considerations.  As President Barak stated regarding age discrimination in the Recanat Further Hearing:

As a general rule, the burden of proof is imposed upon the employee-plaintiff claiming discrimination.  This burden is met when the plaintiff proves that the employer mandates retirement when employees reach a certain age (this is direct discrimination).  The burden may also be met by establishing that a regular practice of the employer results in age discrimination (this is indirect discrimination).  In the first case, it is enough to prove that company policy dictates different retirement ages for different workers.  Proving the existence of such a rule, irrespective of the position of the employee, will prove the existence of discrimination “because of” age.  In the second case, the official policy is indiscriminate and does not mandate different retirement ages for different employees.  However, the requirements of the job set by the employer effectively results in different retirement ages for different employees.  By establishing this practice, the employee meets his burden of proof demonstrating the existence of discrimination “because of” age.  Needless to say, such a case is only indirect, but enough proof to show that the employer discriminates “because of” age (Section 2(a)).  At this point, a court must determine whether the difference in retirement ages is a result of the nature of the position in question (Section 2(c)).  The burden of proof will shift to the defendant (usually the employer, see Section 9(a) of the Equal Job Opportunities Act) to prove this is the case.  Note that with regards to the substantive law, whether discrimination exists is linked to the nature of the job in question.  In terms of the procedural law, a distinction is made regarding the burden of proof. 

 

FH 4191/97 Recanat, IsrSc 54(5) at 351 - 52.

23.       Regarding the issue at hand, I have come to the conclusion that a successful claim under the Equal Pay Act suffices to fulfill the evidentiary threshold necessary to shift the burden of proof over to the employer in a claim filed under the Equal Job Opportunities Act.  Once the plaintiff has proven that a male coworker receives a higher salary while performing the same, or substantially the same, task or one of equal value in the same workplace, and the employer cannot justify the difference in salary based on the nature of the task performed (under Section 6 of the Equal Pay Act), the plaintiff will have established a prima facie case of gender discrimination.  Note that there is no dispute with regards to the understanding that Section 2(a) of the Equal Job Opportunities Act forbids an employer from taking into account the gender of an employee when determining her salary.  When an employee successfully establishes a claim under the Equal Pay Act, the implication is that she was discriminated against by her employer on the basis of her gender, which is demonstrated by the wage gap between her and a male employee, which could not be adequately justified by the employer under Section 6(a) of the Equal Pay Act.  These circumstances will shift the burden of proof onto the employer to prove that the wage gap is a result of the nature of the position in question under Section 2(c) of the Equal Job Opportunities Act or that the reason for the difference in salary is unrelated to any of the considerations prohibited by the Equal Job Opportunities Act.  In other words, the employer must prove that there is no causal relationship between the wage gap and the gender of the employee, and thus, the difference in salary is not “because of” the plaintiff’s gender.  If the employer can successfully prove that the plaintiff’s gender was not taken into account when determining her salary, the plaintiff will not have a successful claim under the Equal Job Opportunities Act.  By contrast, if the employer cannot meet his burden of proof, the court will have no choice but to determine that the employee-plaintiff has a valid claim under both the Equal Pay Act and the Equal Job Opportunities Act. 

24.       In the case before us, it is undisputed that the Petitioner has a successful claim under the Equal Pay Act.  Given the circumstances, the burden of proof now shifts over to the Respondent to prove that there is no causal connection between the gender of the Petitioner and the 35% difference in salary between her and Mor, meaning that her gender was not taken into consideration when determining her salary.  The factual background outlined by the district labor court indicates that the Respondent successfully proved that there is no general company policy regarding pay which results in discrimination against women; however, it did not provide the salaries of the other workers working in the tool department of the Ramat Gan branch, which is where the Petitioner worked.  This information is important in light of the fact that at the time, individual salaries were not determined by the Respondent’s corporate administration, but rather by the managers of each individual branch.  Therefore, the only claim of the Respondent is that the reason for the Petitioner’s lower salary is because of the fact that she asked for a lower wage when negotiating her salary (the Petitioner asked for NIS 3,500/month, while Mor requested NIS 6,000/month; the Petitioner was given a salary of NIS 17/hr – which equals NIS 3,264/month – and Mor received a salary of NIS 5,000/month).

            An employer proving that the salaries of his workers is a result of negotiations between the parties and that he treats both male and female employees the same with regards to their salary will meet his burden of proof under the Equal Job Opportunities Act, so long as he can demonstrate a company policy regarding wages that is uninfluenced by gender or any of the other classes protected by Section 2(a).  When wages are negotiated by the parties, we cannot necessarily say that the employee’s gender was taken into consideration or that the employee was discriminated against “because of” her gender, though whether the inherent inferiority of the employee was taken into consideration by the employer is a factor, among others, that must be taken into account by the court.  Moreover, it is important to note that in this case there may be a difference between a claim filed under the Equal Pay Act which merely tests whether there is a difference in salary between male and female employees, and whose purpose is to deal with, among other things, the weaker bargaining power of women in the job market and a claim filed under the Equal Job Opportunities Act, which tests the legality of the considerations taken into account by the employer when making employment decisions (including salary decisions).  Compare The 1954 Women in the Workplace Act, and The Equal Job Opportunities Act; HCJ 554/05 Ashkenazi v. Police Superintendent [2005] IsrSc 60(2) 299, 306.  To quote the words of S. Rabin – Margalit:

The Equal Job Opportunities Act is based on causation.  A successful plaintiff will need to prove that the employer took a wrongful consideration – the fact she is a woman – into account when determining her salary.  The causation element must be proven, in other words, she must prove that the reason her salary is lower is because she is a woman.  As has been mentioned, the Equal Pay Act is not based on causation.  Therefore, there may be instances in which liability exists under the Equal Pay Act, but not the Equal Job Opportunities Act.  In those instances in which a difference in salary between male and female employees is established, but it cannot be proven that the employees’ gender was the cause, or one of the causes, influencing the difference in pay, there will be liability pursuant to the Equal Pay Act, but not necessarily under the Equal Job Opportunities Act.  This would explain why the Equal Pay Act was enacted in 1996, despite the fact that the Equal Job Opportunities Act, which also prohibits discrimination with regards to wages, had already been in effect for almost a decade (1988). 

Rabin-Margaliot, “Market Explanations” at 504 - 05. 

            Furthermore, the more significant the difference in pay between a male and a female employee, the more significant the burden of proof upon the employer to show that the employee’s gender was not a consideration in determining what to pay her, and that the only reason for her lower salary is because she asked for a lower one during salary negotiations.  In other words, employee differences in bargaining power may explain differences in salary; however, the more significant the difference, the more difficult it will be for the employer to prove that the difference is wholly based on the employees’ bargaining power and not even partially based on a consideration prohibited by Section 2(a) of the Equal Job Opportunities Act.  Additionally, because the Petitioner did not provide evidence to its effect in the district labor court, I should note that I am not answering the question of whether the practice of salary negotiation is one that (indirectly) discriminates against women. 

25.       In this case, due to the significant difference in salary between the Petitioner and Mor, the claim that the Petitioner asked for a much lower salary is not good enough of a claim on the part of the Respondent to meet his burden establishing that the Petitioner’s gender was not taken into account when deciding how much to pay her.  When there is a 35% difference in salary between a male and female employee performing the same task and the Respondent cannot provide a relevant consideration justifying the pay difference, the claim that there was a difference in their respective salary requests is not strong enough to absolve the employer under the Equal Job Opportunities Act.  Proving this claim without any other evidence on the part of the employer is not enough to rebut the presumption that the Petitioner’s gender was taken into account when deciding her salary. 

Additionally, as the district labor court held, the fact that the Respondent does not have a policy which results in discrimination is a consideration that can be taken into account when determining the amount of damages to be awarded under the Equal Job Opportunities Act.  However, this has no bearing on the proof of the claim itself, once we have determined that the plaintiff’s salary is to be measured against the employees working at her branch and not the general pool of employees working for the Respondent. 

26.       Therefore, we rule in favor of the Petitioner, and overturn the decision of the National Labor Court.  The Petitioner has a valid claim under the Equal Job Opportunities Act in light of the gender discrimination and the Respondent’s failure to meet his burden of proof.  Additionally, any obligation the Petitioner may have to return the compensation she received from the Respondent under the Equal Pay Act is void. However, I would not award any damages to the Petitioner under the Equal Job Opportunities Act, due to her delay in filing her petition and her attorney's request that the determination of damages that the Petitioner may be entitled to be  left to the discretion of this Court.  Also, I see no reason to take a position regarding the damages she was awarded by the district labor court.  This means that the Petitioner’s reliance on the decision of the National Labor Court means that the Respondent need not compensate her under the Equal Job Opportunities Act.  Thus, any obligation the Respondent may have towards the Petitioner under the Equal Job Opportunities Act is void. 

Finally, because of the delay in filing her petition, we will not award any costs or attorney’s fees to the Petitioner. 

The President (Ret.)

 

Justice I. Amit

I concur and would like to add the following:

1.         The decision of the National Labor Court is not appealable and can only be reviewed by this Court as a petition to the High Court of Justice, similar to a petition regarding the decision of a Rabbinical Court.  Since this case involves a petition and not an appeal, the Respondent cannot claim that the plaintiff’s delay in filing makes the decision of the National Labor Court absolute barring the High Court of Justice from hearing the case.  However, because filing a petition is the only remedy available, someone requesting that the decision of the National Labor Court be reviewed should do so soon after the decision is handed down.  The extensive case law behind the issue of dismissal for claims not immediately filed, some of which were quoted by President Beinisch in paragraph 10 of her opinion, deal with administrative decisions, while this case involves a judicial decision.  (As a side point, the distinction between different types of decisions is covered in Section 15(d) of the Basic Law: The Judiciary.  Section 15(d)(2) authorizes the High Court of Justice to issue orders to authorities and public officials, Section 15(d)(3) authorizes the Court to issue orders to other courts, tribunals and other bodies and individuals who act out of judicial or quasi-judicial authority.  Section 15(d)(4) authorizes the Court to issue orders to religious courts.)  As a general rule, I believe that this Court should show restraint when so much time has passed from the time of the original decision in another court.  This Court should exercise its power of review only in rare situations such as where it is discovered, after the fact, that the decision of the National Labor Court has broad ramifications unforeseen at the time of the decision, or where there is a strong public interest justifying a hearing despite the time lapse.  See HCJ 3514/07 Mivatchim Mossad LiBituach Sociali Shel Ovdim Ltd. v. Feurst [May 13, 2012] at Para. 28 (unpublished).  I should add that this case should not be viewed as precedentially groundbreaking.

2.         Regarding the main issue of this case, I agree with my colleague that a successful claim under the Equal Pay Act will not necessarily be successful under the Equal Job Opportunities Act.  This can also be inferred from the language of Section 6(a) of the Equal Pay Act:

Section 2 does not prohibit a difference in salary or other compensation stemming from the nature of the work involved, including quality of work, seniority, training or education, or geographical location of the workplace, so long as there is no discrimination on the basis of gender (emphasis added – I. A.).  

            It is not enough for the employer to provide a relevant justification for the difference in salary; we must examine the justification provided to ensure that the justification is not a cover for gender discrimination. Similarly, if the employer cannot justify the difference in pay, it does not necessarily mean that the difference is due to gender discrimination.  The issue of discrimination is to be examined within the framework of the Equal Job Opportunities Act and not the Equal Pay Act. 

            In short – the plain language of the laws themselves, the difference in how the claims are defined by the respective laws, the different purposes of the laws, the need for establishing causation under the Equal Job Opportunities Act, the different remedies provided, and the need for the Equal Pay Act to be enacted after the Equal Job Opportunities Act was already in effect, despite the fact that not compensating two employees equally can lead to claim of illegal discrimination in “work conditions” –  all point to the conclusion reached by my colleague. 

3.         As mentioned in Section 6(a), an employer can justify a pay difference based on the nature of the task being performed; however, pre-employment salary negotiations are not included in this exception.  See Rabin-Margaliot, “Market Explanations” at 503.<<this is the format for imbedded citations in English>>  Women ask for lower salaries for different reasons, some of which perpetuate the reality in the workplace and stereotyping for which the Equal Pay Act was put in place in order to fix.  Expanding the list of justifications listed in Section 6(a) by recognizing the negotiating patterns of the employer and his freedom to contract as additional justifications for pay differences between men and women is not evident in the plain language of the law and can lead to an incorrect interpretation of the law.  In other words, in Section 6(a) the legislature formulates a balance in the form of a limited list of justifications involving the nature of the job in question.  Expanding this list may cause a law meant to protect equally to widen the gap between men and women or lend legal legitimacy to discriminatory practices. Cf. Guy Mundlek, Are Anti-Discrimination Laws Doing Their Job? in Is The Law Important? A Series of Books in Memory of Haim Y. Zadok, 223, 228 (2010)). 

4.         This case illustrates the lack of overlap between the two laws and why a successful claim under the Equal Pay Act does not necessarily mean there is an automatic claim under the Equal Job Opportunities Act.  While the different wage demands of the Petitioner and Steven Mor do not constitute a justification under Section 6(a) of the Equal Pay Act, it does not fall into the realm of wrongful discrimination under Section 2(a) of the Equal Job Opportunities Act, because the pay difference does not stem from the gender of the two workers, but from the different wage demands.  I should also note that the Equal Job Opportunities Act requirement to prove causation makes it harder on the plaintiff, which is the advantage of the Equal Pay Act in this case.    

Justice Amit

 

Justice N. Hendel

I agree with the impressive ruling and overall reasoning of my colleague, President D. Beinisch.  I would like to strengthen the conclusion that the disparity in bargaining power among employees cannot justify the difference in pay, especially where the disparity is so significant. The radical feminist approach provides further support for our conclusion. This approach determines the status of women in the workplace based on their relative strength  in a gender biased society.  This approach does not focus solely on women who have made it to the top of the social ladder; it  emphasizes the difficulty of all women, especially those far down from the top of the social or economic pyramid –..  According to this approach, the number of female CEOs and Knesset members may blind us, although not deliberately, from the more subtle forms of gender discrimination.  As my colleague the President noted, due to the 35% difference in pay, the fact that the Petitioner was willing to work for a lower salary does not prove that she did not experience inequality.  However, this fact reflects the relative bargaining positions of the Petitioner and the employer, and mainly the Petitioner’s bargaining position vis a vis other male employees.  According to the radical feminist approach, the reason she requested a relatively low salary is a result of the social debasement of women with regards to their professional aspirations and stature in the labor market.  Catherine MacKinnon, “Reflections on Sex Equality under Law,” 100 Yale L.J. 1281, 1298 (1991);  see also Heidi Hartmann, Capitalism, Patriarchy, and Job Segregation by Sex, 1 Signs 137, 167 – 68 (1976)).  As Prof. Catharine MacKinnon, one of the prominent advocates identified with the radical feminist movement, states:

In money economies, income means survival; its treasure and resources also contribute to freedom, human flourishing, enjoyment of life's possibilities. From a social standpoint, income also provides an index of relative social worth…

Without pay equity, sex equality means little in capitalist societies in an increasingly capitalist world. Catherine MacKinnon, Sex Equality 178 (2007).

            In other words, income in market economies is equal to survival, freedom, personal prosperity and the ability to enjoy the range of possibilities that life offers.  Without equal pay, gender equality loses its meaning in an increasing capitalistic world.  For many of us, income is a measure of social status.  Even those who disagree with this assertion will agree that job security and level of income are connected to and certainly affect human dignity. 

           

Additionally, relative bargaining power not only highlights the differences between men and women, but also that of other protected classes in society.

           

In this case, it was proven that an employee, performing the same task as the Petitioner for the same employer, received a higher salary with no relevant justification.  It seems that my colleague, the President, has adopted a balanced solution based on existing legislation.    The Petitioner must prove that she was discriminated against “because of” her gender.  Shifting the burden of proof onto the Respondent to establish that he did not take into account any wrongful considerations – in this case, gender – when deciding how much to compensate her, provides the employer with an “equal opportunity” to disprove the allegation.  It is within the ability of the employer, in terms of his position and power, to show that he did not take into account any wrongful considerations when determining wages.  In this case, the Respondent did not produce evidence proving its justification that it is the store’s policy to determine salaries based on the salary expectations of the employees.  The Respondent, therefore, did not meet his burden of proof.  In this sense, the law creates an overlap between the evidentiary standard and the substantive law under the Equal Job Opportunities Act.  The burden shifting requirement pursuant to Section 9(a) of the Equal Job Opportunities Act fits well within the imbalance of power between the employee-claimant and the employer who must prove the absence of discrimination. 

Justice Neal Hendel

 

Decided as per the opinion of President D. Beinisch (Ret.)

25 Iyyar 5772 (17 May 2012)          

 

 

H.C. 104/87

Dr. Naomi Nevo

v.

1. National Labour Court

2. Jewish Agency for Israel

3. Jewish Agency National Staff Committee

4. Union of Office Workers - Central Committee

 

 

In the Supreme Court sitting as High Court of Justice

[October 22, 1990 ]

Before: Bach J., Netanyahu J. and Ariel J.

 

Editor's Summary

 

                Petitioner, Dr. Naomi Nevo, was employed for many years by the Jewish Agency for Israel as a sociologist. On reaching the age of 60, she received a notice from her employers that she was to retire on pension, in accordance with the provision in the Pension Rules relating to Jewish Agency employees. This stated that the retirement age for men was 65 and for women 60.

               

                Petitioner brought an action in the Regional Labour Court asking for a declaration that the above provision was void as being discriminatory. Her action was dismissed and so was her appeal to the National labour Court. Hence, her petition to the High Court of Justice against the National Labour Court and against her employers, the staff committee and the union of office workers.

               

                In allowing the petition and making absolute the order nisi against the respondents, the Court held as follows:

               

1.       In accordance with a well-established criterion, as laid down in case law, discrimination is present wherever the principle of equality is infringed, i.e., where persons are treated differently even where there is no relevant difference between them. Accordingly, the distinction between men and women in respect of retirement age in the provision in question must be examined to determine whether it is "relevant", i.e., whether it serves any legitimate purpose.

 

          The submission of counsel for the Jewish Agency that the provision for early retirement of women conferred benefits on them, enabling them to receive pension monies earlier and taking into account the extra burden that they had to undergo over the years as wives and mothers, was not acceptable. Nor was it relevant that, as submitted, many women were satisfied with the arrangement for early retirement.

 

On the contrary, the differentiation in ages of retirement for men and women amounted to discrimination, for the following reasons:

 

a)      the age differential was irrelevant in the context of alleviation from the burden of work, there being no difference between men and women in this respect;

b)      earlier retirement for women has a number of negative social, personal and economic implications. Inter alia, early retirement may curtail a promising career and entail a lower pension payment then if the woman were allowed to continue to work for a further 5 years;

c)       there is no justification in compelling a woman who reaches 60 years of age to retire, since at that age she is relieved of much of the domestic responsibilities which made her working life more difficult in earlier years. On the other hand, allowing a woman the option to retire at 60 is acceptable;

d)      in 1987, the statute known as the Male and Female Workers (Equal Retirement Age) Law was enacted by the Knesset. This statute came into force subsequent to the judgment of the National Labour Court in the present case and after the instant petition had been submitted to the High Court. Nevertheless, from the wording of the statute and the explanatory notes to the bill that preceded it, it is clear that the legislator regarded earlier compulsory retirement for women as being discriminatory;

e)       an examination of the jurisprudence of the Court of the European Community, as well as of English case law, shows that those jurisdictions also regard differentiation in retirement age as constituting discrimination.   Moreover, it is stressed in the English cases that intention or motive to discriminate does not have to be proved - suffice it for discrimination to exist in fact.

 

Nor is there any basis in the contention that early retirement for women assists in renewing the labour force and alleviating unemployment. There is no reason why women should suffer more than men for these reasons.

 

2.       With regard to the statutory position prior to the 1987 statute, a number of provision did include a differentiation between men and women as to retirement age - as for example several sections in the National Insurance Law, the securing of Income Law, 1980 and the Severance Pay Law, 1963. On the other hand, labour legislation prior to 1987 which required equality between the sexes contained no reference to retirement age. Nevertheless, in interpreting the relevant provision in this case, the basic presumption in favour of equality and against discrimination must be applied, in accordance with the provision of section 1 of the Women's Equal Rights Law, 1951 which prohibits discrimination against women in respect of any legal act.

 

3.       The 1987 statute does not operate retroactively. However, it should not be inferred from this that therefore in the period prior to its enactment differentiation in retirement age between men and women was permissible. At any rate, contrary to the respondents' contention, the statute certainly does not deprive the petitioner of her right to postpone her retirement until the age of retirement for men.

 

4.       The High Court of Justice can justifiably intervene in the decision of the Labour Court in this case, in view of the substantial legal error in that decision and because justice requires such intervention.

 

5.       This is one of the exceptional cases where a court is justified in intervening in the content of a labour agreement for reasons of public policy, in view of the discriminatory provision which affects the rights of women.

 

6.       In view of the above, the Court must act to annul the affect of the discrimination by declaring that the offending provision in the Jewish Agency Pension Rules is totally void.

 

 

Israel Supreme Court Cases Cited:

 

[l]         F.H. 10/69 Boronowski v. Chief Rabbis of Israel, 25(1) P.D. 7.

[2]        Cr. A. 112/50 Yosifoff v. Attorney General, 5 P.D. 481.

[3]        Cr. A. 5/51 Steinberg v. Attorney General, 5 P.D. 1061.

[4]   H.C. 30/55, Committee for Preservation of Requisitioned land in Nazareth v. Minister of Finance, 9 P.D. 1261.

[5]        H.C. 953/87, 1/88, Poraz v. Mayor of Tel Aviv-Yafo, 42(2) P.D. 309.

[6]   H.C. 85/89 Beit Herut Workers Cooperative for Agricultural Settlement Ltd. v. GIazmann, 41(3) P.D. 526.

[7]        H.C. 98/69, Bergmann v. Minister of Finance 23(1) P.D. 693.

[8]        H.C. 153/87 Shakdiel v. Minister for Religious Affairs, 42(2) P.D. 221.

[9]        C.A. 337 337/61 Lubinski v. Assessment Officer, Tel Aviv, 16 P.D. 403.

[10] M.A. 166/84 (H.C. 780/83) Central Yeshiva 'Tomchei Tmimim' v.State of Israel, 38(2) P.D. 273.

[11]      H.C. 363/87 Yehuda v. Rosh Ha'ayin Local Council, 41(3) P.D. 755.

[12]      H.C. 525/84 Hatib v. National Labour Court, 40(1) P.D. 673.

[13]      H.C. 410/76 Herut v. National Labour Court, 31(3) P.D. 124.

[14] H.C. 105/87 Hebrew University of Jerusalem v. National Labour Court, 42(3) P.D. 557.

 

Israel Labour Courts Cases Cited:

 

[15]      N.L.C.H. 45/13-117 Air Services Ltd. v. Sela, 17 P.D.A. 284.

[16]      N.L.C.H. 47/2-11 'Paz'Oil Company Ltd. v. Yom-Tov, 19 P.D.A. 164.

[17]      N.L.C.H. 33/3-25 Air Stewards Staff Committee v. Hazin, 4 P.D.A. 365.

[18] N.L.C.H. 35/4-8 Israel Ports Authority v. Executive Committee of the Histadrut, 7 P.D.A. 143.

 

English Cases Cited:

 

[19]      Reg. v. Birmingham C.C. Equal Opportunities Commissions,[1989] A.C. 155 (H.L.).

[20]      James v. Eastleigh B.C. [1990] 2 All E.R. 607 (H.L.).

 

International Cases Cited:

 

[21]      Marshall v. Southampton AHA [1986] 2 All E.R. 584 (C.J.E.C.)

[22]      Defrenne v. Belgium [1974] C.M.L.R. 494.

 

 

A. Feldman, F. Raday - for the Petitioner;

H. Bar-Sadeh - for Respondent Number 2.

 

 

JUDGMENT

 

BACH J,: 1. Dr. Naomi Nevo (hereinafter: the Petitioner) was employed by the Jewish Agency for Israel, which is Respondent Number 2 (hereinafter: the Respondent), as a senior sociologist as from July 1, 1962, and as Director of Sociology in the Settlement Department as from August 1, 1983. The terms of employment of Respondent's employees, including the Petitioner, are set forth in the Jewish Agency Employees' Terms of Employment of February 1966 (hereinafter: Terms of Employment), which is derived from an agreement between the executive of the Respondent in the one hand and the Central Committee of the Union of office Worker's in Israel together with the Jewish Agency for Israel Staff Committee on the other hand. The Terms of Employment covers the Jewish Agency    Staff Pension Rules of August 1, 1953 as well, which set forth the retirement arrangements for Respondent's employees.

 

            In paragraph 6 of the Pension Rules (hereinafter: Paragraph 6) it is stated:

           

"The age for retirement on pension is 65 for a man and 60 for a woman".

           

            In accordance with this paragraph, the Petitioner was notified that she must retire from work on February 1, 1985, the date on which she would reach 60 years of age.

           

            The Petitioner viewed the aforementioned Paragraph 6 as a discriminatory provision. She applied to the Regional Labour Court in Tel Aviv requesting that it declare that the Paragraph discriminates in an invalid and prohibited manner, and that it order the Respondent to continue to employ Petitioner until age 65, or alternatively, compensate her for the losses suffered as a result of her retirement at age 60.

           

            Petitioner's employment by Respondent continued beyond age 60, following Respondent's agreement to delay Petitioner's retire­ment until the Regional Labour Court rendered its decision; however, on November 27, 1985, when the Regional Labour Court gave its decision dismissing Petitioner's complaint, her employment was terminated. The Petitioner appealed the Regional Labour Court's judgment to the National Labour Court. That Court, sitting in a seven-judge panel, dismissed the appeal by a majority and held that setting a different retirement age for men and women does not constitute invalid discrimination. Two members of the court expressed the contrary opinion in a dissenting opinion. The petition before us is to annul the majority's decision.

           

            2. The following are the focal points of the dispute in this petition:

           

            a. Does setting different retirement ages for men and women constitute discrimination?

           

            b. How should legislative intent regarding retirement age be interpreted when various social welfare enactments concerning retirement rights distinguish between men and women?

           

            c. What is the impact of the enactment of the Male and Female Workers (Equal Retirement Age) Law, 5747-1987, on this petition?

           

            d. Is it proper for a judicial forum to intervene in the labour agreement which is the subject of this petition?

           

            e. Should the High Court of Justice interfere with the Labour Court's decision in this case?

           

            f. What is the appropriate relief?

           

            We will deal with these issues respectively.

           

            A. Does Setting Different Retirement Ages For Men And Women Constitute Discrimination?

           

            3. When we are called upon to address a claim of invalid discrimination, it is appropriate that we be guided by the words of President Agranat, in F. H. 10/69[1], at page 35, when he addressed the question of when a distinction is discriminatory:

           

"One must always distinguish... between invalid discrimi­nation (hereinafter: discrimination) and a permitted distinction. The principle of equality, which is simply the other side of the coin from discrimination, and which the law of every democratic country strives, for reasons of justice and fairness, to realize, means that, as to the object concerned in hand, it is necessary to treat equally people between whom there are no substantial differences which are relevant to their object. If they are not treated equally, then we are confronted with discrimination. In contrast, if the difference or differences between various  people are relevant to the object in hand, then treating them differently as required by such object will be a permitted distinction, so long as the differences justify this".

 

            Similar statements have been made in numerous cases, including: [2] Cr.A. 112/50, at page 490; [3] Cr.A. 5/51, at page 1068; and [3] H.C. 30/55, at page 1265.

           

            Accordingly, in order to ascertain whether Paragraph 6 is discriminatory, we must examine it in light of the following question: in the instant case, is there a legitimate purpose, as to the realization of which the distinction between the genders is relevant?

           

            There are two purposes in setting a mandatory retirement age for older employees, neither of which can, at prima facie, be invalidated:

           

            A. To enable the employee to rest, in his old age, from his daily toil;

           

            B. To allow the employer to revitalize the ranks of his employees and hire new, younger manpower, to replace those who retire.

           

            Is the distinction between the genders as to retirement age relevant to the realization of these two goals?

           

            4. Learned counsel for Respondent argues that Paragraph 6 constitutes a privilege, in that in practice it confers a benefit upon women. In his opinion, the paragraph also advances the cause of equality between the genders in that it makes things easier for women, since earlier retirement age reduces the extra burden on women, engendered by the fact that the working woman is also a mother and wife. According to his argument, alongside the obligation of retiring at age 60 the privilege of receiving pension payments must be reckoned with. He adds that in his opinion (which he bases on an affidavit submitted by a female employee), many women are content with this arrangement, and many even ask to advance their retirement date immediately upon becoming eligible for full pension benefits.

 

            5. I am not persuaded by these reasons, nor by their cumulative weight, and I have reached the conclusion that the aforesaid distinction does indeed constitute discrimination.

           

            The reasoning underlying my conclusion follows, and is based in part on the arguments of learned counsel for Petitioner:

           

            A. The distinction is completely irrelevant to the alleviation of burdens. There is no support whatsoever for the proposition that as a rule women, more than men, require alleviation of burdens upon reaching the age of 60. It appears that it is precisely when male and female employees reach this age that the need for the distinction is totally eliminated. The fact that life expectancy for women is higher than that for men perhaps even points to the opposite conclusion.

           

            B. Earlier retirement does not constitute a positive advantage, but on the contrary has many negative consequences:

           

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

           

            (2) Imposing an earlier retirement age on women also has negative economic consequences:

 

            (a) A woman who has not worked sufficient years to be eligible for full pension benefits loses 5 years in amassing these benefits. This is the Petitioner's situation, where at the age of 60 she had accrued a pension rate of 55.3% of the salary determinative for pension purposes; whereas were she allowed to retire at age 65, the aforementioned rate would increase to approximately 69.3%.

           

            (b) Women lose five years of salary. A full salary with benefits is much higher than a pension payment.

           

            (c) Frequently, it is precisely at the end of a person's working years that he reaches the height of his career, and also his highest salary. Loss from early retirement arises both from loss of the higher salary itself, and from the fact that the pension allowance - calculated as a percentage of salary at the time of retirement - is lower.

           

            (3) In Positions requiring lengthy academic training, such as that of the Petitioner, entry into the labour market generally occurs at a relatively late age. For the employee to utilize his full potential for advancement, he needs to take advantage of working years later in life.

           

            The problems of extracting the full potential for advancement is particularly acute in the case of women. Many women cannot devote the bulk of their energies to work during the period when they are bearing and raising their children. As a result they lose many years necessary for career advancement. The early retirement requirement is therefore likely to harm women in particular.

           

            (4) Earlier retirement age is also likely to have consequences on career progress in the period preceding retirement. This is because of the employer's tendency to prefer advancement of an employee with a later retirement date.

           

            Let us illustrate this with a practical example: a position of department head becomes vacant in a particular office, and two of his deputies are competing for the same position. Let us assume that both of them have equal experience and similar qualifications, and they are both 58 years old. However, one of the candidates is a woman and the other a man. Undoubtedly, the man in this case will have a conspicuous advantage given that the members of the selection committee know that if he is chosen he will be able to fulfil his position over the course of 7 years, until retirement age, whereas the woman will have to retire after two years, namely, shortly after "learning the ropes" in the new position.

 

            C. It is difficult to appreciate the conceptual reason for this discrimination, particularly when it operates at the age of 60. It is possible to understand and justify a certain difference in approach to employment conditions of men and women at earlier stages of life. During the years when a woman is fulfilling her role as a mother to small children, she is entitled to consideration, primarily regarding hours of employment and vacations, and not requiring has to carry out tasks involving particular physical exertion. However, when a woman reaches the age of 60, and her children in most cases have already left their parents home and established independent lives of their own, it is precisely at this moment that the woman, if she is interested, is able to make more available devote more time to work. To force her, because she is a woman, to retire from her work at this stage of her life and abandon the realization of her hopes in this area is indeed discrimination, which under modern conditions of life seems unjustified, unreasonable, and unacceptable.

           

            I do not find fault with giving women the option to retire; this is likely to be to the advantage of all concerned. But there is no justification for the arrangement whereby the woman is obligated to retire, while a man employed in the same job and at an identical age, is entitled to continue working.

 

            D. The fact that creating a gap between the mandatory retirement age for women and the corresponding age for men constitutes unjustified discrimination has in fact also now been recognized by the legislature also with the enactment of the Male and Female Workers (Equal Retirement Age) Law on March 17, 1987 (hereinafter: Retirement Age Law).

           

            The term "retirement age" is defined as follows in section I of this Law:

           

'"Retirement age' means the age on attaining which a male or female worker must retire from employment in accordance with the provisions of a collective agree­ment applying to him or her".

           

            Following this is section 2 of the Law, which states:

 

"When a collective agreement prescribes for a female worker a retirement age lower than that prescribed therein for a male worker, then, notwithstanding anything provided in that collective agreement, the female worker shall have the right to retire from employment at any age between her retirement age and the retirement age prescribed for a male worker".

 

            In the explanatory notes accompanying the Male and Female Workers (Equal Retirement Age) Bill, 5747-1987, it is made clear that the purpose of the law is to eradicate the unjust discrimination between the sexes in this area. And it is stated therein, at page 106:

           

"The retirement age currently provided in collective agreements creates discrimination between men and women in that a female employee is forced to retire in most cases five years before the retirement age for male employees.

 

The requirement that she retire earlier directly harms her potential for advancement at work, the salary she receives, and her ability to accumulate pension rights. The aim of the bill is to eliminate the existing discrimina­tion in this matter and prescribe the same retirement age for male and female employees".

 

            Arguably, the legislature in this Law allows for a certain disparity between the sexes and in this mistural creates a certain discrimination to the man's detriment, in that women are granted the option of earlier retirement, which is not granted to men. But this argument is only superficially logical. The primary purpose of this law is indeed to eliminate discrimination in the mandatory retirement age gap, but this fact is not contradicted by the legislature's desire not to deprive women of the right to earlier retirement, to which they are entitled under a collective agreement.

           

            The matter is explained thus at the end of the aforementioned explanatory notes to the bill, where it is stated:

           

"Nevertheless, it is proposed to allow the female employee, to the extent she so desires, to preserve her             right to retire from employment before the uniform retirement age, if she has such a right under the collective agreement applicable to her".

 

            The aforementioned Law was passed by the Knesset after the National Labour Court had handed down its decision in this case and after the instant petition was filed. Since it is not stated that the Law has retroactive effect, it does not apply to Petitioner's case. However, it is certainly possible to learn from that Law, and from the reasoning in the explanatory notes to the bill, that the above-mentioned distinction between men and women in a collective agreement constitutes invalid discrimination.

           

            E. The principle that a gap between the mandatory retirement age for men and women constitutes invalid discrimination has been recognized in international case law as well. An instructive and leading example of this can be found in the decision of the Court of Justice of the European Communities in the matter of Marshall v. Southampton AHA (1986)[21].

           

            This decision dealt with the appeal of an English woman who had served as senior officer in a public institution and whose employment was terminated the age of 62, against her will, for the sole reason that she was a woman and the retirement age for women was 60, as opposed to the corresponding age of 65 for men. The woman appealed to the court of the European community and argued that terminating her employment constituted gender discrimination, and that it was, inter alia, a breach of EC Council Directive 76/ 207.

           

            These provisions include at the outset general guidance, which states:

 

"Equal treatment for male and female workers consti­tutes one of the objectives of the Community, in so far as the harmonization of living and working conditions while maintaining their improvement are inter alia furthered" (ibid. [21], at 588).

 

            Within the framework of this general guidance, and with a view to its realization, Article 5 of the Directive states:

           

"1. Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimi­nation on grounds of sex.

 

2. To this end, member states shall take the measures necessary to ensure that ... (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employ­ment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended..."(ibid. [21] at 589).

 

            And after an exacting analysis of all the relevant arguments, the court reaches at the following conclusion:

           

"...for an employer to dismiss a woman employee after she has passed her sixtieth birthday pursuant to a policy of retiring men at the age of 65 and women at the age of 60 and on the grounds only that she is a woman who has passed the said age of 60 is an act of discrimination prohibited by art 5(1) of Directive 76/207" (ibid., at 591).

 

            6. No doubt it is highly likely that many women are satisfied with the existing situation, and they view the possibility of early retirement on pension as constituting a right. However, as noted above, this right is secured by the option to retire on pension at age 60, and the desire to grant this right does not require or justify forcing the woman to retire at that age even against her will.

           

            7. Respondent's arguments and the Labour Courts' holdings emphasized that the motivation for including Paragraph 6 in the Pension Rules and including a similar paragraph in other collective agreements was not to discriminate against women, but, to the contrary, to alleviate their position.

           

            I am prepared to assume that Petitioner's employer did not intend to discriminate against her and the other female employees when it signed the Labor Constitution. However, the Respondent's intentions are not conclusive as to the question that we are called upon to determine, because the test for assessing the existence or nonexistence of discrimination is objective and not subjective. The motive for creating a distinction between men and women is not determinative in the matter addressed, and for the purposes of determining the existence of discrimination, it is necessary to examine the final outcome as it appears in social reality.

           

            English case law concerning gender discrimination has been decided in a similar spirit. In the House of Lords decision in the appeal of Reg. v. Birmingham C.C. Ex p. Equal Opportunities Commission (1989) [19], the question of whether arrangements, which resulted in the situation that girls needed better marks than boys to be accepted for certain schools, constituted invalid discrimination.

           

            Lord Goff held in this case, at page 1194, as follows:

           

"There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned ... is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex".

 

            An even more far-reaching decision, only recently handed down by the House of Lords in England - James v. Eastleigh B. C. (1990) [20] - addressed the complaint of a 61 year old man against the local council. The man complained about the fact that he was charged an entrance fee to a public swimming pool, while at the same time, his wife, who was the same age, entered the pool without charge. The difference arose from the fact that the wife was on pension, while the plaintiff would be entitled to free entrance as a retiree on pension only at the age of 65. The House of Lords found that this distinction constituted discrimination against the man on the basis of his sex. I see no need to comment on the result reached by the House of Lords in this case. However, I wish to rely upon the following principle, set forth in the decision at page 612, as follows:

 

"The council in this case had the best of motives for discriminating as they did. They wished to benefit 'those whose resources were likely to have been reduced by retirement' and 'to aid the need [sic], whether male or female'. The criterion of pensionable age was a convenient one to apply because it was readily verified by possession of pension book or a bus pass. But the purity of the discriminator's subjective motive, intention or reason for discriminating cannot save the criterion applied from the objective taint of discrimination on the ground of sex".

 

            8. As to the second purpose in setting a compulsory retirement age, i.e., in order to replenish the ranks of the employees, I do not see that it is in any way relevant to distinguishing between the sexes. The Manufacturers' Association of Israel, which was requested by the National Labour Court to express its opinion in the appeal, claimed that acceptance of the appeal is contrary to the best interests of the national economy because of the unemployment problem. It is difficult to understand why it is necessary to sacrifice particularly the female public in order to achieve this important purpose. In my opinion, it is best that we ignore this rationale.

           

            Consequently, from this perspective as well there is no reason to compel women to retire on pension at an earlier age, so that here again it is obvious that the discrimination is invalid.

 

            9. Discrimination is a menace which engenders a feeling of deprivation and frustration. It impairs both the sense of belonging and positive motivation to participate in the life of society and contribute to it. A society in which discrimination is practiced is an unhealthy one, and a state in which discrimination is practiced cannot be regarded as properly governed. It is worth noting in this regard the words of my colleague Justice Barak, in H.C. 953/87, 1/88 [5], at page 332:

 

"...there is no more destructive force in society than the sense among its members that they are subject to different Standards. The sense of inequality is one of the most oppressive feelings. It harms the forces which unite society. It harms man's self-image".

 

            It appears that there is not always sufficient vigilance regarding discrimination when it works against women. As to this matter, see for example the facts which formed the background for C.A. 89/85 [6], at page 531.

 

            Let us assume, hypothetically, that the early retirement age were to apply to the members of a particular community, for the reason that that community prefers to remain within the family circle and regard participation in the labour market as secondary, and that compulsory retirement constitutes special protection for them because of the great burden they bore during their early years. I have no doubt whatsoever that a generalization of this type, and the resultant determination, would be immediately portrayed as blatant discrimination. Certainly I would in no way need to enumerate the general negative consequences of this distinction to support the determination that we have here is invalid discrimination.

           

            When a court encounters a distinction between groups, it must scrutinize closely whether this distinction is based on stereotyped general perceptions, which are based on nothing but prejudice.

           

            Upholding the discriminatory retirement age distinction between men and women may reinforce the view that women cannot be equal in the labor market, and in practice this may impair equality of opportunity for women.

           

            I find the above sufficient to determine that Paragraph 6 is a discriminatory paragraph, and accordingly reverse the decision of the majority in the National Labour Court.

           

            However, the labour Court's main line of reasoning in determining that the paragraph is not discriminatory was based on legislation which in its opinion amounted to constitutional approval, direct or indirect, of the distinction between women and men in all matters related to compulsory retirement age.

           

            We will now address this reasoning.

           

            B. How should the legislative intent regarding retirement age be interpreted, in light of the legal situation existing at the time the decisions were given in the Labour Courts?

           

            10. First we shall review the legal situation regarding retirement age, as it was when the Petitioner's matter was addressed by the labour courts, i.e., prior to the enactment of the Retirement Age Law.

           

            In legislation expressly providing for retirement age for employees, no distinction whatsoever was made between the sexes. Thus, in paragraph 18(a) of the State Service (Benefits) Law [Consolidated Version], 5730-1970, a uniform retirement age of 65 was set for all employees in the civil service; in paragraph 18(a)(l) of the Courts Law [Consolidated Version], 5744-1984, the retirement age for judges was set at 70 with no distinction between the sexes; and in paragraph 13 of the Israel Defence Forces (Permanent Service) (Benefits) Law [Consolidated Version], 5745-1985, the uniform retirement age was set at 40.

           

            On the other hand, in the social welfare legislation a distinction is made between the sexes as to the age at which entitlements to various benefits begins or ends: the age of 65 for men and 60 for women. In the National Insurance Law [Consolidated Version], 5728-1968, this distinction is repeated several times: Section 12 (a) regarding qualification for old-age pension, section 127C(a) regarding entitlement to unemployment allowance, section 127U regarding entitlement to general invalidity insurance, section 127Y(c) regarding non-cessation of invalids' entitlement to special services, section 127AP regarding entitlement to vocational rehabilitation and section 127AU(a)(1) regarding entitlement to vocational training. In section 2(a)(4) of the Assurance of Income Law 5741-1980, the distinction exists regarding entitlement to assurance of income, and in section 7A of the Invalids (Pensions and Rehabilitation) Law [Consolidated Version], 5719-1959, regarding entitlement to pension supplements. This is also the case in section 33A of the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 5710-1950, regarding the obligation of an employer to continue to employ a worker beyond retirement age, and in section 11(e) of the Severance Pay Law, 5723-1963, regarding dismissals beyond the age of 60 in the case of a woman, and 65 in the case of a man.

 

            There is another reference to the age distinction of 60 for a woman and 65 for a man, not in the area of social welfare legislation, in section 3(a) of the Emergency Labour Service Law, 5727-1967, regarding retirees who are liable to Labour service during emergency situations.

           

            In the legislation which addressed the requirement of equality between the sexes up until the enactment of the Retirement Age Law, retirement age was not cited among the areas in which equality is required. The Male and Female Workers (Equal Pay) Law, 5724-1964, only dealt with pay; section 42(a) of the Employment Service Law, 5719-1959, provides that the Employ­ment Service shall not discriminate between the sexes in referrals to places of employment; the Employment (Equal Opportunities) Law, 5741-1981, dealt solely with equality in acceptance has emplagment and in creational training, and its replacement (which was enacted after the beginning of the litigation in the Petitioner's matter) - the Employment (Equal Opportunities) Law, 5748-1988, provides that an employer shall not discriminate against women in hiring, work conditions, job advancement, training or continuing education and in dismissals or severance pay. Retire­ment age, accordingly, did not fall within the areas in which the legislator expressly required equality.

           

            In those sectors where the legislature did not prescribe a retirement age, the matter was determined in Labour agreements between employees and employers. Regarding Histadrut employees it was provided in 1983 that the retirement age between the sexes would gradually be equalized. Nonetheless, it may be said that as a rule the distinction between the sexes regarding retirement age existed in most of the labour agreements at the time that Petitioner's matter was considered by the labour courts.

 

            11. On the basis of the above, the two labour courts, the regional and the national, held that the distinction between the sexes regarding retirement does not fall within the realm of discrimination.

           

            Their conclusions were three-fold:

 

            a. The legislature regulated the provision of benefits linked to retirement on pension in accordance with the non-uniform retirement age set forth in the relevant labour agreements. Thus the legislature made it clear that it agreed with the distinction provided for in those agreements.

 

            b. The fact that in the laws in which the legislature regulated retirement age, it established a uniform retirement age, indicates that its failure to deal with the retirement age as to other sectors was intentional.

 

            c. In the statutes relating to equality between the sexes (until the Retirement Age Law) there was no reference to retirement age. Hence, the legislature did not view the distinction between the sexes in this matter as amounting to discrimination.

 

            I quote from the opinion of the National Labour Court*:

 

"It is a basic assumption that a distinction in a statute is 'reasonable', and does not contradict public policy or create invalid discrimination, so why should an iden­tical provision in a collective agreement or collective arrangement be viewed as creating invalid discrimination?"

 

            12. Respectfully, I do not accept these conclusions.

 

            I accept the statement of the Labour Court that it is a basic assumption that the legislature does not discriminate. Accordingly, where there is a doubt as to the right interpretation uncertainty, the enactment must be understood in light of that basic assump­tion. That is, that interpretation must be applied which accords with the basic principle of equality and lack of discrimination and with the Women's Equal Rights Law, 5711-1951, which gives legislative force to this basic right, specifically, as to women.

 

            In other words: when a question of interpretation comes before this Court, it is entitled, and even obligated, to uphold the basic freedoms and to interpret the legal issues that come before it in their light. In the words of Justice Landau, in H.C. 98/69 [7], at page 698: "It is... only right - precisely in the borderline cases where a statutory provision can be construed in two ways - that we prefer the construction that upholds the equality of all persons before the law over one that sets it at naught". And as Justice Barak stated in H.C. 153/87 [8], at page 274: "Between two possible interpretations, we must choose that which guarantees equality in the optimal sense, and reject the interpretation that contradicts equality".

           

            Furthermore, the Women's Equal Rights Law states in section 1:

 

"A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal pro­ceeding, against women as women, shall be of no effect".

 

            Retirement from work constitutes a legal proceeding. As a consequence of this act, the status of a person is changing, and his rights and duties are altered (and see Justice Witkon's broad interpretation of the term "legal act" in section 1 of the Women's Equal Rights Law in C.A. 337/61 [9], at page 406). Accordingly, we should not prima facie draw inferences as to the matter before us from statutory provisions which refer to the distinction between men and women in other matters unrelated to retirement age. I would also not assign great weight to the argument that the Women's Equal Rights Law cannot be given special status, and that therefore subsequent enactments may contradict it:

 

"The basic conception is, that in enacting a new statute, it is the legislature itself that must repeal or narrow down the old Statute. If the legislature has not done so, the assumption is that it wanted to give effect to both statutes, simultaneously the other, each according to the scope required by its terms".

 

            So held Justice Barak in H.C. 953/87, 1/88 [5], supra, at page 334, in addressing the meaning of the Jewish. Religious Services Law [Consolidated Version], 5731-1971, as against the Women's Equal Rights Law which preceded it.

           

            This statement is true whenever we consider two statutes which may contradict each other. But in our case we must give even more weight to the Women's Equal Rights Law. This statute reflects an important and fundamental value, a principle which shapes life in our state as a well-ordered state. The Women's Equal Rights Law proclaims a value which should encompass our entire legal system. Accordingly, where a matter which contradicts that statute is not expressly stated, the interpretation of the statute compatible with the principle of equality between the sexes must be preferred.

           

            This statement is all the more true in the case before us, where it is merely sought to draw an inference from other statutes which contradicts the Women's Equal Rights Law.

           

            We will now address the labour courts' reasoning anew, against the background of the principles we outlined above.

           

            It should not be inferred from the legislature's silence regarding labour agreements which create a distinction in retirement age that it intended to approve this discrimination. This also applies to silence on the part of the legislature regarding retirement in statutes relating to women's rights. The fact that the legislature set a uniform age whenever it dealt expressly with retirement age can perhaps be interpreted in two ways, but I think the preferable conclusion is that this fact also points more in the direction of negating sex discrimination in this area.

 

            This is particularly so in light of the enactment of the Retirement Age Law, which clearly takes exception to that discrimination.

           

            Section 12 of the National Insurance Law [Consolidated Version], which sets forth the age of entitlement to old-age pension, is the enactment closest to our issue. This paragraph does obligate a woman to retire at age 60, but rather permits receipt of the pension from this age onwards. The distinction protects women in practice from the creation of a double injustice. For in the existing situation, if the entitlement to old-age pension were determined in an equal manner (that is, starting at age 65), the woman who retires in accordance with labour agreements would suffer a shortfall for 5 years. This paragraph, accordingly, permits the woman to retire safely at age 60, but it does not require this.

           

            It is to be noted and emphasized that the same argument was considered at length in the decision in Marshall [21], supra. There too the authorities relied upon welfare legislation, according to which a woman was eligible for pension at age 60, while a corresponding age of 65 was established for men. It was argued that it should be deduced therefrom that the existence of a gap regarding mandatory retirement age between men and women does not constitute invalid discrimination.

           

            The court rejected this claim, holding, inter alia, at page 599:

           

"... a general policy concerning dismissal involving the dismissal of a woman solely because she has attained the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex. . . ".

 

            Accordingly, it was held that a woman's obligation to retire at age 60 should not be inferred from such legislation.

           

            A similar claim was also raised before the House of Lords in the James [20] decision, supra, and there too it was held that the notion that discrimination is permitted should not be inferred from the existence of various statutes establishing benefits for women from age 60 and for men only from age 65, and in the absence of an express statutory provision permitting as much, discrimination of this nature is forbidden. The decision held at page 613, as follows:

           

"Statutory pensionable age is still used in some other statutory contexts ... as the basis of entitlement to enjoy certain other benefits or concessions... But it is impossible to infer from these or any other specific statutory provisions requiring or authorising discrimi­nation in defined circumstances the existence of a general exception to the prohibition of sex discrimi­nation in the provision of goods, facilities and services imposed by s. 29 of the Sex Discrimination Act 1975 such that discrimination in favour of women and against men between the age of 60 and 65 is always permitted. In the absence of express statutory authority derived from some other enactment, such discrimination is prohibited".

 

            In sum:

 

            It is true that the statutory provisions which indicate on their face the legislature's recognition of differences between men and women for specific purposes, including the age at which they are entitled to pension, cannot be ignored. However, it should not be deduced, by way of interpretation, that the legislature has thereby granted permission for establishing a gap between man and woman regarding compulsory retirement age. For this, explicit legislation would be required. No such legislation exists, but on the contrary, wherever the compulsory retirement age is referred to in connection with a specific category of employees, a uniform age is provided, and it is now explicitly prescribed in the Retirement Age Law that this type of gap is invalid and should not be put into practice.

           

            C. Significance of the Retirement Age Law

           

            13. Thus we arrive at the question: how does the Retirement Age Law directly impact upon our issue?

           

            We already noted above that the Retirement Age Law was enacted on March 17, 1987 (namely, after the National Labour Court handed down the decision in this case, and after the petition was filed), and as the text of the Law does not indicate a date on which it comes into force, it is in effect from the date of its publication (March 26, 1987), and onwards.

           

            Learned counsel for the respondent (who submitted his brief after the Law was enacted) argues that this Law answers the question presented in this petition, and that accordingly considera­tion of the petition is unnecessary because it is solely theoretical. He bases his statement on two decisions of this Court: M.A. 166/84 (H.C. 780/83) [10] and H.C. 363/87 [l l].

           

            Respectfully, I do not accept this argument. In the two decisions noted, statutes were considered which retroactively settled the problem on which this petition was based. In those cases, since the legislature had dealt with the matter, there was no further room for the involvement of this Court. In the case before us, the legislative arrangement does not apply retroactively to the Petitioner, so that her problem remains as it was. Accordingly, this proceeding is not superfluous.

           

            As stated, the legislature did not make any statement as to how to act during the period preceding the effective date of the Retirement Age Law. On the one hand, it could be inferred from the fact that the legislature established an effective date from that point onwards, that in so doing the legislature answered the question in the negative. According to this interpretation, a woman's right to choose when to retire between the ages of 60 and 65 should not be applied retroactively. This possibility is certainly reasonable, since retroactive application is likely to bring with it uncertainty and disorder in the economy. Likewise, since this law is a result of a social process, it is only reasonable to fix a point in time when the social change, on account of which the law was enacted, "crystallized", so to speak.

           

            On the other hand, it could be argued that this statute is merely the unavoidable result of a social and legal situation. For, as shown above, the same result would have been reached even if it had not been enacted (I will not enter here into the question of whether the Retirement Age Law really institutes the desired equality. For purposes of this issue, it is sufficient that women were given the opportunity to retire at an age equal to the retirement age for men). Moreover, it is unsatisfactory that the statute which eliminated discrimination against women on retirement is that which will deny relief to the Petitioner; while if the statute had not been enacted, the Petitioner would have been entitled to it.

           

            In practice, a problem of interpretation arises here, the method of clarifying which we have already considered in the previous section: when several possible reasonable interpretations arise, we prefer that which upholds basic rights over the option which limits them. Accordingly, I find that the enactment of the Retirement Age Law does not negate the Petitioner's right to retire at an age equal to the retirement age for men.

 

            It could be queried whether we are not thus undermining the purpose of the law. For there is no doubt that along with the goal of achieving equality in retirement, the legislature apparently sought to achieve another goal: application of the change in an organized fashion, with the aim of preventing uncertainty, legal claims, excessive monetary expenses, and so on.

           

            I therefore wish to make it clear that my holding herein is merely that the Retirement Age Law does not preclude the Petitioner, who claimed her right to retirement on the basis of equality before she left her job, and before the Retirement Age Law was enacted, from being entitled to that right.

           

            I do not see the need, within the context of this petition, to express an opinion regarding the potential influence of this decision on the situation of other women in positions similar to that of the Petitioner, in that they too were forced to retire on pension at age 60. The same applies to the question of whether women, who reconciled themselves to the situation and retired without resorting to litigation, will now be able to request cancella­tion of the arrangement which has entered into affect for them.

           

            I will note only the existence of a precedent for limiting the application of a fundamental decision regarding women's equal rights in the case law of the Court of the European Community:

           

            Judgment was given in favour of the plaintiff in the case of Defrenne v. Belgium (1974) [22], which also concerned discrimina­tion between men and women, being an equal pay for equal work claim. However, the Court placed a time limit on the effect of the rule which it laid down in this decision, holding that the Court would not entertain claims submitted for the balance of salary for periods preceding the date of the decision (see regarding this matter E.C. Landau, The Rights of Working Women in the European Community (Luxembourg, 1985) 23-26).

           

            However, as noted above, I do not intend to decide this issue, which does not concern the Petitioner.

           

 

            D. Will The High Court of Justice intervene in the Labour Court's decision in this case?

           

            14. In H.C. 525/84 [12], President Shamgar dealt at length with the topic of the High Court of Justice's intervention in the decisions of the Labour Court, reviewing the development of the case law on the topic. In summing up his remarks, the President reaches the conclusion that the test is two-fold (see page 695 of the judgment):

           

            (l) Whether substantial legal error has been disclosed in the Labour Court's judgment;

           

            (2) That justice requires intervention in the Labour Court's decision.

           

            I have no doubt that the present case justifies our intervention. The determination that the said distinction does not fall within the definition of discrimination is a substantial legal error. Justice requires the intervention of this Court, since Petitioner was denied the basic rights of equality and freedom of occupation.

           

            E. Is it appropriate that a judicial forum intervene in the labour agreement which is the subject of this petition?

           

            15. Collective labour agreements and collective labour arrange­ments are the outcome of negotiations between employee representa­tives and employers. As a contract, they reflect the will of the parties, and accordingly, in light of the principle of freedom of contract, the court should abstain from intervening in its content as far as possible. There is considerable intricacy in a collective agreement or arrangement, and the various terms constitute a part of a whole in which every detail is part of a system of balances and compromises at which the parties arrived in their deliberations. Moreover, since agreements of this nature affect a broad community, the fact that many parties rely upon its content must be considered.

           

            In the National Labour Court's judgment it is stated that the specific provision we are dealing with here "is the result of collective negotiations between two of the central organizations in labour relations in Israel - the General Federation of Labour (Histadrut) and the Manufacturers' Association, and the Terms of Employment obligating the Jewish Agency and its employees is also the result of a bilateral arrangement, to which the largest employee organization in the State is a party". These remarks show clearly the extent of the effect of the agreement with which we are dealing. I will accordingly repeat the Labour Courts ruling (N.L.C.H. 45/117-13 [15], at page 289; N.L.C.H. 47/11-2 [16], that the Court will intervene as little as possible contents of collective agreements or arrangements.

           

            I think that this case is among the few in which the Court will intervene in the contents of a labour agreement, despite the principles noted above.

           

            In N.L.C.H. 33/25-3 [17] the National Labour Court held that courts are authorized to intervene in the contents of a collective agreement for "public policy reasons" pursuant to section 64 of the Ottoman Civil Procedure Law. In our case, the relevant section is section 30 of the Contracts (General Part) Law 5733-1973 (here­inafter: the Contracts Law), which states: "A contract the making, contents or object of which is ... contrary to public policy is void". Section 31 of the Contracts Law provides that section 19 of that Law should apply to section 30. Section 19 states that "Where a contract is severable, and the ground for rescission relates only to one part thereof, such part alone shall be capable of rescission.

 

            It is appropriate to quote the following statement from N.L.C.H. 33/25-3 [17], supra, at page 378:

           

"...If in a regular contract the court will invalidate a provision which contains 'discrimination' which is contrary to 'public policy'- all the more so in the case of a collective agreement. Just as in the administrative law area the Supreme Court did not hesitate to invalidate 'discrimination', there is likewise no room for such hesitation where a collective agreement is concerned. In its contractual part, the collective agreement is nothing but a contract between the parties; in its normative part - it is closer to legislation, by imposing norms on the individual through an external source, a source which represents the individual's interests, but not the individual qua individual. If in a regular contract a provision which the individual explicitly agreed to would be invalidated because of 'public policy', it is that much more appropriate to invalidate for the same reason this type of provision when it applies to the individual because of his being a member of a larger group...".

 

            In H.C. 410/76 [13], at page 130 et seq., Deputy President Landau (as he then was) adopted this rule (although the case ruled otherwise on the merits).

           

            I consider it right to apply this ruling to the matter before as also. Paragraph 6 creates a discriminatory arrangement which impairs the rights of women to participate equally in the domain of labour. Accordingly I believe that this paragraph is contrary to public policy, and therefore it is right for this Court to intervene and nullify it.

           

            It should be further noted, that if the aforementioned applies as to collective labour agreements, which were duly signed and registered, then this statement is certainly correct regarding other labor agreements, such as the "Terms of Employment" which is the subject of our present discussion.

           

            Respondents' counsel argues that work and retirement conditions are areas which the employees and employers must shape in the course of their negotiations, and if indeed a social change has occurred which justifies a change in the retirement age of women, the Petitioner should have waited until the signing of a new labour agreement, which would reflect the change.

           

            This argument cannot justify acquiescence in a discriminatory distinction for so long as it is contained in an existing agreement. The judge who wrote the minority opinion in the National Labour Court commented on this topic as follows*:

           

"Notwithstanding the importance of the parties' positions in labor relations, I reject reliance on this agreement as a basis for justifying distinctions in retirement age. If the courts in the United States would have taken this approach when they came to determine the justification for discrimination between whites and blacks, it is doubtful whether this discrimination would have been invalidated even to this day".

 

            16. To conclude the elucidation of this point I see the need to mention in this context once more the provisions of section 1 of the Women's Equal Rights Law, which, as noted, states:

           

"A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal proceeding, against women as women, shall be of no effect".

 

            If this is the legislature's guidance regarding the interpretation and application of a statute, it is all the more necessary to act in this manner regarding the application of a labour agreement and the determination of its validity.

           

            F. What is the appropriate relief?

           

            17. The National Labour Court held in its judgment that, even had it reached the conclusion that Paragraph 6 is discriminatory, it would have been precluded from granting the Petitioner relief. The court based its decision, inter alia, on the fact that a condition for declaratory relief is that "the situation as to which a declaration is sought is clear and unambiguous" (N.L.C.H. 35/98-4 [18], at page 158), a condition which in the court's opinion does not exist herein.

           

            The court raised the question of which is the optimal state of equality - making the retirement age of men equal to the retirement age of women (that is, 60) or the opposite? The ambiguity raised by this question was one of the reasons for the National Labour Court's decision that declaratory relief should not be granted. At first sight, we are also confronted with this dilemma. For who can assure that it is more correct to make the retirement age of women equal at 65 than to make the retirement age of men equal at 60; or should it be held, as it is now set forth in the Retirement Age Law, that the retirement age of 60 is optional for women?

           

            True, we described the negative consequences of early retire­ment at the outset of the judgment, but at the same time we have not ignored the fact that there are those who view early retirement (women as well as men) as an arrangement which benefits the worker.

           

            But it seems to me, after additional consideration, that this problem may be overcome without particular difficulty.

           

            The accepted age for retirement on pension today is 65. This is the age fixed in the agreement in question as the retirement age for men, and the Petitioner seeks to eliminate the discrimination which acts against her in Paragraph 6 and make her situation equivalent to that of men in all matters related to the compulsory retirement of employees.

 

            As we have found that there is indeed invalid discrimination as to this point, and that this discrimination is not based in a statutory provision, we must act to eliminate it and grant the Petitioner the requested relief.

           

            18. In light of everything stated herein, I would recommend to my esteemed colleagues that we make the order nisi absolute, in the sense that it is declared that that part of Paragraph 6 which sets forth a different compulsory retirement age for women is null and void .

           

            The parties are required to engage in negotiations on the practical effects of this judgment regarding Petitioner's rights. If an agreed-upon solution in this matter is not found within a reasonable time, the Petitioner may once again apply to the Regional Labour Court regarding this matter.

           

            Respondent shall pay costs to the Petitioner in the sum of 6,000 NIS, as of today.

           

            NETANYAHU J.: It saddens me that in the Israel of our day it was not clear and self-evident that forcing the retirement of a woman from her work at an earlier age than a man constitutes discrimination.

           

            Ever since the generation of the founders and pioneers, women have taken, and continue to take in our day, an equal part with men in endeavour in all areas of life, and do not lag behind men in doing so, despite the additional burdens women bear as wives and mothers.

           

            In my view, the discrimination is reflected not only in the financial loss she suffers from her retirement at a younger age, but also, and in my opinion, primarily, in that she is precluded, at precisely the age where she is more free to do so, from achieving, fulfilling, and flourishing in the realization of her various talents and skills.

           

            I associate myself with the opinion of my colleague Justice Bach that Paragraph 6 of the collective agreement is invalid as being discriminatory.

           

            ARIEL J.: I agree. In H.C. 953/87, 1/88 [5], cited by my colleague the Hon. Justice Bach, I was given the opportunity and privilege to make, inter alia, the following statement, at page 342:

           

"The equal status of women within the context of the principle of the equality of the sexes is not merely formal, and it should and must extend in a practical and real manner across all fields of our lives".

           

            Hence, it is clear that I am in agreement with the conclusions reached by my esteemed colleague, in consideration of the reasons presented by him.

           

            As to our intervention in the ruling of the National Labor Court, I am persuaded that in this case intervention in the National Labour Court's decision is also justified by the position I expressed in H.C. 105/ 87 [14], at page 567-568, regarding the need to confine this Court's intervention in judgments of labour courts solely to cases in which intervention is necessary to do justice, since we are involved here with a ruling with impact upon the law in general.

           

Judgment given on October 22, 1990. Decided as stated in the judgment of  Bach, J.

            C.A. 86/63

 

           

HASSAN EL-ZAFDI

v.

BARUCH BENJAMIN AND ATTORNEY-GENERAL

 

           

In the Supreme Court sitting as a Court of Civil Appeal.

[July 11, 1963]

Before Olshan P., Silberg J., Witcon J., Cohn J.  and  Manny J.

 

           

Inter-religious law - guardianship of child of Jewish mother and Moslem father - jurisdiction of religious courts - Palestine Order in Council, 1922, arts. 51 and 55 - Women's Equal Rights Law, 1951, secs. 3 and 7 - Adoption of Children Law, 1960, sec. 11.

 

The child in this case was born to a Jewish mother and a Moslem father. According to Jewish law, the child was Jewish, following the mother, and according to Moslem law it was Moslem, following the father. On the death of the mother, the child was placed with its Moslem aunt, but when the father learned that German reparations were payable to the mother he applied to the District Court for the appointment of a maternal uncle as guardian. The Court appointed an uncle as sole guardian and at the instance of the Attorney-General ordered him to place the child in a Jewish institution. The father however, applied to the Sharia Court which decided that both the father and child were Moslems and that the child should be handed over to the father. The Attorney-General and the guardian, after having unsuccessfully contested the jurisdiction of the Sharia Court, did not take part in these proceedings. For some reason, the father nevertheless did not proceed to enforce the judgment of the Sharia Court and instead applied again to the District Court to have the appointment of the guardian set aside and for an order that the child and its property be delivered up to him. His application was denied and he appealed.

 

Held                  The father was the natural guardian of the child whichever personal law applies to either of them. Such natural guardianship did not, however, relieve the court of its fundamental duty of acting always in the interests of the child alone. In a case of "mixed" parentage, the President of the Supreme Court is empowered to decide whether either of the two religious courts concerned or the District Court has jurisdiction, and no party might apply to a religious court without the President's approval; for an application to the District Court no approval is necessary. Any decision made by a religious court with approval of its jurisdiction could not oust the jurisdiction of the District Court. Where a child's religion, as here, could not be certainly determined, the "territorial" principle applied and the child's interests were paramount. There was sufficient evidence before the District Court to show that it was in the interests of the child not to be placed under the guardianship of the father.

 

Israel cases referred to:

 

(1)   H.C. 72/62 - Oswald Rufeissen v. Minister of the Interior (1962) 16 P.D. 2428; S.J. (Special volume) 1.

(2)       C.A. 209/54 - Franz Steiner v. Attorney-General (1955) 9 P.D. 241.

(3)       Motion 121/55 - Orah Fruchter v. Bernard Fruchter (1955) 9 P.D. 1361.

 

Y. Ben-Yishai for the appellant.

The first respondent appeared in person.

M. Cheshin, Deputy State Attorney, for the second respondent.

 

COHN J.                     The fate of a young child whose parents' sins are being visited on her is to be decided in this appeal. This mother was Jewish and died when the child was still in her first year. The appellant claims to be the father of the child and to evidence that has produced her official birth certificate; and if it is pleaded before us that the appellant's paternity has not been sufficiently proved, the child's birth certificate is, in my opinion, good prima facie evidence and, no atcempt having been made to upset it, we must presume that it is true and on the strength of it hold that the appellant is indeed the father of the child. The appellant is stated to be a Druze in the birth certificate, but he asserts that he is not a Druze but a Moslem; and for the purpose of this appeal I assume, without deciding, that he is in fact a Moslem.

 

2. Litigation over and concerning the child commenced in 1960 when the appellant asked the Tel Aviv District Court to appoint him and an uncle of the deceased mother, one Baruch Benjamin, as the guardians of the person and property of the child. On that application the appellant argued that he and the deceased had lived as husband and wife, although unmarried, and that the child was their daughter; and that German reparations had been received in the name of the deceased to which the child is entitled to succeed. With regard to this application, the learned judge said in his judgment

"The applicant does not argue that he is legally the father of the child. Neither he nor his counsel says that. Clearly, had the applicant urged that he is the father, he could not have claimed to use the    money for bringing up the child, since as her father it was his duty to do so. In view of this situation the court appointed only the uncle of the child as guardian and gave him leave to obtain a Succession Order to the deceased's estate. He was also given leave to use money received after the Succession Order was obtained for the maintenance and up-bringing of the child."

 

3. Notwithstanding the appointment of Mr. Baruch Benjamin alone as the child's guardian, the appellant was able to get the child placed under the control of a couple by the name of Saliman, by means not explained to us. By virtue of his powers under the Welfare (Procedure in Matters of Minors etc.) Law, 1955, the Attorney-General instituted further proceedings in the District Court, submitting, as the learned judge stated in his judgment

 

"that the minor is now living with the Saliman family in shocking inhuman conditions and that the Saliman family looking after the child are elderly people, Mrs. Saliman suffering from trachoma, and they live in a hut open to the weather, and that the applicant ... does not visit the child nor is concerned about her ... and that for some nine months has not seen the child or at all been interested in her, and that he himself appears to be undeveloped and lives with a woman of doubtful conduct."

 

The Attorney-General petitioned that the appellant be denied his (natural?) guardianship and that the child be allowed to be adopted.

 

            The learned judge heard counsel for the Attorney-General, the appellant and the guardian Mr. Baruch Benjamin and directed the guardian to take the child away from the Saliman family and take her to "the social department of Tel Aviv Municipality so that arrangements might be made for her in an institution".

           

            We are told that the guardian did so and that the child is now in an institution.

           

4. Upon changing lawyers, the appellant was advised that the District Court had no jurisdiction in the matter and that exclusive jurisdiction lay with the Sharia Court since he was from birth a Moslem. The appellant did not remain idle and applied to the Yaffo Sharia Court. It appears from the decision of this court ... of October 8, 1962, filed with the District Court, that the appellant had asked three things from the Sharia Court - a declaratory judgment that he was a Moslem and not a Druze, a determination that he was the child's father and his appointment as the child's legal guardian, and the annulment of the guardianship of Mr.Baruch Benjamin (who was summoned as defendant in the Sharia Court) and an order that the latter deliver the child to him "together with all rights and property".

 

            Both Baruch Benjamin and the Attorney-General appeared before the Sharia Court and pleaded that it had no jurisdiction in the matter. After this plea was dismissed by the court, they no longer took part in the hearings.

           

            The Sharia Court, after hearing two witnesses (and two others regarding their credibility), held that the appellant was a Moslem "by origin" and the child his daughter. The court also held as follows:

           

"Lawful marriage relations existed between the parents (of the child) since marriage is determined according to the factual situation, as laid down by the sages... . And I hereby determine that the daughter is Moslem following the religion of her father and she can be adopted in accordance with the rulings of religious scholars; and in accordance with the application ... to appoint the father the guardian of his said daughter because he is capable of bringing her up, dealing with her affairs and managing her property in the best possible manner, in addition to the provisions of the Women's Equal Rights Law 1951, section 3(a) that both the mother and the father are natural guardians of their children and where one of them dies the survivor remains the natural guardian - I hereby appoint Hassan EI-Zafdi (the present appellant) as lawful guardian of his daughter Ziva EI-Zafdi and order that she should be delivered to him by any one under whose control she may be together with all the property due to her, and the father shall hand her over to his aunt Muhtia Hussin EI-Dagma with whom she was previously."

 

5. For some reason the appellant did not execute the judgment of the Sharia Court but made a new application to the District Court asking for the cancellation of Mr. Baruch Benjamin's appointment as guardian and order against him to hand over the child and her property. The learned judge refused the application, hence the present appeal.

 

            In a detailed and basic judgment the learned judge considered carefully Moslem, Jewish and English law, and Dr. Cheshin who represented the Attorney-General so elegantly and knowledgeably, also tilled every corner of the field of law to gather proof that this appeal should be dismissed. For myself, with all respect and esteem for the learned judge and appreciation of noted counsel, the questions which arise here are short and very simple and they need not detain us long.

           

6. Section 3 of the Women's Equal Rights Law, 1951, provides as follows:

 

"(a) Both the mother and the father are the natural guardians of their children; where one parent dies, the survivor shall be the natural guardian.

 

(b) The provisions of subsection (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interests of the children as the sole consideration".

 

Under section 7 of the same Law,

 

"All courts shall act in accordance with this Law; a tribunal competent to deal with matters of personal status shall likewise act in accordance therewith, unless all the parties are eighteen years of age or over and have consented before the tribunal, of their own free will, to have their case tried according to the laws of their community".

 

            Dr. Cheshin submits that the father referred to in section 3(a) is not the natural but only the legal father. Unlike his other submissions, this one does not merit acceptance. First, the word "parent" in the second part of the subsection indicates that we are concerned with a person who played a part in the pregnancy of the child. Secondly, the word "natural" indicates that we are concerned with guardianship created naturally and not depending upon the operation of the law (other than this statute). Thirdly, the Law draws a comparison between the father and the mother: just as the mother is natural and does not require legal recognition, so also the natural father is intended. Fourthly, and this is the main point, unlike English law, Israeli law does not recognize the status of the legal father as distinct from the natural father; and the terms of a Knesset enactment are not to be interpreted according to the meaning they can possess in the laws of one or other religious community (Rufeissen v. Minister of the Interior (1)).

 

            It follows that the appellant is the natural guardian of his daughter, whatever personal law applies to him or her;and all research into what this personal law is and its provisions is irrelevant here.

           

7. However, the natural guardianship of the appellant over his daughter does not by itself release the court (or any religious tribunal) from the basic absolute duty to adjudicate in guardianship matters affecting children "with the interests of the children as the sole consideration". What the Law calls "the power of a court or tribunal" is but the sacred duty which it may not disregard. I cannot express the matter more becomingly and incisively than Silberg J. when he said

 

"The test of the child's interests ... cannot be otherwise than one of two things, either it is not a serious consideration at all or it alone must be deemed the decisive absolute element ousting (in the event of conflict) every other consideration. No compromise is possible here: it does not lend itself to division and it is not to be mingled and confused with any other consideration whatsoever... . The Israeli legislature was therefore justified in laying down - and this to my mind is the correct meaning of section 3(b) - that the interests of the children are to be the final determinative consideration, both when they conflict with the rights of guardianship provided in section 3(a) and when they conflict with the provisions of a foreign law... No happier expression of this is to be found than the formula coined by one of our great poskim: the rule of matter is that all depends on where the bet din sees the better interests of the child lie (Responsa Radbaz, Part I, 123)" (Steiner v. Attorney-General (2) at p. 251-52)

            With regard to the child's interests here the learned judge was persuaded, both when dealing with the Attorney-General's application as above and again when dealing with the present application of the appellant, that the child should not be returned to the appellant's relatives but should remain in the institution where she is at present. The learned judge points out that the child was taken from the Saliman couple, the aunt and uncle of the appellant, because she was suffering there; and that she feels better, is developing well and receiving proper education in the institution where she is at present. Furthermore the reports of the Welfare Officer which served the Attorney-General as cause for his initiative, were not denied or controverted at all; before us as well appellant's counsel did not try to argue that these reports were incorrect or that meanwhile the situation at the Salimans has changed to the better.

 

8. The only submission of appellant's counsel in this regard was that the interests of the child required that she be brought up and educated in her religion, Islam, and not in a Jewish institution. I agree that generally the interests of children require that they grow up in the parents'faith; but I do not agree that every other interest must yield to this religious interest. The court facing the choice either to endanger the physical and mental health of the child by handing it over to members of its religion, if these are not fit or capable to rear and educate it, or to hand it over to teachers who, though not of its faith, will look after all its due needs - the court has the duty to be concerned with the health of the child and not its religion: the saving of endangered life displaces religion. That is simple and obvious.

 

            Nonetheless, I have not at all been persuaded that the child here is a Moslem. We have two judgments before us, one by the learned judge holding that the child is Jewish, and the other of the Sharia Court holding that she is a Moslem. In this situation, and without entering into the question whether the Sharia Court had jurisdiction to decide as it did, prima facie doubt exists as to the religion of the child; or one may say that she is Jewish according to Jewish religious law and Moslem according to Sharia law and thus a member of two religions, in theory if not in practice. In either event her interest alone must be decisive in respect of guardianship and her upbringing and education. Since there is doubt or conflict as to her religion, that cannot be an element, or be of importance, in finding where her interests lie.

           

            Moreover, where a person has dual nationality, the prevailing view today is that we look to the "effective" nationality, operative, real and manifest (see M. Silberg, Personal Status in Israel, pp. 247-50 (in Hebrew)). Presumably the same applies to a person with dual religion, the effective operative religion is followed in case of a conflict of laws. All this applies to an adult capable of giving effectivity to one of the nationalities or religions of his by actual conduct or expression. It is otherwise with a minor whose conduct and expression does not stem from a voluntary and thought-out act from which conclusions can be drawn in law. It appears to me, and I have no doubt about it, that such effectivity as regards a child is only its interest. When in the case of a child there is a choice between the law of two religions or two nationalities, one must choose that law the operation of which will yield greater benefit to the child, not only because in any case one must place the child's interests at the head of all consideration but also because the child, had he the ability of effecting a voluntary and thought-out act, can be presumed to act and express himself, and thus give effectivity, according to that religion or nationality from which it will derive the greatest benefit. Thus, even assuming that the present child is of dual religion, her "effective" religion is Judaism because her interests lie in growing up and living as she does at present and not in the home of the Salimans or of the appellant.

 

9. Appellant's counsel argues, though only half-heartedly, that the child's interests were already decided upon by the Sharia Court and that is the end of the matter. It is, however, not so. Although that judgment states that the appellant "is capable of bringing her up, dealing with her affairs" etc., and two witnesses attested to that in the Sharia Court, with all deference to their credibility and knowledge, the Sharia Court did not decide that it was in the child's interests to be in the home of the appellant and be brought up there. On the contrary, the judgment ordered the appellant to hand over the child to the couple in whose home she had previously been. And the Sharia Court said nothing about the fact that the child's interests require or justify her being placed with this couple, just as it says nothing about the frightful conditions described in the Welfare Officer's reports (which apparently were not brought to its knowledge).

 

  However, I was not in the least persuaded that the Sharia Court had jurisdiction in this matter and I am almost of the opinion, and not only for the reasons of my honourable friend, Witkon J., that it did not. Since, in any event, there is no finding in the judgment as to the needs of the child and her interests, I find no need to go into the question of jurisdiction, especially as the appellant himself turned to the District Court after the Sharia judgment had been given and undertook the burden of proving the interests of the child precisely in the District Court.

 

10. In one incidental matter appellant's counsel, it seems to me, was right. The learned judge stated in his judgment that as regards the possible adoption of the child he was doubtful whether in the light of section 11(1) of the Adoption of Children Law, 1960, the appellant's consent was necessary and that perhaps an adoption order might be made without his consent. Although the judge was doubtful in express terms, his observations imply that in fact he had made up his mind that the condition in section 11(1) of the said Law obtained*. The question whether the condition has been met in the case of the appellant, or whether his consent may be forgone by virtue of the existence of one of the other conditions in section 11, or whether his consent should properly be first sought since none of these conditions exist - these questions will not occur nor come up for decision so long as there is no application to court for adoption by a particular adopter. When the time arrives for such an application to be heard, the court will consider the applicability of section 11 on the evidence adduced on the hearing of the application.

 

            I would affirm the judgment of the District Court, though not for the reasons therein set out, and dismiss the appeal.

           

SILBERG J     The story of the child in dispute exposes the fact that we do not possess either the system or machinery for a fundamental solution of the problems of inter-religion law. We wait for that in vain. For while in the area of conflict of private international law we are more or less sustained by the Common law and domestic case law, in the exclusively Israeli field of conflict of religious laws we have a single provision in the Palestine Order in Council which skirts in a most superficial manner the edges of the problem.

 

2. Were I therefore called upon to decide the basic question of the "quality" of this child, whether she is Moslem according to the personal religious law of the father or Jewish according to the personal religious law of the mother, I would openly confess that I do not know. The religious laws contradict one another and the civil law is silent. The Common law does not deal with such conflicts and Palestine or Israeli case law has not yet said its piece on this complex subject. Elsewhere (Personal Status in Israel, p. 355) I have recommended that when a civil court had to deal with such "dual religion" it should adopt as a principle of interreligion choice the test of effectiveness customary under the Hague Convention relating to nationality of 1930. I am happy to confirm that my learned friend, Cohn J., agrees. This test, however, has manifestly no place in the case of a child of four and a half years. My learned friend's suggestion in paragraph 8 of his judgment that in this situation the court should deduce the effective religion in the light of the child's interests does not, with all respect, commend itself to me. Religious belonging may obviously affect the question of the child's interests and in any event the child's interests cannot determine its religious belonging, for the "effect" cannot be its own "cause".

 

3. We are, nevertheless, fortunate in the case of the present child and it is not upon us to resolve the basic insoluble problem of her religious affiliation. The present matter can, in my opinion, be decided directly or analogously under article 55 of the Order in Council which states that

 

"Where any action of personal status involves persons of different religious communities, application may be made by any party to the Chief Justice, who shall ... decide which Court shall have jurisdiction."

 

The reason for this provision is absolutely clear: where two different religious laws are likely one way or another to affect the determination of a dispute between parties, it is proper that another instance, superior and "neutral", should decide which judicial tribunal is to go into the matter.

 

4. I was originally inclined to say that since the child here was of "dual religion"; she is herself a person belonging to two different religious communities; and because - even without having recourse to the Interpretation Ordinance - the plural nearly always includes the singular, the phrase "persons of different religious communities" includes "a person of different religious communities", from which it would follow that article 55 applies directly to the child in dispute.

 

5. Afterwards, however, I decided not to lay down any hard and fast rule about this extreme idea. It could be urged against me that the child in all truth does not belong to two different religions since each of these religions claims that the child is entirely its and its alone. That would be like a glass concave on one side and convex on the other, not concave and convex together but all depending from which side it is viewed.

 

6. In spite, however, of this precise conceptual distinction, the ratio of article 55 applies with equal logic both to two people who truly belong to different religious communities and to one person whom two religious communities claim. The ultimate object of article 55 is to find a "third address" which can decide, and that is essential to an even larger extent when the source of the inter-religious dispute dwells within the very person himself. Hence - at least analogously - the provisions of article 55 are applicable here.

 

7. Article 55, it will be recalled, provides that the President of the Supreme Court (who now stands in the shoes of the Mandatory Chief Justice) can decide which court shall have jurisdiction in the matter and that means that he can decide that the competent court is one of the religious courts of the communities concerned or the District Court. A party cannot go to a religious court of one of the communities without first arming himself with the consent of the President of the Supreme Court; a party may turn to a District Court even without jurisdiction first being vested in that court under article 55 (Fruchter v. Fruchter (3) at p. 1365-66).

 

8. The conclusion that arises from the foregoing is very briefly and simply that guardianship is a matter of personal status under article 51 of the Order in Council; it is a matter of personal status where a child's religious affiliation is "claimed" by two different communities, the Jewish and the Moslem, and obviously the Sharia Court could not deal with the matter without first obtaining the consent of the President of the Supreme Court in accordance with article 55; such consent was neither asked for nor obtained; the District Court on the other hand was competent to deal with the guardianship at all stages even without a prior application to the President of the Supreme Court and the decision of the Sharia Court of 8 October 1962 made without such authority as aforesaid could not serve as a bar to that; the Court took evidence about the place where the child had previously been, the absence of being cared for, the uncleanliness, the eye disease, the father's relation to the child and his relations with another woman which were said to be immoral and abnormal; if after all this the court decided by virtue of section 3(b) of the Women's Equal Rights Law, 1951, that the child's interests required that she should not be given into the father's guardianship, we may not go against this conclusion even if it be said - for the reasons explained in paragraph 2 above - that here it is impossible to determine the child's religion. "The interests of the child" is a territorial principle applicable to members of all religions.

 

            I do not agree with the argument of counsel for the Attorney-General that article 52 of the Order in Council denies in its very terms jurisdiction to the Sharia Court to deal with the present guardianship. In my view, the Sharia Court's lack of jurisdiction stems only from article 55 as 1 have explained above.

           

            For these reasons I join in the opinion of my learned friend, Cohn J., that the appeal should be dismissed. I will not express my opinion or indicate my hesitations about the child's adoption since the time for that has not yet been reached.

           

            Finally, I find it a pleasant duty to note the high standard of argument of counsel for the Attorney-General, Dr. Michah Cheshin.

           

MANNY J.                 I concur in the judgment of my honourable friend, Silberg J..

 

WITKON J.                This tragic and complex case can, in my opinion, be decided on the single point put to us by counsel for the Attorney-General, and 1 would be satisfied with that. The point was that the Sharia Court cannot have jurisdiction unless the matter lay in its exclusive jurisdiction under article 52 of the Palestine Order in Council, and that jurisdiction depends on the child, a "party" thereto, being of the Moslem religion and no other. The jurisdiction test is both positive and negative at the same time. Here a person is involved which each of the two said religions claims as belonging to it, and the laws and rules of each of them merit our recognition.

 

            In parenthesis I would observe that the concept, 'dual religion, creates a difficult dialectic problem when we speak as here of two religions each of which says to a person "You are entirely mine" and does not admit the possibility of the person belonging also to another religion. By regarding a person as a member of two religions we at once lend force to the claim of each of the religions and ignore the exclusiveness of the claim. But from the viewpoint of the religions the "coexistence" of the two claims has no place and in their contemplation the reverse is the situation. May it be said, with the same logic, that since each of the two religions denies the possibility of the person belonging to the other of them as well, it is as if it refuses to accept him into its ranks if it cannot have him completely and exclusively, and thus he falls between two stools and becomes one of those spirits that dwell in limbo.

           

            In any event, I think that as regards the child here the condition which gives exclusive jurisdiction to the Sharia Court - that she is a Moslem and not of any other religion - does not exist here. Ipso facto the matter comes within the jurisdiction of the District Court and that court has exercised in is an unexceptional manner.

           

OLSHAN P.               I also am of the opinion that the religious court had no jurisdiction to deal with the child's case. Therefore the situation is as it was before appellant's counsel applied to the religious court.

 

            There remains the fact that the appellant himself, who purports to be the child's father, brought the matter before the District Court. There is no disputing that in the absence of jurisdiction in any other court, it is the District Court which alone is competent.

           

            The District Court's decision was based on the child's interests and this consideration is determinative in accordance with the Women's Equal Rights Law.

           

            The frightful conditions in which the child was kept when she was with the appellant certainly justify that decision.

           

            The appeal should be denied.

           

            Appeal dismissed.

            Judgment given on July 11, 1963.

 

* Under section 11(1) a parent's consent is unnecessary where it has been satisfactorily proved that the parent has abandoned the child or has constantly failed to fulfill his duty towards it (Ed.).

 

 

H.C.J. 282/61

 

           

MAHMUD EL-SARUJI et al.

v.

MINISTER OF RELIGIOUS AFFAIRS AND THE MOSLEM COUNCIL. ACRE

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 6, 1963]

Before Silberg J., Landau J. and Berinson J.

 

 

 

Administrative law - consultative body appointed by Minister- judicial review of its powers and activities.

 

The petitioners complained generally of the alleged interference of the Minister of Religious Affairs in matters affecting the Moslem Community of Acre and more particularly of the activities and powers of the local Moslem council appointed by the Ministry.

 

Held. The departure from the country of Moslem leaders and officials as a result of the events of 1948 had led to a complete collapse of all Moslem institutions and their ceasing to function. In order to remedy the situation and recreate these institutions the Ministry had not proceeded under any express statutory provision but by virtue of general power vested in the Government and within the framework of the State budget. In the course of doing so, it appointed the second respondent with which to consult and to act as its agent in the distribution of necessary funds for various public Moslem purposes. No evidence of misuse of funds had been adduced. In all these circumstances, the High Court of Justice would not intervene to control the action by the Ministry or its agent, either generally or specifically, in its choice of advisers or in resolving the public political problems with which it is faced.

 

M.N. Huari for the petitioners.

Z. Bar-Niv, State attorney, Z. Terlo and M. Cheshin for the first respondent.

E. Berenblum for the second respondent.

 

LANDAU J. The order nisi granted to the three petitioners, residents of Acre and members of the Moslem community there, calls upon the Minister of Religious Affairs and the Moslem Council of Acre to show reason "why the first respondent should not cease from interfering in matters affecting Moslems, their charitable trusts, courts of law and personal situation, and why he should not procure that the activities and powers of the Moslem Council in Acre, appointed by him, should not cease and it be dispersed."

 

The petitioners' application, as formulated in the order nisi, contained two separate complaints, one general, regarding the position of the Moslem Council in the country as a whole, and one regarding the powers and activities of the Moslem Council of Acre (or more precisely the Consultative Council for Moslem Religious Affairs of Acre).

 

            Under the first complaint, petitioners' counsel tried to show the lack of organisation and neglect which in his opinion prevail in respect of the affairs of the Moslem community in the country. Let it be said at once that this Court is not the suitable forum for voicing general complaints of this kind. The affidavit on behalf of the first respondent, made by Mr. S.Z. Kahana, the director-general of the Ministry of Religious Affairs, describes the changes that have occurred with regard to the country's Moslem Community, in the following terms:

           

"Upon the termination of Mandatory rule and the outbreak of the War of Independence the religious institutions of the Moslem Community in the country collapsed. Senior religious personnel, muftis and qadies - except for the late Sheikh Ta'ahar Tabri (who died in 1959), Mufti and Qadi of the Tiberias district - fled from the country. The system of religious jurisdiction broke down completely. Most of the officials concerned in religious services fled. The communal educational system and social welfare and health institutions ceased to exist. Among those who left the country were also the members of the Supreme Moslem Council and its Wakf Committee (bodies founded at the beginning of Mandatory rule) and the members of the Governmental Awkaf Commission, appointed by the High Commissioner by virtue of the Palestine (Defence) Order in Council, 1937. Israeli Moslems thus remained without religious organisation and religious leadership."

 

            We accept this as an accurate description of the situation created as a result of the War with which the State of Israel on its foundation was fettered by the Arab states and the flight of a large part of the Moslem population from its territory. Mr. Kahana's affidavit goes on to describe the steps taken by his Ministry to repair as far as could be the organisational breakdown of the Moslem Religious Community in Israel: the jurisdiction of the Moslem religious courts was restored on a new legal basis by the Sharia Courts (Validation of Appointments) Law, 1953, and the Qadis Law, 1961. These courts continue to act under the powers granted to them by article 52 of the Palestine Order in Council. Petitioners' counsel did not dispute that in his summation and so retracted the deprecatory remarks about the Qadis of these courts which he had permitted himself to indite in paragraph 10(c) of the petition.

 

            Mr. Kahana went on to detail in his affidavit the different measures taken by the Ministry of Religious Affairs in order to fill the vacuum created in the provision of religious requirements, religious education, charity, social welfare and so on for the country's Moslem Community. In so doing, the Ministry of Religious Affairs did not act under express statutory provision but by virtue of general governmental powers resting in the Government and its Ministries, within the financial framework of the State's Budget approved by the Knesset.

           

            The petitioners and those for whom they speak are not pleased with the existing order of things. I assume that in complaining they express the view of some part of the members of Acre's Moslem community, although I do not know whether they constitute a majority of the community. They would prefer the autonomy of the Moslem community regarding all the matters raised in their petition, but that is certainly a public-political problem not for this Court to be concerned with. Under the democratic regime existing in our country, the Knesset is the arbiter in matters of this kind and it possesses the authority to initiate changes in the existing position through the enactment of new laws, if it finds it proper so to do.

           

            The main burden of the petitioners' complaints, to all appearances, concerns the administration of Moslem charitable and religious trusts (awkaf). Under the British Mandate these trusts were administered by the Supreme Moslem Religious Council, set up by an order of the High Commission of 20 December 1921 (N. Bentwich, The Laws of Palestine, vol. 2, pp. 395 ff.). Among the functions of the Council, appointed in the manner prescribed by the order, was the control and administration of Moslem charities (paragraph 8(1)(a)). There were also set up a General Awkaf Committee and local awkaf committees under paragraphs 10 ff. In 1937, the administration of Moslem charitable trusts was transferred to a Commission appointed by the High Commissioner under the Defence (Moslem Awkaf) Regulations, 1937 (Official Gazette 1937, Suppl. 2, No. 730-731). That continued to be the position until the end of the Mandate when members of the Commission left the country and became absentees. The original order of 1921 was wholly repealed by section 25 of the Qadis Law, 1961; petitioners' counsel was mistaken in maintaining that the repeal went only to the provision relating to the appointment of qadis. It is questionable, however, whether as a result of the repeal, the said Regulations of 1937 were also repealed. In his summation, the State Attorney argued that these also were repealed by implication. It seems to me that this argument is inconsistent with what is said in paragraph 3(k) of Mr. Kahana's affidavit. What emerges from the latter is that the 1937 Regulations were not repealed and that the administrative powers of the appointed Commission became "absentee property" in the sense of section 1(a) ad finem of the Absentees' Property Law, 1950, upon its members becoming absentees. I hesitate from ruling definitively on this question which was not exhaustively argued in these hearings, but I incline to the latter view, that the 1937 Regulations exist independently, without being linked to the 1921 Order, although the Commission replaced the body instituted by the 1921 Order. The Regulations indeed vest in the Commission the powers of the Council under the old order (see regulation 5) but they are not, for that reason alone, to be regarded as an enactment intended merely to amend the Order. The result, it would appear, is that the Government to which the powers of the High Commissioner passed may but is not bound to appoint a new Commission under the 1937 Regulations and, so long as it does not, public Moslem religious and charitable trusts continue to be managed by the Custodian of Absentees' Property who took the place of the Commission that existed on the eve of the establishment of the State. I have found no basis for the vague submission of petitioners' counsel in his summation, that the right to control the funds of these trusts lies in any event with the Moslem residents now living in the country. No precedent was cited to base this view.

 

            The petitioners' complaints about the second respondent's activities are in the main that it acts without authority and has no proper concern for Moslem religious matters in Acre. The petition also alleges misuse of funds entrusted to its members. From the affidavits in reply by Mr. Muhmad Habashi, one of such members, and by Mr. Kahana it emerges that the council was established by the Minister of Religious Affairs as a consultative body on matters of religious, social welfare and educational services. The Ministry of Religious Affairs is also assisted by the Council in implementation of the activities initiated by the former for the benefit of the Acre Moslem community. To this end money is on occasion passed to the Council intended for the requirements of the city's Moslem community and the Council lays out the money in accordance with the directions and under the prescribed supervision of the Ministry. When the said affidavits were made on behalf of the respondents, the members of the consultative Council were Sheikh Mussa Tabri, the principal Qadi, who acted as chairman, Sheikh Jemal Saadi, Imam and preacher of the Aljezar Mosque, Ahmad Edalbi, a notable of the community, and the deponent Muhmad Habashi who is also a deputy mayor of Acre.

 

            This is not a commission appointed under enacted law but, as I have said, a consultative council which the Minister of Religious Affairs appointed in order to maintain contact with the Moslem community of the city. In so far as the council is entrusted with the allocation of money for the community's requirements, it acts as agent of the Ministry of Religious Affairs. The Minister of Religious Affairs is interested in choosing advisers in this field, whom he considers to be fit for the task of representing the community, and this Court will not direct him to choose other fitter advisers. As for the activity of the Council, we allowed petitioners' counsel to cross-examine at length but in spite of his protracted assault on the witness, Mr. Habashi, his efforts were in vain as regard the matters touched upon in cross-examination. The impression one obtains from the cross-examination is of conflict between contending groups of community workers. No indication was given to us of misuse of funds or of other acts contrary to good order on the part of members of the Council. In my opinion, the order nisi should be discharged.

 

SILBERG J. I agree.

 

BERINSON J. I agree.

 

            Order nisi discharged.

            Judgment given on February 6, 1963.

HCJ 3117/02

Center for the Defence of the Individual, founded by Dr. Lotah Saltzberger

v.

The Minister of Defence

 

The Supreme Court sitting as the High Court of Justice

[April 14, 2002]

Before President Barak., Justices T. Or  and D. Beinisch.

 

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

 

Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioners argued that respondent was not using the special rescue unit of the IDF Homefront Command to search for all persons that may be buried alive under ruins in the Jenin refugee camp.

 

Held: The Supreme Court held that both law and morality mandated that the rescue unit enter the Jenin refugee camp. As this unit had entered the camp, as per respondents reply, the goal of the petition had been fulfilled.

 

For the petitioners—Yossi Wolfson

For the respondent—Malchiel Blass, Yuval Rotman

 

JUDGMENT

This petition before us asks why respondent does not, using the special rescue unit of the IDF Homefront Command, search for and rescue all persons buried alive under the ruins of the Jenin refugee camp. The petition was served on Saturday night. The Justice on duty decided that the petition would be heard today, April 14, 2002, in the morning. At the beginning of the hearing, with respondent not having had time to prepare a written response, he informed us that the rescue unit of the Homefront Command had already entered the Jenin refugee camp, together with other forces, to the extent that security restrictions have allowed. The unit will attempt to locate people.

As such, it appears to us that this petition has achieved its objectives.  The entry of the rescue unit is necessitated by both law and morality. The responsibility lies, of course, on the shoulders of the Military Commander on site. He will collect information regarding the possible location of people—information relayed by soldiers and locals, as well as making use of the experience of the unit itself. All this is subject to the judgment of the Military Commander and to the security needs in the field.

In light of the declaration of the State, the petition is rejected.

April 14, 2002