Equality Before the Law

 

The Supreme Court sitting as High Court of Justice

 

HCJ 6298/07

HCJ/6318/07

HCJ 6319/07

HCJ 6320/07

HCJ 6866/07

 

Before:            President D. Beinisch

                        Deputy President E. Rivlin

                        Justice A. Grunis

                        Justice M. Naor

                        Justice E. Arbel

                        Justice E. Rubinstein

                        Justice E, Hayut

                        Justice H. Melcer

                        Justice N. Hendel

 

Petitioner in HCJ 6298/07:             Major (ret.) Yehuda Ressler, Adv.

 

Petitioner in HCJ 6318/07:             The Movement for Quality Government in Israel

 

Petitioner in HCJ 6319/07:             Itay Ben Horin, Adv.

 

Petitioners in HCJ 6320/07:           1. Avraham Poraz, Adv.

                                                      2. Ilan Shalgi, Adv.

                                                      3. Hetz – Secular Zionist Party

Petitioners in HCJ 6866/07:           1. Ran Cohen M.K.

                                                      2. Yosef Beilin M.K.

                                                      3. Haim Oron M.K.

                                                      4. Avshalom Vilan M.K.

                                                      5. Yaron Shor – Secretary General, Meretz-Yahad Party

 

v.

 

Respondents in HCJ 6298/07:        1. The Knesset

                                                      2. Minister of Defense

 

Respondents in HCJ/6318/07:        1. The Knesset

                                                      2. Minister of Defense

 

Respondent in HCJ 6319/07:         The Knesset

 

Respondents in HCJ 6320/07:        1. The Knesset

                                                      2. Government of Israel

                                                      3. Minister of Defense

                                                      4. Attorney General

 

Respondents in HCJ 6866/07:        1. Attorney General

                                                      2. Minister of Defense

 

                                                      Petitions for an order nisi and an interim order

 

Dates of sessions:                          15 Sivan 5769 (7 June 2009)

                                                      25 Shevat 5771 (30 January 2011)

 

For petitioner in HCJ 6298/07:       Yehuda Ressler, Adv; Yaffa Dolev, Adv.

 

For petitioners in HCJ 6318,07:     Eliad Shraga, Adv; Tzruya Meidad, Adv; Dafna Kiro, Adv; Mika Koner-Carten, Adv.         

 

For petitioner in HCJ 6319/07:       Itay Ben Horin, Adv.

 

For petitioner in HCJ 6320/07:       Gideon Koren, Adv;
Guy Kedem, Adv.

 

For petitioner in HCJ 6866/07:       Uri Keidar, Adv; Eyal Mintz, Adv.

 

For respondent 1 in HCJ

6298/07, in HCJ 6318/07,

HCJ 6319/07 and HCJ 6320/07:    Eyal Yinon, Adv; Gur Bligh, Adv.

 

For respondent 2 in HCJ 6298/07,

and HCJ 6318/07,

and respondents 2-4 in

HCJ 6320/07, and for

respondents 1-2 in HCJ 6866/07:   Osnat Mandel, Adv;

                                                      Hani Ofek, Adv.

 

Israeli laws cited:

Basic Law: Human Dignity and Liberty, ss. 8, 9

Deferment of Military Service for Yeshiva Students for who the Torah is their Calling Law, 5762-2002, 9 (3), 16 (b)

Regulations for the Deferment of Service for Yeshiva Students for Whom Torah Is Their Calling, 5765-2005

Basic Law: The Army, s. 4

Civilian Service (Legislative Amendments) Law, 5768-2008

Defense Service Law

 

Israeli Supreme Court cases cited:

[1]       HCJ 3267/97 Rubinstein v. Minister of Defense, [1998] IsrSC 52 (5) 481

[2]       HCJ 6427/02 Movement for Quality Government in Israel v. The Knesset, [2006] IsrSC 61 (1) 619

[3]       HCJ 910/86 Ressler v. Minister of Defense, [1988] IsrSC 42 (2) 441

[4]       HCJ 40/70 Becker v. Minister of Defense, [1970] IsrSC 24 (1) 238

[5]       HCJ 448/81 Ressler v. Minister of Defense, [1981] IsrSC 36 (1) 81

[6]       FH 2/82 Ressler v. Minister of Defense, [1982] IsrSC 36 (1) 708

[7]       HCJ 179/82 Ressler v. Minister of Defense, [1982] IsrSC 36 (4) 421

[8]       HCJ 4769/95 Menachem v. Minister of Transportation, [2002] IsrSC 57 (1) 235

[9]       HCJ 1661/05 Hof Azza Regional Council v. The Knesset, [2005] IsrSC 59 (2) 481

[10]     HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, (1999) (not yet published)

[11]     HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defense, (2006) (not yet published)

[12]     HCJ 3648/97 Stemka v. Minister of the Interior, [1999] IsrSC 53 (2) 728

[13]     HCJ 5016/96 Horev v. Minister of Transportation, [1997] IsrSC 54 (4) 1

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

[15]     HCJ 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, [1995] IsrSC 49 (4) 221

[16]     HCJ 6055/95 Zemach v. Minister of Defense, [1999] IsrSC 53 (5) 241

[17]     CrimApp 6659/06 Ploni v. State of Israel, (2008) (not yet published)

[18]     HCJ 10203/03 “Hamifkad Haleumi” Ltd. v. Attorney General, (2008) (not yet published)

[19]     HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion, (2009) (not yet published)

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

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

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

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

[24]     HCJ 869/92 Zvili v. Chairman of the Central Elections Committee for the Thirteenth Knesset, [1992] IsrSC 46 (2) 692

[25]     HCJ 1703/92 K.A.L. Kavei Avir Lemitan Ltd. v. Prime Minister, [1998] IsrSC 52 (4) 193

[26]     HCJ 4124/00 Arnon Yekutieli, (deceased) v. Minister of Religious Affairs, (2010) (not yet published)

[27]     HCJ 1067/08 Noar Kahalacha Assoc. v. Ministry of Education, (2010) (not yet published)

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

[29]    HCJ 257/89 Hoffman v. Western Wall Superintendent [1994] IsrSC 45(2) 265.

[30]     HCJ 390/79 Duwekat v Gov’t of Israel [1979] IsrSC 34(1)1

[32]     HCJ 746/07 Regan v. Ministry of Transport (not reported)

[33]     CrimApp 8823/07 Anon v. State of Israel (not reported)

[34]     HCJ 153/87 Shakdiel v. Minister of Religious Affairs [1982] IsrSC 42(2) 221

[35]    AAA 10673/05 Mikhlelet HaDarom v. State of Israel (not reported)

[36]     HCJ 5373/08 Abu Libda v. Minister of Education (not reported)

[37]     HCJ 5803/06 Guttman v, Minister of Defense (not reported).

[38]     HCJ 466/07 Galon v. State Attorney (not reported)

[39]   EA 92/03 Mofaz v. Chairman of Central Elections Committee to Sixteenth Knesset [2003] IsrSC 57(3) 793

[40]     HCJ 7052/03 Adallah – Legal Center for Rights of Arab Minority in Israel v. Minister of the Interior [2006] IsrSC 61(2) 314

[41]     HCJ 5000/95 Bertler v. Military Prosecutor General [1999] IsrSC 49(5) 64

[42]     HCJ 6784/06 Shlitner v. Director of Payment of Pensions [2011] (not reported)

[43]     CrApp 8823/07 Anon v. State of Israel [2010] (not reported).

[44]     HCJ 4908/10 Roni Baron v. Israel Knesset [2012] (not reported.

[45]     HCJ 11956/05 Bishara v. Minister of Construction and Residence [2006] (not reported)

[46]     FNHCJ 1241/07 Bishara v. Minister of Construction and Residence [2007] (not reported)

[47]     11088/05 Heib v. Israel Lands Administration [2010] (not reported).

[48]     HCJ 2458/01 New Family v. Approvals Comm. for Surrogate Motherhood Agreements, Ministry of. Health [2002] IsrSC 57(1) 419

[50]     HCJ 4948/03 Elchanati v. Finance Minister [2008] (not yet reported)

[51]     HCJ 104/87 Nevo v. National Labor Court [1990] IsrSC 44(4) 749

 

Foreign Legislation Cited

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

[53]     Bayatyan v. Armenia, [2011] ECHR 23459/03 [ ].

Facts: The subject of military service for hareidi (ultra-Orthodox), full-time yeshiva (rabbinical seminary) students has been at the center of public debate in Israel since the founding of the state, when the first Defense Minister, David Ben Gurion, decided to defer their conscription. The arrangement was significantly expanded over the years, and its underlying reasons also changed. Numerous attempts were made to challenge the legality and constitutionality of the deferment arrangement in the Supreme Court. The first petitions were denied for lack of standing and non-justiciability In the 1986 Ressler case [3], the Court held that the petitioner had standing, and that his petition was justiciable, but denied the petition on the merits, holding that granting deferments to yeshiva students was within the scope of authority of the Minister of Defense. However, the Court also held that the number of students receiving deferments was of relevance, and that “quantity makes a qualitative difference”. Thus, there was a limit that a reasonable Defense Minister could not exceed. In the 1997 Rubinstein case [1], the data showed such a significant increase in the number of deferments. The Court held that the Minister of Defense did not have the authority to continue to grant the deferments, and that the matter had become one that must be decided by the Knesset in primary legislation.

Following that decision, the Knesset enacted the Deferment of Military Service for Yeshiva Students Law, 5762-2002. The law was an enacted as a temporary order that would be in force for five years, at which time the Knesset could extend its force. The constitutionality of that law was challenged in the Movement for Quality Government case [2]. The Court ruled that the Deferment Law violated the right to human dignity, but that it served a proper purpose as required under sec. 8 of Basic Law: Human Dignity and Liberty (the “limitation clause”). The Court, therefore, refrained from declaring the Law unconstitutional, explaining that the existence of a rational connection between a law’s purpose and the measures adopted for its realization is not a theoretical matter, but rather a practical test that is based upon the results of its actual implementation. The Court, therefore, decided to wait until the end of the five-year period, at which time the Knesset would be required to reconsider whether the Law actually realized its purposes. The Court further stated that “along with our decision to reject the petitions, as we are unable to decide the issue of constitutionality, we further hold that if the current trend continues, and there will be no significant change in the situation, there is a real fear that the Deferment Law will become unconstitutional . . . if there will be no significant change in the results of its actual implementation”. On 18 July 2007, the Knesset voted to extend the Deferment Law for an additional five years (until 1 August 2012). This prompted the petitions in this case, challenging the constitutionality of the Deferment Law.

Held: The Court (per President Beinisch, Justices Naor, Rubinstein, Hayut, Melcer and Hendel concurring, Deputy President Rivlin and Justices Grunis and Arbel dissenting) granted the petitions, holding the Deferment Law to be unconstitutional.

In the Movement for Quality Government case, the Court had found that the Deferment Law violated Basic Law: Human Dignity and Liberty, but that it did so for purposes that was held to be proper. After examining the statistics concerning the actual implementation of the Law, the Court found that although the data revealed an increase in the number of hareidi men enlisting for military service or volunteering for alternative civilian service, the trend was insufficient, some ten years after the enactment of the Law, to demonstrate a significant realization of the purposes of the Law. Moreover, in examining the implementation of the Law, the Court found that the Law suffered from inherent flaws that impaired the possibility of realizing its objectives. Because the right to equality constitutes a fundamental right, the level of scrutiny required in examining whether its violation meets the proportionality test demands that there be a real, significant probability that the means adopted by the Law will achieve its purposes. Inasmuch as the means adopted by the Law were not found to have a real potential for realizing its purposes, the Law did not meet the requirements of the proportionality test established under the limitation clause, as is required of a law that violates a fundamental right. The Law, therefore, was unconstitutional.

Justice Arbel (dissenting, joined by Deputy President Rivlin) was of the opinion that the time was not yet ripe for making a final ruling upon the constitutionality of the Law, and that the Court should continue to show restraint, and grant the State additional time to implement the Law and achieve its purposes.

Justice Grunis (dissenting) reiterated the view he had expressed in his dissenting opinion in the Movement for Quality Government case, according to which judicial review is inappropriate for laws in which the majority grants preferential rights to a minority. Justice Grunis further argued that the ability of the Court to exert influence over an issue such as that raised in the petitions is limited. Therefore, it would be better that the Court refrain from intervening.

Although the Court found the Deferment Law to be unconstitutional, inasmuch as it was due to expire six months following the handing down of the decision, the Court decided not to declare it void, but rather to allow it to run its course, while holding that law could not be further extended by the Knesset in its present form.

 

 

Judgment

 

President D. Beinisch:

 

The arrangement for deferring the military service of full-time yeshiva [rabbinical seminary] students has been at the center of public debate in Israel since the founding of the state. Over the years, the nature of the issue has changed, and the question of the induction of yeshiva students has assumed an increasingly important role in public discourse as the number of those opting into the arrangement has assumed significant dimensions. Naturally, this issue has concerned all the branches of government, and this Court has addressed it on a number of occasions. It now comes before us for the eighth time.

1. I will state at the outset that, in my view, the Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law 5762-2002 (hereinafter: the Deferment Law, or the Law) – which had previously been found to violate the right to equality that forms part of the right to human dignity – does not meet the proportionality condition of the limitation clause, and it is, therefore, unconstitutional.

This view is based upon the data concerning the implementation of the law as presented by the Respondents. The data – which will be presented below in detail – shows that the Law comprises inherent impediments that significantly influence the possibility for giving it effect and realizing its objectives. Although the data does reveal some movement toward change, we are not convinced that such a trend is sufficient some ten years after the enactment of the Law. The data that was submitted to us shows that in 2010, only 600 members of the hareidi [ultra-Orthodox Jewish – ed.] community were inducted into the designated programs created by the IDF in accordance with the Law, while 1,122 opted for alternative civilian service, and by the end of 2008, 3,269 had taken advantage of the “decision year”. Most of those who completed the decision year, returned to the status of full-time yeshiva student for whom “Torah is their calling” (and received a deferment from military service, or an exemption from military service for various reasons).

Along with this statistical data, one of the most important findings relates to the number of people acquiring the status of full-time yeshiva student each year. The Respondents themselves admit that the number of military deferments has steadily risen since the enactment of the Law. In 2007, for example, 6,571 members of the hareidi community joined the ranks of those for whom “Torah is their calling”. That means that, each year, more hareidi men assume that status than the number who opt for military or civilian service. The total number of deferments, as of the date of the submission of the data, stands at 61,000. The number of those for whom Torah is their calling also rises steadily relative to the total draft pool over the last few years, so that in 2007, it constituted 14% of those eligible for conscription.

As will be explained more fully below, statistical data do not tell the whole story. My position on this important but difficult matter is influenced both by the quality of the military or civilian service offered by virtue of the Law, as well as by the manner in which the Law has been implemented by the Executive over the years. Looking at all of this data, it is my view that while there has been an improvement in the implementation of the Law, the means established by the Law cannot be seen to be realizing its purpose, and it would appear that the law comprises impediments that contribute to the impossibility of achieving its full realization. That being the case, there is no alternative but to find that the Law is unconstitutional.

 

Background

 

2. Before we address the question in depth, and before surveying its history, we should note that the turning point in the case law came about in HCJ 3267/97 Rubinstein v. Minister of Defense [1] (hereinafter: the Rubinstein case). That turning point marked a milestone in the course of proceedings concerning the issue of the conscription of yeshiva students. In that case, this Court held that the Minister of Defense had acted unlawfully in maintaining the arrangement for the deferment of military service for full-time yeshiva students, as it had not been authorized by law, and that the authority to establish a military deferment arrangement, which constituted a “primary arrangement”, was in the hands the Knesset. Following that decision, the Knesset enacted the Deferment Law. The question of the constitutionality of the Law was brought before this Court in HCJ 6427/02 The Movement for Quality Government in Israel v. The Knesset [2] (hereinafter: the Movement for Quality Government case). In that case, which we will discuss at length below, the majority of the Court, concurring with the opinion of President Barak, ruled that the Deferment Law violated the constitutional right to human dignity, in that it was discriminatory, and violated equality in regard to the most fundamental values underlying human dignity. In view of that holding, the Court proceeded to examine whether the Law met the conditions of the limitation clause. The Court concluded that the Law served four objectives that joined together in giving the Law a proper purpose that was consistent with the values of the State of Israel as a Jewish and democratic state. In addition to examining its purpose, the Court also considered whether the Law met the proportionality test. The Court found that the extent of the violation of rights was manifestly disproportionate, as on its face it was apparent that there was no rational relationship between the Law’s objectives and the means established for its realization. As became clear from the data brought before the Court in the course of the proceedings, “the objectives of the Law were but incidentally and insignificantly realized” (ibid. [2], pp. 712-713). The Court, therefore, found that only the Law’s first objective had been realized – viz., the deferment arrangement had been established by statute. The Court noted that the purpose of the Law was “to promote compromise and balance among conflicting objectives,” and that in addition to providing a statutory basis for the arrangement, it was intended to promote equal distribution of the security burden, and the integration of hareidi men into the workforce. Those objectives were not realized. Therefore, the Court held that “given that the various objectives of the Law are tightly intertwined, there is no avoiding the conclusion that the primary, overall objective of the Deferment Law is not being realized” (ibid. [2], at p. 712).

              Despite its conclusion that the Deferment Law did not meet the first proportionality test, the Court refrained from declaring the Law unconstitutional. The Court explained that the existence of a rational connection between a law’s purpose and the measures adopted for its realization (the first subtest in examining proportionality) is not a theoretical matter, but is a practical test that is based upon the results achieved in realizing the law and its actual implementation. In view of the scope of the social change required for the Law’s realization, the Court decided that those implementing the Law should be permitted “to fix what they broke” (ibid. [2], at p. 713). The Court noted that in view of the Government’s failures in implementing the Law, it would be difficult to say whether the Law suffered from a “genetic” defect – i.e., a defect in the Law’s provisions themselves, or whether the problem was administrative. Therefore, and inasmuch as the Deferment Law had been enacted as a Temporary Order for five years (with the possibility of its extension for additional five-year periods), the Court decided that it would be appropriate to wait until the end of the five-year period, at which time the Knesset would be required to reconsider whether the Law actually realized its purposes. Therefore, the Court stated that “along with our decision to reject the petitions, as we are unable to decide the issue of constitutionality, we further hold that if the current trend continues, and there will be no significant change in the situation, there is a real fear that the Deferment Law will become unconstitutional . . . if there will be no significant change in the results of its actual implementation” (ibid. [2], at p. 714).

              It should be noted that, in his carefully reasoned dissenting opinion, Deputy President (Emeritus) M. Cheshin argued that the Law was void ab initio. In his view, even if it were possible to consider applying a special legal arrangement to limited groups of unique character and to separatist elements in hareidi society, there is no acceptable justification for the broad exemption granted by the “Torah is their calling” framework. Justice A. Grunis concurred with the majority, but for other reasons.

4.      The first five years of the life of the Deferment Law have passed, and on 18 July 2007, the Knesset voted to extend its force for an additional five years (until 1 August 2012). It is against this background that the petitions before the Court were submitted. The petitioners raise the question left undecided in the Movement for Quality Government case – the question of whether the Law meets the proportionality test. Specifically, we are asked to decide whether there has been that “significant change” in the results of the Law’s implementation that would show that the defect that the Court discerned in the Law is not inherent to the Law’s provisions, but rather to the manner of their implementation by the relevant authorities.

              The petitions were initially heard before a three-judge panel. On 29 May 2008, an order nisi was issued in regard to the petitions, and it was decided that they would be heard before a nine-judge panel. The hearing before the expanded bench took place on 7 June 2009, and an interim order was granted. The order, given by Justice E. Hayut, stated:

 

‘We have considered the written and oral arguments raised by the parties before us . . . and have concluded that before making a final decision upon the constitutionality of the Deferment Law, and upon its extension for an additional five years, the apparatus intended for its implementation, which have only just begun to take shape and begun to operate (the special service tracks established in the IDF, and the civilian service track), should be permitted to prove their effectiveness or ineffectiveness by their results over an additional, fixed period. After that period, we will reassess the data concerning IDF conscription and civilian service of those granted deferments, as well as the other arguments and considerations necessary for rendering a judgment upon the instant petitions. At the same time, we would emphasize two matters, already at this stage. First, the judgment delivered in the Movement for Quality Government case is the starting point for this decision and for the judgment that will be rendered in the matter of the instant petitions, and there is no cause to revisit the arguments raised by some of the petitioners who seek to appeal findings and conclusions in matters already decided in the said judgment. Second, to date, the pace of addressing the apparatus intended to implement the Law, and the pace of allocating the necessary resources have been very far from what might have been expected under the circumstances. That is particularly so in view of the substantial period of time that has elapsed since the enacting of the Law in 2002’ (para. 9 of the decision of Justice E. Hayut from 8 September 2009).

 

In accordance with that interim order, we directed that we would revisit the petition in 18 months, at which point we would decide “whether the apparatus established by the Law, which have begun to operate, have the potential to bring about significant change” (para. 10 of the decision of Justice E. Hayut). On 30 January 2011, the hearing was held, and we were presented with the most up-to-date data as to the implementation of the Law. The data focused upon the change in the scope of military conscription, and upon the various service tracks for yeshiva students, upon the work of the National Civilian Service Directorate (hereinafter: the Directorate or the Civilian Service Directorate), and upon the number of volunteers serving in that framework, the number of yeshiva students choosing to avail themselves of the “decision year”, and what they did at the end of that year. We were also presented with two reports dealing with the implementation of the Law in practice. One, the report of the “Plesner Panel” led by MK Yohanan Plesner, which was appointed by the Knesset Foreign Affairs and Defense Committee, and was presented as part of the Knesset’s response to the petition. The second, the Report of the Inter-Ministerial Committee, headed by the Director General of the Prime Minister’s Office, which was appointed by the Government, and was presented as part of the Government’s response. These data, which form the basis for the proceedings in regard to the petitions before the Court, will be presented in detail below.

 

The course of events

 

5.           The relevant factual background of the arrangement for deferring the military service of full-time yeshiva students was presented in detail in earlier decisions of this Court, in the Rubinstein case and in the Movement for Quality Government case, and we will, therefore, only briefly address it. The arrangement began on 9 March 1948, when the Chief of the National Staff of the Haganah (the CNS) announced that “a decision has been made that yeshiva students, in accordance with approved lists, are exempt from military service”, and that “this decision is valid for the year 1948, and the problem will be reconsidered at the end of the year” (see: The Report of the Commission for Establishing an Appropriate Arrangement of the Subject of Conscription of Yeshiva Students (2000) (hereinafter: the Tal Commission), p. 32; and see HCJ 910/86 Ressler v. Minister of Defense [3], at p. 449 (hereinafter: the Ressler case)). With the establishment of the State, the first Defense Minister, David Ben Gurion, directed that the conscription of full-time yeshiva students be deferred. These were the difficult years that followed the Holocaust. In light of the destruction of the European yeshivas, there was a fear that the conscription of yeshiva students might threaten the closure of the yeshivas in Israel. In order to guarantee that “the flame of Torah not be extinguished”, it was decided that the arrangement would be granted annually to 400 yeshiva students who studied in a fixed, defined number of yeshivas. The arrangement significantly expanded over the years. The limit upon the number of yeshivas participating in the arrangement was cancelled, and the quota of students entitled to deferments gradually increased, until it was ultimately eliminated entirely. In addition, the scope of students entitled to a deferment of service was expanded, and the requirements for qualifying for a deferment were eased (see: Nomi Mey-Ami, The Conscription of Yeshiva Students to the IDF and the Law on Deferrals for Yeshiva Students for Whom Torah Is Their Calling (the “Tal Law”), research paper of the Knesset Research and Information Center, 28 February 2007 (in Hebrew). The research paper was appended to the Knesset’s response of 21 May 2008, and marked Res/3). Along with this, the reasons underlying the arrangement also changed. The original fear of the closure of the yeshivas that might result from the conscription of their students was replaced by the desire to allow the yeshiva students to continue their studies. This was accompanied by a growing perception “that the effectiveness of these students’ military service is questionable, due to the difficulties they would encounter in adjusting to the Military and the difficulties that the Military would have adjusting to them” (the Rubinstein case [1], at p. 491).

6.           Over the years, there have been numerous attempts to attack the legality and constitutionality of the deferment arrangement in the Supreme Court. The first petitions were denied for lack of standing and non-justiciability (see: HCJ 40/70 Becker v. Minister of Defense [4]; HCJ 448/81 Ressler v. Minister of Defense [5]; FH 2/82 Ressler v. Minister of Defense [6]; HCJ 179/82 Ressler v. Minister of Defense [7]). The stance of the Court changed in the Ressler case [3], in which the Court held that the petitioner had standing, and that his petition was justiciable. Nevertheless, on the merits, the Court held that granting deferments to yeshiva students was not ultra vires, and was not beyond the scope of the reasonable exercise of ministerial authority. That decision was premised upon the factual data presented in those proceedings, according to which, of the total conscription pool, 1,674 yeshiva students received deferments (approximately 5.4% of the total), and a total of 17,017 students were participating in the military deferment arrangement (ibid. [3], at p. 451). The Court held that the number of yeshiva students receiving deferments was of importance, and that “quantity makes a qualitative difference” Accordingly, it was held that there is a limit that a reasonable Defense Minister could not exceed. That line had not been crossed when the deferment question was addressed in the Ressler case (ibid. [3], at p. 505).

7.           In 1997, another petition was submitted in the matter of the deferment of yeshiva students, which presented data showing a significant increase in the number of yeshiva students whose military service had been deferred. The number of students receiving deferments, as of 1996, constituted some 7.4% of the annual conscription pool, with a total of 28,547 yeshiva students receiving deferments, and thereby, effectively being exempted from conscription (the Rubinstein case [1], at p. 493; and see: State Comptroller’s Annual Report (No. 48) (1998, and Accounts for the 1996 Fiscal Year), at p. 1004). Under the circumstances, it was held that the Minister of Defense could no longer decide the issue of deferment of military service, and that the question had become one that must be decided by the Knesset in primary legislation:

 

‘the current situation requires the Legislature to adopt a legislative solution, in view of the increasing numbers of full-time yeshiva students receiving a military service deferment, which ultimately leads to a full exemption. This is done against the backdrop of the rift in Israeli society over the question of the deferral of military service for full-time yeshiva students; against the backdrop of the legal problems and the serious social and ideological problems at their base; and in view of the need to provide a comprehensive national solution. All of these necessitate parliamentary intervention in order to provide a solution to this serious problem’ (ibid. [1], at p. 530).

 

In order to allow the Minister of Defense and the Knesset to consider the issue and prepare for a change in the existing arrangement, the operative part of the judgment was suspended for one year from the handing down of the decision. Accordingly, and in order to construct an appropriate arrangement in regard to the induction of full-time yeshiva students into the IDF, the Tal Commission was appointed in August 1999, headed by former Supreme Court Justice T. E. Tal. The commission was asked to present its recommendations concerning “the proper statutory approach . . . by which the Minister of Defense will be authorized . . . to exempt men of military age . . . or defer their service . . . on the grounds that the ‘Torah is their calling’.” The commission was also asked to address the issue that “the said exemption or deferment could apply to an unlimited number of yeshiva students, in that, in general, there is no intention to prevent the yeshiva students from continuing their studies, all in accordance with the law” (see: the Tal Commission Report, p. 1).

8.           The Tal Commission presented its recommendations in April 2000. On the basis of those recommendations, the Draft Bill for the Military Service (Deferment of Service for Full-Time Yeshiva Students) Law (Temporary Order), 5760-2000, was published in the Official Gazette. The legislative process continued over the course of two years, and on 24 July 2002, the Knesset enacted the Deferment Law. The Law was enacted as a temporary order, and established that its extension would be reconsidered by the Knesset after five years. The Law provides that if certain conditions are met, among them a minimum number of hours of study and a prohibition upon working during study hours, the Minister of Defense may grant a one-year deferment to yeshiva students (ss. 2 and 3 of the Law). The main innovation of the Law, as opposed to the previous situation, was the introduction of alternative tracks to the deferment arrangement. The first track was that of the “decision year” (s. 5 of the Law). Under this arrangement, a yeshiva student whose military service had been deferred for four years and had reached the age of 22, could receive a further one-year deferment, even if he did not meet the normal conditions for deferment. During that year, the student could work without any limitations. Following the “decision year”, the yeshiva student could choose whether to return to the former track of yeshiva studies – while continuing to receive a deferment from military service – or whether to enlist for military service or civilian service. The possibility of opting for a decision year would be granted only once to each yeshiva student. Another track established by the Law was that of civilian service (s. 6 of the Law). The possibility of choosing this option was also granted only to those whose service had been deferred for four years and had reached the age of 22. Anyone who does not opt to take a decision year or volunteer for civilian service, and who meets the legal criteria, would continue to receive a deferment.

 

The Movement for Quality Government v. The Knesset case

 

9.           As noted, the question of the constitutionality of the Deferment Law was first addressed in the Movement for Quality Government case. All of the earlier petitions against the Law focused upon the argument that the Deferment Law infringed equality by discriminating between those members of society who performed military service and those members of society who were exempt from such service, without there being any relevant difference between the two groups, and without meeting the conditions of the limitation clause. The petitioners also argued that those members of society who served were required to serve in the army for longer periods, the risk to their lives and health increased, and the economic harm they incurred was greater. The factual data presented to the Court showed that in 2003, the number of deferments stood at 38,449; in 2005, the number stood at 41,450, and by 2006, the number of deferments had grown to 45,639 (ibid. [2], at pp. 665-667). Indeed, in its response, the State admitted that the implementation of the Deferment Law was not satisfactory, and that significant parts of the Law had not been implemented. The State also agreed that “there is a need for an immediate change of the existing situation” (ibid. [2], at p. 666, in the letter of the Minister of Justice to the Prime Minister of 18 July 2005, which was appended to the State’s response). The Prime Minister directed that a series of steps be adopted to implement the Law, and in particular, to implement the civilian service track, which had not been implemented at all as of the day of the hearing of the petition (loc. cit.).

10.         After reviewing the factual data and the arguments of the parties, we delivered our decision in which the majority of the Court held that the Deferment Law violated human dignity. The Court, per President Barak, held that the primary right at the core of the dispute was that of equality, and it is infringed by the blanket deferment that discriminates, in the absence of any relevant difference, between those members of society who serve and those whose service is deferred (ibid. [2], at pp. 677-679). It was, of course, held that not every infringement of equality constitutes a violation of human dignity. However, in accordance with the construction given to human dignity under the centrist model adopted in the decision, it was held that an infringement of equality that touches upon the fundamental values underlying human dignity constitutes a violation of dignity, and that the infringement resulting from the Deferment Law constituted such a violation. Discrimination in regard to the freedom of choice given a person in the course of prolonged service, that exacts a clear personal and economic cost, and that often involves risk to life and limb – is discrimination in regard to life itself. Such discrimination, the Court held, is the most severe, and its violation of a person’s dignity as a free, autonomous being, is beyond question (ibid. [2], at pp. 689-690).

              Having found that the Deferment Law violates equality as a component of human dignity, the Court examined whether the Law’s infringement of dignity was lawful under the conditions of the limitation clause. In other words, was the infringement done by, or in accordance with a law befitting the values of the State of Israel; was the law enacted for a proper purpose, and is the violation of rights no greater than required. As noted, in the framework of that examination, the Court found that the Law served four, primary objectives: to provide a statutory basis for the arrangement, to promote equal distribution of the security burden, in the sense that more men from the hareidi community would ultimately serve in the army, or at least perform civilian service, to encourage the hareidi community to participate in the workforce, and to resolve the problems in the existing deferment arrangement for yeshiva students, gradually, carefully and on the basis of broad consent rather than coercion (which would be ineffective) in regard to conscription. These four combined and interrelated objectives endowed the Law with a proper purpose. That being so, the examination focused upon the issue of proportionality. Based on the first subtest of proportionality, which examines whether or not there is a rational connection between a law’s purpose and the measures adopted for its realization, we found that the infringement caused by the Law is not proportionate. That finding was based upon the data that had been presented before the Court, which showed that while the number of deferments grew steadily over the years, and comprised 45,639 men as of the end of 2006, the alternative tracks were barely put into effect (ibid. [2], at p. 711). Less than 3% of those who received deferments opted for the decision year, and only 9% of those who completed the decision year chose to enlist. Nearly all of the others returned to the “Torah is their calling” track, or were exempted from service. They were not integrated into Israeli society or into the workforce. As for the civilian service alternative, a small number of those deferred showed any interest in pursuing it, and even three years after the Law’s enactment, the State has yet to adopt regulations and create frameworks to facilitate such service (loc. cit.). In view of these troubling findings, we stated that if we were to decide the petitions on the basis of the situation presented to us, we would have to declare the Law void due to a lack of proportionality. We further held that in the absence of a rational connection between the means and the objective, the application of the other two subtests becomes entirely theoretical.

11.         Nevertheless, we were of the opinion that, inasmuch as the Deferment Law was enacted as a temporary order, it would be appropriate to wait until the conclusion of the five-year period of its operation, before making a final determination on the constitutionality of the Law. That time period was also needed in order to test the respondents’ argument that the fault lie not with the Law itself, but rather with the arrangements made for its implementation. The Court ruled that the answer to the question could be given only after the law had been implemented for some period of time, at which point it would be possible to examine how the tracks that implemented its objectives had progressed, and the effect of the Law upon the scope of deferments granted to yeshiva students. We, therefore, decided to wait and see if the Law would bring about the desired social change, and held that “if change is not achieved, there is a serious fear that the law will become unconstitutional. There will then be no alternative but to reconsider all of its arrangements, in terms of both their social and legal aspects” (ibid. [2], at p. 722 per Barak, P.).

12.         Six years have passed since handing down the decision in the Movement for Quality Government case. Once again we face the question of the proportionality of the Law as demonstrated by its implementation over the last few years. As we held in our decision of 9 September 2009, this Court’s decision in the Movement for Quality Government case, according to which the Law is, in the words of Justice A. Procaccia, contaminated by a “virus” of unconstitutionality (ibid. [2], at p. 795), will serve as the starting point for our decision on the current petitions. The question is whether the results of realizing the Law demonstrate that its implementation can cure the “virus”, or whether there is no avoiding the conclusion that we are concerned with a law that is not appropriate to its objectives.

 

The petitions before the Court

 

13.         As earlier stated, the Deferment Law was originally enacted for a five-year period. Under s. 16 (b) of the Law, the Knesset may extend the force of Law for additional periods, not to exceed five years each. On 31 July 2007, about half a year before the Law’s expiry, the Knesset held a plenum debate in which it decided that the Foreign Affairs and Defense Committee would submit its recommendation as to the extension of the Law. The Foreign Affairs and Defense Committee heard a variety of experts who examined various aspects of the Law, and at the end of its deliberations, the Committee recommended that the Knesset extend the Law. The Committee’s recommendation was primarily premised upon the introduction of a civilian national service arrangement in 2008, and the expectation of a resultant change in the Law’s implementation. The Knesset received the recommendation on 18 July 2007, and voted by a majority of 56 in favor, with 9 opposed, and 2 abstaining, to extend the force of the Law for an additional five years, until 1 August 2012. The petitions before the Court were submitted in response to that extension.

 

Arguments of the petitioners

 

14.         Five petitions were submitted against the Deferment Law. Some of the petitioners have been involved in this legal battle for years. Many of the arguments are common to a number of petitioners, and for the sake of simplicity, they will be presented together. The arguments are primarily aimed at the Law’s arrangements and at its extension for an additional five years. The primary argument is that, in practice, there has been no observable change in the implementation of the Law. The petitioners ask that the Court determine that the Law is unconstitutional, or alternatively, some of the petitioners ask that the Court establish standards and criteria for assessing its effectiveness.

              The petitioners argue that the decision to extend the Law for an additional five years exacerbates the discrimination and the inequality in bearing the security burden and in risk of life. According to them, the Legislature and the Executive were given ample opportunity to realize the objectives of the Law, and the actual implementation data shows that, in practice, yeshiva students are granted a blanket deferment that, over the years, becomes an exemption from military service. The petitioners argue that the number of those enlisting or opting for civilian service is but a “drop in the ocean” in comparison to the growing number of yeshiva students enjoying deferments or complete exemptions, and their number relative to the annual conscription pool is constantly on the rise. It is further argued that the data show that the primary area of growth is in regard to the number of those opting for civilian service, which shows that the Law does not at all encourage enlistment into military service, and that the data prove that the decision year does not influence the choice of whether to enlist or remain in yeshiva.

              The petitioners further argue that the fact that the Law does not establish any limit upon the number of exemptions from service is sufficient to show that the question of proportionality was not considered. In order to achieve the Law’s objective, they argue, it was possible to adopt other means less harmful to equality, such as establishing quotas, goals, limitations, and criteria that would grant exemptions on a case-by-case basis, and that would take into account the increasing number of applications for exemption from military service. Additionally, it is argued that the blanket exemption granted to yeshiva students demonstrates the absence of an appropriate relationship between the advantages to be gained by the Law and the violation of constitutional rights, given that the Legislature granted absolute freedom of choice to yeshiva students, while imposing long years of demanding obligatory service upon other youngsters.

15.         Some of the petitioners add that the State measures the success of the Law exclusively by economic criteria that examine hareidi integration into the workforce. In their view, this is but a byproduct of the main issue before us, and therefore, those criteria should not be addressed by the Court. In any event, the petitioners argue that the numbers not only show that the number of exemptions significantly increased while the number of enlistees did not adequately increase, but also that the economic objectives of the Law were not achieved.

 

Arguments of the respondents

 

16.         In accordance with the procedural framework established for this case in the Movement for Quality Government case and the interim decision we issued on 8 September 2009, the respondents’ pleadings – the Knesset, and the Minister of Defense and Attorney general – focused upon the progression of events following the extension of the Law, and upon data regarding its actual implementation. That data indicates, so it is argued, that the Deferment Law meets the proportionality test.

17.         Respondent 1, the Knesset (hereinafter: the Knesset), submitted three primary responses (pleadings of 21 May 2008; amended pleadings of 4 January 2009; supplemental pleadings of 19 January 2011). In all three sets of pleadings, the Knesset argued that the Deferment Law should not be declared void. In its first pleadings, of 21 May 2008, it argued that the petitions should be denied because the civilian service apparatus, which is one of the fundamental pillars of the deferment arrangement, had only begun to operate a few months prior to the extension of the Law, and its operation should be assessed over time. The response presented a detailed report of the deliberations of the Foreign Affairs and Defense Committee, which before recommending that the Knesset extend the Law, decided to tighten its supervision over the Law’s implementation. According to the argument then raised, although the data concerning the Law’s implementation shows that not enough had been done to advance it, the Law should not be deemed as suffering from a “genetic flaw”.

              On 19 January 2011, the Knesset submitted an updated response. These supplemental pleadings were accompanied by the Interim Report of the “Plesner Panel” (hereinafter; the Interim Report or the Plesner Report), which had been appointed by the Foreign Affairs and Defense Committee as part of its attempt to tighten its supervision over the implementation of the Deferment Law. The panel was led by MK Yohanan Plesner, and its members were Knesset Members Arieh Eldad, Moshe Gafni, Nissim Zeev, Israel Hasson, Eitan Cabel, and Moshe (Mutz) Matalon. The panel held a large number of meetings, fact-finding missions, and meetings with various elements responsible for implementing the Law. The Interim Report concluded that the implementation of the Law had failed. The Interim Report notes that the data revealed low rates of enlistment and participation in civilian service; an insufficient number of appropriate tracks for military service by yeshiva students; a need to establish goals for realizing the Law, and that consideration should be given to establishing quotas for entering the deferment arrangement. Despite the conclusion that the implementation of the Law had failed, the Plesner Panel was of the opinion that “the Law should not be repealed, but rather policy and legislative changes should be made to enable adapting the Law’s arrangements to the positive developments in hareidi society, and the lessons that had been learned thus far in regard to the conditions for the induction of hareidi men into the IDF” (Interim Report, p. 11). The Knesset’s attorney noted that, following the submission of the Interim Report (which was signed by five of the seven members of the Panel), it was discussed by the Foreign Affairs and Defense Committee (but was not brought for a vote). At the conclusion of the session, the committee chairman, MK Shaul Mofaz, expressed his support for the principles outlined in the Interim Report. Therefore, in light of the Report’s findings, and following the debates in the Foreign Affairs and Defense Committee and in the Knesset plenum, the current position of the Knesset was summarized as follows:

 

‘In view of the positive developments presented in the Interim Report of the Plesner Panel, in view of the complexity of the profound social change that the Law entails, and the care and restraint appropriate to a sensitive, controversial issue in Israeli society, the Law should not be declared void and unconstitutional. However, the Knesset is of the opinion that the government must act to remove the impediments, establish policy, clear goals and courses of action for attaining them, and significantly intensify the efforts to implement the Law. In addition, the Knesset intends to employ the tools at its disposal in order to continue to closely follow the manner in which the Law is implemented . . .’ (supplemental pleadings of the Knesset, dated 19 January 2011, p. 6).

 

18.         Respondents 2-4 (the Government of Israel, the Minister of Defense, and the Attorney General – hereinafter: the Government) also submitted several sets of pleadings to the Court. In its pleadings, the Government described the various tracks for implementing the Deferment Law, and appended up-to-date figures regarding the number opting for each of the tracks. The Government’s primary argument is that the touchstone for evaluating the implementation of the Deferment Law should not be result-based – viz., an evaluation of the number of persons in military or civilian national service at any given time – but rather a process-based approach that examines the gradual change in the implementation of the Law. According to the Government, in view of the complexity of the required social change, what must be examined is the process for its implementation rather than the quantitative results at the present moment. It is argued that the process-based criterion comprises a number of sub-criteria, the examination of which will aid in determining whether “the State has met its duty of due diligence” (amended pleadings, dated 24 January 2011, p. 12). The Government recommended four criteria: (a) long-term commitment by means of establishing an operational structure, together with quantitative interim goals; (b) gradual (and continued) growth of the organizational infrastructure by which the Government intends to institute egalitarian conscription; (c) appropriateness of the allocated means to the potential pace of change, given the constraints deriving from the social complexity and the degree of social ripeness for change; (d) maintaining supervision and control over the gradual change, including the defining of interim goals to serve as reference points for supervision. It is argued that examining the implementation of the components of the process criteria will lead to the conclusion that the Government was diligent in creating a broad operational infrastructure that led to an increase in the number of persons serving in the various tracks. Moreover, the Government referred us to its last decision, from 9 January 2011, that established a “five-year plan” with quantitative goals for the number of persons to be serving by the year 2015. The decision also established that an Inter-Ministerial Committee, headed by the Governor General of the Prime Minister’s Office, which had submitted a report prior to the said decision, would maintain continuous oversight of the implementation of the decision, and present a report by 1 July 2012.

              In addition to these arguments, the Government is of the opinion that it is incorrect to examine the numerical data deriving from the general population of those receiving deferments, but rather the examination should be made in regard to the segment of the young population composed, in general, of young married men who do not yet have children. According to this line of reasoning, the group of older yeshiva students have families, and there is considerable doubt as to whether, at this point in their lives, they would leave their studies in order to enlist for military or national service. Therefore, the social change that the Deferment Law is intended to institute is not relevant to that group. The Government argues that when the change is examined in relation to the younger population group that joins the deferment arrangement each year, the numbers over the last years reveal a significant change. Thus, for example, the Government notes that the number of new enlistees for military and civilian service from the hareidi population shows nearly a six-fold increase over the last four years. Similarly, the Government notes that over the last four months of 2010, some 120 men opted for civilian service each month. The Government maintains that the increase testifies “that this service track, and its underlying legitimacy, are growing, and are expected to grow with the increase in opportunities for service in this track” (supplementary pleadings of respondents 2-4, dated 24 January 2011, p. 7). According to the Government, the increase in the number of those joining the various service tracks testifies to the fact that the existing apparatus is succeeding to bring about an increase in the number of people enlisting, and that the present increase “is an expression of the maximum effort possible at this point in time, in light of the constraints deriving from the pace of social change” (ibid., at p. 9).

 

Review

 

19.         It is unnecessary to emphasize the importance of the question before the Court. Over the years, the issue of the conscription and exemption of yeshiva students has been examined by the Court with cautious restraint, while we carefully observed the social processes attendant to implementing the complex goals intrinsic to the Deferment Law. Like all the public bodies that have addressed the subject of the conscription of yeshiva students, we were constantly aware of the need to achieve greater equality in sharing the burden of military service, and of the importance of integrating hareidi society into the workforce, as well as of the need to achieve all this without coercion, while reinforcing the social contract grounding the attaining of these objectives. As we stated in our decision of 8 September 2009, our holdings in the Movement for Quality Government case constitute the starting point for our decision in this case. That means that having recognized the proper objectives of the Law under review, what remains to be examined is whether the violation of the right to equality is consistent with the proportionality requirement of the limitation clause. The current examination is, therefore, being conducted within the parameters set out in that judgment.

20.         We now are now confronted with the first question that must be decided under the proportionality test: Do the means adopted by the law actually serve to realize its objectives? The judgment in the Movement for Quality Government case was delivered some three years after the Law’s enactment. Several more years have past since then. We have reached the “finish line” (see the interim decision of 8 September 2009, per A. Procaccia, J.). Much experience has accumulated. The primary apparatus for implementing the Law have been put in place. Several conscription cycles have concluded. We can now perform a quantitative examination comparing the number of enlistees in the various service tracks to the number of those opting for the deferment arrangement each year, and the number of those who choose to remain in it until obtaining a full exemption from military service. The numerical data now before us suffice to inform an opinion as to whether the Law’s objectives have been realized, or at least, if some trend can be discerned in the implementation of the Law that changes the balance identified in the Movement for Quality Government case, so that we might decide that the Law passes the proportionality test.

21.         The proportionality test established by the limitation clause requires that the violation of the protected right by the Law be “to an extent no greater than is required”. The proportionality requirement recognizes that it is not sufficient that a law befit the values of the State of Israel, or that it be enacted for a proper purpose. The means adopted by the Legislature to realize that purpose must also be examined. That examination has been construed by the case law as comprising three subtests: the rational connection test – which examines whether the means chosen are appropriate to realizing the purpose; the least harmful means test – which examines whether the means chosen for realizing the purpose of the law is the one that will cause the least harm to the constitutional right, from among the possible means; and lastly, the proportionality test stricto sensu – which requires that there be a reasonable relationship between the infringement of the constitutional right and the advantage gained by that infringement (on the proportionality test, see: HCJ 4769/95 Menachem v. Minister of Transportation [8], at pp. 279-280 (hereinafter: the Menachem case); HCJ 1661/05 Hof Azza Regional Council v. The Knesset [9], at. p. 546 (hereinafter: the Hof Azza case); HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance [10], at para. 46 of my opinion (hereinafter: the Prison Privatization case). We will begin with the first subtest.

 

The first subtest: The rational connection test

 

22.         According to the rational connection test, the means adopted by the Law must be appropriate to the Law’s intended objective, such that they have the potential of realizing it (see, inter alia: HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defense [11], para. 29, per A. Barak, P.; HCJ 3648/97 Stemka v. Minister of the Interior [12], at. p. 776 (hereinafter: the Stemka case); HCJ 5016/96 Horev v. Minister of Transportation [13], at p. 53 (hereinafter: the Horev case); the Hof Azza case [9], at p. 550). The proportionality test examines the question of whether “the means chosen is relevant to the realization of the purpose, in the sense that the probability of attaining that purpose increased with the enactment of the law. Therefore, if implementing the means does not have the potential of realizing the purpose of the law, then the use of that means is disproportionate” (Aharon Barak, Proportionality: Constitutional Rights and their Limitations, p. 374 (2010) (in Hebrew) (hereinafter: Proportionality). In the Movement for Quality Government case, we held that the decision as to the rational connection between the means and the purpose is not merely a theoretical question. Rather, in the circumstances of the case at hand, we sought to employ a practical test. Can it be said, nine years following the enactment of the Deferment Law, that its means are capable of realizing its purposes?

23.         In answering the petitions, the Respondents provided copious data concerning the implementation of the law. The data details the extent of the Law’s implementation in accordance with the three tracks that it established: military service, civilian service, and the decision year. These are accompanied by a fourth track, which, practically speaking, is also established by the Law, that of deferment. The data, which will be presented more fully below, paints a complex picture. On the one hand, the number of those entering military service or choosing civilian service is discernibly on the rise. Military service options were broadened and adapted to accommodate hareidi soldiers. The Civilian Service Administration was also created, albeit with considerable delay. On the other hand, despite the growth in the number of hareidi men serving in the army and performing civilian service, the numbers are not high in absolute terms. The total number of those actually entering military or civilian service in 2010 – which is the largest number since the enactment of the Deferment Law – is significantly lower than the number of those who chose the deferment arrangement that year. In practice, the data demonstrate that more hareidi youths choose deferment of service than opt for military or civilian service. It should be pointed out that in the interim since the submission of the data, the ratio between those who choose the deferment arrangement and those who enter military or civilian service has remained unchanged. This would appear to be the trend according to published reports of the recent meetings of the Foreign Affairs and Defense Committee of the Knesset.

              In order to determine whether, ultimately, the Deferment Law meets the rational connection test, we will review the data submitted to us in regard to the implementation of the Law. As stated, the data summarize the situation up to the beginning of 2011. We will first analyze the data in regard to each of the service tracks, and then consider whether or not the data, taken together, lead to the conclusion that the Law passes the proportionality test.

 

Military service

 

24.         From the Government’s response to the petitions before us, it appears that there are currently two unique service options for the hareidi public. The first track is the hareidi Nahal battalion “Netzach Yehudah”, in which, as a rule, one completes a regular, 36 month tour of duty. This track is not new. It existed before the Deferment Law was enacted, but it was utilized in a relatively limited way. Those who serve in this track are generally young hareidi men who have dropped out of yeshiva. Along with this track, the Air Force initiated two tracks aimed exclusively at the hareidi community (“Shahar Kahol” and “Shahar Ba’ofek”). Those who enlist in these tracks undergo initial training in an military preparatory program. Following their enlistment, and after completing basic training, they undergo additional training in technical fields or in computer sciences. They then enter the Air Force’s technical service, or its technology units. In the years 2009-2010, these Shahar tracks were expanded, and in addition to the air force tracks, there are now additional tracks in the Intelligence Corps, C4I Corps, Navy, Technology Corps, Manpower Corps, and the Homefront Command. It should be noted that the length of service in the various tracks is not uniform. Whereas those serving in the hareidi Nahal unit normally complete a full 36 month tour, the length of service in the other tracks varies from 16 to 24 months, depending on the length of the training program and the soldier’s family status.

25.         In its last response, the Government informed the Court of a significant change of policy in regard to army conscription directives. This change was anounced in Government Decision no. 2698 of January 2011. In its decision, the Government amended the army conscription directives in accordance with a recommendation of the Inter-Ministerial Committee headed my the Director General of the Prime Minister’s Office, which was asked to make “recommendations in regard to the conscription directives, bearing in mind, inter alia, the national need to integrate the hareidi sector into the workforce, and the budgetary burden of family payments upon the defense budget” (the committee was appointed in Government Decision no. 2000 of 15 July 2010). Prior to the change, the conscription directives provided that married hareidi men with children, who were aged 22 and over, who requested to substitute civilian service for their military service obligation would, as a rule, be granted their request, whereas such requests from hareidi men who did not have children would be granted only from the age of 26 and older. The new directives provide that single hareidi men, and those who are married but without children, from the age of 22 and up, can perform civilian service in the civilian security track (“Security National Service”, such as service in the Police, Prison Service, Magen David Adom, and the Fire Department). It was further decided, on a one-time basis, that all those who had been granted deferments and who had three children or more (regardless of age) would be referred to the reserves, and thus would be exempted, in practice, from active duty and from the alternatives provided by the Law.

              The Government also adopted the committee’s conclusions in regard to setting goals for hareidi service. According to the goals established, 2,400 hareidi men would be inducted into service, of them, half (1,200) would be inducted into the army, and half (1,200) into civilian service. The planned increase would be 600 additional inductees in each subsequent year, such that 4,800 hareidi men would be inducted into service in the year 2015, of them, 2,400 would be inducted into the army, and 2,400 into civilian service – a number that would represent some 60% of the relevant age group. The Inter-Ministerial Committee also recommended expanding the choice of military service frameworks available to hareidi men, and the addition of three additional tracks: a hareidi hesder yeshiva track, combining a period of study with active military service; a technological education track (together with the Ministry of Industry and Trade and the Ministry of Education), intended primarily for hareidi youth who drop out of yeshiva, and which would lead to full military service in the technology field; and an abbreviated service track for hareidi men over the age of 26, after which they would be referred to the reserves. According to the Inter-Ministerial Committee, the last recommendation, concerning abbreviated service, already appeared in the Tal Commission Report, and its implementation would not require legislative action (Report of the Inter-Ministerial Committee, p. 14).

26.         As stated, the recommendations of the Inter-Ministerial Committee were adopted by the Government’s decision of 9 January 2011. In addition to those conclusions, it was further decided that hareidi men over the age of 28 would also be referred to the reserves without any special training, in view of the army’s needs and their limited ability to perform significant service. As a result of the Government’s decision, the table of induction directives and service tracks for those who choose to leave the deferment arrangement or not enter it from the outset, is as shown below. It should be noted that implementation of the directives presented in the table, which was appended as an annex to the Government’s decision of 9 January 2011, commenced on 10 march 2011:

 

Age	Type of Service
18-21	Regular military service (36 months), or military service combined with study in a hesder yeshiva
22-25 without children	Referral to security national service		Military service (16 months or 24 months for tracks requiring intensive training)
22-25 with at least one child	Referral to civilian service		Military service (16 months or 24 months for tracks requiring intensive training)
26-27	Referral to civilian service	Military service (16 months or 24 months for tracks requiring intensive training)		Abbreviated military service (3 months)
28-34	Referral to reserves
35+	Exemption from military service

 

 

27.         As for the numerical data, the Government’s pleadings show that, as of May 2008, 39 soldiers served in the “Shahar Kahol” track, and 28 served in the “Shahar Ba’ofek” track. In its response dated 30 December 2008, the Government reported that “several hundred” hareidi soldiers were serving in the hareidi Nahal unit, and some 150 soldiers were serving in the Shahar Kahol and Shahar Ba’ofek tracks (the Government did not specify in its response how many of those were new recruits that year). In its most up-to-date response, from 24 January 2011, it reported that the number of hareidi men serving in the armed forces in 2009 was 1,357, of whom 729 were new recruits inducted that year into the various tracks (the hareidi Nahal unit and the Shahar tracks); 2,048 hareidi men served in the armed forces in 2010, of whom 898 were new recruits to the hareidi Nahal track and the Shahar tracks (p. 21 of the Government’s amended pleadings of 24 January 2011).

28.         The Government argued that the data should be analyzed on the basis of the annual conscription pool, rather than on the basis of the total number of deferments, which stood at 61,877 at the time of the submission of the response. According to the argument, that total number represents the “desert generation”, and comprises men who, it is claimed, cannot realistically be inducted into military or civilian service. Reference to the annual conscription pool rather than the total number of deferments, it is argued, focuses upon the younger generation, while removing from the equation all of those members of the hareidi community who, it may be assumed, will not be called up for military service by reason of age or family status.

29.         Even if we were to accept the Government’s argument that we should focus upon the younger generation in regard to rates of enlistment for military or civilian service, the argument that those rates should be evaluated with reference to the current conscription pool is, nevertheless, very problematic. In view of the fact that the Law makes it possible to waive one’s deferment and enlist into the armed forces or join the civilian service at any stage and at any age, those enlisting or joining the civilian service in any year are not members of that same annual conscription pool, but rather belong to several different annual groups. Thus, aggregating them into a single group, and examining them in reference to the number of deferments in the conscription pool of a single year, as the Government urges, does not yield a result that accurately reflects the actual situation. The Government, itself, did not provide data that would make such an examination possible. That being the case, it would be more accurate to examine the number of those entering military or civilian service against the background of the total number of deferments, which represents the general group from which those entering the various tracks are drawn. This situation is a product of the arrangements established by the Law itself, which creates a situation in which those entering the armed forces or civilian service do not represent a uniform age group, or in other words, are not members of the same annual conscription pool. That is, of course, as opposed to the remainder of the candidates for military service, the vast majority of whom are members of the same age group.

              Moreover, the “desert generation” argument, as skewed as it may sound, is incomprehensible in view of the relevant timeframe. Most of the hareidi members of the current deferment group are young people who entered the deferment arrangement after the Deferment Law was enacted, some ten years ago. At best, the “desert generation” argument might be valid in regard to those who entered the arrangement before the enactment of the Law, and who made their plans in accordance with the prior legal situation. But after the enactment of the Law, one cannot rely on the prior situation. That is particularly so in view of the fact that we are not speaking of a small group. As of the date of the submission of the data, the deferment group comprised 61,877 men. Of them, 22,000 were “free” for civilian service (as established in the Report of the Inter-Ministerial Committee, p. 29). The significance of the “desert generation” argument is a surrender in advance of any hope of enlisting that group for military or civilian service.

30.         As stated, under the Government’s approach, the data regarding the number of those entering military service should be calculated in regard to the last annual conscription group. As of April 2010, a total of 7,700 eighteen year olds registered with the Ministry of Defense as belonging to that annual conscription group and are classified as “deferred”. The Government argues that of that number (7,700), only 5,400 are actually potential candidates for enlistment to the Shahar tracks and civilian service. It is estimated that of the 7,700 who were granted deferments, 1,000 are not hareidi, but rather young religious men in the hesder yeshiva track, and will thus be conscripted for military service, and about 900 others are expected to be exempted for medical and other reasons up to the age of 22 (it should be noted that the Inter-Ministerial Committee put the number of expected exemptions for medical and other reasons at 600). We are thus left with a potential hareidi conscription group of 5,800. Of those, some 400 are expected to enlist in the hareidi Nahal unit (most of whom, as noted, are hareidi youths who dropped out of school and will enlist at the age of 18). It is, therefore, argued that the percentage of those entering military and civilian service should be calculated in reference to that group of 5,400.

31.         As noted, the approach is problematic, and calculating in that manner yields inaccurate results. But even if, for the sake of argument, we were to accept the Government’s claim, and assume the existence of a “virtual” number of 5,400 as representing the hareidi members of some conscription group, the factual situation would remain far from satisfying. Assuming that 400 is, more or less, a given in terms of the number enlisting for full military service in the hareidi Nahal battalion, inasmuch as it relates to hareidi youths who have dropped out, and are no longer studying in yeshiva, then the primary recruitment efforts, even according to the Government’s approach as stated in its response, would be directed toward enlistment of hareidi candidates to the Shahar framework. In fact, the number of hareidi recruits entering the Shahar tracks in 2009 was 382, which represents 7% of the “virtual” conscription group. In 2010, the situation improved somewhat, but the percentage remained very low, with only some 10% (530 hareidi recruits) enlisting in the Shahar tracks that year.

              The figures become more precise – and, unfortunately, more problematic – when the evaluation is made in reference to the total number of deferments. Such an analysis reveals that the number of recruits in 2010 (a total of 898 hareidi recruits to the hareidi Nahal battalion and Shahar frameworks) constituted 1.45% of the total number of deferments. The number of recruits to the Shahar tracks alone constitutes 0.8%, and the total number serving in the armed forces in 2010 (2,048 hareidi soldiers) constitutes only 3.3% of the total number of deferments. These are minute numbers. What they signify is that, despite the rise in the number of those who enlist for military or civilian service, no noteworthy change can be discerned in hareidi society, and no significant change can be seen in its integration into the various service tracks.

32.         Moreover, in view of the new conscription directives that entered into force in March 2011, it is highly questionable whether the current increase in the annual number of recruits (even if, as noted, it is a limited trend in absolute numbers) will continue in the coming years. As we explained above, the primary change in the new conscription directives is that, from the age of 22, a deferred person will be able to choose between military service and civilian security service, even if he is not married or is married but without children. That decision changed a prior governmental decision that decreed that unmarried men or those who were married but did not have children would be referred to civilian service only from the age of 26. The significance of the original decision was that it granted preference to military service over civilian service. That distinction no longer exists. In effect, a person with a deferment now enjoys what amounts to a nearly absolute prerogative to choose the track he prefers – deferment and entering the “Torah is their calling” arrangement, enlistment in the armed forces, or opting for civilian service. The conscription directives do not set out any criteria by which the Minister of Defense is to approve or reject a request to opt for civilian service as opposed to military service, and the Law, too, provides no such criteria. It would appear that, in effect, in its last decision, the Government directed the Minister of Defense to approve every request to enlist in civilian service, without regard for military/medical profile or age of the requester. It should be noted in this regard that s. 13 of the Deferment Law, titled “Execution and Regulations”, states that the Minister of Defense may formulate regulations for the execution of the Law in a number of areas, among them, as stated in ss. (3): “The treatment of requests to perform civilian service under s. 6 (e), and the criteria for their approval”. The Minister of Defense exercised this authority by promulgating regulations for the implementation of the Law (Regulations for the Deferment of Service for Yeshiva Students for Whom Torah Is Their Calling, 5765-2005), but they do not make any reference to civilian service, and treat only of the deferment of service and the decision year. It thus appears that there are currently no criteria for approving a request to perform civilian service by a person holding a deferment, and in practice, it would appear that the Law is implemented in a manner that tends to grant preference to civilian service.

33.         Moreover, the new conscription directives set out an additional track for abbreviated military service of only 3 months for deferred men between the ages of 26 and 27 (older men, 28 and up, are referred directly to the reserves, with no training). The abbreviated service will comprise one month of basic training and two months of further preparation for assignment to reserve units. As explained in the Report of the Inter-Ministerial Committee, and from the explanatory note to the Government’s decision of 9 January 2011, the Government views abbreviated service as “an important alternative for the service of hareidi men” (the explanatory notes to the Government’s decision were appended to the Government’s amended pleadings of 24 January 2011, and marked Res/3(b)), and “a situation in which a large number of hareidi men are called up annually for active reserve duty in uniform, and make a significant contribution to the general public in times of emergency, [is] in the opinion of the committee, a situation that can bring about significant change both in the integration of the hareidi sector into the general public, and in the legitimacy ascribed by the hareidi sector to military service in general” (ibid., p. 9 of the explanatory notes). As a consequence of adding this alternative, a man of 26, who chooses to relinquish his deferment, is presented with three choices: “regular” induction into the army (in which case he will, in any case, complete a reduced tour of duty of 16 or 24 months); civilian service for one year; or three months of abbreviated service. It would hardly be superfluous to add that three months of military service, even if followed by reserve duty, is not equivalent to real military service (even if, in most cases, it may last for only 16 months). Moreover, the abbreviated service track was recommended by the Tal Commission, but was rejected in the course of enacting the Deferment Law. Adding it now, as part of the conscription directives, smacks of circumventing the Knesset’s decision in the matter.

34.         From the Report of the Inter-Ministerial Committee, we learn that the new conscription directives were intended to bring about uniformity in the conscription directives by basing the conscription tracks on a person’s age rather than on his military profile, which is the accepted practice in regard to other conscripts who are not hareidi, and as was the practice in regard to hareidi deferments prior to the Government’s decision of 9 January 2011. The purpose, as presented in the Report of the Inter-Ministerial Committee, was to introduce greater certainty in regard to the service tracks, which currently “are not decided [ . . . ] in accordance with his medical profile, which is a criterion unknown to the hareidi youth” (Report of the Inter-Ministerial Committee, p. 25). The new directives do, indeed, yield greater certainty. However, certainty is not one of the purposes of the Law, and with this increased certainty comes a real fear that the new directives may serve as a significant disincentive to full military service (in the hareidi Nahal battalion), or partial service (in the various Shahar tracks). Their direct result is that a young hareidi man who, at age 18, opts for the “Torah is their vocation” arrangement, and who remains in that arrangement until age 22, is effectively not required to perform military service. If he chooses to leave the deferment arrangement and enlist in the army at the age of 22, he will be inducted for an abbreviated tour of duty of 16 or 24 months. Alternatively, he has the possibility of performing only one year of civilian service instead of military service. If that young man is single, or married without children, his civilian service will be security related, e.g., civilian service in the Police, Fire Department, or Magen David Adom. The choice among the tracks is that of the young man with the deferment, and it does not depend on his military profile or any other criterion. The significance is the transfer of the choice to those holding deferments: if they wish, they can enter the deferment arrangement; if they wish, they can leave it. If they choose to end their deferment, the choice is theirs whether to enlist in the army or opt for civilian service – which by definition, is a one-year abbreviated service that substitutes for full military service. It would seem superfluous to point out that non-hareidi youth are not presented with similar options.

35.         The rationale for the conscription directives can be gleaned from the Report of the Inter-Ministerial Committee. According to the committee, “These actions [changing the conscription directives – D.B.] will not significantly harm the motivation of hareidi men to enlist in the offered tracks, but they will make it possible to accelerate the integration of some of the hareidi men into the workforce, and in this manner, increase equality in sharing the economic burden” (Report of the Inter-Ministerial Committee, p. 6 (emphasis original)). In other words, the primary motivation for the decision to refer young men from the age of 25 to civilian service and to add an abbreviated military service track was economic. The economic consideration, and the desire to enable integration of members of hareidi society into the workforce were also the reasons for appointing the Inter-Ministerial Committee. Thus, the Government’s decision to create the committee (Decision 2000 of 16 July 2010) expressly states that the committee “will make recommendations in regard to the conscription directives, bearing in mind, inter alia, the national need to integrate the hareidi sector into the workforce, and the budgetary burden of family payments upon the defense budget”. It is clear from this decision that the Government views conscription of members of the hareidi community into military service as presenting a budgetary burden, and therefore, as something that should be limited. Indeed, in certain situations, the “budgetary burden” involved in drafting hareidi men into the army can be twice the “budgetary burden” presented by civilian service. Lightening the burden can be achieved by expanding civilian service and limiting conscription for military service – as would appear to have been done in the directive to the Minister of Defense to refer deferred men to civilian service from the age of 22, and by the creation of the abbreviated service track for deferred men aged 26-27.

36.         The same economic rationale grounded the Government’s decision, made in accordance with the Inter-Ministerial Committee’s recommendation, to make a one-time referral of all those who had been granted deferments and had three children or more to the reserves. The Report of the Inter-Ministerial Committee stated that this step was adopted “because it is expected that it will be some time before appropriate service tracks will be established for that population, and there is a desire to prevent unnecessary delay of the ability of this group to integrate into the workforce” (loc. cit.). The report of the Inter-Ministerial Committee, the Government Decision, and the Government’s pleadings give no indication of the number of men who have now been referred to the reserve pool, and in effect, were granted an exemption from military or civilian service. However, it would appear that a significant group of men with deferments benefitted from this one-time decision.

              As noted, the Inter-Ministerial Committee was of the opinion that changes in the conscription directives would not negatively affect the willingness of members of the hareidi community to enlist for military and civilian service. According to the Report:

 

‘The Committee’s recommendations attempt to balance the effect upon the civilian service. On the one hand, the recommendation for the creation of an abbreviated service may reduce the number of those opting for civilian service – inasmuch as the abbreviated service will serve as a substitute for civilian service (for the hareidi population that will agree to wear a uniform and serve in reserves). On the other hand, granting the younger population the possibility of opting for civilian service can be expected to increase the number of those choosing civilian service, and will balance the effect on the overall number of those in civilian service’ (p. 25 of the Report).

 

              Nevertheless, the Inter-Ministerial Committee recommended that the actual results of implementing the arrangements be examined after two years. According to the Committee, “if, after the implementation of all of the Committee’s recommendations, it appears that the IDF and the civilian service are having difficulty in recruiting enough deferred men who are interested in serving, a further change in the conscription directives should be considered, as well as an increase in the incentives for enlisting, while preserving the preference for integration into military service” (Report of the Inter-Ministerial Committee, p. 7 (emphasis added – D.B.)).

37.         This final recommendation appears odd in light of the details of the recommendations and the data presented above. The implementation of the Law does not indicate that a preference for integration into military service is being preserved, and it is highly doubtful that it will be preserved in the future, in light of the new conscription directives. The induction of only 530 hareidi men into the Shahar tracks, nine years after the enactment of the Law, indicates a failure in its implementation. The fact that there is a rising trend in the enlistment numbers is, of course, a positive development, but presenting some measure of improvement is not enough. Nine years after the enacting of the Law, one could expect a more significant number of enlistments. The small number of those enlisting, along with the relative ease by which very significant changes can be made to conscription directives, as was done in the Government’s last decision, demonstrate a basic problem in the Deferment Law itself. The fact that by a government decision, it is possible to direct that a large group of people, that has neither served nor received any training, be assigned to the reserves pool merely because of the family status of its members (being parents of three children), and the fact that a government decision can create a very abbreviated military service track that can only questionably be viewed as service at all, raise problems that are not inconsequential. The preference for military service, which was held to be one of the purposes of the Deferment Law in the Movement for Quality Government case, and that was recognized in the Report of the Inter-Ministerial Committee (p. 7 of the Report, as quoted above), cannot be discerned in the decision to change the conscription directives – quite the opposite. The conscription directives were formulated such that preference would be shown for civilian service in regard to the younger age categories.

38.         The changes in the Government’s approach to implementing the Law over the years point to the inadequacies in the Deferment Law. The Law establishes the possible service tracks, but leaves the door wide open in regard to the Executive’s discretion as to implementation, and to the pace of that implementation. In the framework of that discretion, the Government can make decisions that have far-reaching implications for the implementation of the Law, to the point of nullifying its purposes. In the absence of criteria in the Law in regard to its execution, the Government can make decisions that can have decisive effect upon the pace of the Law’s execution, or at least, that can so drastically limit some of the tracks as to render them meaningless.

39.         There is no doubt that the Government’s efforts to encourage hareidi integration into the workforce, as part of the economic rationale underlying the Government’s last decision, are important and worth pursuing. Indeed, the aim of integrating members of the hareidi community into the workforce is a vital objective that was recognized as one of the legitimate purposes of the Deferment Law. Greater involvement of the hareidi community in the workforce will contribute to decreasing the severe level of poverty in that community, and narrow the growing schism between hareidi society and Israel’s secular society. It is a social undertaking of the greatest national importance, but it cannot be made into the primary or exclusive objective of the Deferment Law. Four underlying objectives of the Law were recognized as constituting “a proper purpose” when taken together (the Movement for Quality Government case [2], p. 704). Each draws upon and influences the others. The purpose is proper only when the Law facilitates a legal arrangement intended to reduce the inequality caused by not drafting hareidi men into the army by drafting them into the army, or at least into civilian service, and by encouraging their integration into the workforce, and achieving this by consensus rather than by coercion. It is the combination of these objectives that provided the Law with its proper purpose from a constitutional perspective, as well as from a social point of view. The implementation of the Law cannot now infringe any of those purposes, as the means would not, then, lead to the realization of the purposes.

              That being the case, the Law cannot be implemented in a manner that infringes one of its purposes – not to mention, one of its fundamental purposes – by reason of budgetary constraints. The fact that inducting hareidi men into the army presents a considerable budgetary burden is a necessary by-product of the arrangements established by the Law, and particularly of the fact that, other than those enlisting in the hareidi Nahal battalion, the other recruits are over the age of 22 – in other words, they are at a stage at which most are married and some are fathers of at least one child. Once the Law made it possible to defer induction by at least four years, the unavoidable result was that the population being inducted for service at the end of that period would be older, and in view of the character of hareidi society, would also have families. The higher budgetary costs are the result of the family payments to which the recruits are entitled in consequence of their family status, and is, therefore, the word of the legislature.

40.         Moreover, in a long line of precedent, this Court has held that protecting fundamental rights costs money, and that the economic argument cannot, in and of itself, justify an ongoing violation of equality (see, e.g: HCJ 4541/94 Miller v. Minister of Defense [14], pp 120-121, 144) (hereinafter: the Miller case). That being so, the economic cost, alone, does not justify the Government’s limiting of the military service track. Parenthetically, we would note that examining the economic cost in terms of family allotments alone yields only a partial view that does not reflect the full picture. Although no one denies that the army must bear a significant burden of family payments for soldiers who are married and have families, if we take into account the fact that during their military service, those soldiers do not benefit from other forms of support that they receive as yeshiva students (among them, stipends for yeshiva students, social security payments, teachers’ salaries and the costs of establishing and running the yeshivas, and municipal tax discounts – see: the Tal Commission Report, p. 54), it would appear that the overall demand upon the State budget is much lower.

              To this we might add the proven economic advantage to the State from drafting hareidi soldiers into the armed forces, in particular, as opposed to other tracks. From the data that the Government provided in regard to the rate of integration into the workforce of those who serve in the armed forces, it appears that some 80% of those completing the Shahar tracks enter the workforce upon their discharge. This is a significant figure that demonstrates the potential of military service to provide professional training that can serve as a springboard into the marketplace. Military service, more than civilian service, and certainly more than the decision year, prepares hareidi men to work in areas of technology that are in high demand. The numbers speak for themselves. The high figure – some 80% of those who served in the Shahar tracks found employment – shows that military service should be encouraged not only as a means for reducing the infringement of equality, but also in order to increase the percentage of people from the hareidi sector participating in the workforce.

 

Civilian national service

 

41.         Getting the civilian national service track up and running was fraught with difficulties. Although the Deferment Law was enacted in 2002, the Civilian Service Administration was established only in 2007, and began to operate only in March 2008. The process of setting up the Civilian Service Authority began in the Committee for Planning Civilian National Service in Israel, headed by General (ret.) David Ivry, who was appointed by the Minister of Defense following the decision of this Court in the Movement for Quality Government case (hereinafter: the Ivry Committee). In an interim report submitted to the Minister of Defense in February 2005, the Ivry Committee emphasized the importance of preserving the preference for obligatory military service and its primacy, and recommended that the civilian service option be extended to all Israeli citizens and residents who are not called up for military service, or who are exempt. On 18 February 2007, the Government adopted the recommendations made in the Ivry Committee’s report (Government Decision no. 1215). It was also decided that a project manager, to be supervised by the Director General of the Prime Minister’s Office, would work to advance the establishment of the Administration, and would submit recommendations to the Government in that regard. In Decision no. 2295 of 19 August 2007, the Government adopted the recommendations of the project manager, and decided upon the creation of an administration for civilian service and national service, “within which framework, young citizens of Israel from every population group that does perform military service by law, will contribute one or two years of their time to civilian activity that is useful to society in general and to weaker populations in particular, that will strengthen the connection and identification of young citizens with the community, society and state, reinforce their professional abilities and their readiness for future employment, and contribute to developing their character and leadership ability”. The decision also enumerated the Administration’s functions, and established guiding principles for civilian-national service, among them that such service was intended for those who had received a deferment or exemption from military service; referral to the service will be on a voluntary basis; the service will comprise all sectors, groups and religions in Israeli society; the service will be an independent body, and will perform functions for the welfare of the public, the community and society. It was further decided that those who perform civilian service would be entitled to the same economic benefits as those granted to persons volunteering for national service, in accordance with the length of service, and subject to the proviso that the economic benefits would not exceed those paid to soldiers serving at the rear. It should be noted that on 16 November 2008, the Knesset enacted the Civilian Service (Amendments) Law, 5769-2008, which was intended to equate the status of those performing civilian service to that of persons performing national service or military service for the purpose of the Severance Pay Law, 5723-1963, and the Absorption of Discharged Soldiers Law, 5754-1994 (relative to length of service).

42.         In practice, as noted, the Administration was established in early 2008. Since beginning its operations, 2,575 members of the hareidi community have performed civilian service. As of May 2008, some 70 members of the hareidi community had performed civilian service. That number grew to 450 by December 2008. In 2009, 1,003 hareidi men joined the civilian service, and 1,122 joined in 2010. The Administration has expanded, and several staff positions have been added. The Administration worked hard to increase the number of “operators” accepting hareidi volunteers to the civilian service, and of late it has even contracted with an external body that will help supervise the activity of those performing civilian service. That supervision is needed, inter alia, in order to address the situation in which, until now, most of those performing civilian service served within the hareidi community. As the head of the Administration informed the Foreign Affairs and Defense Committee, whereas in the beginning, the number of civilian service volunteers serving within the community stood at 90%, as of January 2011, service within the community had dropped to about 57% (according to the head of the Administration, Sar-Shalom Jerbi, speaking to a session of the Foreign Affairs and Defense Committee on 18 January 2011, at p. 29).

43.         These data seem to paint an encouraging picture in regard to the implementation of the civilian service track. However, despite the growth in the number of those volunteering for civilian service, the process of setting up the Civilian Service Administration and its operation raise some problems. As noted, although the Deferment Law directed that the Administration be created in 2002, it was not actually established until March 2008. Initially, the Administration operated under the auspices of the Prime Minister’s Office. In April 2009, responsibility for the Administration was transferred to the Ministry of Science and Technology. There were also problems in regard to staffing the Administration, in the agreements with potential organizations that could absorb the volunteers, and in setting up the apparatus to supervise the volunteers. Even the memorandum for the law that was intended to regulate all of the aspects of national service, which was supposed to be submitted by October 2007, was only submitted in December 2007, and the Administration only delivered the draft of the law to the Ministry of Justice in February 2010, in preparation for presenting it to the Ministerial Legislation Committee.

44.         The State Comptroller’s Report of 2009 (submitted in May 2010) examined the operation of the Administration, and the implementation of the Deferment Law in regard to civilian service (State Comptroller’s Annual Report (No. 60B) (2009, and Accounts for the 2008 Fiscal Year), pp. 913-991(2010)). The State Comptroller’s Report related to the period between March 2008, when the Administration began its operations, and October 2009. The Comptroller’s Report points to a number of deficiencies in the operation of the Civilian Service Administration, and in the implementation of the Deferment Law in regard to the civilian service track. The Comptroller found that some 40% of those performing civilian service were serving in the areas of special education and mentoring. This was so, even though in the legislative proceedings of the Deferment Law, the Knesset removed the field of education from the areas of service (such that under s. 6 of the Deferment Law, civilian service would be performed in the areas of health and welfare, immigrant absorption, environmental protection, internal security, and various rescue services). It was further found that those serving in the field of education would invite their pupils to their homes over the weekend “as a matter of course”, and report 24-36 consecutive hours of service. During the summer, when the pupils were on vacation, group activities were arranged at youth villages, and included overnight stays. Such activities were also reported as consecutive hours by those performing civilian service. The Comptroller’s Report found that, in practice, those involved in mentoring “fulfilled all of their hours of service in the course of a few days, or on weekends alone” (ibid., p. 976). The Report also warned of deficiencies in the work of the operating body – a private body that was granted the supervisory and oversight authority of the Administration. It found that coordinators, who were supposed to supervise the work of the volunteers, were responsible for more volunteers than the operating body had agreed to in the tender, and that time sheets that were suspected of not reflecting actual presence, or that were unsigned, were not addressed in any way. Furthermore, a review conducted by the operating body, found family ties between volunteers and office holders in the bodies in which they were serving. Despite the fear of conflict of interests, the Administration did not discontinue the service of those family members, but rather, merely made them subordinate to others who were not their relatives (ibid., pp. 976-977).

45.         Similar findings were mentioned in the Plesner Panel’s Interim Report. The Interim Report notes problems that were discovered in the functioning of the Civilian National Service Administration during the two years that it was reviewed. The Interim Report points out that representatives of the Administration did not present a plan that included policy and concrete objectives in regard to the desirable number of volunteers in the various service areas; multi-year objectives for the elements of the service program; an analysis of the needs of the governmental bodies in terms of national priorities, and the creation of a set of preparatory programs with an eye toward the future employment of the volunteers upon completion of their civilian service. The Interim Report also noted that the Administration had not established methods for checking on the presence of volunteers at their places of service and the quality of their contribution (ibid., p. 24). In the opinion of the Panel, “the Civilian National Service Administration must become a body that delineates a vision, establishes policy, sets objectives, negotiates the opening of additional national service tracks, and supervises the placement organizations and the operating bodies, alone. It must be a regulatory and policy-making body, and it is recommended that executive functions be transferred to external bodies” (ibid., p. 25). The result of the lack of vision and policy guidelines was that, as of the writing of the Interim Report, the Administration had not succeeded in filling the volunteer positions that had been approved (ibid., pp. 27-28).

              The Interim Report also warned that a large number of volunteers (68%) were serving in frameworks within the hareidi community, mostly in the field of social welfare. The Report further revealed that many of the hareidi volunteers served in education – some in educational fields that were described as social welfare. That was so, even though, as stated, education was not among the areas of service included in the Law. In the Panel’s view, while service within the hareidi community was appropriate “as an initial formula” for hareidi volunteering (ibid., p. 27), a change in that trend should be sought, such that the service would be performed within national frameworks that would contribute to hareidi integration into society.

46.         Thus, along with the growth in the number of volunteers in civilian service, we find problems with regard to supervision over the quality of service, the establishing of goals, and in filling the positions created for those volunteering for service. Proper implementation of the deferment Law does not merely mean increasing the number of volunteers for civilian service. Proper implementation of the Law requires a substantive examination of the nature and quality of the civilian service so that it will achieve its objectives, and most importantly, so that civilian service will constitute an appropriate alternative to military service. The civilian service track was established in the Deferment Law in order to provide members of the hareidi community with a form of service that would be appropriate to their lifestyle, and that would reduce the inequality caused by their not being conscripted for military service. In order to achieve those ends, it is not enough to show an increase in the number of volunteers for civilian service. The civilian service must be brought to a point where it is a true alternative, in terms of quality, nature and length of service, to military service, and in that regard, more than one year of civilian service must be required. Civilian service must be shown to be significant, and to have the potential of advancing the purposes of the Deferment Law. That must be done, inter alia, by intensifying supervision in order to ensure that the service is performed for the objectives established by the Law, and in national frameworks that incorporate professional training.

 

The Decision Year

 

47.         The decision year, which was to be the great hope of the Deferment Law, has proven a great failure. In the Movement for Quality Government case, Justice Cheshin, then the Deputy President of the Court, referred to the decision year as “the jewel in the crown of the Deferment Law”, but noted that the decision year “is but glass disguised as a diamond” ([2], at p. 766). Indeed, that unfortunately has turned out to be the case.

              The decision year was intended to allow a young man whose service had been deferred for four years, and who was at least 22 years old, to defer his conscription for an additional year, even though he was no longer studying in a yeshiva that year. In the course of that year, the candidate for conscription could work without any restrictions. The central purpose underlying the decision year was to permit young men to test life outside of the yeshiva, without losing their “Torah is their calling” status (see: Tal Commission Report, p. 121). The decision year was the primary tool introduced by the Tal Commission, and it was intended to create a transition route from a life of yeshiva study to the labor market. It is important to note that enlistment into the armed forces or civilian service is not contingent upon taking a decision year. In other words, a person whose service was deferred could waive his deferment and enlist in the armed forces or civilian service whether or not he took a decision year. But the decision year was intended to make that transition easier, and that it how it was envisioned by the Tal Commission, which saw it as a central device for promoting equality and a sharing of the burden.

48.         The figures show that no inconsiderable number of deferred yeshiva students chose to take a decision year. As of 31 December 2007, the number stood at 2,935 in total. Of those who completed the year (2,334), 649 returned to the status of “Torah is their calling”. 163 asked to perform civilian service, but the Administration had not yet been established at that time. Of the rest, 253 were inducted into the army; 315 were being processed by the army (but it is not known whether or not they were actually inducted), and 725 received exemptions from military service. An additional 191 were transferred to the “pool” – a unit of assignment for draftees that the army has decided not to call up for service, but who are part of the reserves, and could be called up in case of military need. 20 others were abroad.

              A similar division is presented by the data submitted in the response of 30 December 2008. In that response we find that, as of 27 November 2008, a total of 3,269 deferred men took a decision year (i.e., 334 took a decision year in 2008). 567 had not yet completed the decision year at that time. Of those who had completed the year, 759 returned to the “Torah is their calling” status; 25 were abroad, and 148 were awaiting civilian service. Among the remainder, 905 were exempted for various reasons; 276 were being processed by the army, and 348 had been inducted into the IDF. 241 were transferred to the “pool”.

              Other than the data for the years 2007 and 2008, the State did not submit up-to-date figures for the years 2009 and 2010. Therefore, we do not have data regarding those who chose a decision year over the last two years, and more importantly, about what those who completed the decision year went on to do.

49.         The data presented by the Government shows that although a large number of young men chose to take a decision year, it did not lead to enlistment into the army, to joining the civilian service, or to entering the workforce. In practice, most of those completing the decision year were exempted from military service or returned to “Torah is their calling” status. Only a small number of those taking a decision year were inducted into the army (or transferred to the reserves pool), or performed civilian service. The numbers are not surprising considering the inherent barrier to which the decision year leads. As earlier noted, the Law permits a person to take a decision year only from the age of 22, and only following four years of deferments. A young hareidi man who begins the decision year at age 22, completes it when he is 23, when he is, as is usually the case, married, and generally the father of at least one child. In such a situation, as we pointed out earlier, the army has no incentive to recruit him, in light of the budgetary costs involved. The Government was also aware of this, and expressly stated in its response that: “as is shown by the data regarding those who choose to enlist in the army following the decision year, many of those deferred are not expected to be inducted even if there deferment ends for various reasons” (Government pleadings of 18 May 2008, p. 27).

              This is all the more so when the decision year is chosen at a later age. Because induction into the army is influenced by and related to the age of the person who has been granted a deferment, the longer it is delayed, the less the chances that he will be inducted for service. This also holds true for civilian service. While there are no formal age restrictions for joining the civilian service, the longer a person is spends in the “Torah is their calling” status (even if he took a decision year along the way), the lower his incentive to leave the arrangement and join the civilian service. Moreover, a person who takes a decision year at the age of 23 or 24 can request to enlist in the army at the end of the decision year, and in all likelihood – as the existing figures show – he will be granted an exemption from military service, and thus will also not have to perform civilian service either. If that be the case, what purpose is served by the decision year? Clearly, the decision year does not serve to realize the purpose for which it was created. In practice, the decision year may help some of the deferred men decide what lifestyle they wish to adopt, but it does not contribute to enlistment into the armed forces, the civilian service, or – it would appear – the workforce (although data was not submitted in that regard). It should further be noted that the most current data submitted to the Court relate to those opting for a decision year up to the end of 2009. In its last response to the Court, the Government did not append updated data on the decision year. Are we to understand that the Government has abandoned that track? The fact that the Government did not see fit to submit up-to-date figures on the decision year to the Court begs the question.

 

Interim summary

 

50.         What conclusion should be drawn from the analysis of the data concerning the implementation of the Deferment Law? Indeed, one cannot ignore the growing trend in the number of those enlisting into the army and joining the civilian service. The military service tracks were expanded. If, in the past, the only track for hareidi military service was the hareidi Nahal battalion “Netzach Yehuda”, there are now special tracks in the Air Force, and of late, in other branches of service, as well. These tracks offer hareidi soldiers unique professional training that does not merely prepare them for military service, but provides professional knowledge that makes for impressive integration in the labor market upon completion of that service. Together with military service options, the possibilities for civilian service were also expanded. Following the establishment of the Civilian Service Administration, extensive efforts were invested in identifying operators, and regulations were promulgated for placing volunteers in civilian service. Today, the service makes it possible to perform part of the service in national frameworks, rather than exclusively in the hareidi sector (see the statement of the head of the Administration, Sar-Shalom Jerbi, in the session of the Foreign affairs and Defense Committee on 18 January 2011, p. 29).

              However, the increase in the number of hareidi men serving in the army or civilian service notwithstanding, the overall number of those enlisting in the army or joining the civilian service is low, and it is certainly significantly lower than the number of those entering the deferment arrangement. From the figures presented by the Government, it appears that, as of January 2011, the total number of deferments stood at 61,877. The number of deferments rises steadily from year to year, and the Government estimates that some 4000 men join the deferment arrangement every year. As of 2007, the number of deferred men represented 14% of the total conscription pool of that year. It would further appear that despite the enactment of the Deferment Law and the steps taken for its implementation, the rise in the number of deferments has not been abated or halted (Government pleading of 24 January 2011, p. 20).

51.         Having examined the current data in regard to the implementation of the Law, the question that arises is whether that implementation meets the proportionality test, and whether the cumulative figure show that the means established in the Law realize its purpose. The answer requires that we address the degree of probability necessary for establishing that the means realize, or do not realize, the purposes of the Law. Is the degree of probability, as a component of the test of the proportionality of a law, dependent upon the nature of the infringed right? That question arose before this Court on several occasions in the past, in regard to various parts of the limitation clause. In HCJ 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [15] (hereinafter: the Bank Mizrahi case), President Barak suggested the possibility of creating different levels of constitutional scrutiny, in keeping with the nature of the violated right (ibid. [15], at p. 434). What that means is that the conditions of the limitation clause would be examined by the Court in accordance with the violated right and the entirety of other considerations. In that case, President Barak stated that it is “premature to determine what the Israeli rule will be as to the limitation clause, and whether our test should comprise a single level (as in Canada) or multiple levels (as in the United States)” (ibid. [15], at p. 435).

52.         Since rendering judgment in the Bank Mizrahi case, the case law has advanced quite a distance in recognizing the direct relationship between the importance of the infringed right and the required degree of constitutional scrutiny, although different from the degree of scrutiny of American constitutional law. In a series of cases, we established that the importance of the infringed right and the degree of its violation influence the overall constitutional analysis, and affect the manner in which the Court will examine each of the components of the limitation clause. This approach is based upon the view that not all rights – whether enunciated in a Basic Law or not – are of equal importance. The degree of protection afforded a right is a function of its character and importance when confronting a public interest that requires the infringing of the right. Because of the need to strike a balance between the right and the public interest that justifies its violation, the conditions of the limitation law cannot be addressed by this Court in a purely technical manner. The balancing process is directly connected to the degree of protection granted to the infringed right. The currently accepted approach in our legal system requires that the balances that are intrinsic to the tests of the limitation clause be applied to each case on its merits, in accordance with the full range of considerations, which includes, as I noted in the Menachem case, “the rationales grounding the protected right and its relative social importance, as well as the nature of the right or the competing interests” (ibid. [8], at p. 258). That approach emphasizes the scope of the Legislature’s latitude. The more important the right, and the greater the infringement, the less the room for maneuver, and vice versa. When we are concerned with rights that – in keeping with the values of the Jewish and democratic society that we maintain – are of lesser importance, the Legislature’s leeway in infringing the right will be greater.

              In that framework, we have held that that the nature of the right and degree of its violation influence the examination of the law’s purpose, in the sense that the more important the infringed right, and the more serious the harm, the more significant the public interest required to justify that infringement (see, e.g: HCJ 6055/95 Zemach v. Minister of Defense [16], at p. 262, per Zamir J. (hereinafter: the Zemach case); the Horev case [13], at p. 49, per Barak, P; the Menachem case [8], at p. 258, per Beinisch, J; the Adalah case [11], at para. 28 of the opinion of Barak, P; CrimApp 6659/06 Ploni v. State of Israel [17], at para. 30 of my opinion; HCJ 2605/05 Academic Center of Law and Business [10], at para. 45 of my opinion. And see: Barak, Proportionality, pp. 619-628). We adopted a similar approach in the Movement for Quality Government case. The Court, per President Barak, held that in view of the infringement of equality, as a component of human dignity, “the standard for examining the question of the importance of the need to achieve the underlying purposes of the Deferment Law at the expense of severe infringement of dignity, is whether the deferment of service realizes a significant social objective or a pressing social need” (ibid. [2], at p. 700).

              I similarly expressed my view that “the nature of the infringed right, its underlying rationales, and the intensity of its violation” influence the construction of the need for “express authorization” in a law, established in the first condition of the limitation clause (see: my opinion in HCJ 10203/03 “Hamifkad Haleumi” Ltd. v. Attorney General [18]; and also see: HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion [19]). We further held that the three subtests of the proportionality test “will be applied and implemented in accordance with the nature of the infringed right under review” (HCJ 1715/97 Investment Managers Association v. Minister of Finance [20], at p. 420, per Dorner, J. (hereinafter: the Investment Managers Association case)), and that “in regard to proportionality, we shall be as severe with the authority as the severity of the violated right or the severity of its violation” (the Stemka case [12], at p. 777, per M. Cheshin, J., and see: HCJ 5503/94 Segal v. Knesset Speaker [21], at p. 544, per E. Goldberg, J; the Zemach case [16], at p. 282, per I. Zamir, J; the Menachem case [8], at p. 280 of my opinion).

53.         Emeritus President Aharon Barak recently wrote about the probability test established under the first subtest in his book Proportionality: Constitutional Rights and their Limitations. President Barak suggests that where an important constitutional right is violated, the State bears the burden of showing a real probability that the means established in the law will realize its objectives, and that a low or reasonable probability of realizing the objectives will not suffice (Barak, Proportionality, p. 628). This approach expresses the view expressed by this Court in the past that constitutional scrutiny must accord with the infringed right, and represents a development in our constitutional law. The demand for a real, significant probability that the means chosen by the Legislature be appropriate to the purpose that it seeks to achieve, grounds the first subtest. This approach also reinforces the weight of the first test in relation to the two additional subtests – which are the least-harmful means test, and the proportionality test stricto sensu. The demand for a real, significant probability requires, in relevant cases, a thorough examination of the probability of the realization of the law’s purposes, which does not suffice with a reasonable or minimal possibility of realizing the purposes by the means established in the law.

54.         The infringed right in the case before us – the right to equality – has long been recognized as a fundamental right in our legal system. The right to equality has been one of the cornerstones of the Israeli system of government, even before the enactment of Basic Law: Human Dignity and Liberty. The right to equality is enshrined in the Declaration of Independence, and there are those who extol it as an overarching principle of our legal system, underlying the existence of the state as a Jewish and democratic state (see, e.g., the view of Deputy President (Emeritus) Cheshin in the Movement for Quality Government case). The central role of the right to equality has been noted in a long line of cases as “a fundamental principle of our constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [22], at p. 699, per Landau, J.). Justice M. Shamgar held that the right to equality is “a fundamental constitutional principle, incorporated and woven into our fundamental legal conceptions, and is inseparable therefrom” (HCJ 114/78 Burkan v. Minister of Finance [23], at p. 806; and see: Itzhak Zamir and Moshe Sobel, “Equality before the Law,” (1999) 5 Mishpat u-Mimshal 165 (Hebrew); HCJ 869/92 Zvili v. Chairman of the Central Elections Committee for the Thirteenth Knesset [24], at p. 707; HCJ 1703/92 K.A.L. Kavei Avir Lemitan Ltd. v. Prime Minister [25], at p. 229; the Miller case [14], per Dorner, J; HCJ 4124/00 Arnon Yekutieli (deceased) v. Minister of Religious Affairs [26], paras. 35-36 of my opinion). The right to human dignity is also recognized by our legal system as a constitutional right since being incorporated into Basic Law: Human Dignity and Liberty. Human dignity “is the factor that unifies human rights” (the Movement for Quality Government case [2], at p. 681, per Barak, P.). The right to human dignity imposes both positive and negative demands upon governmental authorities – the duty to refrain from infringing dignity, and the duty to protect it (see: Aharon Barak, “Human Dignity as a Constitutional Right,” in Haim Cohn & Itzhak Zamir, eds., Selected Essays, p. 417 (2000) (Hebrew)).

              Indeed, the right to equality and the right to human dignity, along with several other rights, are worthy of the broadest protection of our legal system. That is surely the case when we are concerned with a violation of equality in the fulfillment of the most basic duties in Israeli society, and in sharing the burden borne by citizens who devote body and mind, and the bloom of youth to ensuring the safety of Israeli society. Opposite the need to safeguard equality stands a social interest that, inter alia, the Law seeks to promote. In the case of conscripting yeshiva students, the social interest has become complex, and we were, therefore, of the opinion that characterizing it was clearly a matter for the Legislature. In view of the difficulty in finding a solution to the problems arising from inequality, in defining the necessary considerations and in evaluating their relative weight, we were prepared, in the Movement for Quality Government case, to recognize the “significant legislative latitude” granted to the Knesset (ibid. [2], at p. 704 per Barak, P.). We noted that this is clearly a social-policy question that must be addressed by the Knesset, but we emphasized that the public interest does not exist in a vacuum. We therefore held that the purpose established by the Knesset would be proper if it realize a significant social objective or a pressing social need (ibid. [2], at p. 704). As stated in that decision, we left the question of whether the means established in the Law were suited to realizing its objectives for examination at a later date.

55.         At the present stage of examination, and bearing in mind the status and importance of the rights concerned, the degree of probability required to show a rational connection between the means and the objective must be real and significant. In other words, it is not enough that we find that the means established in the Deferment Law may realize its underlying purposes to some particular degree. Such a level of probability would not reflect the level of protection that our legal system grants to the rights that are the focus of the case before us. Therefore, a higher level of probability is required, which will indicate that the means chosen by the Legislature have a real and significant potential for realizing the Law’s objectives. We have reached a point where we are no longer speaking of conjecture. We are not examining the Law prior to its implementation by the Executive, when the possibilities for realizing its purposes are merely educated guesses. The Law has been implemented for some time. At this point, we must examine that implementation over the years since its enactment, and assess the probability that the means chosen for its implementation will lead to the realization of its purposes. Those purposes are, essentially, to bring about the induction of thousands of young men into military service, or at least into civilian service that constitutes an appropriate alternative to military service, and to promote the integration of those young men into the workforce.

56.         A comprehensive examination of the data regarding the various tracks set out in the Law – individually and cumulatively – leads to the unavoidable conclusion that the means established in the Law have not realized its purposes, and cannot do so with any real degree of probability. The implementation of the Law over the course of the lengthy trial period afforded it so far has shown that the Law comprises inherent impediments that exert considerable influence upon the possibility of implementing it, to the point of impairing the possibility of realizing its purposes. Those obstacles would prevent the realization of the purposes of the Law even if the authorities responsible for implementing it worked diligently – which has not entirely been the case over the years that the Law has been on the books. After nine years, the State was required to show significant realization of all the purposes of the Law together. Trends or developing processes, as important as they may be, are no longer sufficient. Can it be said, after nine years, that the induction of 898 hareidi men (of whom, some four hundred are drop outs), and the enlistment of 1,122 others into brief, vague and undefined civilian service from out of a total of 61,877 who were granted deferments constitutes a realization of the Law’s objectives? Can a situation in which most of those taking a decision year are exempted from military service or return to “Torah is their calling” status, and are not integrated into military service or its alternatives or into the labor market be seen as the realization of the Law’s objectives? Can we discern a realization of purposes when many more young men enter the “Torah is their calling” arrangement than any of the service tracks provided by the law? By any standard, an examination of these numbers reveals no real change in the situation. Indeed, we understand that we are concerned with a complex social process. No one denies that time is an important factor in that process. Nor does anyone deny that we cannot suffice by looking at the current picture alone, but rather we must consider the process as a whole, and the process does testify to some progress in the framework of the attempts to implement the Law. However, a more significant trend toward realizing the Law should have been apparent after the substantial period of time that passed since its enactment, but it was not. Most of the actions taken to implement the Law were too little and too late. Some were instituted suspiciously close to the dates of the proceedings before the Court.

57.         The main problem with the Law is not merely a result of failures in its implementation. The low enlistment numbers, the abject failure of the decision year, and the fact that the Law is entirely dependent upon the desire of the Executive to implement it, and if so, how, all testify to failures that are inherent to the law itself. As long as the Law does not establish standards or goals for its implementation, the realization of its purposes are entirely at the mercy of the Executive, which is free to choose if and how to implement the Law. The Executive can take decisive action to implement it, allocate resources for implementing only specific parts of the Law, or offer various incentives to the agencies responsible for implementing the Law. By the same token, the Executive can adopt a do-nothing policy, and render the Law a dead letter. The broad discretion granted the Executive, on the one hand, and the freedom of choice that it grants to those whose service is deferred, on the other, show the arrangement to be wanting. While it is not disputed that the implementation of every legislative act is dependent upon the relevant agencies, as part of the reciprocal relationship between Executive and the Legislature in a democracy, it would seem that the division of power between the two branches of government is blurred in the Deferment Law to the point that the Executive holds the power to eviscerate the Law.

58.         As we see above, two salient characteristics of the Law decrease the probability that the means it establishes will substantially contribute to realizing its underlying purposes. First, the law permits an “automatic” four-year deferment from age 18 to age 22. Both special tracks created by the Deferment Law – the decision year and civilian service – are relevant for yeshiva students from age 22 and up. The special military tracks (the Shahar tracks) are also intended for deferred men over the age of 22. The very fact that the Law establishes that the service tracks commence only from age 22, and no earlier, means that most of the deferred men will arrive at the enlistment crossroad when they are married, and when many are the fathers of at least one child. The army’s ability to absorb such recruits is significantly reduced by the increased costs associated with paying family stipends. As a result, those young men are directed from the outset to the civilian service, which is shorter and “cheaper” for the State – assuming they have not chosen to remain in the “Torah is their calling” arrangement. Should we not conclude that the Law comprises an inherent impediment to military service? Does this not contradict the Law’s purpose to advance equality in sharing the burden of military service, in the sense that more hareidi men will perform military service, or at least meaningful civilian service? (see: the Movement for Quality Government case [2], at p. 700).

59.         Secondly, the Law places the choice among the Law’s tracks entirely in the hands of the yeshiva students. A young hareidi man between the ages of 18 and 21 can choose between a deferment or enlistment for military service. At age 22, that same young man can choose to continue his deferment or to enlist in the army or join the civilian service. That young man can also choose to take a decision year, at the end of which he will be presented with precisely the same choices. Additional possibilities for choosing were granted to that young man by the Government’s decisions and the conscription directives. Those choices are almost limitless. They are not contingent upon the young man’s family status or his military profile. They do not depend upon the number of years that he deferred his service, or upon what he did in the course of the decision year. Furthermore, these possibilities do not lead to a duty to perform any service at any stage. The young man can defer military service for a number of years, at the end of which he will be exempted from military or civilian service. It should be superfluous to point out that this structure of the Deferment Law presents a mirror image of the situation of non-hareidi youth. Those youngsters are not free to choose whether or not to serve in the army. They are under a legal duty to serve in the armed forces, and the possibilities for fulfilling that duty by means of civilian service are of limited, marginal scope.

              Undeniably, one of the purposes of the Deferment Law was the creation of an arrangement that would not require coerced conscription. We recognized that as a proper purpose that reflected the desire to create a social arrangement based upon compromise and striking a balance between the needs of the different communities. However, in the absence of an element of obligation, implementing the Law and realizing its purposes are not dependent exclusively upon the Executive will, but also, and perhaps primarily, upon the will of those granted deferments. Even if the Executive provides the necessary resources, it will not guarantee a significant enlistment of hareidi men, unless the tracks include some element that would encourage joining them. Such an incentive is nowhere to be found in the current Law, nor in the steps taken for its implementation.

60.         Moreover, the Deferment Law does not comprise criteria for granting exemptions from military service, and it does not establish enlistment goals for military or civilian service. The Law establishes no intermediary frameworks for evaluating progress in its implementation, and it lacks any means of supervising that implementation. Absent from the Law is any requirement of meaningful service – of any kind – for all. What all this means is that the desire of the yeshiva students to opt for one of the Law’s frameworks is the decisive factor in the implementation of the Law. Under such circumstances, and in view of the data presented to us, it would be difficult to find that the means established in the Law actually realize its objectives, or that there is a real, significant probability that they will realize its objectives in the future. While the enlistment of several hundred members of the hareidi community represents a certain change in relation to the situation a decade ago, the number of deferments – which become exemptions – increases from year to year, and that number currently stands at 60,000. That means that the declared purpose of the Law cannot be realized under the present conditions, despite the Government’s decisions that attempted to breathe life into it. We should recall that those efforts, to the extent that they were made, were primarily intended to integrate the deferred men into the workforce – an important purpose in and of itself – which does not address either the problem of military or civilian service.

61.         In light of all the above, it would appear that the flaws that led to the current situation are inherent to the Law itself, or as termed in the Movement for Quality Government case, they are “genetic” flaws (ibid. [2], at p. 712) and not administrative flaws related to the manner in which the Executive implemented the Law. The conclusion is that the Deferment Law does not pass the proportionality test under the first subtest. In other words, the means established by the Law cannot realize its purposes, and it has become a tool for perpetuating the situation that existed prior to its enactment. In light of that conclusion, there is no need to apply the two other subtests. The result is that the Deferment Law does not meet the conditions of the limitation clause.

 

Consequences of the illegality of the Deferment Law

 

62.         The above requires that we conclude, after a journey that has taken several years, that the Deferment Law does not meet the proportionality requirement of the limitation clause and is, therefore, unconstitutional. The practical result of this conclusion is that the Deferment Law is declared void, or in other words, looking to the future, that it cannot be extended in its present form.

              Along with this declaration, we must take into consideration the fact that the Deferment Law was enacted as a temporary order. The Law, which was extended a second time by the Knesset, is slated to expire on 1 August 2012. In view of the fact that many arrangements were made in accordance with the rules established by the Law, and bearing in mind that we may assume that many people planned their lives in accordance with its provisions, I would recommend to my colleagues that the declaration that the Law is void be held in abeyance, and that we allow the Law run its course. This period will allow the Legislature time to weigh our comments, and enact a new arrangement that will take into account this judgment, as well as the prior judgments in the Ressler case, the Rubinstein case, and the Movement for Quality Government case, which formed the basis for enacting the Deferment Law, and for formulating an arrangement that addresses the matter in its entirety.

63.         We did not come to this decision easily. We are aware that along with the flaws in the Deferment Law, and along with the difficulties that arose in its implementation, Israeli society – and its hareidi component – have come a long way. It would appear that among various social strata and sectors of society – even among the hareidi population – there is a growing awareness that hareidi youth can be integrated into Israeli society, while preserving the religious, social and cultural values of the hareidi community, and respecting its religious values and lifestyle. Indeed, increasing numbers of hareidi men and women are seeking higher education and entering the workforce. There are also young men serving in the armed forces and in the civilian service frameworks, although the numbers remain far from reflecting social change. Nevertheless, the essential gap remains insofar as inequality in regard to military service and refraining from sharing equally in civic duties.

              Communal life in a society requires shared values and mutual respect. The recognition of the right of a unique group to preserve its lifestyle, culture and religious faith is accompanied by the aspiration toward an equal division of responsibility for advancing the shared interest in maintaining a cohesive Israeli society. Equal sharing of responsibility does not necessarily imply that everyone contributes in the same way and to the same extent. As my colleague Justice E. E. Levy expressed it: “Human society, even in a free, democratic state, is not egalitarian in the sense that each and every individual makes an identical contribution. The use of resources is also not identical” (the Movement for Quality Government case [2], at p. 783). Equally sharing the burden requires that there be egalitarian arrangements and apparatus that assess the individual’s ability to contribute in ways that are consistent with his talents and lifestyle, and as far as possible, his preferences. The Deferment Law purported to provide such an arrangement that could strike a balance among the various groups, interests and rights, and bridge the conceptual and religious differences without detracting from the need for an equal distribution of the burden, to the extent possible. The Law attempted to provide solutions to a complex problem. The Court was willing to permit testing its implementation over an extended course of time in order to ascertain whether the proposed solutions would mitigate the infringement of equality, and realize the provisions and purposes of the Law. In the end, the test of time proved that the Law did not realize its underlying purposes, and in practice, it primarily entrenched the pre-existing deferment arrangement. There was no meaningful change in the number of those opting for the constructive solutions that the Law provided for leaving the deferment cycle, and no formula has yet been found for abating the rapid growth of the deferral pool.

              For years, the Court acted with restraint in abstaining from drastic solutions in order to allow the development of social processes in hareidi society itself, which might lead to bridging the gap between the communities. The increasing number of deferments raises questions as to how we arrived at this point. The “Torah is their calling” arrangement influenced not only the number if deferments, but also nourished internal processes within hareidi society. In view of the ban upon going to work, the situation has become one in which most hareidi men do not work for a living, and poverty is widespread. Reliance upon government stipends grew significantly. In the absence of any limit upon the number of men who could be granted deferments, their numbers grew at a dizzying pace. As a result, the social reality changed beyond recognition. The character of the deferment arrangement changed from a privilege granted to a unique minority to a rampant phenomenon that knows no bounds. The number of deferred men relative to the overall draft has grown significantly. If once we were concerned with a small, defined group of scholars wholly devoted to the study of Torah, today the numbers account for over 14% of the conscription pool of any given year, and the numbers are growing. If the increase in the number of deferments is not halted, their number will double within a decade. Such a situation engenders a sense of injustice arising from the inequality that has spread among various social strata, and that widens social gaps and increases alienation among the various sectors of Israeli society. In addition to all of this, the dangers that have threatened the security of the state since its inception have only increased the practical need for inducting yeshiva students into military service.

              As President Barak stated in the Ressler case, “quantity makes a qualitative difference” (ibid. [3], at p. 505). Over the years, Israeli society endured the blanket deferments, as long as the number was limited to a small group. But a society’s tolerance for a situation in which a particular group is exempted from a universal duty is limited. Recognition of the importance of protecting community, religious and cultural rights is part of our democratic culture, which views such rights as worthy of protection. However, the protection granted such rights is not absolute. The need to maintain society requires balancing those rights against the State’s obligation to ensure equal treatment in civic life. That cannot be seen in the Deferment Law. Its arrangement constitute – for the most part – a mirror image of the arrangements that apply to non-hareidi youth. The Law was enacted in the hope of sparking a social process that would lead hareidi youth to choose to perform military or civilian service without coercion or the imposition of any obligation. That hope was in vain.

              In the Movement for Quality Government case, we pointed out that this complex social problem could not be resolved solely by coercion. Clearly, accountability, social responsibility and the desire to share society’s burdens cannot be achieved by legislation alone. Laws can ensure public order, encourage conduct that the Legislature deems necessary, and prevent an individual or a governmental agency from acting in a manner that harms other individuals or society as a whole. However, while accountability and social responsibility are not solely the result of legislation, laws can encourage or retard their growth. Resolving the social situation created by years of exemption – for all practical purposes – from military service is a complicated task. The data that we now possess make the task easier. The Deferment Law was tested over a period of time that was long enough to provide the Legislature with information about the more and less efficient methods for solving the problem. This information is vital to formulating a new legal arrangement that will take account of the flaws discovered in the Deferment Law.

64.         In consequence, the Deferment Law must be determined to be legally void. In light of the fact that the Law was enacted as a temporary order that will expire on 1 August 2012, we see no need to declare it void. The result is that the Law will remain in force until its expiry on 1 August 2012, and the Knesset will not be able to renew it in its present form. The Knesset will have to create a new arrangement, which can be based upon the framework established as part of the Deferment Law, but that takes into consideration what has been held in this judgment. In this regard, the Knesset will have to consider the flaws we noted, which derive, inter alia, from the lack of guidelines, criteria and goals for its implementation, as well as the fact that the Law comprised no obligatory element of service (neither on the basis of age, nor on the basis of fitness for service, and it did not require an alternative of civilian service or integration in the workforce). In correcting the flaws that we found in the Law and adapting it to its purposes in light of the lessons learned from its implementation, the Knesset can also make use of the findings in the public reports, such as the Interim Report and the conclusions of the Plesner Panel, which were presented to us as part of the Knesset’s response to the petitions before us. We would again emphasize that legislation that perpetuates gaps and flaws in equality of the scope revealed in the current situation cannot stand.

 

Postscript

 

65.         After writing the above opinion, I read the opinions of my colleagues Justice E. Arbel and Justice A. Grunis. As regards the opinion of my colleague Justice Arbel, it would appear that our fundamental views are not far apart. We disagree on the question of whether the pace of implementation of the Law is adequate and suffices to pass the proportionality test, considering the length of time in which the Deferment Law was in effect. In the opinion of Justice Arbel, the recent developments show a possibility for such change, and we should, therefore, wait for some additional period before examining the realization of the Law in practice. In my view, the data that we currently have, which reflect the implementation of the Law over a ten-year period, are sufficient to demonstrate the existence of inherent impediments and flaws, which we characterized as “genetic” flaws in the Law, and if they are not repaired, then the Law cannot realize its combined purposes. I take that view, even though I do not deny that there has been some positive change in the implementation of the Law.

66.         Like my colleague Justice Arbel, I, too, believe that reducing the inequality in sharing the burden among the various sectors of society is a protracted process. I am also party to the view that the complexity of the issue, and the intense emotional responses that it engenders, directly affect the complexity of the process and the method for its resolution. It is for these reasons that in the case before us, and in the proceedings that took place over the years, the Court maintained the position that unilateral, coercive steps should not be taken against any of the parties, and that it would be doubtful whether such steps could resolve a long-standing, fundamental debate concerning social values. On this, I have not changed my mind.

67.         The Court’s decisions in the Movement for Quality Government case and the other petitions that came before us demonstrate this Court’s restraint and moderation over the years. Although more than nine years have passed since the Law was enacted, we did not hurry to decide upon its constitutionality on the basis of its actual implementation. Although the data presented to us were hardly satisfying, to put it mildly, we preferred to grant the State additional time to realize the Law’s purposes. This judgment is handed down only following that additional, lengthy period for observing the realization of the Law’s purposes. We are now at the close of the first decade of the Law’s implementation. That is no trivial matter. It constitutes a significant period of time, in addition to the long years during which the matter was examined by all the relevant parties. In my opinion, it represents a sufficient period for addressing the central question raised by this Court in the Movement for Quality Government case: Does the Law comprise inherent impediments that prevent the full realization of its purposes? That is a purely legal, constitutional question. As I explained at length in my opinion, I believe that the answer is yes. There is no need to reiterate, and I will only briefly mention the difficulty raised by the decision year – which does nothing to contribute to choosing one of the Law’s tracks; the almost unlimited choice granted to hareidi youth; the broad discretion granted to the Executive in regard to implementing the Law, and in the manner of its implementation, including the emphasis that has been placed upon realizing one of its purposes at the expense of the others; and the need to contend with the unavoidable budgetary consequences of the Law’s arrangements. These impediments thwart realizing the Law, and correcting them may ensure that implementing the Law will not be contingent upon good will. I discussed the numerical data at length in my opinion. I was not convinced that the figures were satisfying in view of the extended period that had elapsed since the enacting of the Law. No doubt, the numbers indicate a trend, but at this stage, a trend is not enough. Even if there is an annual rise in the number enlisting in the army or civilian service, there is an analogous, continuous rise in the number of those joining the ranks of the “Torah is their calling” arrangement, and the proportion of people receiving deferments continues to increase. What that means is that, in practice, the Law did not bring about any significant change.

68.         I would add that a meaningful analysis of the data also requires an examination of the quality of service. The pursuit of an equal sharing of the burden is not merely a technical or formal matter. One can, of course, point to impressive conscription statistics when a service track of merely three months is offered. But it would be hard to say that such military service is equivalent to the three years that are required of anyone who is not hareidi, or even to service for the 16 months period offered to some hareidi men who choose to enlist. The same is true in regard to civilian service. It is clear that the civilian service track has become the primary service option for young hareidi men who choose to leave the “Torah is their calling” arrangement. This track, too, must be examined in terms of substance rather than solely on the basis of numbers, as one cannot speak of equally sharing the burden if the civilian service is performed within the community, unsupervised, and in some cases – as detailed in the State Comptroller’s Report cited in para. 44 of my opinion – over the course of a few days or on weekends alone.

69.         I now turn to the opinion of my colleague Justice Grunis, who is of the view that the matter is not suited to Supreme Court review. According to Justice Grunis, the Court should refrain from considering the constitutionality of the Deferment Law, inasmuch as the Law is intended to grant preferential rights to a minority. This approach also formed the basis of his opinion in the Movement for Quality Government case.

              President Barak, who wrote the main opinion in the Movement for Quality Government case, addressed the difficulties inherent in a theory of constitutional review that seeks to justify refraining from the review of laws in which the majority grants preference to a minority (see: the Movement for Quality Government case [2], at pp. 717-721), and there is no need to repeat what he wrote there. I will only remark upon a number of problematic points raised by the approach.

70.         First, underlying the approach of Justice Grunis is the assumption that the purpose of judicial review is to ensure the propriety of the political process. Indeed, judicial review is intended, inter alia, to ensure the propriety of the political process, protect against the violation of minority rights by the majority, and ensure that the majority does not wrongly exploit its power. But it does not end there. Judicial review is not limited to the narrow view of democracy as simple majority rule, and extends to the conception of democracy as a regime that protects fundamental human rights. That is the primary lesson learned after the Second World War, and it has been internalized in the constitutions of many states. Ensuring the democratic process is not enough; the essence of democracy, as expressed by the protection of human rights, must also be defended. That protection is not limited to situations that target minorities.

              Second, I think it doubtful that the approach presented by my colleague is appropriate to the Israeli political reality. In Israel’s coalition reality, ensuring the propriety of the democratic process – in which framework the majority’s desire to grant preferential rights to the minority is examined – takes on special meaning. In a political system composed of a large number of parties, and in which small parties play a decisive role, can one speak in the simple terms of a majority-minority relationship? In what situations can we state that the majority grants preference to the minority of its own volition? There would appear to be no more instructive example of the difficulty of the distinction between minority and majority rights than the matter before us. In terms of the factual background, it is no secret that the entire history of the deferment arrangement reflects coalition imperatives in which a majority surrendered to a minority, inter alia, for interests of coalition politics. In such circumstances, it is difficult to identify what represents an expression of the majority will, and what constitutes coercion.

              Moreover, the approach suffers from significant problems in its application. Under what circumstances should we say that a majority has granted preferential treatment to a minority? What are the criteria for distinguishing majority and minority groups? Should the distinction be numerical? Should it be based upon the ability to compete successfully in the political process? Should it be based upon social, economic or political standing? Can a group be deemed part of the majority in some circumstances, but as belonging to the minority in others?

              Third – and this is the main issue – constitutional review of the violation of rights concerns people as individuals. As a rule, the fact that many are affected by some governmental conduct – and the fact that they constitute a majority of society – does not free the Court from examining the constitutionality of the violation of rights. Constitutional law focuses upon the constitutionality of the violation, and not upon the identity of the victim. The fact that the person whose right have been violated is a member of a particular group is not relevant to the question of whether constitutional review is warranted, but rather to the character of that review and the scope of the latitude that will be allowed the Legislature.

71.         Lastly, my colleague raises the fear that our current decision in these proceedings will lead to a future petition asking that we revisit the issue. In his view, “in the absence of any real progress as a result of judicial intervention, this Court’s continual involvement in the issue of hareidi conscription certainly does not contribute to the Court’s prestige”. I cannot accept that. First, factually speaking, I do not believe that one can say that there has been no real progress. Since the Court began examining the deferment arrangements, the matter has been addressed by legislation, and hareidi men have begun performing military and civilian service. Too a certain extent, the Court’s involvement served as a catalyst for the legislative process. Second, in matters such as that before us, founded upon ideological differences between different elements of society concerning values, we cannot expect that the issues will be resolved by the stroke of a single judgment – if such issues can actually be fully resolved.

              It is generally understood that the Court does not purport to bring about complete social change, but it is certainly one of the most important social agents for advancing the process of change. The Judiciary, in Israel as in other democracies, is one of the branches of government, and it has the potential for employing the tools at its disposal in resolving – even if that resolution is gradual or only partial – social strife. The Court’s contribution to resolving social rivalries is not always clear or immediate, and occasionally, Court proceedings and decisions stimulate a range of social processes, which are sometimes different from those sought in the petitions before it (and cf., in regard to the diverse influences of the monumental decision in Brown v. Board of Education [52], Martha Minow, In Brown’s Wake: Legacies of America’s Educational Landmark (2010), esp. pp 5-33). Indeed, the complexity of the dispute before the Court wholly influences the nature of the Court’s involvement, and the scope of its influence in resolving the issue, but that complexity should not, itself, lead to the conclusion that the Court should refrain from addressing the social issue. Therefore, I see no problem presented by the possibility that the Court may be called upon to address the issue before us again in the future, if there be constitutional legal grounds.

 

Conclusion

 

72.         As stated, the Deferment Law was enacted as a temporary order. It will soon expire. We now have an opportunity for retrospection, and for carefully examining its provisions. The very essence of legislating a temporary order is its impermanence and the need to revisit, and yet again reexamine whether the law is consistent with its purposes against the changing reality, and in light of its actual implementation. In my opinion, I pointed out the existing flaws in the law. Those flaws can and must be corrected before the Deferment Law expires.

              As stated, I am aware that if my opinion is adopted, the natural course of events may again lay the matter at our doorstep. That is not to be feared. The social processes are already afoot. We no longer stand where we were thirty or forty years ago. The Court was a partner to the processes that resulted in the enactment of the Deferment Law. The abrogation of the Law does not mean that we return to square one. The changes cannot be undone. The current objective is to correct the flaws that have been found in the current arrangement.

73.         Before concluding, I would note that the writing of this decision began long before the issue returned to the public agenda with the force that we now witness. The public debate, as I earlier noted, cannot prevent us form examining the legal aspects of the arrangement before us, while we strive to remain within the bounds of our authority, and to ignore the winds blowing about us. As required by the Deferment Law, and in view of its expiry in half a year, the matter now passes to the Knesset for debate, and it is its job to enact a law that will take into account the need to repair the flaws that we have indicated in the course of this judgment.

              In conclusion, if my opinion is accepted, I would recommend that my colleagues order that the Deferment Law remain in force until its expiry on 1 August 2012, and that it not be extended in its present form.

 

The President

 

Justice M. Naor:

 

1.           I concur with the opinion of the President.

2.           I would like to comment briefly upon the opinion of my colleague Justice Grunis. Justice Grunis foresees two scenarios: Under the first scenario, if the Knesset fails to enact a new law as a result of our judgment, then hareidi men will be required to serve in the armed forces, although few Israelis expect a mass conscription of yeshiva students into the ranks of the IDF, and a new petition will be required to coerce conscription. Even if such a petition is granted by the Court, my colleague believes that it will not lead to conscription. Under the second scenario, which he deems the more realistic, if a new law is enacted in an attempt to repair the flaws in the current law, a petition challenging the new law can be expected. In this regard, my colleague states that “in the absence of any real progress as a result of judicial intervention, this Court’s continual involvement in the issue of hareidi conscription certainly does not contribute to the Court’s prestige. Moreover, we delude ourselves if we expect that judicial decisions will lead to the conscription of hareidi men into the IDF, and to their integration into the workforce. Social and economic changes may lead to the desired result. The Court has little influence in cases like the one before us.”

3.           I would like to state clearly that the fear that Court orders will not be enforced is, in my view, misplaced, and certainly not one that we should countenance. The State of Israel is a state under the rule of law. In the State of Israel, the fear that orders will not be executed is unjustified. The rich experience of our judgments, even regarding difficult, complex and sensitive matters, is proof enough. Indeed, attempts to frustrate Court orders are doomed to fail. As this Court has already had opportunity to note in regard to the famous Brown decision, “such attempts at frustration are ultimately doomed to failure in a state under the rule of law, even if only at the culmination of prolonged legal proceedings. Indeed, it is a truism that justice and equality – even if delayed – will ultimately prevail” (HCJ 1067/08 Noar Kahalacha Assoc. v. Ministry of Education [27], at para. 14; on Brown, see Brown v. Board of Education of Topeka [52]; On the book Gerald N. Rosenberg, The Hollow Hope, 2^nd ed. (2008), see the review of Prof. Gad Barzilai, “Courts as Agents of a Social Change?” in Neta Ziv & Dafna Hacker (eds.), Is Law Important? (2010) (Hebrew)).

4.           My colleague is of the opinion that repeated consideration of the issue of hareidi conscription without achieving real progress as a result of judicial intervention does not contribute to the stature of the Court. In my opinion, what little progress that has been achieved – and first and foremost, the attempt by the Knesset and the Executive to address the issue in primary legislation – is directly attributable to the intervention of this Court. For decades, this Court practiced careful restraint, as we do again today. In today’s judgment, this Court does not issue a final order instructing the Executive to draft all the yeshiva students at once. Under these circumstances, it would seem to me to be inappropriate to speak of the failure to execute an order that has not yet been issued, or of harm to the prestige of the Court as a result of such non-execution.

5.           In conclusion, I am not of the opinion that the Executive branch of the State of Israel would refrain from enforcing judgments. In any case, our job is to decide the law and rule accordingly. In my view, there is no need to wait any longer. There is also no need to refrain from intervening. Therefore, as stated, I concur with the opinion of the President.

 

Justice

 

Justice E. Arbel

 

“The Deferment of Service Law deals with one of the basic problems of Israeli society, which cannot be resolved by the stroke of a pen; its concern is with a sensitive matter that requires understanding and agreement; it seeks to provide solutions that are neither easy nor simple”

(Justice Barak, HCJ 6427/02 Movement for Quality of Government in Israel v. Knesset [2] (hereinafter: Movement for Equality of Government case).

 

The subject of the deferral of service for Yeshiva students for whom “Torah is their Calling” in its various incarnations has been on this Court’s table for many years. On all of the occasions that the Court addressed this subject it instructed itself to conduct itself with restraint and caution, in its awareness that the issue is located on one of the most sensitive seams of Israeli society, perhaps the most sensitive of them all. The Court’s self-imposed decree of caution and restraint was assumed while monitoring the “snail’s pace” processes taking place in the complex reality of Israeli society, in the hope of reaching the most consensual solution for all the world outlooks and life styles.

1.         In her opinion, my colleague, President Beinisch presented a broad review of the unfolding of events from the introduction of the arrangement for a deferral from military service in 1948, through to the petitions that attempted to challenge the legality and the constitutionality of the arrangement in the Ressler case (HCJ 910/86 Ressler v. Minister of Defense [3] and the Rubinstein case (HCJ 3267/97 Rubinstein v. Minister of Defense [1], in the wake of which the Knesset passed the Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law, 5762-2002) (hereinafter – Deferment Law, or the Law) and culminating in the ruling in the Movement for Quality of Government case, which adjudicated the constitutionality and the proportionality of the Law. In the last case the Court refrained from declaring that the Law was unconstitutional, and decided to wait until the termination of the Law’s period of validity, which the Knesset had set at five years. After that period the Knesset would have to determine whether the Law had actually realized its objectives. It ruled that “Unless there is a substantive change in the results of the Law’s implementation, there will be grounds for considering a declaration of its invalidity” (at p. 714). After the passage of five years and after hearing the positions of the professional bodies, who argued that at issue was a process of integrating and implementing a substantive social change which requires time, the Knesset extended its validity for an additional five years, until 1 August 2012.

            Against this background, the petitions before us were filed, being rooted in the question of the proportionality of the Law. On 29 May 2008 an order nisi was issued, and on 8 September 2009 a decision on the petitions was handed down (by Justice Hayut), ruling that before making a final decision upon the constitutionality of the Deferment Law, its mechanisms “which have only just begun to take shape and begin to operate” should be enabled “to prove their effectiveness or ineffectiveness by their results over an additional, fixed period”. (para. 9 of Justice Hayut’s decision). Accordingly, this Court fixed a period of an additional 15 months, after which the hearing of the petitions would be renewed; now the time to decide has arrived.

            At the end of her comprehensive judgment, my colleague the President concluded that the Deferment of Service Law is unconstitutional because it fails to meet the proportionality requirement of the limitations clause in Basic Law: Human Dignity and Liberty, and should therefore be voided. On the other hand, the President suggested deferring the declaration of annulment and allowing the legislature to complete the period scheduled for the validity of the Law, thereby allowing the legislature to examine the comments in her decision and to establish a new order that took it into account as well as the previous judgments in the cases of Ressler case, the Rubinstein and the Movement for Quality of Government case.

2.         Unfortunately, I am unable to concur in the result in the decision of my colleague the President. I stride together with her along a significant portion of a long road and agree with the general principles of her opinion, which are actually a continuation of the previous decisions concerning the enlistment of the yeshiva students. All the same, I do not think that it is appropriate at this stage to decide the fate of the petition. In my view even after the extension of the validity of the Law, and in view of the trend, albeit delayed, which has been demonstrated before us, the competent authorities operating parallel to the Government should be given extra time to operate in a manner that examines whether the Law can actually promote its goals. I therefore take the view that the Court should persist in its self-decreed policy of caution and restraint which it has always abided by in this subject. I would therefore propose that at this time the petition should remain pending before this Court, while monitoring the stages of implementation of the Deferment Law, and whether it succeeds in generating the desired societal change.

3.         Before setting forth my reasons I wish to clarify that the matter is by no means is easy for me. With all my heart I identify with those who complain about the inequality and the discriminatory allocation of the burden. I too share my life with a husband who serves as a senior officer in the regular army. All the members of my family, my daughters, sons in laws – who received security prizes – and my grandchildren – served and serve in the I.D.F, motivated by a sense of commitment and desire to contribute. My heart lies with those who say: no more inequality, no more exemption from bearing the burden of military service – a duty which in my view is a privilege for those seeking to enjoy the totality of rights to which the Israeli citizens are entitled. It would have been easy for me to add my opinion to those who argue that there is a limit to the degree of tolerance that a society can bear in waiting for the narrowing of gaps that reflect a societal inequality, especially when the inequality relates to a duty that involves a risk to life. It would therefore have been easy for me to concur with my colleagues who maintain that the Deferment Law does not meet the requirements of proportionality.

            All the same, having considered and reconsidered the matter, and with a heavy heart, I have arrived at the conclusion that the Deferment Law should not be voided at this time. This conclusion is based on the numerical data, together with hope and belief. This conclusion is based on the imperative of accommodating the processes underlying the nucleus of the Law to mature and to ascertain whether the Law has lead to the desired change, to the integration of the Yeshiva students in the frameworks of military and civilian service, in the work market and in the life of the State of Israel. My conclusion is based on my impression that we have yet to reach the moment of truth and that the time to drop the curtain on the Law and declare it unconstitutional has not yet arrived. The upshot of this holding is to restore the complex, painful constitutional and social dilemma to its starting point. And what then:

 

Let me clarify my position.

 

The Deferment Law

 

4.         The process of the Law's enactment was based on the work of a committee that sat on the problem for a protracted period. The Tal Commission was requested to formulate an appropriate arrangement for the subject of the enlistment of yeshiva students into the I.D.F. In the words of the its report, it attempted to choose a mediating solution. The Commission did not ignore the principle of equality and attempted to strike a balance between it, and other conflicting interests, ruling that "commensurate weight should be given to the differences between the groups, and commensurate weight should be given to the principle of equality, so that the difference in treatment not deviate from what is compelled by the relevant differences between the groups”. The Legislature endorsed the recommendation of the Commission, and in the Explanatory Note, wrote:

 

‘The changes recommended by the Commission are intended to enable the I.D.F to absorb the Haredi population into frameworks suited to them and in parallel to enable the Yeshiva students a "year of decision" at the end of which the student is permitted to return to his Torah studies in the yeshiva or to be integrated, in accordance with the Army's needs in shorted military service or civilian service, as well as into reserve duty (Draft Bill of Military service (Deferment of Service for Yeshiva Students whose Torah is their Calling) (Temporary Provision) 5760-2000, HH 455).’

 

The legislative process was a thorough, deep and painstaking process. The Deferment Law as ultimately adopted reflected an arrangement of social compromise; its purpose was to balance and bridge between conflicting trends (see comments of President Barak in the Movement for Quality of Government case [2]. para. 54, opening phrase). This would take place in recognition of the complexity of the reality that had materialized since the establishment of the State, prompted by the need and the desire to mediate between the different sectors of Israeli society concerning a matter lying at the very heart of our existence here – military service. The Law seeks to respect the different world views and lifestyles that make up Israeli society, without compromising the need for a equal allocation of the burden carried by the citizens of the State. The Law achieves this by establishing a framework for the gradual integration of the Yeshiva students in the frameworks of military and civilian service.

 

            It seems that during that entire period it was clear to all that time would be required to generate the genuine social change that would lead to the reduction of the inequality, and that such a process could not occur immediately, but rather step by step. The understanding that a social change can only materialize as a result of a gradual process that must be allowed to take place was also the basis of this Court's decision not to pass judgment on the Law prior to the full passage of its period of validity. Justice Procaccia's comments in the Movement for Quality of Government case [2], are of particular pertinence in this context:

 

‘The democratic process is based on the recognition that it not always possible to achieve the goal of equality between different sectors of the population in reliance on absolute formulae. It relies on a deep understanding of the social reality, its exceeding complexity, and the awareness that the achievement of equality may entail a gradual societal progress for locating the points of contact between the various sectors of the population, in recognition of the depth of the gaps between world views, lifestyles, and an understanding of the roles of the state which may lead to one community being set apart from the rest of the public. It is rooted in a definition of the appropriate goal and objective and the adoption of the appropriate steps for their realization. This may entail the gradual realization of the goal without disruption all of the networks, without destroying a fragile human-social fabric and without raising an axe that may cause irreversible social damage. It may necessitate a process of building, block by block – not by denunciation and condemnation, but by adoption of a path of respect and understanding for the one who is different, always striving to come closer and with a commitment to lowering the barriers of division. The democratic process shows understanding for the variety of needs of the members of the various communities, and attempts to find the common factor and the balance between them with the aim of enabling harmonious social life. Occasionally, the social process is a long term one, involving suffering on the way, and is unable to produce significant, immediate results (ibid. [2] at p. 791)

 

5.         Almost ten years have passed since the adoption of the Law. Undeniably, this is a long and protracted period. The picture emerging from the data presented to us is that during this period the Law did not lead to outstanding social change, and certainly not to the desired equality. All the same, one can discern a clear trend of process relative to the situation that preceded the Law. Processes of this kind, by their very nature may lead to a loosing of patience and the drawing of conclusions relating to the lack of purpose in the Law. My view however is that there are various considerations, which I will presently set forth, that may lead to a different conclusion, in accordance with which, despite the passage of years, and even if more could have been done, this period of time is not sufficient to complete the complex process of integration under the Law, and hence it would be unwise to cut it short prematurely. More time is required; more patience is required, and primarily, there is a need for persistence and tenacity in proceeding along the potholed path from which Israeli society in its entirety, including all of its sectors, will emerge for the better. I am aware that this is a process that may last for years, but in my view the first buds of change are already discernible and they must be allowed to develop.

6.         In my view the veracity of this conclusion is fortified when considering the background against which the Law’s effect is being examined. Since the establishment of the State, haredi society has lived in accordance with its world view, according to its defined life style which includes, inter alia the deferment of service for the men of community, whose life revolves around studying in yeshivas. This life style is a dominant element in the self-definition of the community, and it is therefore clear that the desired change has a chance only if it is part of a long process accompanied by patience and tolerance. This is a process that must be promoted, as has been done until now in the framework of the law, gradually, and in coordination with the members of the community, in manner that does not violate their basic beliefs (per Justice Levy in the Movement for Quality of Government case [2] at p. 785). The process must be overseen with eyes that are open and perspicacious, which understands that the process is one that will not occur in a day nor even in a number of years. The need to adapt to a change is not only that of the haredi community. The conscription of the members of this community into the I.D.F. may and already has triggered various problems stemming from the tension between the army life style and the haredi life style, such as the adaption to kashrut requirements and integration into the overall fabric of the I.D.F. The success of this process likewise depends upon finding solutions to these difficulties, with caution and mutual respect. To be precise: I do not claim that the difficulties are insoluble. It can and must be done, but it must be done with common sense, sensitivity, demonstrating patience, optimism and tolerance.

 

The Numerical Data

 

7.         A central foundation of my position lies in the data that was presented to us.

In her opinion, my colleague the President examines the numbers of those who enlist to the I.D.F and civilian service from the haredi sector in relation to the overall number of those receiving deferments. Today, this group numbers 61,000 men. I would suggest a different method for examining the data because I do not think it practical to expect that the older members of the community and heads of families will, today, enlist in the Army, or even apply for civilian service. In my view we should not look to the past, but focus on the present, with our faces towards the future. Accordingly, I suggest examining the data in accordance with the number of those whose service is deferred each year from the haredi community as opposed to the annual figures of those who join the framework of military service or civilian service. In my understanding, this is a realistic examination that has consideration for the existence of a process and which anticipates a gradual progress over the course of years. An examination of the number of those joining the service each year in relation to total number of those whose service was deferred over the years, in my view, ignores the fact that the one of the purposes of the law is to "bring about a gradual solution of the difficulties that existed in the arrangement for the deferral of service for Yeshiva students, in a gradual, and cautious manner (Movement for Quality of Government [ ], para. 54 of President Barak's judgment

            In my view, an examination of the data in this manner demonstrates the beginning of an encouraging trend. From the data presented by the respondents it emerges that in 2007 the potential enlistment pool was estimated at a potential of 4,850 men. (including those expected to enlist to the hareidi Nahal battalion). Only 303 people of the haredi community enlisted in the army during that year (including the hareidi Nahal) or joined the civilian service – in other words –only 6% of the potential enlistment pool. . In 2008 on the other hand, the enlistment pool numbered about 5000 in comparison with 823 haredi men who entered military or civilian service, in other words about 16%. In 2009 the potential enlistment cycle consisted of 5500 young men, of whom 1732 men joined one or another kind of service, namely about 31%. In 2010 the potential enlistment pool stood at 5,800 men. In that year 2020 men from haredi society enlisted in the I.D.F. or entered into the civilian service, which means 35% of the numerical datum of new enlisters. Having consideration for this trend, the respondents anticipate that in 2012 about 50% of the haredן enlistment pool will join the Army or civilian service. Regarding the year 2015, the expectation is 65%. It should further be added that in updated response of the respondents of 24 January 2011 we were informed that in 2009 the number of those serving in the military stood at 1357, of whom there were 729 new recruits into different tracks (Nahal Haredi and Shahar). In 2010 there were 2048 haredi men in the Army, of whom there were 898 new recruits in the Nahal and Shahar tracks (p. 21 of the Government's response 24 January 2011

            My view is that on the face of it these numerical data reveal a certain measure of progress and an increase in the numbers of the members of haredi sector who enlist in service, and this progress was also mentioned by the President (para. 50 of her opinion). These data, along with an optimistic forecast, albeit tempered by an element of scepticism and caution, justify giving a proper opportunity to the Law to prove its ability to promote its purposes

8.         Parenthetically I will note, further to the above, that after reading the response of my colleague the President to my opinion, I find that two points should be sharpened:

            First, my view was, and still is, that the inductees into the Nahal Haredi should be included in the framework of the numerical data that serves as a foundation for the decision. The assumption is that if not for this special track these young men would not have enlisted in the army and would have joined the ranks of "those whose service was deferred", because these are not the young men who have deserted the Haredi society. As such even if the track was not created by force of the Deferment Law, it still fulfills its objectives. It bears mention that these recruits are also included in the numbers of those who express the size of the haredi enlistment pool in the data mentioned above. This being the case this datum should also be considered when examining the number of recruits from the total number of those in the pool.

            Furthermore, if we ignore this datum and ignore the datum of members of the haredi community who choose to enlist to Nahal Haredi, we will discover that the trend of integration of the haredim into any kind of service, civilian or military, becomes even more pronounced. Hence, in 2007 only 53 young haredi men joined any kind of service – army or civilian, that was not part of the Nahal Haredi, from out of the enlistment pool of that year that numbered 4600 men – which means only one percent. On the other hand, in 2010, 1652 haredi men joined the military or civil service without including those who serve in Nahal Haredi – from an enlistment pool which in that year was in excess of 5470 men, and as such represents 30%.

9.         Another point relates to the including of those who joined civilian service in the numerical data. My colleague the President analyzes the numbers and presents the percentages based on joining the military service only, without the soldiers of the Nahal Haredi and without those who join the civilian service (para. 31 of my colleague's opinion). In my view, at this stage the examination should be based on those who enlist into military service as well as into civilian service. Indeed, in order to reach full equality, all of the members of the haredi sector should enlist in the army and not suffice with national service,. which is the obligation of the majority of the other sectors of Israeli society. All the same, this Court has already recognized that the purpose of the Deferment Law is to bring more haredi men into military or civilian service, as an appropriate goal that satisfies the requirements of the limitations claused (see in Movement for Quality of Government case [2], paras. 54-55 of the opinion of President Barak). President Barak wrote as follows:

 

‘In doing so the goals of the Law are realized: It enables the deferment of service for those who so choose; at the same time many will turn to the tracks of military or civilian service. The inequality will be reduced; there will be an integration of the haredi men into the work force; these changes will occur in a gradual and cautious manner, without coercion and by way of agreement (Movement for Quality of Government [2] para. 63 of President Barak's judgment).

 

In other words, in the complex and protracted process required in the move towards full equality, it must be recognized that contributing to the State by way of civilian service will also constitute an appropriate goal, even if it does not achieve full equality.

10.       Further to the data that were presented at the time by the attorney for the state, I wish to present current data from a session of the Foreign Affairs and Defense Committee, of 23 January 2012 (as recorded from the broadcast of the Knesset channel) which addressed the issue of the conscription of haredi men, coming from statements made by relevant professional entities. These data too support my approach and likewise indicate the nascence of a positive social trend towards the realization of the objectives of the Law, a trend in respect of which the professional entities too are optimistic about its continuation.

            Professor Eugene Kandel, the head of the National Economic Council who was a member of the interoffice panel that examined the encouragement of employment and promotion of national and civilian service among the haredi public (Gabbai Commission) claimed that “The cup is still not quite so empty and in recent years has been filling up with increasing rapidity”. Professor Kandel noted the growing trend towards the integration of haredi men both in military and civilian service frameworks. For example, whereas in 2007 the numbers of haredi men that enlisted in the I.D.F stood at only 288 men, by 2011 this number had grown to 1282. Regarding civilian service, in 2007 the number of haredi men who joined was only 15 only, by 2011 the number of those who joined had jumped to 1090 men. He emphasized that the Government had achieved the enlistment targets that it set for itself until that time, and that these targets were increasing annually so that by 2015 it was expected to reach 60% of the haredi community who would join either the military or civilian service. Finally, he mentioned that in the wake of these positive trends it was also possible to discern a growing trend over the last three years of Haredi men who were participating in the work force.

            General Orna Barbibai, Head of Manpower Division, noted that in 2011 the I.D.F recruited more haredi men than planned into the various haredi frameworks. The plan was to recruit 1200 haredi men, whereas in fact 1409 were enlisted, including within the framework of hareidi Nahal. She emphasized that the army had detailed plans for the absorbing and integration of haredi men expected to enlist in accordance with the Government targets, in the coming years. She agreed with Professor Kandel that there was a discernible increase in the enlistment of the haredi men into the Army. In her view, these data are encouraging “the datum of enlistment is a blessing and we believe that it should be promoted”

            Sar-Shalom Jerbi, the director of the Civilian Service Administration, claimed that there had been a real revolution in the world view of the haredi sector with respect to service. He too pointed to the growing tendency among the haredi towards joining the Civilian Service. He stressed that as distinct from the commonly heard criticism, the haredi men who serve are not integrated in their service in the yeshiva frameworks, even though there are those who provide assistance for at-risk youth. The areas in which they serve are welfare, public health, absorption of Aliyah, environmental protection, internal security, and rescue services. He also mentioned that only 57% serve within the community and that the tendency in the administration is to enable less service within the community. Finally he referred to a survey conducted among those who had completed civilian service for haredi men, which indicated that 78% of them intended to study or to go out to work after the completion of the service.

            Dr. Reuven Gal, a sociologist, and one of the founders of the Civilian National Service, and an academic researcher claimed that according to the data, the haredi public was becoming a partner to the service at a particularly fast rate, and that there had been a jump in the numbers beginning as of 2005 and until 2011. He maintained that social phenomenon do not generally take place at such an accelerated rate. About 10,000 hareidi men joined the frameworks of state service over the past 5- 6 years, both that of the military service and that of the civilian service. He further stated that both tracks, the military track and the civilian track constitute levers for the integration of the haredi population in the employment pool. Dr Gal’s recommendation was that Law be extended for another five years, parallel to the introduction of changes in the civilian and military tracks.

General (res.) David Ivri, the Chairman of the Temporary Public Council for Civilian National Service clarified that the Administration of the Civilian National Service only began functioning in 2007, and that it must be taken into account that the initial implementation of any new legislation would take many years. In his understanding, an opportunity should be given to the existing law, which had lead to very positive developments in relation to the statistics of those serving from among the haredi sector. He related that at the beginning he had thought that the haredi sector should be compelled to enlist, with no other choice, but that having been exposed to the complexity of the society problem and the difficulties involved in its conscription enlistment, he changed his outlook on the matter. In his view, at this stage it would not be proper to impose a duty of service and the voluntary aspect of the law should be left intact.

            We can therefore see that all of the professional bodies that were present at the hearing felt that the data points to satisfactory progress that should be continued and encouraged within the framework of the existing law. Not one of the professional bodies contradicted these conclusions at the hearing

.

The Objectives of the Law

 

11.       An additional layer to be mentioned relates to the objectives of the Deferment Law, which President Barak referred to as being appropriate, in the Movement for Quality of Government case. It will be recalled that the Law has four objectives. The first is to entrench in Knesset legislation the arrangement for the deferment of service for yeshiva students for whom their Torah is their calling and who wish to study in yeshivas. The second is to bring about greater equality in the allocation of the burden of military service in Israeli society, so that more members of hareidi community are integrated into military service, or at least civilian service. The third is to increase the participation of the haredi public in the pool of employment. The fourth is to bring about a gradual solution to the problems attendant to the arrangement for the deferral of service of Yeshiva students, based on broad consensus and without coercion (see Movement for Quality of Government [2], at pp. 700- 701). In respect of these purposes President Barak ruled:

 

‘Are these purposes “worthy”. In my view the answer is in the affirmative. They are intended to integrate the Hareidi sector into the texture of the life of the State, and thus assist that sector in reducing the inequality and to arrive at an arrangement that is acceptable to all the sections of society. They are intended to engender a long term societal change, which will lead inter alia to a reduction in the dimensions of the Deferment arrangement for Yeshiva students. These purposes, in their interaction, satisfy the requirement of a proper purpose. An arrangement was established the overall balance of which is consistent with the fundamental conceptions of Israeli society’ (Movement for Quality of Government para. 55 of President Barak’s opinion).

 

Given the characteristics of the hareidi public and the lifestyle to which it has become accustomed over many decades since the establishment of the State, I think that the admixture of these objectives at the beginning of the process will differ from the anticipated admixture at the end of the process. Conceivably, at the first stages emphasis will be placed upon the objective of incorporating the haredi public in the work force, which is an objective to which there is less opposition among this public and which can be incentivized in a more significant manner (regarding the ramifications of the non-participation of the hareidi sector in the work force see the Report of the Interoffice Team for Encouragement of Employment and Promotion of Military and Civilian Service in the Hareidi Sector (hereinafter – Gabbai Committee Report). The economic straits in which many of the hareidi community currently find themselves may lead, and it would seem that it has already led to an increase in the integration of the members of this community in the work force. The nature of the work force as opposed to the characteristics of military service contributes to this. It may be added that the hareidi community is averse to the integration of its young and unmarried people in the general society given its fears of society's influence over them, which can be more profound. It is clear that the integration of the hareidi population in employment will in and of itself constitute an achievement not to be treated lightly.

            In my estimation, to the extent that the hareidi public becomes more integrated in the employment market, and all will observe, hopefully, that they can be integrated into the work force at no cost to the special character of the community, it will become easier to stiffen the requirement for the integration of members of the community into the frameworks involving more meaningful army and civilian service (see Justice Procaccia’s comments on this point Quality of Government [2], at pp. 793). In other words, the balance of proportionality will change to the extent that the process of integration continues. Accordingly, I do not think that we should recoil, at this stage, from sufficing with a requirement of a relatively short military and civilian service and from the exemption given to those of certain ages from regular service, that enables them to go out to work.

            I will again repeat that in my view the purpose of achieving equality in the allocation of the burden will not be achieved by coercion (see Movement for Quality of Government case [2], which refers to the Tal Commission Report; and also at p. 702), but only by a long and patient process. This conclusion is consistent with the fourth objective of the Deferment Law, namely, the achievement of a gradual solution based on broad consensus. Consideration should also be had for the fact that one of the objectives of the law, recognized by this Court as a an appropriate objectivee, is to legally anchor the deferment of the service of yeshiva students. As such it should be recognized that a certain part of the haredi community – which given that the purpose of equality is also part of the law, will be relatively small – will continue to study in the Yeshivot in the future without bearing the burden of military service.

 

Decision Year

 

12.       In her opinion, my colleague the President attached particular significance to the resounding failure of the decision year mechanism under the Law. I agree with her that this mechanism has not proved itself in terms of achieving the required change. All the same, the purpose of enlistment to the army or joining civilian service does not entail taking a year of decision. It therefore seems that the additional mechanisms in the Law, as well as the incentives that have and continue to be created by the Executive branch over the last few years are leading to a gradual, albeit slow change. The failure of the decision year mechanism, does not, in my view, in and of itself justify the declaration of the invalidity of the law.

 

Civilian-National Service

 

13.       The mechanism of civilian service only began to operate in 2008, after a Civilian Service Administration was established (hereinafter: the Administration) in 2007. The Administration was established in accordance with the recommendations of a committee headed by General (Res) David Ivri, appointed by Minister of Defense, and it recommended the broadening of the civilian service to include all Israeli citizens and residents who were not called up for military service or who are exempt from military service. This would be in addition to the recognition of the preferred status to be given to compulsory military service. The civilian service mechanism is a central component of the process contemplated by the Law. The Administration has only been operating for a relatively short period of time, In my view, only after the mechanism established for implementing the integration process has been operating regularly for a particular period of time, will it be possible to evaluate the Law’s degree of success in realizing its objectives.

            I have not ignored the criticism of the manner in which the civilian service is run and the absence of sufficient supervision. In any large network that begins to operate failures and difficulties are to be expected, in a manner akin to “birth pains”. These difficulties do not warrant the cancellation of the network and certainly not the cancellation of the Law in its entirety. Presumably, there will also be those from among the hareidi population who will seek to benefit from the advantages offered by the Law without conferring any real substance to the civilian service which they are committed to by reason thereof. In my view, at least at this stage, these failures must be treated, inter alia by tightening the supervision and allocation of the resources required for that purpose. Civilian service must constitute a real contribution to the society and not just lip service – a ticket into the work market. All the same, this is a far cry from a conclusion that the Law is void. I will add that the criticism of the activities of the Administration is based on the State Comptroller’s Report of 2009, and passage of time since then has – as submitted to this Court – witnessed significant changes: The Administration has contracted with an external body that assists it in all of its contacts with those who serve. Amongst other things, one coordinator has been allocated for every 45 servers, on the average and he bears responsibility for them and conducts ongoing inspections. It was explained that the coordinator visits the place of activity of each server on an average of once every two weeks. Any impropriety is reported directly to the Administration. In addition, each server is required to submit a monthly attendance report which must be confirmed both by the operating body and the coordinator. The Administration reports that cases of false reporting concerning attendance were treated with severity and some of the servers were even transferred for the treatment of the military authorities. The results of these measures and their contribution to the achievement of the aims of the Law can only be examined over the passage of time.

            I will add that yeshiva students between ages 22- 25 without children will be obligated to do either military service or civilian-military service, in frameworks such as the Police, the Prison Authority, Fire Extinguishing and medical evacuation, which can find their parallel in military service. I see importance in introducing activities that will encourage yeshiva students to turn to military service, as well as to civilian-military service. In fact, from the statistics it is evident that the existing training in the military service framework already creates this kind of incentive, given that it prepares the graduates of the track for their integration into the work market. From my perspective, consideration should be given to additional measures that will specifically incentivize the choice of the military service track, as the professional personnel may deem fit.

 

The Functioning of the Executive Branch

 

14.       Another reason for the decision that the Law is not constitutional is that the Law confers the Executive branch overly broad freedom of choice. I believe that this is a reason for judicial oversight of its implementation but not for declaring the Law to be void. The complexity of the subject before us was known to the Legislature. Understanding the uniqueness and the sensitivity of the hareidi population and recognition of the limited power of coercive measures in this context necessitated giving relatively broad leeway for actions on the part of the executive. The combination of numerous and conflicting goals in the framework of the same law also necessitated that the wording of the law be general and broad in a manner that would accommodate the infusion of substance in accordance with reality and changing conditions. For as long as the Executive acts in a reasonable manner towards the optimal execution and implementation of the Law I do not think that this reason can justify the disqualification of the Law,

            As mentioned, it seems that indeed during the first years of the Law’s existence not enough was done for its implementation and matters proceeded at snails pace. However, it seems that today the efforts have been stepped up significantly, notwithstanding that there are still additional measure that can be adopted. Accordingly, the respondents notified us that the I.D.F is busy in the establishment of new frameworks that will enable the absorption and integration of the hareidi population in an army framework. To do so a decision was adopted to increase the I.D.F budget and to designate it for that purpose. There are now a number of tracks that integrate the hareidi population (Shahar) – apart from the well known hareidi Nahal – in the Air Force, Intelligence, Computer and Communications, Navy, Technology and Logistics, Manpower and in the Home Front command. Some of these tracks were opened just recently, and it is to be hoped that they will develop and draw additional hareidi men wishing to serve. We were further informed that many new tracks are going to be opened in the near future. It bears note that in the course of the service or before it the participants undergo supplementary “practical education” as well as training in various professions. There is also the possibility of integrating in the army framework as well as the increased chances for the participants to be integrated in the work force after military service, which is also evidenced from the data indicating that about 80% of those who join the Shahar tracks integrate thereafter into the work market.

            We were further told that that the Government had decided to create an abbreviated military service track of three months duration for men aged 26 and upwards. The graduates of this track are supposed to serve as the preparatory network for states of emergency, where there are currently indications of a manpower shortage. As for the older yeshiva students, age 28 and over they are designated for the reserve duty pool. Regarding this point I will point out that even though I do not think that the latter arrangements achieve full equality, I think that in order to bring about a real change a realistic approach is required, which accepts – if only for the time being – the possibility that the possibility of integrating older yeshiva students into service is limited, and what’s more – its benefit is in doubt. This is especially so in view of the fact that the Law gives de facto recognition to the fact that not all yeshiva students will be enlisted, as mentioned above.

            In addition, the Civilian Service Administration is working diligently to increase the supply of frameworks as well as the numbers of those serving. The list of operators at the time of giving of the respondents’ reply stood at 209. Efforts are being made to publicize the civilian service track among the hareidi public, in a manner that does not provoke opposition. The Administration, as stated, contracted with an external body, part of its duties having been to supervise and conduct ongoing inspection of the activities of those serving The Government too decided upon the establishment of a civilian-military option, and we recently learned from the press about the opening of the first cycle of hareidi men serving in Israel Police as part of the civilian service. In that framework too work is currently underway to increase the incentives by way of programs that will assist the servers in integrating into work after completing their service. Apart from all of the above, the Government charged the interoffice committee established for that purpose with the ongoing monitoring of the targets it had set and the implementation of the Government decision regarding the attainment of those targets. The panel was likewise charged with examining the need to adjust the measures being taken if required, and to submit its recommendations to the Government until 1. July 2012

15.       The picture emerging from the entirety of actions underway is that the Executive is currently working for the implementation of the Law and the promotion of its goals and is even monitoring the progress and handling of the subject. Conceivably, these actions have been done at a relatively late stage, and possibly we were hoping for a different pace. Even so, in my view the aforementioned activities and its horizon leave room for hope and do not justify a determination that the Law is void In my view, these efforts, along with the data attesting to a positive trend, and having consideration for the forces attempting to undermine the trends of change, justify granting another appropriate extension to enable the continued examination of whether the trend is an ongoing one.

 

The Alternative Scenario

 

16.       As is well known when disqualifying a law, the judge is not required to demonstrate the consequences of that disqualification (see comments of the Deputy President M. Cheshin in the Movement for Quality of Government case [2] at p. 778). At the same time, in the sensitive case before us, when confronted by the appropriate goals of the Law, I think that we must be aware of the consequences of a declaration that the Law is void .

            I accept the position of the State – that the disqualification of the Law will not enhance its ability to realize its objectives, and that there is even a real chance that it will damage the possibility of achieving them. It seems to me that even those who support the disqualification of the law do not think that one day after the disqualification the much desired equality will be attained. The disqualification of a law means an upheaval. The Knesset will be required to pass a new law. One cannot rule out the possibility that this will require the establishment of an additional committee which will similarly required a significant period of time to discuss this particularly sensitive and complex issue. The Knesset will have to find another creative solution, the operation and implementation of which will likewise last a long time, and its success is not guaranteed. It may further be assumed that a committee of this kind, as well as the Knesset, will prefer to avoid an agreement the essence of which is a forcible conscription, even if only because such a move would not be effective and might well bring results that are the reverse of those that are currently confronting us. This being the case, and as much as I understand the anger and the frustration, I do not think that this process should be cut short just when it has begun to bear fruit, even on a limited scope, and in my view patience is likely to bring about the hoped for change. There is no escaping it: the Supreme Court sits among its people and when addressing such a sensitive and complex subject it must give consideration to practical matters which will make its decision relevant and not a dead letter in practical life. It is understood that if, parallel to the implementation of the Deferment Law, the Knesset deems it proper to change the Law, amend it, or enact another one in its stead, in a manner that achieves equality and sharing of the burden at a faster rate, then we will only be able to commend and bless it. As stressed by President Barak:

 

‘Of course, one can conceive of different and various solutions, reflecting different balances and different compromises between conflicting social objectives. This is a matter for the political sovereign powers. It is not a matter for the judiciary. The question confronting us is not whether other objectives or compromises could have been found, similarly, or even more appropriate. The question is whether the objectives forming the basis of law, reflecting the legislature’s perception concerning the solution of the social problem confronting it – are appropriate (Movement for Quality of Government case [2], para 56 of President Barak’s opinion.

 

The Position of the Committees Engaged in the Matter

 

17.       In terms of background, it is important to mention the recommendation of the two central committees that examined the subject of the conscription of yeshiva students, following the Tal Commission, the recommendations of which formed the basis of the Deferment Law. One of the committees is the Gabbai Committee – an interoffice committee established pursuant to a government decision of 15.July 2010. The recommendations of this committee were submitted to the Government on 19 December 2010, and were for the most part endorsed by a government decision of 9 January 2011, The committee comprised the Director General of the Prime Minister’s Office, the Head of the National Economic Council, an I.D.F representative, the Head of the Civilian-National Service Administration, as well as representatives of the Attorney-General and of the Ministry of Finance and the Ministry of Trade and Industry. The committee examined both the subject of enlistment of hareidi men into the army and into civilian service, and the integration of the hareidi sector into the employment cycle. From this broad perspective, the Committee submitted its conclusions for the implementation of the Deferment Law, positing clear and realistic targets for the service of the hareidi men until the year 2015. The Committee’s view was that these targets could be attained by the Deferment Law and it recommended the addition of service tracks, including the abbreviated service track, the combined service track and technological education track for hareidi youth. The Committee also recommended civilian-military service from age 22, the combination of professional and occupational training in various service frameworks and for appropriate funding for the Ministry of Defense in order to implement the recommendations. Finally, the Committee noted that in the event that after the implementation of all the recommendations there was still an insufficient number of servers from the hareidi sector in the I.D.F. or in the civilian service, it would be appropriate to consider a change in the system of incentives for service, which would include both positive and negative incentives.

            An additional panel that dealt with the issue was the team for examining the implementation of the “Tal Law” headed by MK Yohanan Pelsner (hereinafter – Plesner Panel). This team was appointed by the Knesset Foreign Affairs and Defense Committee and comprised six MKs from different parties. The Panel submitted an interim report on 16 January 2011, albeit without the concurrence of its two hareidi members with its conclusions. While the Panel deigned that the implementation of the Tal Law had failed, its overall position was that the Deferment Law should not be voided but rather “the policy and legislation should be changed so as to adapt the networks established therein to the positive processes that are taking place within hareidi society and the accumulated lessons regarding the conditions under which the hareidi men are enlisted into the I.D.F.” At the end of the day, the differences between the conclusions of the Pelsner Panel and the Gabbai Committee are not particularly significant. The Pelsner Panel too felt that the existing tracks in the I.D.F for the integration of the hareidi men should be broadened and new tracks established, both in accordance with the existing model and in accordance with a new perception, such as military service combined with studies in yeshiva. In addition, the Pelsner Panel felt that emphasis should be placed on the broadening of the combat tracks for haredi men. Regarding civilian service, the team felt that the Civilian Service Administration should be appended to the Prime Minister’s Office and become a body of vision and establishment of policy. It also recommended increasing the numbers of those charged with locating volunteers in the hareidi community and of bodies to absorb them; the adaption of the service frameworks to the hareidi lifestyle; the marketing of the benefits accompanying service and the accompaniment of those serving for purposes of employment placement upon become regular citizens. The Panel also supported civilian –military service for those aged 22 and upwards.

            The Government decided to conduct a system of double monitoring and supervision. The first would be by way of an interoffice term headed by the director general of the Prime Minister’s Office, to conduct the ongoing monitoring of the implementation of decisions, as well as to decide upon additional measures in view of the accumulated experience. The second would be a report submitted by the Panel until 1 July 2012, containing its recommendations to the Government, in a manner that enables ongoing monitoring and supervision.

            It thus emerges therefore that the two panels that examined the subject in depth felt that the implementation of the Deferment Law should be continued. The recommendations of the Gabbai Commission were endorsed in full by the Government, and the recommendations of the Plesner Panel are not substantially different, apart from its greater emphasis on a more meaningful combat service for the hareidi sector. Of course, this Court is not bound by the recommendations of these committees, but they can certainly be one of its considerations.

 

More on Equality

 

18.       A final matter I would like to add pertains to the principle of equality. Much ink has been spilt on the importance of equality in general and specifically in the context of the enlistment of yeshiva students whose Torah is their calling. Evidently, it is undisputed that equality is the touchstone of a democratic regime, and a central component of the relations between the individual and the state. One cannot maintain a society in a democratic state in the absence of equality, which is one of the derivatives of justice and fairness. Equality is synonymous with justice and fairness as perceived by the members of the society in any given period – equality that leads to justice, equality which represents the path of fairness. (see HCJ 7111/95 Center for Local Government v. Knesset [28], at p. 502. Regarding the yeshiva students, in a previous incarnation this Court held that the right to equality is part of human dignity, which is anchored in Basic Law: Human Dignity and Liberty, to the extent that it is tightly and substantively related to human dignity.

            Obviously, I have no dispute with my colleague the President or my other colleagues concerning the status and position of the right to equality in our legal system. Like her, I too endorse the constitutional analysis and holdings of President Barak regarding this matter as well as with respect to the remedy (Movement for Quality of Government case [2] at pp 683-685). I too share the aspiration to quality in the enjoyment of rights and bearing of obligations, and primarily in the allocation of the burden borne by the citizens of the state in protecting state security. The violation of equality in this context is grave and may cause fissures in the fabric of society, damaging the foundations of the regime. Accordingly, everything possible must be done to allay the problem with all possible speed. Even so, in my view, the reasons outlined, which justify granting additional time for rectifying the violation of the right, should be supplemented by a number of additional considerations which focus on the subject of the violation of equality.

            First, in my opinion it should be recognized that the violation of equality does not admit of immediate rectification. The shortest and most promising path to the attainment of the desired equality, is the path that currently appears to be long and arduous. As I mentioned, a declaration that the Law is void, with the aim of formulating a new law which will expedite the process appears prima facie to be a faster and easier way of attaining equality, but it is highly probable that this path will turn out to be the longer path. It will be stressed: This does not mean that what has been achieved thus far is sufficient. The holding that at this stage the violation of equality is proportionate is actually a “conditional” holding. It is based on the trend indicating progress that was presented to us by the State, supported by statistics regarding hareidi participation in military or civililan service as well as by what we have gleaned from the professional personnel that appeared before the Foreign Affairs and Defense Committee, as specified above. The State must continue to utilize the existing means, as well as to add new ones, which will encourage the continuation of the trend that was presented before us. Stymieing the trend towards an increase in the numbers of hareidi men that join military or civilian service may portend the end of the role played by the Deferment Law in realizing its objectives, which in turn would lead to the declaration of the Law as disproportionately violating the principle of equality.

            Second, as mentioned, the enlistment of the haredi sector into the army necessitates special arrangements (a special professional training network, Kashrut network etc). The integration of the haredi sector may also involve harm to other sectors, such as women, whose integration into the I.D.F is of public importance. As noted by Justice Procaccia in the Movement for Quality of Government case, the distinctiveness of the hareidi sector cannot legitimize a discriminatory arrangement, but it does compel “a gradual, multi-staged process on the path to achieving equality (at p. 790). Indeed, the I.D.F bears the complex burden of integrating the members of the hareidi community, while adjusting the service to their unique needs with tolerance and understanding. The integration and equality will via a natural process and not through coercion. In the same vein President Shamgar already stated that –

 

‘The sons and daughters of a free society, in which human dignity is a cherished value, are all called upon to respect the personal religious feelings of the individual and his or her human dignity. This must be based on tolerance and the understanding that personal religious feelings and their various modes of expression differ from one individual to another… an enlightened society also respects the beliefs and opinions of those who adhere to them with an fervor and identification that are not necessarily typical of the average person.’ (HCJ 257/89 Hoffman v. Western Wall Superintendent [29], at p. 354

 

This mission requires patience for complex and sensitive processes, while learning lessons during the integration process, and tolerance of one group towards its fellow group.

 

Conclusion and Result

 

19.       This opinion is not the end of the road, but rather one of the stones on the path. I am aware of the long road that has been traversed until now and the anticipation that at this stage the results would be more meaningful and conclusive. All the same, already now, despite the accusers, positive progress is discernible, even if in small and measured steps. That which has been achieved until now cannot be destroyed in one fell swoop, nor can the efforts invested and results achieved be treated lightly. As stated, the competent authorities operating in coordination with the Government should be granted additional time to continue in the promotion of the purposes of the existing Law. As I mentioned, a broader perspective should be taken, having regard for the point of time at which we are as part of a change in the situation that was created and that has existed since the establishment of the State. There must be a recognition of the complex societal situation and acceptance of the fact that the attainment of equality necessitates a long and slow multi-stage social process, in a search for the points of contact between diametrically opposed portions of the population separated by an abyss. There is no escaping the need to have consideration for the background of the subject and the difficulties in moving the process forward, to formulate realistic expectations that are attuned to the sensitive reality, which is splintered between world views and customs.

            As my colleague the President noted, the difference between us are not significant and we both share the same goal of promoting equality, of encouraging the enlistment to the I.D.F. and the partnership of the hareidi community in civilian service. However, as I noted at the very beginning of these comments, in my view coercion stands no chance and will achieve nothing. A declaration that the Law is void may perhaps create a feeling finally having achieved the long desired equality, but in reality the opposite is true. The disqualification of the Law will generate confusion and anger and will put a halt to the initial achievements, which cannot be set aside at the stroke of a decision. It will sever the last branch currently joining the extremes., the very same branch on which buds can already be seen and it is my hope, that from the perspective of years will sprout into the blossom of unity. Any law, whatever it may be, even if the current law is voided and a new and better law enacted as per the proposal of some of my colleagues – which I don’t see happening in the near future – must be based on compromise aimed at participation in the burden. Equality, which is at the heart of the goal, will continue to thrive only if based on the foundations already outlined. Its achievement will be via a gradual, multi-staged process that requires time, and which, so I believe will finally lead to a broader enlistment, with understanding, patience and tolerance.

            I therefore believe that we should enable and encourage the continuation of the aforementioned positive trend, in the process of continuous action and improvement of the existing means, looking towards the achievement of the goals upon which the Law is based. In my view, leaving the petition pending before this Court provided an incentive for promoting the subject and for the developments that have ensued, and which cannot be ignored. Accordingly, at this stage, the Court should continue the monitoring and supervision of the procedures relating to this sensitive and complex petition, while leaving the petition pending before us. I would like to believe that the joint service in dissimilar frameworks – army, civilian and other employment frameworks – will succeed in inculcating values of tolerance and mutual respect born out of cooperation and not coercion. I say this especially with respect to military service, which is conducted in accordance with the principles of equality and the basic values derived from the fact of it being the army of the people in a Jewish and democratic state.

20.       Upon the completion of writing this opinion, the subject of the enlistment of yeshiva students retuned to the headlines and is at the focus of public and political discourse. As judges – my colleagues and myself – despite our differing conclusions, know how to ignore and remain unruffled by the stormy winds of the hour, in our recognition of the need to beware of being dragged outside the four cubits of the law, and to decide in accordance with the best of our understanding and judicial conscience. Comments in this vein were made by President Landau, and they are pertinent to this matter too:

Yet, there is still grave concern that the court would appear to be abandoning its proper place and descending into the arena of public debate and that its ruling will be applauded by some of the public and utterly, vehemently rejected by others. In this sense, I see myself here as one who’s duty is to rule in accordance with the law on any matter lawfully brought before the court. It forces me, knowing full well in advance that the wider public will not notice the legal argumentation but only the final conclusion and the appropriate status of the court, as an institution, may be harmed, to rise above the disputes which divide the public. Alas, what are we to do when this is our role and duty as justices. (HCJ 390/79 Duwekat v Gov’t of Israel [30] at p. 1),

 

Were my opinion to be heard, we would leave the petitions pending and request an update from the respondents concerning the rate of progress in the proceedings, and concerning the means that the Executive has added, and is continuing to adopt for the implementation of the Law. Given that at this time the question of the extension of the validity of the Law by the Knesset is currently pending, and as mentioned, I do not intend to enter that arena, I would suggest receiving this kind of update in July 2012 upon the termination of the last period of the Law’s extension. Should it be decided to extend or to amend it, then in my view, as stated we should receive an update from the State at that time, and maintain a judicial monitoring, along with the determination of the future time on which this Court will again sit and consider the constitutionality of the Law in view of the latest developments.

 

Justice

 

 

Justice Elyakim Rubinstein

 

In the Kol Torah Yeshiva of Jerusalem one of the students requested permission from the Rosh Yeshiva (R. Shlomo Aeurbach, a Rabbinical Authority of the last generation) to travel to visit the graves of the righteous in the North. The Rabbi answered him: In order to pray at the graves of the righteous does one need to travel all the way to the Galilee/ When I feel the need to pray at the graves of the righteous, I go to Har-Herzl, to the graves of the soldiers who fell in the sanctification of God’s name (told by Rabbi Yisrael Meir Lau, from the book of Rabbi Y.Z. Rimon Halakhah Mimkora – Tzava (2010) [ ]; and also see the shortened version in the book of Rabbi Yosef Eliyahu, Oro Shel Olam (2003) [ ] 380.

 

1.         The Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling, Law 5762-2002 (hereinafter – the Tal Law or the Law) is a profound and sensitive attempt, in the wake of this Court’s ruling (HCJ 3267/97 Rubinstein v. Minister of defense [1] at p. 481) and following the work of the commission headed by Justice Tzvi Tal, who viewed this work as sacred task in its contribution, albeit partial, to the healing of a bleeding wound in the Jewish part of Israeli society, namely in other words, the subject of the enlistment of the Yeshiva students to the I.D.F. My colleague, President Beinisch reviewed the history of the subject which has been reviewed and discussed at length in the judgments of this Court since the Ressler case n 1986 continuing in the Rubinstein case, and up to the Movement for Quality of Government case. I will make every effort not to revisit matters already stated and reviewed.

2.         By way of preface, the bottom line is that I concur with the opinion of my colleague the President. The present situation exceeds the boundaries of what is constitutionally tolerable. Conceivably, responsibility for this situation is divided between the two branches who are the respondents in this file: the Legislature that enacted a Law that a priori is far from simple, and the Executive charged with its implementation. Conceivably, had the Executive done more for the effective implementation of the Law, despite its inherent problems, the situation would have been different and more tolerable. According to Justice Tal “The Law, at this stage, has been frustrated by the Government and the Ministry of Defense” (Tz. E Tal, Ad Bo HaShemesh (5770) 300), however, even according to his view, in the first place “the recommendations of the Tal Commission do not represent complete equality (ibid, p. 299; see also Tz. E. Tal, “The Problem of the Enlistment of Yeshiva Students”, Memorial Volume for Professor Ze’ev Falk (R. Horovitz, M.D. Herr, Y.D. Silman and M. Korinaldi eds. 5765) 355, 366; Similar explicit comments were made in the report filed by the “Tal Commission” (Report of the Commission for Crystallizing an Appropriate Arrangement on the Subject of the Enlistment of Yeshiva Students, vol. 1, 5760) 97), as well as from the Knesset podium at the second and third readings of the Law: “Any arrangement that does not establish absolute equality between citizens ….is a bad arrangement. The question is whether this is the lesser evil or evil incarnate "(Knesset Proceedings 23 July 2003, p. 8584, per MK Yossi. Katz)

3.         An additional significant part of the responsibility for the the current situation, in my view, lies with the hareidi society – “as far as one can attribute one point of view to this variegated society” (HCJ 746/07 Regen v. Ministry of Transport [32], para. 29 that adopted a position that is almost inconceivable from a Torah based-moral-civilian perspective (naturally, I am not addressing the question of Halakhah), and chose not to make broader use of the mechanisms established by the Law, and the unique and specially adapted service tracks offered by the State. Within the parameters of the constitutional-administrative law, this civilian group is not a “respondent” in this file, and under the circumstances its decisions will be related to as a factual given that we cannot change on an operative level in the framework of this proceeding, but which will influence our decision concerning the reasonability of the present situation and the possibility of leaving it intact. Needless to say, had the relevant hareidi instances sought to have their position heard in this proceeding, the doors of this Court would have been open to them.

4.         Accordingly, we have no choice but to examine whether, under these circumstances, the situation made possible by the Tal Law, even after the extension granted in the Movement for Quality of Government case, is tolerable from a constitutional perspective. I will address the situation and the question of its tolerability, for conceivably, in a different constellation, given different conduct on the respondents’ part with respect to the petition and on the part of those who are not parties to it, the Law would have lead to a situation that it tolerable, at least within the category of “appropriate preliminary arrangement” (the term adopted by the Tal Commission regarding the arrangement it formulated; see p. 97 of the Commission’s Report), as far as it touches upon the critical violation of equality between citizens of the state in a subject of life and death in its most literal form.

5.         In many senses, the situation created in the wake of the decision in the Movement for Quality of Government case is unique in the field of constitutional-administrative law. Generally, when the court reviews the constitutionality of a law involving the violation of protected human rights, it must examine whether the Executive properly interpreted and implemented the law. To the extent that the authority is acting as it should, the review will focus on the law itself. Here however, one of the significant variants relates to the conduct of the hareidi public. The non-constitutional effect (using the phrase similarly to the way it was used by Justice Naor in CrimApp 8823/07 Anon v. State of Israel [33]) flows from the convergence of a number factors, the hareidi sector being the principal one, being both its beginning and end, although the Knesset and the Government over the generations are also partners to the reality that emerged. Possibly, as stated, the cooperation of the hareidi sector might have – without ruling on the matter – lead to a different result. And indeed, this was the purpose of the trial period prescribed in the Movement for Quality of Government case, which in essence stems from the conclusions of the Tal Commission.

6          However, having been presented with the data reviewed in the opinion of the President, and having granted all those involved a significant period of time to attempt to bring about better results, we have no choice but to conclude that the current situation cannot continue; in other words to hold that the fundamental values of the State of Israel as a Jewish and democratic state as enshrined in the Basic Laws and interpreted by this Court, cannot endure this factual situation and it is therefore impossible to further extend the validity of the Law. Given the holding that the subject requires regulation in primary legislation (as correctly held in the Rubinstein case, there is no choice other than to create a new normative arrangement – this being a matter for the legislature. This is the “bottom line”, and now to its explanation.

 

The Study of Torah as one of the values of the State of Israel

 

7.         The historical process that culminated in the reality addressed by the Tal Law began with the assistance provided for the preservation of the world of Torah following the Holocaust. The first Prime Minister and Minister of Defense, David Ben-Gurion, a great, historical figure, was attached to the Tanach (Hebrew Bible) as an expression of our national existence notwithstanding his secular world view, and he understood the importance of restoring the ruins and of reviving that which had almost been destroyed. Accordingly, already in 1948, yeshiva students received an exemption from military service (see: Ressler [3] 449-451). This occurred notwithstanding that there were also yeshiva students who participated in the war effort during the War of Independence, and the halakhic authorities actually defined it as participation in an obligatory war (milhemet mitzva):

 

“In the situation in which the state presently finds itself, having barely gotten out of its diapers and being circled by sworn enemies who seek to devour it, Heaven Forbid, there is a special duty to arm themselves for battle, to speedily immigrate to Israel and to come to the assistance of Israel against an enemy who has attacked them, a duty that stems from its being an obligatory war (Resp. Tzitz Eliezer (R. Eliezer Waldenberg – twentieth century – Jerusalem], pt. 7.48 [ ]; see also Resp. Tzitz Eliezer p. 50 [ ]. and Resp Hekhal Yitzhak, Orah Haim, s. 31 [ ])

 

The standing of Israel’s wars that followed the War of Independence, was not, from a halakhic perspective, any different (see for example, Resp. Yehaveh Da’at (R. Ovadiah Yosef) pt. 2. 14). Needless to say, in his grand treatise of 5710 (1950)”Distinction and Mission” printed in Distinction and Mission (5731 – 1971)108) David Ben-Gurion discusses the historical conscription laws in the Jewish people, noting that “Every man and woman without exception was subjected to the duty of protecting the people in the face of an external attack” (p. 133), even though he does not address the subject of yeshiva students.

8.         The exemption granted in the early days of the State, in my view, was also in accordance with the spirit of the Declaration of Independence of the State (on the status of the Declaration see s.1 of Basic Law: Freedom of Occupation and Basic Law: Liberty and Dignity; HCJ 153/87 Shakdiel v. Minister of Religious Affairs [34], at p. 274) which opens with a comment on the assets of “national and universal culture” created by the Jewish people and which also addresses the claim of ”the survivors…..as well as Jews from other lands, proclaiming their right to a life of dignity, freedom and labor in their national homeland”. As written by my colleague, Justice E.A. Levi, in the Movement for Quality of Government case [2]:

 

`The world of the yeshivas is therefore an essential component of the identity of the Jewish people, an identity of many faces, and it is one of the most important expressions of the national spirit, its heritage and its culture. It would seem that even those who are remote from the world of Torah, would not deny its outstanding influence upon the formulation of essential components of the character of the nation and its society’ (p. 784)

 

Indeed, it is indisputable that the cultural treasures referred to in the Declaration of Independence, including the right to a life of dignity, freedom and labor also include the right to the personal and collective development of the Jewish Torah culture; this right is an inherent part of the foundations of the “liberty, justice and peace taught by the prophets of Israel” which the state of Israel was premised upon and part of the freedom of religion, education and culture which are guaranteed in the operative paragraph of the Declaration of Independence (see also HCJ 1067/08 Amutat Noar KaHalakhah v. Ministry of Education [27], at para.14 of Justice Levy’s opinion).

9.         Within the frame of the Basic Laws too, and by reason of Israel’s being a Jewish and democratic state, this Court has referred more than once to freedom of religion which “includes inter alia the right to fulfill the religious commandments and requirements” (Rubinstein [1] p. 528 per President Barak), and the connection between enabling yeshiva students to persist in their studies (ibid; see also G. Sapir, “Enlistment of Yeshiva students into the I.D.F: A Proposal for an Outline of the Relevant Normative Considerations” Pelilim 9 (2001) 217. 248). The values of the State of Israel as a Jewish and democratic State therefore include the study of Torah. Hence, in my view, the prevention of a person from studying Torah is liable to constitute a violation of a Jewish person’s dignity, and within the framework of the Basic Laws he would be entitled to protection from it.

10.       Indeed, I see no need to hold forth in explaining that the study of Torah is one of the values of State of Israel as a Jewish and Democratic state. It seems to me that the petitioners have no dispute with this. An observant Jew recites the Keriyat Shema every day, twice and even more,(and “Hear O’ Israel” has become a symbol of Jewish continuity) where it states “And these words, which I command thee this day, shall be upon thy heart…..and you shall teach them diligently to your children, and shall talk of them when you sit in your house, and when you walk by the way, and when you lie down, and when thou rise up” (Deuteronomy 6:6-7); and it further says: Therefore you shall place these – my words in your heart….. And you shall teach them to your children, to talk of them, when you sit in your house, and when you walk by the way, and when you lie down, and when you rise up ((Deuteronomy 11: 18-19 [ ]). The verse “'If you follow my decrees and are careful to obey my commands” (Leviticus 26:3) is interpreted by Rashi as meaning “when you are immersed in Torah”. It is therefore clear that the “the duty of studying Torah – as a religious commandment- is not merely the general study of wisdom; rather, it constitutes a central aspect in the formulation of a person’s world and lifestyle (AAA 10673/05 Mikhlelet HaDarom v. State of Israel [35] at para. g(3)).           

11        The Mishnah (Peah 1:1) [ ] includes the study of Torah among the matters “that have no measure”. In completing the list of things which “a person eats of their fruits in this world and the principal remains for him in the world to come” and which include “honoring one’s mother and father, and deeds of kindness and making peace between a person and his fellow person” and the Mishnah rules that  “the study of Torah is the equivalent of all of them combined” [ ]. The duty of being occupied in the Torah “day and night” (Joshua 1:8 [ ]) is considered a supreme value to the extent that the Tanna (sage) R. Shimon taught that “He who walks along a road studying, and interrupts his studies and says: “How beautiful is this tree!” “How beautiful is that field”- the Torah considers it as though he sinned against his own soul”(Mishna Avot 3. 7). In his glorious normative halakhic creation Mishneh Torah Maimonides writes the following:

 

Every Jewish man is obligated to study Torah, whether he is poor or rich, whether his body is healthy and whole or afflicted by difficulties, whether he is young or an old man whose strength has diminished. Even if he is a poor man who derives his livelihood from charity and begs from door to door, even if he is a husband and [a father of] children, he must establish a fixed time for Torah study during the day and at night, as [Joshua 1:8] commands: "You shall think about it day and night." (Mishneh Torah, Hil. Talmud Torah (Laws of Torah Study) 1:8) [ ]

 

The bottom line is that from the perspective of the Torah scholars, as well as from the perspective of Israeli law, it is undisputable that the study of Torah occupies a unique position, as a component of identity and culture, in addition to being a religious duty of both the individual and community of Israel.

 

The Study of Torah and Other Values

 

12.       On the other hand, in the same breath as our comments above, we will also mention that not only does the State of Israel’s essence as a Jewish and Democratic State command the balance between values. According to the Halakhah there is a requirement, and not just a permit, to balance between the duty of studying Torah “which has no measure” and other needs and values. How is the balance struck with other needs – “"And thou shalt gather in thy corn". What is to be learnt from these words? Since it says, "This book of the law shall not depart from your mouth", I might think that this injunction is to be taken literally. Therefore it says, "And you shall gather in your corn", which implies that you are to combine the study of them with a worldly occupation (Tractate Berakhot 35b [ ]). And Maimonides too ruled:

 

Anyone who comes to the conclusion that he should involve himself in Torah study without doing work and derive his livelihood from charity, desecrates [God's] name, dishonors the Torah, extinguishes the light of faith, brings evil upon himself )Mishneh Torah, Hil. Talmud Torah (Laws of Torah Study) 3:10 [ ]

 

Further on he states: “It is a tremendous advantage for a person to derive his livelihood from his own efforts. This attribute was possessed by the pious of the early generations. In this manner, one will merit all [types of] honor and benefit in this world and in the world to come, as it states: "If you eat the toil of your hands, you will be happy and it will be good for you". "You will be happy" – in this world. "It will be good for you" – in the world to come, which is entirely good". ((Mishneh Torah, Hil. Talmud Torah (Laws of Torah Study) 3:11[ ]). The author of Shulkhan Arukch too ruled that “Afterwards [after prayers – E.R] he should go to his business, for any Torah which is not combined with work leads to idleness, and leads to sin; but at all events he should not make his work his principal concern,…" (Orach Hayim, s. 156 [ ]), This ruling receives the following interpretation of the Mishnah Berurah in his treatise Beur Halakhah “for this was the teaching for the world at large, for not all people can merit the elevated level of being occupied solely in Torah, and there are certain individuals who may be permanently on that level (ibid). And, how is the balance struck with other values “One interrupts the study of Torah for the sake of a funeral procession and the leading of the bride [under the bridal canopy (Bavli, Kettubot 17a [ ]). And to remove all doubt it will be clarified that this not just a permit to interrupt the study of Torah Torah, but rather a duty: “'One interrupts Torah study' this means that there is a duty to interrupt” (Siftei Cohen, Yoreh Deah s. 361.1 [ ]).

13        In the present context, concerning a battle to “to assist Israel from an enemy which attacks them" (in the words of Maimonides, Hil. Melahim 5:1[ ]) it is specifically taught (Mishnah, Sotah 8:7 [ ]) “In an obligatory war, all go out – even a groom from his chamber and a bride from her wedding canopy [to do battle]"; To remove all doubt, the commentator R. Nathan b.Yehiel of Rome (eleventh and twelfth century – Italy) explained “and a fortiori Torah scholars (Sefer HeArukh). We might also mention that a significant portion of those who the Torah exempts from fighting in an optional war (and we will not address the specific definition of obligatory war as opposed to optional war), are not exempt from other forms of public service: “All those who return from the army camp… They must supply food and water to their brethren in the army and fix the roads for them…” (Hil. Melahim 7:9). The halakhah too struck a balance between the obligation of studying Torah, and other obligations, both the obligation of earning a living and the obligation of defense; between the absolute and uncompromising duty “This book of the law shall not depart from your mouth; but you shall meditate therein day and night” (Joshua, ibid.,) and a person’s obligations towards himself, his family, others and the society in which he lives. As such, the duty to study Torah is not the final word. This point is particularly pronounced in a state in which military service is a duty which occasionally may involve the endangering of life.

 

The Israeli Circumstances

 

14.       Israel is a Jewish and democratic state. Its unique character comprises two aspects and they both include the obligation of balancing, an obligation that goes hand in hand with the demand for equality being real and substantive equality to the degree possible in the bearing of the security burden with its inherent danger to  life. From the “Jewish” perspective, in a period in which there are still those who “rise up to destroy us” (Haggadah of Passover), we hear the echo of Moses our teacher “Will your brothers go to war while you yourselves sit here” (Numbers 32:6). This point was already addressed by the Deputy President M. Cheshin,in the Movement for Quality of Government [2] case:

 

‘Will we say of the Yeshiva students – whose Torah is their calling – the rebuking words of Moses to the Tribes of Reuben, Gad, and half of Menashe – that your brothers go to war while you yourselves sit here;…

From the aspect of the Jewish heritage too, especially with respect to the “Jewish State” demands, as a matter of principle the conscription of the Yeshiva students into the army, so that they can protect their houses, so that the young men of their own age will not have the status of the Cherethites and the Pelethites who would be forced to protect them while they sit back securely and diligently study Torah’. (pp, 737, at 740-741)

 

15.       From the democratic aspect too: Equality is a substantive values therein “a meta-principle that is reflected along the length and breadth of Israeli legislation (HCJ 5373/08 Abu Libda v. Minister of Education [36] – para. 29 of Justice Procaccia’s opinion. Indeed, the burden is not shared equally by all. The combat soldier differs from the staff unit soldier. But even so, the I.D.F. can still order the staff soldier to carry out a job that may endanger his life; he is not his own master and his personal autonomy is restricted (see also s. 9 of Basic Law: Human Liberty and Dignity). There are also sectors and individuals who do not participate in the service burden, first and foremost the majority of the Arab minority, apart from the Druze, Circassians and particular Bedouin volunteers, and a few Moslems and Christians, in the unfortunate circumstance of the political dispute in our region, and a not insignificant minority of the Jewish public that finds ways of not serving.

16.       Nonetheless, despite the differences between the kinds of service and the nature of populations, and even assuming the importance of the Torah study, even within the framework of Israeli law, the question arises: Does the principle of equality permit the granting of a blanket exemption from military service to such a large percentage of each conscription cycle? Can it enable such an extensive exemption arrangement, even if the purpose is appropriate and the goal commendable? Can it endure the damage to all of the other citizens of the State who are obligated to do military service in the regular and reserve army? We once again mention that as of 2007 it meant 14% of the conscription pool (!) of that year, which represented a massive increase, even after the enactment of the Tal Law in 2002, and that these data attest to a consistent increase from year to year (see para. 50 of the opinion of the President). Distressing as it might be, the question is, unavoidable: A law with an appropriate purpose and worthy intention, a law intended to provide a corridor specifically into the chamber of military service for the individual and into Israeli society in general – can it justify inequality (which is tantamount to injustice) on such a massive scale and regarding such a subject?

17.       From its inception the Tal Law was not based on equality. Nonetheless, in the Movement for Quality of Government case, this Court gave it a legal chance, based on the assumption that moving the cart of hareidi enlistment was a worthwhile goal. It was hoped that there was no “genetic” defect in the essence of the statutory arrangements, but rather an administrative flaw in its implementation (per President Barak, at p. 712), and that even if at already upon its birth the Law was tainted by the “virus of unconstitutionality” (per Justice Procaccia [2], at p. 795) the State would overcome it by way of the proper and appropriate implementation of the mechanisms prescribed by the Law. However, Law was similarly unsuccessful in the test of results. The data that guided by my colleague the President speak for themselves. The percentage of those joining the service, in all of its different frameworks, is particularly small. This situation, in which a blanket exemption from military service is granted to a growing public (and as stated, even if the numerical data is not the necessary result of the Law, the bottom line speaks for itself) constitutes, in my view, a disproportionate violation of the rights of the Israeli citizens who are required to serve and who serve in army, in a manner that compels a fundamental change in that situation.

18.       In my opinion in the framework of the interim decision of 8 September 2009 I commented on the rate at which the Law was being implemented: “The arrangement prescribed by Tal Commission is progressing at snails pace, drop after drop, with all the good will of the administrative and state institutions…the substantive change has not arrived, and is still at the periphery and the question “why do you think your blood is redder (than that of your friend)” (Talmud Bavli, Pesachim 25b) has not been answered. The petition before us is directed, as is the nature of constitutional law – at the state authorities – but on a moral plane, as mentioned further on in my opinion, it also addresses the members of the hareidi community who do not enlist for military service.

 

‘The challenge of transforming the trend from a thin trickle of those joining into a broad application lies at the doors of the leaders of the hareidi public. What began as the reestablishment of the world of Torah following the Holocaust has become the sociology of an entire society which is almost entirely absent from sharing the central burden of the State of Israel – military service; And I am certain that in the recesses of their hearts, even the leaders of the hareidi public and countless members of the community itself, sense the difficulty and the embroilment it occasions…the issue concerns an entire society that almost totally avoids fulfilling a duty anchored both in law and morality, and where have morality and character traits all disappeared to?”

 

19.       In 2007 I had occasion to comment that “The Tal Law attempted – with great hope and tremendous efforts, and we are as yet unable to state the degree of success – to strike a balance between two conflicting value systems that, at base, reflect real-life differences that can have life-and-death consequences”. (HCJ 5803/06 Guttman v, Minister of Defense [37] para.31). The data referred to by my colleague the President indicates that as of today, unfortunately, the effort to “strike a balance” has failed. And so we have returned to the basic situation described by Justice Arbel in the Guttman case [37] as a ‘harsh and justified sense of  discrimination‘

20.       As mentioned the petition’s arrows are aimed against the authorities who are obligated to protect the individual from the unequal and discriminatory bearing of the security burden (and I do not think that in the present context it is possible to hold it against the individual that he belongs to a majority that provides certain privileges to the minority). However, the responsibility, in the broad sense, also lies on the doorstep of the hareidi public. From a legal perspective, “sectoral uniqueness does not constitute grounds for violating the joint responsibility shared by the entire state citizenry” (HCJ 4124/00 Yekutieli v. Minister for Religious Affairs [26] para. 7 of the opinion of Justice Procaccia). From a moral-civil perspective, I find it gravely and profoundly disturbing: How is it for the public sacrifices not to be participated in by the entire public. This echoes the words of our teacher Moses “Shall your brothers go to war and you sit here”? And in the words of the Natziv of Volozhhin (R. Naftali Zvi Yehuda Berlin, 19^th century, Russia in his interpretation of Numbers):

  

‘This is a wrong against Israel [committed by those seeking to settle in Trans-Jordan and not to participate in the battle to conquer the Land of Israel] that you should have a land that has already been conquered by everyone, and that they had endangered themselves in war ‘(emphasis added – E.R.)

 

21.       At the beginning of the month of Iyaar, 5748 (May 1948), – five days before the Declaration of Independence – R. Shlomo Yosef Zevin (an important scholar and author, and the first editor of the Talmudic Encyclopedia) inveighed against those who called upon the yeshiva students “not to sign up, not to be counted, and not to appear” for military duty. The context is a detailed halakhic discussion but regarding the moral claim he writes:

                       

‘Is the matter at hand us just a matter saving others. Isn’t each and every one of us, without exception, confronting a life threatening situation – to himself, his household and all that he possesses? And is this the appropriate path – that those occupied in Torah are not obliged to save themselves, but will stand apart and place the burden of saving – themselves – upon others. Is this the proper path, or – is this the view of Torah? (S.Y. Zevin, On the Question of the Conscription of Yeshiva Students (1948) 5.

 

This argument is reminiscent of the position adopted by R. David b. Zimra (Radbaz, 15-16 centuries, Spain-France) according to whom the exemption from bearing the security burden granted by the Talmud (Bavli Bava Bathra 7b) to Torah scholars does not apply in cases in which the Torah scholars themselves acknowledge the need for guarding:

 

And [if] they themselves [the Sages] admit that they require protection, does the law, or commonsense permit that they be able to force themselves upon the householders to organize the guards and not assist themselves… such a thing was not said by any person… for this would violate the sense of justice, but they are permitted to coerce them (Resp. Radbaz pt. 2: 752).

 

In the same vein, the Hatam Sofer (R. Moshe Sofer, Germany- Hungary, 18 – 19 centuries), one of the leaders of Orthodoxy in his generation, mentioned that the Talmudic exemption does not apply in the framework of allocating the burden of state security needs, because “just as the kingdom requires protection from other kingdoms, the Torah scholar too is obligated (Novellae Hatam Sofer, Bava Bathra 8a. These last two sources are cited by R. Y. Brandes in Aggadah Le-Ma'aseh – Man and Society (2011) 137-139, who elaborates on the issue. See also R. A. Lichtenstein “This is the Torah of the Hesder”, Tehumin 7 (1987) 314; and on the other hand, see R. A. Sherman, “Talmud Torah is of greater value than the Saving of Life”, ibid, 335, and R. Z.B. Melamed, “Luminaries in Torah – this is the Need of the Nation”, ibid., 310.

22.       As mentioned, the choices of the hareidi public, whatever they may, are not a matter requiring a response from this Court, and no doubt there are answers to at least some of my queries. Still, had the hareidi community’s response been broader and more meaningful (and as stated the degree of efficiency and activity of the Executive may also be partially responsible), the respondents before us today would have been in a different place, equipped with other factual data. To our regret this is not the case.

 

Hareidi Society and its Attitude to Military Service

 

23.       Indeed, hareidi society too is not static, including with respect to its attitude to military service. Even if the starting point is the conscription of those who are unable or unwilling to be categorized as those for whom “Torah is their Calling” there also are young hareidi Torah scholars who have themselves reached the conclusion that attaches importance to a contribution to the State and to finding self-sustaining work, and have thus joined the special tracks structured for them by the I.D.F.

24.       However, truth be told, as opposed to the Jewish hareidi community in other countries which understood that only a selected few are suited for a life spent in the tents of Torah, in Israel an entire, problematic sociological stratum has emerged, and even its leaders know, in the recesses of their hearts, that it is neither good nor appropriate that by reason of military service thousands of men are sitting in yeshivas despite their unsuitability (and compare, in different contexts, the Regen case [32] para. 22). These men, were they to serve in the I.D.F. and were they to work like all other men while setting apart times for Torah in the way of “home owners” (i.e. those who are engaged in “regular work” and frequently set aside time for studying Torah) would be of benefit to the State, their communities, and themselves. “Labour is beloved, for all the prophets occupied themselves in it” (Midrash Tannaim on Deuteronomy 5:14 [ ]). I question whether the leaders of the hareidi public are sufficiently aware and sufficiently active with respect to the economic plight that results from the lack of a profession due to the trap of the “Torah is his Calling” proceeding.

25.       In the synagogue in which I pray on a daily basis, a central synagogue with dozens of minyanim (quorums of ten men conducting services) there are quite a large number of beggars almost (the word “almost” was added primarily for reasons of caution and purity of motive) all of them from the hareidi public, many of them strong and healthy and capable of working for a living and supporting their families in dignity. However, they are locked into an impossible situation and there is no one who stands up to proclaim that the clothes of king (“who are the kings – the rabbis” ) are not fitted for all people some of who may end up with no clothes to wear. Let us be precise: No-one would dispute that the Jewish heritage and the spiritual continuation of the Jewish people justify the existence of a substantive, serious kernel of people whose Torah is their calling on a permanent basis, In response to my question in the Court, Adv. Ressler, the most veteran of the petitioners in this field, who started it when he was about 40 and is now at an advanced age, answered that he would have had no gripe if there were a few thousand people, at all times, for whom Torah was their calling. It is possible, and even appropriate to take an expansive and open approach to men of truth who wish to continue their study of Torah uninterrupted, but this does not apply to many of those who for lack of choice persist in the status of “Torah is their calling” as an unfortunate “social obligation”, for whom the Torah is not truly their calling, and whose calling is replaced by the avoidance – of service and work. They fritter their days away in frustration while in the interim they raise families that require sustenance. The Chief Rabbi of Israel, Rabbi Shlomo Amar addressed the currently accepted practice in the Yeshiva world:

 

‘The yeshiva students of our time devote their lives to Torah and to serving God in purity, they labor and toil in it day and night without interruption, and give not a thought to the purpose of their existence – to ask themselves, what will we eat and how will we set up homes in Israel and how will we survive – for we don’t not sew and don’t harvest ; neither do they learn a profession that can provide their needs, even if partially, and how will they support their wives and children? (Birkat Eliyahu (Exodus, pt.2), p. 230)

 

Further on Rabbi Amar seeks to reconcile the well-known words of Maimonides “The way of sensible men is that first, one should establish an occupation by which he can support himself. Then, he should purchase a house to live in …” and this reality. In his view, Maimonides’ comments apply to the “sensible men” who conduct themselves:

 

‘In accordance with the natural order that God ingrained in his world. But those whose conduct is above the natural order who do not submit themselves to the natural order of the world… just as they devote all of their powers and desires to the word of God and His will – He too fulfills their wishes and provides them from His expanded hand, above the natural order” (Birkat Eliyahu, pp. 230-231)

 

I respect these words, but the question naturally arises, can one truly and honestly say, without any offense to those who devote their lives to the study of Torah, that all the tens of thousands who are registered as those whose Torah is their calling, really figure among those “whose conduct is above the natural order”?.

26.       Concededly, the blessing of the State by way of its various resources – National Insurance, budgets for the yeshiva world, etc, accompanied by a real willingness and devotedness on the part of those studying, as per the teaching “This is the way of the Torah: To eat bread with salt, to drink water in measure, to sleep on the ground and live a life of hardship and to study the Torah diligently all the while” (Mishnah Avoth, 6:4) – enables a person to eke out a meager living and to continue permanently in the House of Study. Even so, do all those who are permanently in the Beth Midrash for many long years really belong there? Or perhaps some of them have sentenced themselves to a life of indolence and degeneration? And, even if this economic reality is not directly related to the question of equality among those designated for military service in Israel, it is definitely relevant for the examination of a legislative act one of the declared purposes of which is to “find a way that will also lead to the integration of yeshiva students in the employment market” (from statements of MK Yossi Katz, Head of the Special Panel established for Implementing the Law, when it was presented for the second and third reading on 23 July 2002, Knesset Proceedings 34, p. 8585). Once again, our concern is not with those whose souls cleave to the Torah until their last breath “the remnants upon whom God calls”, who should be commended – although even regarding them, or many of them, nothing would be missing were they to bear the burden for a determined period, basically given to their own choice, and in service tailored specifically to their needs in terms of Kashrut, modesty and family. It will be recalled that the Tal Law also created the option of civilian service, protected from the “risks” of military service and which in and of itself constitutes a particularly outstanding deviation from the requirement of equality. Nonetheless, this too did not succeed in tilting the scales.

27.       Here it bears note that the economic criterion in accordance with which the I.D.F. too has on occasion examined the issue (see Ad Bo HaShemesh, at p. 298) cannot be the relevant and correct criterion when dealing with military service and its natural dangers. Just as the I.D.F. is required to invest huge sums of money to enable a woman wishing to enlist, to be able to do so on the basis of equality (see HCJ 4541/94 Miller v. Minister of Defense [14]; D. Friedman “Women’s Service in Combat Roles and Equality in Allocating the Burden”, HaMishpat 4 (1999) 27)), so too it is required to invest all of the resources required to secure the rights of its soldiers to an equal sharing of the burden. In other words, the State is not at liberty to enlist only those citizens who it is convenient (or cheap) to enlist and to saddle them with the full weight of the burden, even if the broadening of the pool of enlistees compels the investment of economic and other resources. As a matter of principle, it would be exceedingly difficult to imagine an “economic” approach which would give rise to distinctions between the blood of one person and another.

28.       What can be learned from all of the above? That the “mind switch” – not with respect to the study of Torah but rather in relation to the proper evaluation of the relevant human framework – has not occurred in the hareidi leadership even after the Tal Law. From the perspective of constitutional-administrative law, the Tal Law was unique, in so far as in addition to being appropriately and strictly implemented by the State, its constitutionality was also dependent upon the scale of response on the part of the hareidi public and the position adopted by its leadership (even though on a practical level the issue concerns individuals whose actions, either way, may be in accordance with the Law). The data before us demonstrates that these two conditions were not fulfilled. In the absence of any change on the broader front, as opposed to specific local changes, welcome as they may be, the progress towards equality continues to plod along and partnership in the burden – even if incomplete and non-identical partnership – has not materialized. To paraphrase the words of the Tal Commission cited above – not only have we not reached an appropriate arrangement for the conscription of yeshiva students; we have not even merited an “appropriate preliminary arrangement”. The data demonstrate only very of changes.

29.       Once again we stress: The hareidi public is not a respondent in this file. The subject for our decision is the constitutionality of the Tal Law in a given factual constellation. Conceivably, had the hareidi population made broader use of the Law’s arrangements, the problem of inequality might have been mitigated somewhat and come within the borders of the constitutionally tolerable. In the metaphor coined by President Barak in the Movement for Quality of Government case [2] , it is possible that a more extensive response on the part of the hareidi population would have enabled the Tal Law to recover from the constitutional birth pangs and perhaps even reach the age of “Bar Mitzvah” or “constitutional adulthood”; However, even after the Tal Law was granted a trial, and even a recovery period, and even if the Executive too bears responsibility for part of the disappointing data, perhaps having had the opportunity to make a greater effort in the implementation and enforcement of the law, in addition to that of hareidi public that did not hasten to utilize it – at the end of the day the result does not come within the boundaries of what is constitutionally tolerable. To put it quite simply – the current situation for which the Tal Law is the normative basis –violates equality to a degree that dictates change in the normative framework.

30.       The second possibility, of giving the opportunity to the Executive on the one hand and the hareidi society on the other hand, to act for the improvement of the data, was tried with much patience. Indeed, the patience of the Court had to contend with the violation of the rights of the citizens being called up for regular reserve service, and endangering their lives. The Tal Law was originally adopted as a temporary provision for a period of five years (section 16 of the Law), based on the Commission’s assumption that measures it recommended:

 

‘should be periodically examined and reviewed. The Commission recommends measures intended to create a trend, This trend should be examined over a passage of years: Was a trend even created? Has it developed at an appropriate pace… possibly, in another five years the military service framework of the I.D.F. will be entirely different, and the question of yeshiva students and their enlistment will not be quite as acute, problematic, and controversial…” (p. 98 of the Commission Report).

 

In 2006 this Court decided (in the Movement for Quality of Government case) to give the Law another trial period. Upon the termination of almost a decade from the enactment of the Law, the data attests to a situation which is constitutionally intolerable. The hope that the Law as given would “create a trend” was disappointed, and the circumstances of violation of equality demand intervention. In her awareness of in her awareness of the problems from all directions, i.e. the constitutional difficulties as opposed to the need for a societal change in the hareidi community, my colleague Justice Arbel seeks to give the Law another chance. I fear however, with all deference to her position, that what has happened until now justifies a different mode of operation.

 

The Explanations for Non-Service

 

31.       The following are the two principal explanations, in my understanding and experience, that have been given by those favoring the continuation of the status quo (see also Sapir, pp. 240-247; and Tal, The Problem of the Conscription of Yeshiva Students, at p. 362. First it is claimed that “The Torah …protects and saves” (Talmud Bavli, Tractate Sotah 21a); in other words, the yeshiva student who studies protects the country just as a soldier does. On the face of it, someone who believes this has that prerogative (although we will not deny, as written by Rabbi Zevin in 1948 (p. 6) that this quality is utilized primarily for the avoidance of military service, and is not a practical program for the conduct of the hareidi population in a time of danger; for additional criticism of this argument see Sapir, pp. 244-245). Even so, does this argument really apply to the entire public that enjoys an exemption from conscription? Furthermore, this is a matter of pure belief, and it is difficult to conceive of it being connected to operative decisions. What fate would await the State if many others, thousands and tens of thousands, were to claim that according to their view, other studies “protect and save” and they too were to request an exemption from military service? Indeed those subscribing to that belief can claim that the truth is with them and the others mistaken, but even if were we to ignore the practical problems (and it is doubtful whether they can be ignored), how could a democratic society, tolerant towards all of its components be maintained on the basis of those arguments? And it is not superfluous to stress, that according to all of the approaches there will never be a situation in which, God Forbid, there are no studiers of Torah occupied in the diligent study of Torah.

32.       Another explanation relates to the practical difficulties in the I.D.F. itself: the service of women, questions of the kashrut of the food,  and the concern that the service would have a detrimental affect on the hareidi soldier’s religious conduct. I do not treat these lightly, but the answer lies in the willingness of the I.D.F to arrange service tracks that are not problematic from these perspectives, and enable service conditions and food that are kasher at the most meticulous levels – a willingness that has already been proved to a significant degree and should be fortified even further. These matters are not in heaven. It is interesting to mention that Rabbi Avraham Yeshayahu Karelitz(the Hazon Ish) who was one of the foremost rabbinic authorities during the early days of the State, was described by the scholar Dr. Benjamin Brown in his all encompassing book (The Hazon Ish: Halakhist, Believer and Leader of the Haredi Revolution (Jerusalem: Hebrew University Magnes Press, 2011; Hebrew) as someone who opposed the conscription of those who were genuinely studying (regarding those who pretended to be studying in order to avoid service, he ruled that they could be considered as “a pursuer of all of the yeshivas in Israel” (p. 305), and even maintained that those enlisted should be incorporated into mixed units and that he was “did not …fully share the fears of deterioration in the army, and at all events not in all cases, and he even regarded the joint service as a means of bringing the secular Jews closer to Judaism” (p. 306). According to the sources he examined, Dr. Brown notes that the Hazon Ish" regarded the service as a unavoidable necessity, and as a suitable path for the young man who was not devoting himself to the study of Torah" (ibid), and according to his view, the hareidi society had gone far beyond the framework outlined by the Hazon Ish( p. 304).

 

Final Word

 

33.       In view of the picture presented, the constitutionality of the Tal Law must now be examined, and to my distress the answer cannot be in the affirmative. In terms of the limitations clause of s. 8 of Basic Law: Human Dignity and freedom, the Tal Law is consistent with the values of the State of Israel, with respect to study of Torah; it is intended for an appropriate purpose of integrating the yeshiva students in military service while providing different kinds of options. Nonetheless, its actual result – and not because of those who conceived it or those who proposed it or drafted it, but rather by reason of its addressees and the authorities – has not established proportionality, but rather has almost perpetuated the inequality. The reason is that the current rate of joining the various tracks may well continue ad infinitum and “what then have the Sages achieved by their deeds”? The question of proportionality is invariably a complex one, and especially when it touches on rights which are inherently complex. The current situation may be analyzed as being both a disproportionate violation of the right to equality (which in certain aspects means a violation of an affirmative right) and a violation of the specific local rights of those who are required to serve, all to a degree that exceeds that which is necessary, due to the scope of the exemption (and in this sense, a violation of negative rights; see A. Barak, Proportionality in Law (2010) 513-514). It seems however that the primary difficulty in balancing is not – as is usually the case in constitutional law – the difficulty of balancing between two rights of equal worth; the problem rather is the practical difficulty of initiating a social process, and the question of the measures that can proportionately be employed to stimulate that process. Even so, notwithstanding the analytical complexity, and having consideration for the comments made in the Movement for Equality of Government case [2], I have no doubt that the current situation is untenable. As such, I have no choice but to concur in the result reached by my colleague the President.

34.       The President placed the question of a solution at the Knesset’s doorstep of the Knesset, having concluded that the current law could not be extended. She did not relate to the solution itself. I will allow myself to add that we sit among our people, and the solution this time must be far more radical in order to pass the test of the limitation clause. It is understood that one of the possibilities is a return to a numerical quota, which was the practice in the past, albeit in different numbers. In other words, at a certain age – 21 or 22 upon the completion of three or four years study in a higher yeshiva, conscription would be universal apart from agreed quota determined in accordance with prescribed criteria, and which would have consideration for the world of Torah and its continuity along with the needs of the State. Those included would continue in the path of Torah as their calling for as long as they wished, and the flame of God would not be extinguished. Other directions of varying kinds are also conceivable, but the arrangement must be coordinated, and given the current reality, I regret to say, must be less based on anticipations and hopes for future social changes.

A Comment before Concluding

 

35.       I cannot refrain from addressing in brief – though the subject warrants more and we are all the slaves of time and its constraints – the comments of my colleague, Justice (President Elect) Grunis. My colleague proposes not taking the path of judicial intervention in this case because “our concern is with a decision of the majority in the State (in accordance with the Knesset representation) to adopt a law that grants a privilege – not to be conscripted into the army – to a minority”. In his view, this decision does not involve “harm to individuals” as such, or “harm to a minority group”, and therefore “there is no justification for applying judicial review (para. 3). I take a different view. In my view this is a subject that touches on the very roots of the world of rights. The role of this Court is to be a mouth for the human rights of the individuals who make up the majority, and I do not even know whether the petitioners regard themselves, in this matter, as part of that parliamentary majority which granted “at their own expense” privileges to another minority group among whom they are not included, and whom they are unable to join in order to merit the same privileges that were given out by the majority. These are rights that cannot be trampled upon by a parliamentary majority without having been examined on a constitutional level, and this examination supports what has been said in the opinions of the justices who support the disqualifying of the Law.

36.       Even if in my view there should be restraint in judicial intervention (see, e.g. para. 28 in my opinion in HCJ 466/07 Galon v. State Attorney [38] that exceeds the norms of administrative law in general, in which based on many years of experience in different positions and different governmental structures, I think that this Court plays an important role of the first degree, and its failure to discharge it would be a betrayal of its mission; in various realms of life, and space constraints preclude their specification, significant changes have occurred in the conduct of the public administration in the wake of the Court’s decisions, and numerous laws and legislative enactments were passed, scattered over the entire history of the State. Nonetheless, in constitutional law too the Court cannot lay down its mantle and avoid that which is imposed upon by the Legislator- Founder – by him and by no other, in the Basic Laws concerning rights.

37.       Apart from the scholarly and detailed rationales of constitutional authority (see CA 6821/93 United Bank Mizrahi Ltd v. Migdal Cooperative Village [15]) it is clear to both the learned and the laymen from a simple reading of the Basic Laws on rights, that when speaking of basic laws and of restricting the possibility of their violation – even by legislation – in a manner that does not satisfy the proportionality requirements of the limitation clause, that it is incumbent upon the Court to examine whether rights were violated and whether the violation was appropriate and proportionate. My colleague feels that the subject before us is not one that we are required to address. As mentioned I disagree with his approach.

38.       We may be divided in our approaches to the possible contribution of the Court to this subject but it is beyond dispute that our concern is with an obligation, involving a principle of the most sensitive nature, to the extent of endangering of life. In my opinion there is absolutely no way in which this Court can avoid dealing with it. If there is any area of equality in the value- based sense, even if not on a practical, one-on-one level, which is impossible, there is perhaps no subject for equality more elevated than military service. Furthermore, in my view even those changes which have actually taken place in the hareidi society in the context of enlistment, are at least in part connected to judicial intervention, in the absence of which it is doubtful whether they would have even occurred. Our concern is with a conservative (the hareidi) society, with all implied thereby. As such even if our contribution in establishing the constitutional boundary does not transform the ways of hareidi society from one day to the next, it is to be hoped that it will sow seeds which will bud and produce fruit.

 

And one more comment

 

39.       The Tal Law was named after Justice Tzvi E. Tal, who headed the commission that dealt with the subject. It is not superfluous to mention that Justice Tal is a Torah scholar and God-fearing, meticulously observant in all matters, who served as a fighter in the I.D.F in the War of Independence and others, as he describes at length in his moving autobiography (Ad Bo HaShemesh). His son, a student of a hesder yeshiva, fell in the Yom Kippur War, and his grandchild who was born after the father’s death is a career soldier in the I.D.F; it is a family of Torah and the defense of the country, which attests that integration is proper and feasible, and should not be despaired of.

Subject to all the above, I concur in the conclusion of the President, and will mention that my comments, like hers, were written long before the current public discussion, to which we do not relate.

 

Justice

 

Justice Hanan Meltzer

 

1.         I concur in the opinion of the President, Justice D. Beinisch, but given the importance of the subject and the legal aspects it raises, I will allow myself to add some remarks.

2.         The Deferment of Military Service for Yeshiva Students Law whose Torah is their Calling Law, 5762-2002 (hereinafter: the Deferment Law”, in its implementation over the course of nine and a half years (until the signing date of this opinion) did not realize the purposes pinned on it by its drafters. It should therefore be cancelled and another arrangement, more proportionate and more balanced should replace it. In what follows I will explain these holdings.

 

The Constitutional Examination

 

3.         The constitutional examination proceeds from the holding of the President, Justice A. Barak in HCJ 6427/02 Movement for Quality of Government v. Knesset [2] supported by the judges who concurred with his opinion, to the effect that:

 

The Service Deferment Law discriminates between those who serve in the army by force of regular rules and the yeshiva students who are entitled to an exemption and deferral according to the Service Deferment Law, given that Torah is their calling. This violates the human dignity of each and every one of the majority of group who is obligated to do military service (ibid.[22],p. 691)

 

I would like to make three additions to this holding:

 

(a)        As noted by my colleague Justice E. E. Levi in the Movement for Quality of Government [2] case (ibid, p. 783):

           

‘This is not only a violation of dignity….it also involves the violation of other basic rights, among them the right to protection of life, the right to freedom of occupation, the right to privacy, personal freedom, property and the additional derived therefrom – all of them rights that are anchored in our Basic legislation.

 

(b)        The injured population is not only those who serve in the Army (in compulsory and reserve) but also those who are designated for military service, within the meaning of the Defense Service Law, 5746-1986 (hereinafter: DSL), who are likewise discriminated against, at least having consideration for the fact that they do not merit an automatic deferral for purposes of study, in comparison with their hareidi counterparts, who enjoy that privilege until they reach age 22.  Furthermore, when those designated for military service who are not hareidi receive a deferral for study purposes (for the most part in the frameworks of the academic reserves) they are required to return to full compulsory service and are frequently required to commit themselves to permanent service.

 

(c )        Over the years indeed, “Quantity has made a qualitative difference” (within the meaning given in HCJ 910/86 Ressler v. Minister of Defense in the broader context. In view of the shortage of manpower in the I.D.F. it even has implications for the length of service for those who serve, for this is influenced by the reduction in the scale of manpower (see Explanatory Note to Draft Bill of Military service (Temporary Provision) Amendment No.14) 5772-2011, in the wake of which in the Temporary Provision Law, adopted by the Knesset on 16 January 2112, the period of regular service as anchored in the Defence Service Law was lengthened by six months, and in the absence of which soldiers in compulsory service would have served for 30 months). In this context it should be noted that in the states which still have compulsory service, regular service generally lasts for between 18 – 24 months, and only in North Korea is the period longer than here. See: Panu Poutvaara and Andreas Wagner, The Political Economy of Conscription in The Handbook on the Political Economy of War (Christopher J. Coyne & Rachel L.

Mathers eds., 2011) (hereinafter: Poutvaara and Wagner). See also Gay Israel Zeidman, The Right to Serve in the I.D.F. ch. 6 ibid, Military Arrangements in Other States, pp. 121-143 (1996) (hereinafter – Prof. Zeidman); Bjørn Møller, Conscription and its Alternatives, 277 ; Rafael Ajangiz, The European Farewell to Conscription, 307 in: The Comparative Study of Conscription in the Armed Forces (Lars Mjøset and Stephen Van Holde ed.,) 20 Comparative Social Research (2002).

4.         Evidently, the normative arrangement anchored in the Deferment Law violates protected constitutional rights. However, this marks the beginning and not the end of the constitutional examination.. At the second stage we must clarify whether the aforementioned arrangement meets the requirements of the “limitations clause” included in s. 8 of Basic Law: Human Dignity and Freedom and in s. 4 of Basic Law: Freedom of Occupation.

            Before proceeding – two comments are necessary:

(a)        It seems that an understanding similar to the one presented above may also be reached by application of a “judicial limitations clause” on s. 4 of Basic Law: The Army, which provides as follows:

 

4. The duty of serving in the Army and recruitment for the Army shall be as prescribed by or by virtue of Law.

           

            On the interpretation of this section for purposes of the current context see: Mordechai Kremnitzer and Ariel Bendor, Basic Law: The Army, 67- 73 (part of the series Commentary on the Basic Law, Yitzchak Zamir ed. 2000). Regarding the “judicial limitations clause” see: EA 92/03 Mofaz v. Chairman of Central Elections Committee to Sixteenth Knesset [39] at p. 811; HCJ 7052/03 Adallah – Legal Center for Rights of Arab Minority in Israel v. Minister of the Interior [40], at p. 314, per President Barak; Dr. Avigdor Klagsbald, “Contradiction in Basic Laws” Hapraklit 45 (2006) 293.

 

(b)        There are certain contexts (internal-military) in which relevance may also attach to the special limitations clause for the security forces, included in s. 9 of Basic Law: Human Dignity and Liberty, which provides as follows:

 

‘There shall be no restriction of rights under this Basic Law held by persons serving in the Israel Defence Forces, the Israel Police, the Prisons Service and other security organizations of the State, nor shall such rights be subject to conditions, except by virtue of a law, or by regulation enacted by virtue of a law, and to an extent no greater than is required by the nature and character of the service’

 

Regarding the significance of this section and its interpretation, see [41], at pp. 73, 75; HCJ 6055/95 Zemach v. Minister of Defense [16]; my opinion in HCJ 6784/06 Shlitner v. Director of Payment of Pensions [42] and my article: “The I.D.F. as the Army of a Jewish and Democratic State (soon to be published in the periodical, Law and Business of the Herzliya Interdisciplinary Center, in the volume in honor of Prof. Amnon Rubinstein (hereinafter: my article on the I.D.F).

 

            Having consideration for all of the above, we may now proceed to analyze the “limitations clause”, which reads as follows

 

There shall be no violation of rights under this Basic Law except [1] by a law [2] befitting the values of the State of Israel, [3]enacted for a proper purpose, and [4] to an extent no greater than is required, or [1] by regulation enacted by virtue of express authorization in such law
(the numbering in the cited version is my addition – H.M)

 

In this framework we will limit ourselves to an examination of the aforementioned limitations clause on the Deferment Law.

5.         In accordance with the holding of the majority in the Movement for Quality of Government case the violation of the protected human rights included in the Deferment Law meet the requirements of conditions [1] – [3] of the limitations clause, as set forth below:

 

(a)        They are anchored in law as required. Here I will add that it is irrelevant whether the law is a regular law or a law which is a “temporary provision” or Sunset Law (a law with an inherent expiry, such as the law at hand). Furthermore, in the current context there is almost no importance to the dispute that arose in the “Mifkad Leumi” Ltd v. Attorney General case concerning the meaning of the phrase “by regulation enacted by virtue of express authorization in such law” in the limitations clause, because even the extension of the Deferment Law for five years (until1 August 2012) which was effected by a Knesset decision (See O.G. 5767 of 9 August 2007, p. 3910) was in accordance express authorization in the Service Deferment Law, which provides in s. 16(b)

 

‘The Knesset may, by decision, extend the validity of this law for additional periods, each of which shall not exceed five years; deliberation on the extension of the validity of the law shall be conducted in the Knesset no later than six months before the end of its validity’.

 

Here it should be mentioned that a law of the kind under discussion – if extended, and a fortiori if changed (to the extent required) – must be adopted in a regular legislative process (in three readings) and not by a Knesset decision only (compare s. 39 of Basic Law: The Government

 

(b)        The law is consistent with the values of the State of Israel within their meaning in Basic Law: Human Dignity and Liberty, and that context also gives expression to the fact that the State is a Jewish and democratic state. I will not elaborate on this point.

 

(c )       The Deferment Law, which is the product of a social compromise, consists of four combined objectives:

(1)        It anchors the arrangement of the service deferment for yeshiva students whose Torah is their calling and who seek immerse themselves in study day and night.

(2)        It seeks to increase the equality in the allocation of the burden of military service in the Israeli (Jewish) society, in the sense that more men from the hareidi community will, ultimately serve in military service (regular or special), or at the very least will serve in civilian service.

(3)`      It strives to engender greater participation of the hareidi public in the Israeli work force, which should improve the social position of the hareidi families on the one hand, and will contribute to an overall growth in the national product.

(4)        It aspires to resolve the difficulties that have long (since the creation of the State, and even before then, see – Prof. Zeidmann (188-194) accompanied the service deferment arrangement for yeshiva students by a gradual and cautious process and based on broad consensus and without a coerced conscription (which would evidently not be effective).

 

These four objectives are intertwined, and were already recognized as being appropriate in the Movement for Quality of Government case. At the same time it transpires that the Law does not meet the fourth obstacle in the limitations clause because the manner of its implementation has proved it to be disproportionate, given that its realization has not achieved the goal. In what follows we will clarify these points.

 

Proportionality Failures in the Deferment Law

 

6.         As known, proportionality is determined in accordance with three subtests:

 

(a)        The rational connection test – which examines whether there is a rational connection between the means chosen, which violates the constitutional right, and the objective.

(b)        The least harmful measure test – which examines whether the solution found for realizing the objectives of the law is the one which occasions the least harm to the constitutional right, from among the possible measures

( c)       The proportionality test stricto sensu –(“the test of relativity” as suggested by Prof. A. Bendor in his article “Trends in Public Law in Israel – Between Law and Judging (soon to be published in Law and Government 2012). See CrApp 8823/07 Anon v. State of Israel [43]) per my colleague the Deputy President, Justice E. Rivlin, at para. 26. According to this test to justify the constitutional violation, there must be an appropriate, positive reasonable relationship between the incremental advantage gained by realization of the legislative objective and the incremental harm liable to be caused to the constitutional rights as a result.

See Aharon Barak, Proportionality in Law – The Violation of a Constitutional Right and its Limitations, pp. 295-455 (2010)

7.         During the years of its implementation the Deferment Law has proved that it does not even pass the first of the aforementioned subtests (the rational connection test) because the means adopted for its execution have not succeeded in bringing about the realization of its four underlying objectives s, all as set forth in detail in the opinion of the President. The report of the Plesner Panel appointed by the Foreign Affairs and Defense Commission to monitor the implementation of the Deferment Law similarly concluded that the implementation of the Law had failed. Indeed, all of the easier alternatives which were put at the disposal of the yeshiva students were not sufficiently exploited and at too slow a rate. At the same time, here too I am obligated to make a few comments.

 

{a}       Even though the relevant basic data for reaching that conclusion exists, what is still missing are standard criteria for comparison and clarification of the Law’s position on the compliance of the Deferment Law with the “test of results”, This explains the thrust of the difference between the petitioners’ presentation of the facts and that of the respondents, and in my view also accounts for the discrepancy in the analysis of the numbers in President’s opinion in comparison to the analysis presented in the opinion of my colleague Justice Arbel. It is nonetheless clear that the overall number of hareidi men who received deferments and those who are exempt from I.D.F. service is increasing from year to year, notwithstanding the increased numbers of those enlisting from among that public into hareidi Nahal and into the various Shahar frameworks. At the same time there is a discernable continual growth in the numbers of hareid men ho opt for civilian service (this phenomenon has a variety of explanations, and one of the contributing factors is the benefits given to those included in that category including the benefits anchored in the Civilian Service (Legislative Amendments) Law, 5768-2008).

(b)        The defect is not only the result of the approach taken by the yeshiva students and their leaders. The Government too, by reason of budgetary constraints has “dragged its feet” in the realization of the Deferment Law (in all matters pertaining to the establishment and maintenance of supervisory bodies for the civilian service and with respect to the allocation of the budgets required for the actions necessitated by the broadening of the relevant military frameworks (the various Shahar units etc.)). See Government Decision 2000 dated 6 July 2010, Concerning the appointment of an Inter-Ministerial Committee for Monitoring and Formulating Recommendations for the Changing of Conscription Proceedings applicable to the Hareidi Sector – from which it emerges that the Government views the conscription of the hareidi men as a burden, and this is a pity.

            The I.D.F. too, despite declarations given in this context and certain efforts that have been made (see: Updating Notice from Respondents 2-4 of 24 January 2011), has yet to adjust itself sufficiently to the conditions dictated by its incorporation of the hareidi men and the need to maintain their freedom of religion, and I will not elaborate. See also: Gideon Sapir: “Conscription of I.D.F. Soldiers into the I.D.F.: Outline Proposal for Relevant Normative Considerations” Pelilim 9 (December 2000)

(c )       The new conscription proceedings (which were introduced when the petitions were pending and were based on the Government Decision of 9 January 2011) suddenly opened an additional track for abbreviated military service of three months only – for hareidi men whose service had been postponed, between ages 26- 27 (men above that age who had received deferments are at all events referred to the pool of reserve duty without any training and at the end of the day receive an exemption). This decision has three blatant defects

(1)        In defiance of the alternatives prescribed in the Deferment Law, which are supposed to be exhaustive, it adds an additional option, which prima facie contradicts the Law forming the subject of the petitions and the length of service prescribed therein.

(2)        It unlawfully assumed the powers of the Minister of Defense in these contexts, conferred to him in the Military service Law, in defiance of the provisions of Basic Law: The Government.

(3)        It purported to establish “facts on the ground” even before our ruling on the entire complex of issues.

            On the other hand, this alternative indicates the existence of measures other than those enumerated in the Deferment Law for the realization of its objectives, and it would have been proper for these to be examined already in the framework of the enactment of the Law, or before the extension of the validity of the Deferment Law, given that it comes within the category of the second subtest for proportionality – the least harmful means test. The failure to conduct such an examination constitutes grounds for judicial review, thereby bringing us back to the proportionality subtests.

8.         In the context of our comments in para. 7 it was concluded that the Deferment Law does not even pass the first subtest of proportionality. On the face of it I am therefore exempt from discussing the other proportionality subtests. However this would be improper having consideration for those of my colleagues who maintain that the Law forming the subject of the petitions meets the first subtest. The supporter of that view must still show the law also meets the other subtests, the second and third, and this must still be done.

            Without derogating from this problem, I would like to add, in addition to what is necessary and briefly, in deference to the opinions that take issue with my own, that the Deferment Law did not, in my view, adopt the measure that is the least harmful to constitutional rights from out all of the available means (and the matter mentioned in s. 7 (c ) above, is just an example that proves the claim). Willy-nilly, the Law similarly fails to meet the third proportionality subtest – the test of relativity The result is that it has not been proved to us that the social benefit of the arrangements in the Deferment Law, as realized, is actually greater than the violation of the rights of all those who are actually, or potentially recruited.

These conclusions bring me to the third stage of the constitutional examination which focuses on the constitutional remedies. In what follows I will address this subject.

 

Constitutional Remedies

 

9.         Our discussion thus far yields the conclusion that the Deferment Law in its existing format should be voided. What follows from this is that the Law cannot be extended beyond the date of its expiry on 1 August 2012. On the other hand, neither would be it appropriate to order its immediate cancellation, so as to enable all those concerned to utilize the remaining period of its validity to organize for the new situation. I will now present the legal reasoning for this position.

10.        As I clarified in my opinion in HCJ 466/07 MK Zahava Galon v. Attorney General [38] (hereinafter “Families Unification case), from comparative law we learn that temporary legislation is appropriate for four alternate situations (see Jacob Garsen, Temporary Legislation, 74 U. Chi. L. Rev. 247, 273-279 (2007:

(a)         Constraints of Urgency or State of Emergency

(b)         A supervised experiment of a new system, or new policy, or as a means of receiving information (note: situations (a) and (b) were discussed and confirmed in HCJ 4908/10 Roni Baron v. Israel Knesset [44].

(c)         Response to defects in the existing normative situation.

(d)         Attempt to overcome cognitive biases (see Christine Jolls, Cass R. Sunstein, Richard Thaler, Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471 (1997-1998) or situations of asymmetric information (see George K. Yin, Temporary Effect Legislation, Political Accountability, and Fiscal Restraint, 84 N.Y.U. L. Rev. 174 (2009)

             As distinct from the matter confronting us in the Families Reunification case, prima facie none of these four alternatives has any application in the matter at hand, given that the Deferment Law has so far been granted nine and a half years for trial and error. Furthermore, under these circumstances the extension of the validity of the Deferment Law in its existing format is not possible, even for a shortened format, because on the face of it, even during the extension period beyond the expiry date it must meet the constitutional tests (see Yigal Marzel “Delaying a Declaration of Invalidity” Law and Government39 (5766); my opinion in the Family Unification case [43], (ibid para. 43).

11.        Should we seek to uphold the underlying objectives of the Deferment Law, which our case law has declared as legitimate and appropriate, the current law should be replaced by another more constitutional and more balanced arrangement. Naturally, in this framework I do not purport to suggest a solution to the problem or even to indicate a direction in a matter that is obviously located within the boundaries prescribed for legislative maneuvering (provided that the measures chosen are constitutional). All the same, I find it proper to point out for the convenience of all, a number of relevant lines of thought and ideas that I found n comparative law (while showing how they are parallel to the local contexts) and to emphasize a few subjects that require a response in view of the voiding of the Deferment Law in its current format. The next chapter is devoted to this matter.

 

Lessons from Comparative Law and Issues Requiring Arrangement

 

12.        The comparative law that we surveyed in a number of states in which there is (or was) compulsory service (Austria, Brazil, Germany, Denmark, Greece, Norway, Singapore, Finland, South Korea, North Korea, Cyprus, Switzerland and Turkey) is instructive in a number of matters:

 

(a)         In Switzerland – Jews are called upon to serve in compulsory service but religious Jews (including hareidi Jews) are provided with suitable conditions that ensure inter alia: the observance of kashrut, the Sabbath and the Jewish festivals (see: Standing Orders of Swiss General Staff No. 51.024 and 51.003). They are also reimbursed for expenses paid to obtain meals with special kashrut (which are not supplied by the army). See circular from the Federation of Jewish Communities in Switzerland: http://www.swissjews.ch/pdf/de/religioeses/merkblatt_militaer_2010.pdf

(b)         In Germany, until one year ago, there was regular compulsory service, or alternative civilian service. The Jews (and the Gypsies) were exempted from conscription in view of the need to restore their nation and their families who were exterminated and injured in the Holocaust (see: Procedure of the German Ministry of Defense dated 22.3.89; WE2-A2- 04-05-24, which is based on sections 12IV s.1 and 12 IV s.2 of the Wehrpflichtgesetz (German Compulsory Service Law); regarding the parallel exemption relating to alternative civilian service, see: Procedure No. 76 of the Federal Civilian Service Office of Germany, of 3 March 2006.

             Similar considerations originally gave rise to the arrangement of deferral of service for yeshiva students, which at the time was limited to just a few hundred yeshiva students. This arrangement received the consent of the Prime Minister and Defense Minister at the time – David Ben-Gurion, who during the Knesset debate gave the following description of the relevant background (Knesset Proceedings 25 5719):

 

‘Upon the establishment of the State the matter of the yeshiva students was raised with me by one of the leaders of Judaism and Torah in our times – Rabbi Maimon and Rabbi Yitzchak Meir Levin. They said: Since all of the centers of Torah in the exile were destroyed and this is the only country in which the yeshivas remained and there is only a very small number of those who learn, they should be exempted from military service. Their words seemed reasonable to me. It seemed that they were correct and so I gave an order to release the yeshiva students’.

 

For the sake of fairness and to complete the picture, we will mention that in the continuation of his speech on the same occasion David Ben-Gurion said the following:

 

‘Meanwhile things have changed. There are thousands of yeshiva students, both in Israel and in the diaspora. I doubt whether we are fulfilling are duty, not only to the people but also the individual. The bereaved mother whose sons fell will say: Perhaps had there been a few more young men with my son he would not have fallen. Can there be a Shabbat Goy where it concerns the defense of the nation? Isn’t this the duty of each and every person? As a person who has great understanding and respect for the sensitivities of the members of Agudat Yisrael I suggest that you give this matter consideration. We do not want the third Temple to be destroyed.

 

As we all know, David Ben-Gurion’s proposal was not accepted, and after the change in government in 1977, and in accordance with the coalition agreements drawn up in constituting the government of Menachem Begin, in the wake of the establishment of the Government, Defense Minister Ezer Weizmann cancelled the yearly quota of hareidim who would benefit from the deferment exemption.

            In this way we arrived at where we are today – see Prof. Zeidmann, p. 190

(c )       An exemption from military service may occasionally be granted for reasons of conscience, but the principle of equality dictates that person who enjoys an exemption of that kind be liable for an appropriate, alternative form of service (civilian), and the State must put such possibility at this disposal, See: Bayatyan v. Armenia, [2011] ECHR 23459/03 [53].

(d)        In states in which it is possible to replace compulsory military service with an alternative civilian service – the length of the alternative service usually exceeds that of the compulsory military service (compare to us in s. 9 (3) of the Deferment Law). Furthermore, a person serving in a military service usually receives extra economic grants during the service (and special benefits after release), in comparison to the parallel rights granted to those who chose civilian service. See: Poutvaara and Wagner, p. 3).

            Here too it has been ruled that this kind of preference is permitted. See: HCJ 11956/05 Bishara v. Minister of Construction and Residence [45]’ FNHCJ 1241/07 Bishara v. Minister of Construction and Residence [46 ]; my judgment in HCJ 11088/05 Heib v. Israel Lands Administration [47]

            In this context it further bears mention that all over the world today the prevailing trend (especially in Europe) is to go from compulsory service to voluntary service with a significant improvement in the accompanying salary, both for those in compulsory service and those serving voluntarily. See Europe Without Soldiers? Recruitment and Retention across the Armed Forces of Europe (Tibor Szvircsev Tresch and Christian Leuprecht, eds., 2010)

(e)         In states with compulsory military service the exemptions are limited and there are criteria (limited and restricted, numerically or qualitatively) and tight supervisory mechanisms for screening and supervising those who are entitled to the exemption. See: Central Intelligence Agency (CIA), The World Factbook, available at https://www.cia.gov/library/publications/the-world-factbook/fields/2024.html; War Resisters International (WRI), "Refusing to Bear Arms: A World Survey of Conscription and Conscientious Objection to Military Service" (2005), available at http://www.wri-irg.org/system/files/Rrtk-update-2008-Austria.pdf

             Here too, a similar approach is adopted with respect to exemptions and other expressions of leniency besides the ones under discussion and they are generally regulated in standing orders of the army, occasionally limited by numerical quotas or qualitative threshold conditions.

13.       In addition to the information adduced in para. 12 above, and which may be useful for future legislative needs, it bears mention that any legislation of this nature, should there be such, must (subject to the required, appropriate examinations):

(a)        Ensure the existence of the Hesder yeshivas , the operation of which is currently anchored in s. 9 of the Deferment Law (and prior to which, in the absence of the law, was anchored in the Army’s standing orders).

(b)        Ensure the continued nurturing of prodigies from among the yeshiva students – akin to the burning sticks that survived – who guard the torch of fire and the Jewish genius, which protected the Jewish people for thousands of years against those that rose up to consume it.

(c)        Ensure the existence of an appropriate normative and budgetary infrastructure for civilian service (and which can be also be expanded for other persons exempt from military service) and for the entities who supervise them.

(d)        Establish agreed indices which will enable an examination of the “test of the result”

14.       In approaching the end, this is the place to clarify that the voiding of the Deferment Law does not mean voiding the framework of the Hesder yeshivas or the haredi Nahal or the various Shahar units, because the existence of all these frameworks can be anchored within the framework of the Defense Service Law and the Army’s standing orders. This was how the army authorities operated prior to the enactment of the Deferment Law.

15.       Furthermore, today (and in fact since Amendment No. 7 of the Defense Service Law) the existing normative infrastructure provides solutions to some of the problems which the Deferment Law attempted to answer, at least with respect to the hareidi men who request to serve. It was possible to incorporate them into what is known as “recognized service”, currently regulated in s. 26A of the Defense Service Law. Under this section, the Minister of Defense is entitled to determine by order, with the approval of the Government and the Foreign Affairs and Defense Committee of the Knesset, that those designated for army service who are found to be fit for service and who have undergone a preliminary military training, may serve (having given their consent) in regular service or a part thereof in a framework of recognized service.

            For this purpose recognized service is inter alia:

 

“service in military units in the framework of a government ministry or organizational framework of a public body and under the supervision of a government ministry, designated for the attainment of a military- national objective in one of the following areas: immigration and absorption, education, health, protection of the home-front or voluntary activities for I.D.F. soldiers, all provided that the Minister of Defense is persuaded, having consideration for the circumstances at that time, and in consultation, as the case may be, with the Minister of Immigrant Absorption, the Minister of Education, Culture and Sport, or the Minister of Health, and with the Minister of Justice, that if such activity is not performed by those designated for military service in regular service, the objective will not be attained as required’.

 

For an understanding of the institute of “recognized service” and the background for the legislation of the relevant arrangement, see: Elyakim Rubinstein, “Basic Law: Human Dignity and Liberty and the Defense Establishment”, On Government and Law: Studies in Israeli Public Law, 225, 242-248 (20003); my article on the I.D.F.

In these special units, which are external to the regular I.D.F order of battle, it may also be possible to respect the hareidi life style in an optimal manner.

These last insights bring us to the conclusion

 

Final Word

 

16.       We have seen that the Deferment Law, in its present format, cannot stand. The solution however does not lie in incitement, but rather in finding genuine, proportionate and graded arrangements that are feasible within the framework of the objectives underlying the Deferment Law. It may be possible to achieve this and to attain substantial results provided that all of those involved learn to waive some of their requirements in the interests of “the middle path” and in recognition of three principles:

(a)        Service in the I.D.F. or alternative civilian service, is not just a duty but also a privilege

(b)        The freedom of religion of the hareidi men must be respected both outside the army and within the army (and in the various frameworks intended for the hareidi men who choose to serve). On the other hand, the hareidi men must recognize the immense contribution made by those who serve to state security and peace for all.

(c)        A arrangement based on consensus (anchored in law) is preferable to an arrangement based on coercion. To that end, the preferable alternative is not the one that seeks to achieve everything, but rather the one that leads to the integration, in various frameworks, of many of those hareidim who at all events are unable to diligently study Talmud in the yeshivot from dawn until dusk.

17.       If a legislative arrangement is achieved along the lines of paras. 12- 16 above, while learning the lessons of what has happened until now and from comparative law, it may obviate the need for Court’s intervention in the matter. In the past however, the judicial review of the entire matter was essential and this also applies to the petitions before us, and it may again be required of us in the future. Furthermore, I think that judicial review was one of the factors that lead to a certain degree of improvement (although still not sufficient) in one of the subjects treated of in the petitions, as clarified in the opinion of the President. In this sense, the court contributes – by way of the law – to the required social changes in addition to its establishment of the law, and the achievements that this produced in a variety of realms are all recorded in the history of this Court and in the annals of Israel’s history. A similar conception has long been accepted in the majority of the democratic states, and in the U.S.A. for example, adducing more remote evidence, most of the important struggles – political, social and economic, were channeled inter alia into legal frameworks and the decisions rendered shaped the character of America as we know it. See: Arnon Gutfeld, The Brown v. Topeka Board of Education Decision and its Impact on American History The Brown v. Topeka Board of Education Decision and its Impact on American History,” in Daniel Gutwein and Menachem Mautner (eds.).Law and History. 231; Stephen Breyer, Making Our Democracy Work: A Judge’s View, Part 1, pp. 1-74 (2010)

            It is superfluous to elaborate any further on this point at this stage, which brings me to the final paragraph.

18.       My colleague, Justice Rubinstein opened his opinion with a story told of Rabbi. Shlomo Zalman Aeurbach, of blessed memory. My colleague, Justice N. Hendel concluded his opinion with the words spoken by R. Yitzchak Gussman, of blessed memory. It emerges that there is a glimmer of hope because even in hareidi world today there are prominent figures today who take a similar approach. We recently read about one of the heads of the Ponevez Yeshiva (which is one the leading haredi yeshivas – the illustrious Rabbi Yerachmiel Gershon Edelstein, may he live long – in responding to his detractors (who criticized him for being “overly fond of the Zionists and the I.D.F. soldiers): “Even the secular [Jews-trans} who are not observant of the Torah and its commandments, if they give their lives for the saving of others because of their love of human beings, have a portion in the World to Come, just as the martyrs of Lod, who gave their lives to save the residents of the town. The Rabbi then related the story of the martyrs of Lod: “In Lod the daughter of the king was killed, and they suspected that the Jews were the murderers. A decree was issued that if the murderer was not found, then all of the Jews would be killed. Two brothers come and said that they were the murderers, even though they were not the murderers, in order to save the residents of the town, and the Sages said that no person can attain to the place in Heaven assigned to the martyers of Lud; published in Kikar HaShabat on 8 Shevat 5772

            On the gemara concerning the story of the martyrs of Lud, see: Pesahim 50a; Ta’anit 18b; Bava Bathra 10b and Rashi, ad loc.

            If this kind of conciliatory spirit of loving of Jews were to rest upon all, and the mindset of service was to be accepted, it would become possible to achieve an understanding and the I.D.F would be able to continue being the people’s army.

 

Justice

 

Justice Hayut

 

I concur in the opinion of the President, D. Beinisch and all of her reasons and would like to add a number of comments

 

1.         The Deferment of Military Service for Yeshiva Students for Whom the Torah is Their Calling 5762-2002 (hereinafter – the Deferment Law) was enacted in the wake of the recommendations of the Commission for Establishing an Appropriate Arrangement of the Subject of Conscription of Yeshiva Students (headed by Justice Tzvi E. Tal (hereinafter: the Tal Commission), which was intended to find a feasible and practical solution for one of the most central, sensitive and complex problems which has been on our agenda for years. The legislative act was the product of the recognition that the issue of the enlistment of yeshiva students must be resolved in Knesset legislation (see HCJ 3267/97 Rubinstein v. Minister of Defense [1], and in the recognition that the strength and the unity of Israeli society mandates the treatment of the issue without delay, in view of the growing numbers of hareidi men who do not serve in the army, since the cancellation of the exemption quota for those for whom “Torah is their Calling” in 1978 (see data regarding this on p. 16 of Report of the Interoffice Team for Encouragement of Employment and Promotion of Military and Civilian Service in the Hareidi Sector (hereinafter: Report of the Gabbai Commission). At the same time – and this point was stressed in the report submitted by the Tal Commission – the obvious differences between the hareidi sector and the secular sector, finding expression inter alia in lifestyle, education, and scale of values, necessitates that a solution be found which takes into account the peculiarity of hareidi society and its needs.

            The Deferment Law enacted by the Knesset in 2002 may thus be characterized as a law that is the product of a social compromise, intended to increase solidarity among the different parts of Israeli society, and the integration of hareidi society therein by way of the different mechanisms established by the Law. Indeed, according to the hopes of its enactors, the Law sought to harness significant portions of the hareidi sector into bearing the onus of military service, albeit at a reduced level, and to increase their presence in the Israeli work market (see: Movement for Quality of Government v. Israeli Knesset [2] (hereinafter: Movement for Quality of Government case).

2.         Due to the unique nature of the Deferment Law, as a law that seeks to spearhead a social change using a model characterized by a graded process, we were required to adapt the judicial review to these distinct features. This point was taken up by President Barak, in relating to the first subtest of proportionality (the rational connection test) which concerns the existence of conformity and a rational connection between the objectives of the Deferment Law and the measures chosen by the Legislature to realize these objectives. In this context, President Barak stressed that the examination of this rational connection:

              

‘Must be conducted, for the purpose of the law under discussion, not as a theoretical matter, but rather as a practical matter tested by the results of its implementation. Indeed, as a theoretical question examined at the time of the law’s enactment, the arrangements prescribed in the law may be capable of realizing its objectives,..an (advance) examination of this kind will not suffice. When the underlying objective of the law is to orchestrate a social change, the occurrence of which is not purely a matter of theoretical speculation but is rather examined in the test of life, the suitability of the measures chosen to realize the purpose must be examined in terms of their results’. (Movement for the Quality of Government [2] at p. 710. For the approach according to which the examination of the rational connection is in general a test that for the full duration of the law’s validity, see Aharon Barak Proportionality in the Law – The Violation of the Constitutional Right and its Limitations 384-387 (2010)

 

Support for the “test of results” adopted in Movement for the Quality of Government case appears in s. 16 of the Law, which determined a period of validity of five years from the date of its publication (while empowering the Knesset, by decision, to extend its validity for additional periods each of which would not exceed five years) as well as in the Explanatory Note which noted that the Law’s period of validity was fixed for five years “to enable the monitoring of the progress in the trends, in the framework of the enlistment deferment arrangements for yeshiva students for whom their Torah is their calling, and primarily the influence of the proposed law on the scope of yeshiva students included in the arrangement…” (Draft Bill for the Military Service (Deferment of Service for Yeshiva Students for whom the Torah is their Calling) Law (Temporary Order), 5760-2000, Hatza’ot Hok 5760-2000, 2889, 455, 458.

            It will be stressed that in the Movement for the Quality of Government case, we did not ignore the fact that in terms of its results, and according to the situation at that time (2006) , there was no rational connection between the objectives of the Law and the measures used in its implementation, because the data at that time showed that the objectives of the Law had only been realized in a negligible and marginal manner and that its principal overall objective of the Deferment Law was not realized (see Movement for the Quality of Government [2 ] at p. 712. All the same, we felt that it was appropriate to wait until the passage of the full period of time prescribed by the legislator for monitoring the actual realization of its purposes (five years), so as to enable the Knesset to examine in accordance with the structure that it had prescribed, whether there had been any substantive change in the picture since the granting of the judgment.

3.         The petitions before us were filed in the wake of the Knesset’s extension of the Deferment Law for an additional five years on 8 August 2007, and in our decision of 8 August 2009 we reviewed the current data pertaining to the implementation of the Law at that time, and we expressed our disappointment that “the entirety of the data presented above concerning the integration of those who received deferments from I.D.F service and civilian service does not reflect a significant change of the kind contemplated by the judgment in Movement for Quality of Government [2] (para. 10 of the decision)” All the same, we will abide by our decision that “the test of the Deferment Law lies in its realization in practice. The test is in the actual social change that is achieved” (Movement for Quality of Government [2], at p. 711). We decided that at that stage too it was appropriate to enable the Law and the mechanisms fixed therein, which had already begun operating, to prove that it was capable of generating this kind of change. We therefore ordered that the hearing of the petitions would be renewed after the passage of fifteen months from the date the decision was given, in order to be able to once more examine the updated data pertaining to the implementation of the Law.

4.         Unfortunately, the desired change did not materialize even after the passage of the additional period of time that we allocated in our decision, and I agree with my colleague the President that the period of almost a decade that have passed since the enactment of the Law (1 August 2002) “represents a sufficient period for addressing the central question raised by this Court in the Movement for Quality Government case” [2](para. 68 of her opinion). I also concur with my colleague regarding the answer to be given to this question, and in accordance with which the “results test” over a period of time indicates that the Law does not pass the first subtest of proportionality, and that the means chosen to realize the Law are not suited to the purposes of the Law. For example, in 2010 the number of new inductees to the I.D.F. from the haredi sector from all age levels stood at 510 only (the 368 inductees into hareidi Nahal are not included in this group because the inductees of hareidi Nahal are not connected to the implementation of the Deferment Law) whereas the aggregate number of all those whose enlistment was deferred as of 6 January 2011 stood at 61,877 men (see p. 7 and 20 of the response of respondents 2- 4 dated 23 January in these petitions. The State claimed that the overall number of those whose service was deferred is smaller, inter alia due to the exclusion of those who are 30 and over, the efficacy of their enlistment being in doubt. However, even according to this approach, the aggregate number of all those whose service has been deferred is in excess of 50,000, and as such there is no escaping the conclusion that the percentage of those enlisted from the hareidi sector (530 in 2010 from all the age levels) was and has remained particularly marginal and negligible. If we take account of the fact that the rate of natural increase in the hareidi sector is far more rapid than the natural increase of the rest of the Jewish population in Israel (about 7% per annum for the hareidi sector as opposed to 1.3% for the rest of the Jewish population – p. 8 of the Gabbai Report), it is no wonder that the number of those whose service is deferred from among the hareidi population has consistently grown from year to year (see para. 50 of the President’s opinion). Thus, the data accumulated thus far do not point to any meaningful positive trend with respect to the attainment of the objectives to which the Law was directed. Quite the opposite: These data are worrying because they indicate that the dimensions of the problem which the Deferment Law sought to solve are growing. Hence, the Gabbai Report indicates that in the younger age range (20 – 29) only 11% of the haredi men service in the Army as opposed to 90% of the Jewish men in this age range (p. 12 of the report) and the results in the civilian service track are likewise rueful (see paras. 42-46 of the President’s opinion.

5.         The ineluctable conclusion from all of the above is that the Deferment Law did not succeed in realizing the objectives for which it was enacted. The reason for this is that the mechanisms established in the Law lack the power to generate the profound changes in the hareidi sector which would narrow the glaring inequality which has materialized in Israeli society as far as it concerns the bearing of the military burden, at least by way of civilian service. Hence, the arrangements prescribed by the Law relate primarily to men above the age of 22, an age at which the average haredi man is married and is often a parent to a child (see p. 19 of the Gabbai Report). As such his ability or will to enlist for significant service at that stage of his life is considerably less. Similarly, the arrangements prescribed by the Law are not sufficiently tight, and this opens the way for the authorities to divest it of all meaning, and thus frustrate the overall realization of its intended objectives (regarding this, see paras. 24- 26, 44-46 of the President’s opinion). For example, today already from age 22 there is no preference for military service over civilian service; civilian service is likely to be for one year only, see: Regulations for Deferment of Service for Yeshiva Students whose Torah is their Calling (Civilian Service) 5767-2007 and is for the most part performed within the community (68% according to the Head of the Administration, and 57% according to the position of the Minister of Science – see p. 27 of the interim report of the panel for examination of the implementation of the Tal Law, headed by Knesset Member Plesner, dated 16 January 2011) and is not sufficiently supervised; a track of abbreviated service of three months was established for those aged 26 and above; and men over age 28 are directly referred to the pool for reserve duty with no obligation of service.

6.         As an aside in this opinion, I would like to add a few remarks relating to the position taken by my colleague Justice A. Grunis, concerning the scenarios that will take place the day after our judgment and the conclusion that he sought to draw from that position.

            My colleague Justice A. Grunis says that “It is illusory to expect that a judicial decision will lead to the enlistment of the hareidi men into the I.D.F and their entry into the work force. Social and economic changes are able to bring about the hoped for changes. The ability of the Court to influence in cases of this kind is meager” (para. 2 of his opinion).

            The question of the degree to which a judicial resolution can give rise to a social change is one over which jurists and scholars of political science have spilt much ink, in Israel and around the world. My colleagues justices M. Naor, and H. Meltzer, and my colleague the President D. Beinisch referred to some of the legal literature on this subject (and see also: Ruth Gavison “The Hollow Hope – Can Courts Bring About Social Change” Maasei Mishpat 2 15 (2009 which reviews the book of Gerald N. Rosenberg: The Hollow Hope: Can Courts Bring About Social Change (2^nd ed., 2008); Menachem Mautner, “Judicial Activism – An Appraisal, Alei Mishpat 4, 7 (2005) (hereinafter – Mautner); Judicial Activism: For and Against: The Role of the High Court of Justice in Israeli Society (2000); Yuval Albashan “Aharon Barak – Between Law and Protest, Barak Volume – Studies in the Judicial Activities of Aharon Barak 139 (Ayal Zamir, Barak Medina, Celia Fesberg eds. 2009); Neal Devins, Judicial Matters, 80 Cal. L. Rev. 1027 (1992); David Schultz & Stephen E. Gottlieb, Legal Functionalism and Social Change: A Reassessment of Rosenberg's The Hollow Hope: Can Courts Bring About Social Change?, 12 J.L. & Pol. 63 (1996). Personally, I tend to the view that the courts have the power, inter alia by way of judicial review, to be partners in processes that give rise to social changes. At all events, even if my colleague is correct in his approach to the effect that the courts’ ability to influence social changes is minimal, the question to be asked is whether that justifies the conclusion which he reached, namely that the courts should stand on the sideline and reject any attempt to influence these processes, even if only minimally.

            In my conception, the judicial decision in all of its variations, especially in the field of protection of human rights and the guarding of the rule of law and purity of conduct, is one that by its very essence touches on value based matters. These values have been embedded in the law of the State since the dawn of its existence and they constitute the foundation and the building blocks of the Israeli democracy in its entirety. Having been charged with the protection of human rights and guarding the rule of law, and being equipped with the legal – value based tools to perform that task, inter alia by way of judicial review, it is incumbent upon the court to fulfill that task, without being deterred by the negligible or extensive influence that its ruling may have. Comments in that spirit were expressed by Professor Mautner in his article on judicial activism cited above, where he states:

 

‘Another question, naturally concerns the extent to which the court succeeds in inculcating the appropriate values of administrative law in the public administration of the state. The answer to this question will certainly be mixed but this does not mean that the court should refrain from making the effort. As jurists we know that there is invariably a difference between the ideals of the law and the extent to which they are realized in the real world. But this does not mean that these ideals should be waived (Mautner, at p. 16)

7.         Examples of the efforts made by this Court to protect the basic constitutional principles of our democratic regime are scattered throughout its case-law during all the years of its existence, before and after the enactment of the Basic Law at the beginning of the nineties. Space would definitely prevent detailing the full picture, but one example nonetheless worthy of mention is the case of HCJ 153/87 Shakdiel v. Minister of Religious Affairs [34], where the Court did not recoil from protecting the principle of equality and cancelling gender based discrimination, when ruling that the petitioner should be included in the panel of the Religious Council of Yerucham as a candidate on behalf of the local authority. The protection of the principle of equality in that case required the Court to treat a topic of tremendous social and halakhic sensitivity, and the Court was aware of this, and noted, per Vice President M. Elon

 

‘We 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 (ibid, 270-271).

8.         The role of the judge in a democratic society as the protector of human rights and the rule of law has been discussed by discussed by many of the best (see Aharon Barak The Judge in Democratic Society (2004); Itzchak Zamir “Judicial Activism: A Decision to Decide Tel-Aviv Law Review 17, 647 (1993); Yitzchak Zamir “Judicial Review of the Public Administration” Gabriel Bach Volume 383 (David Hahn, Danah Cohen-Lekah, Michael Bach eds., 2011) Beverley M. McLachlin, The Role of the Court in the Post-Charter Era: Policy-Maker or Adjudicator?, 39 U.N.B.L.J 43 (1990). A derivative of this role is the court’s duty to do its utmost to narrow the gap that often exists between these fundamental values – which must be protected from a long term perspective – and the social reality which may materialize as a result of the actions of other governmental authorities, that are often motivated by short term considerations and various political constraints. Also germane to this context are the comments of Deputy President M. Cheshin in HCJ 2458/01 New Family v. Approvals Comm. for Surrogate Motherhood Agreements, Ministry of. Health [48]

 

“…far be it from us to mix reality and values. However, the test for determining the obligation of equality – and similarly the prohibition on discrimination – originated and currently exists specifically in order to combat “accepted social conceptions” . This is the case with respect to discrimination on grounds of race, discrimination on grounds of sex, discrimination on grounds of sexual inclination and discrimination on other grounds too. All of these discriminatory acts have their origin in “accepted social conceptions”: the social conception that a member of one race is inferior to the member of another race; that women are not competent to perform actions that men perform; that people of a certain age are not competent for particular professions etc. Indeed, the uprooting of ‘accepted social conceptions’ – accepted but illegitimate – is the purpose of various laws, and the court, in conjunction with the legislature, must stand on guard and act to inculcate the values of equality among the members of the society, which are built upon the talents of the individual and not upon stereotypes that have attached to the group to which a particular person belongs (ibid, p. 452; see also and compare HCJ 4948/03 Elchanati v. Finance Minister [50], para. 24; HCJ 104/87 Nevo v. National Labor Court [51], at p. 769, Mautner, at p.11)

 

The issue to be decided in these petitions has been brought before this Court time and again by petitioners who have ably served an entire public that has long lived with a harsh feeling of inequality, as far as it touches on bearing the burden of military service. In addressing this issue the Court has conducted itself with caution in awareness of the social sensitivity involved therein, and by reason of the caution, responsibility and humility which should always guide the Court in exercising judicial review over the other governmental authorities, and in the case at hand, over the Legislature. However, the time for decision has arrived, and for the reasons explained so well by my colleague the President, and by reason of the insights set forth above, which I acquired during the years in which proceedings on these matters were conducted before us, I add my opinion to that of the President and to the result that she arrived at, according to which the Deferment Law cannot be extended again in its present format, and a new arrangement must be formulated, which it is not for us to determine, and which ensures the intended objectives of the law in a more effective and more proportionate manner.

 

Justice

Justice N. Hendel

 

1.         It might be asked: How does the Supreme Court’s examination of the constitutional petition differ from the examination of the efficiency or non-efficiency of the Law forming the subject of the petition (the Law or the Tal Law)(see: interim decision of 8 August 2009, given in the wake of the granting of order nisi, para. 9 in the opinion of my colleague, Justice Hayut). The thrust of the question: Why is the “result test” so crucial to this Court’s decision of whether the Tal Law should be voided or not. The examination of the Tal Law should not, primarily, be an examination de jure but rather de facto, having regard inter alia for its success on the ground. It seems that this latter point is the crux of the dispute between the opinion of the President and the opinion of my colleague Justice E. Arbel. In explaining why the result test is proper and correct in this case I will briefly present the relevant background.

            The subject of the deferment of military service – to the extent of actually granting a complete exemption – to yeshiva students who declare that “their Torah is their calling” has been litigated before us on a number of occasions. The current variation of the exemption, in the form of the Tal Law, is now being heard for the second time in this file (see Movement for Quality of Government v. Knesset [2] (hereinafter – Movement for Quality of Government case). The procedural variation of the petition concerning the Tal Law establishes the boundary for a decision on the matter.

            The Tal Law infringes the right to quality in a manner that violates the Basic Law: Human Dignity and Liberty. Not every infringement of equality amounts to a violation of the aforementioned law. However the infringement caused by the legislative arrangement for the deferment of military service to the extent of granting an exemption touches at the heart of human dignity and perhaps even more so to liberty. Its import is that a youth of 18 years old who satisfies the criteria of “Torah is his Calling” is permitted to choose whether to serve in military service, while his contemporary of the same age is obligated to serve for three years during an important period in his life, while being liable to endanger his mind and body. The exemption applies to a group of significant dimensions – currently one out of every seven young men – (from the last conscription yearbook, which was examined and submitted to us). This constitutes sweeping and severe discrimination that is not based on any relevant difference that might be able to justify the distinction. Two conclusions derive from this: The first is that the Law violates equality under Basic Law: Human Dignity and Liberty. The second is that the nature of the direct violation and the sacrifice demanded of the individual – a young man of 18 who is obligated to enlist into military service – rules out the possibility of ignoring it purely because the victim is included in the majority group. In other words: Why should a young man of 18, – only yesterday a minor and having just entered the gates of adulthood – having been conscripted with no possibility of choosing, be required to shoulder the “burden of the status” of the majority. As such, I see no reason in this case to discuss the question of the extent to which the majority is entitled to discriminate against itself. This being the position, there is likewise no need to address the difficulties in defining terms such as “majority” and “minority” when the society and the government are not divided up in a binary sense (see and compare: Justice A. Grunis’ opinion in Movement for Quality of Government [2], at p, 803, opposite letter G, until p. 804 opposite letter B, in relation to a law that discriminates against women).

Along with the above, in the Movement for Quality of Government case it was held that the arrangement in the Tal Law was based on a number of purposes – that is to say that its purpose was not just to achieve greater equality. This approach is rooted in the recognition of reality, the history of the enlistment of the hareidi public into military service, the lack of wisdom in a change that would be revolutionary as opposed to evolutionary, and the advantage of a consensual solution in this kind of matter, as opposed to a coerced solution. The Tal Law was thus to be assessed in terms of its ability to achieve four objectives: to anchor in legislation an arrangement for the deferment of service for yeshiva students in “recognition of the uniqueness of the hareidi society and its culture, and the value of Torah studies (para. 55 of the opinion of President A. Barak in Movement for Quality of Government [2] which refers to the report of the Tal Commission); to generate greater equality in the bearing of the burden of military service in Israeli society; to integrate the hareidi public into the work force; to bring create a graded solution that has consideration for the difficulties of the arrangement for the deferment of military service of yeshiva students, based on broad consensus. It was held that these objectives are appropriate when examined through the prism of Basic Law: Human Dignity and Liberty, in other words, that they are consistent with the values of the State of Israel as a Jewish and democratic state. (Movement for Quality of Government case [2], at pp. 700).

            The Tal Law therefore recognizes the existence of a constitutionally based violation of the principle of equality but justifies it by the attainment of four objectives that have consideration for the complexity of the problem and for a certain degree of multiculturalism in relation to the sociological group of the hareidi public (Menachem Mautner, Law and Culture 246-247 (5768-2008)). Having such consideration is all the more justified in a state whose Basic Law defines it as being Jewish and democratic. However, it must be stressed that an important and central objective of the Law is the promotion of a change in the direction of reduction of the violation of equality. The decision in the Movement for Quality of Government case effectively rejected the demand for equality now, and was prepared to accept a change that was gradual, but meaningful. The importance attaching to the objective of narrowing the discrepancy in the allocation of the burden of military service stems from the nature of the constitutional violation, embedded in the Law itself – inequality. Accordingly, in the framework of the constitutional examination of the Tal Law significance attaches to its success in reducing the aforementioned gap, as attested by the result test. An additional practical consideration must also be added here – namely, that our current concern is with a law following the passage of a ten year period, which enables an examination of the law’s results, not as an evaluation that anticipates the future, but rather by means of examining the facts on the ground. In the Movement for Quality of Government case this Court postponed its decision, in its awareness of the objectives of the Law, which demanded an examination of the situation over a period of time. It is for this reason that I cannot concur with my colleague Justice E. Arbel in relation to the numerical data that were presented by the respondents. It seems to me that in order to examine her forecast on the basis of the statistics mentioned in her opinion, we would have to wait a number of additional years, etc, and I see no justification for doing so. The decade which has passed since the Law’s enactment suffices to present a picture. An additional reservation is that while there may have been a certain increase in the number of those enlisting from the ranks of the hareidi public, given the increase in the number of hareidi men in the annual pool of those designated for military service, the overall result is not an improvement but quite the opposite.

            From this perspective I cannot but agree with the result reached by the President. There is no point in revisiting her comprehensive and thorough review. Suffice it to say that according to the data presented to us our concern is with isolated percentages of yeshiva students who enlist to the military service (see paras. 10 and 31 of the President). Nor do they demonstrate the achievement of the objective of increasing the participation of the hareidi public in the work market. Notwithstanding the good will of those who labored over the task of enacting the Law, its failure in terms of results is not a borderline one, but significant. This failure is not necessarily the result of the arrangement forming the basis of the Law, but rather may stem from the willingness of those concerned to tread the path it paved. The choice or more precisely, “the surplus of choice” granted to the yeshiva students in the structure of the Tal Law thus became its stumbling block.

            If indeed the Law failed in its implementation or by reason of the gap between its intentions and its results, it is appropriate to devote our attention to its landscape, to go to the roots of the matter, and to illuminate a number of points that may not have been sufficiently clear.

2.         The study of Torah is the crown of the commandments. “The study of Torah is equal to all of them” (Talmud Bavli, Tractate Shabbat 127a) “The commandment to study Torah is greater than all of the other commandments” (Shulkan Arukh, Hoshen Mishpat 247:18). The greatness of the commandments derives from the fact that the Torah is the source of the law, but it does not there. In the Talmudic period “the question was asked…which is greater – the learning of Torah or its performance? Rabbi Tarfon answered: the performance is greater. Rabbi Akiva said: the study. And they conclude: "Learning is greater – only because it leads to performance” (Talmud Bavli, Tractate Kiddushin 40b). The harmony is clear, but so is the tension. The commandment of Torah study has primacy precisely because it leads to action. Nonetheless, the study of Torah is important not only for practical reasons, in both senses. From the perspective of the halakhah, “The Torah is the word of God. Accordingly my contact with Torah is indirectly a contact with the Holy One Blessed be He….this is the source of that special feeling of elation in the study of Torah. This unique feeling nurtures, sustains and shapes my entire involvement in Torah. It leaves its imprint on my entire world” (H. Sabato In Quest of Your Presence – Conversations with Rabbi Aharon Lichtenstein 18-19 (2011)). It should also be stressed that the study of Torah is not just a religious experience with the Creator the World, but also a significant historical and cultural tier, and a national asset of the first degree. The words of Ahad Ha’Am are appropriate in this context: “It may be said without any exaggeration, that more than Jews have kept Shabbat, Shabbat has kept the Jews; and if not for it, which restored their souls and renewed their spirits every week, the hardships of the week would have drawn them further and further down, until they reached the very lowest level of materialism, and moral and intellectual wretchedness” (Asher Tzvi Ginzberg “The Sabbath and Zionism” HaShiloah3 (6) 5658-1898). And if the question be asked – why the Shabbat: the answer would be – from the story of the creation in the book of Genesis and the laws of Shabbat appearing in the book of Exodus and the Babylonian and Jerusalem Talmud, in Tractate Shabbat. From this we can learn: More than Israel guarded the commandment of the studying Torah, this commandment guarded them.

Let us not forget that Jewish law is not one-dimensional. The commandment to study Torah is certainly not an only child0. The world is not only built on Torah but also on kindness (see Ethics of Fathers1:2). In the words of Rabbi A. Lichtenstein, the head of the Gush Etzion Yeshiva, to the Tal Commission “The involvement in Torah is supplemented by the value of acts of loving kindness, and the most demanding act of loving kindness is military service” (The Commission for Establishing an Appropriate Arrangement of the Subject of Conscription of Yeshiva Students – Report of the Commission 51 (2000). The demanding nature of military service is expressed not only in the endangering of the body of the soldier but also in the exposure of his soul to the unnatural occupation of combat with all that is implied thereby. This is part of the soldier’s devotion. The halakhah is aware of the difficulties attendant to fulfilling the commandment of fighting, and despite the heavy price a person is liable to pay, it is still a commandment (see letter of Rabbi Joseph Dov Soleveitchik further on). The “Great Eagle” Maimonides spread his wings over the Laws of War and stipulated that one of the situations included in the category of obligatory war is “to assist Israel from an enemy which attacks them (in the words of Maimonides, Hil. Melahim 5:1); see also Sefer Hazon Ish: Orah Haim, Moed, Erubin, Likutim, Halakhah 1, p. 166). The I.D.F. – Israel Defense Force – by its very essence fits into the halakhic definition, and who bears the burden of serving in an obligatory war? The Mishnah rules: “In an obligatory war, all go out – even a groom from his chamber and a bride from her wedding canopy [to do battle] (Talmud Bavli, Tractate Sotah 8:7, Maimonides, Mishneh Torah, ibid., hal. 4). Rabbi Y, of Karelin wrote regarding this Mishnah: “And this means that in an obligatory war all must go out, even the Torah scholars must interrupt their studies” (Keren Orah on Tractate Sotah). The author of the Arukh even learns this by force of a fortiori”Rabbi Judah said in the name of Rav “even a groom from his chamber and a bride from her wedding canopy – this means – and all the more so Torah scholars (Sefer HeArukh, “Energia [battle], of Rav Nathan b. Yehiel, who lived in the 11 century in Italy, based on the Babylonian Talmud, Tractate Sotah 10a, and see also Maharsha ad loc. ). The Hazon Ish clarified this point: “It appears that the Mishnaic ruling that in an obligatory war even the groom is commanded to leave his chamber does not relate to a situation in which they are needed in order to win the war, for it is clear that where it concerns a threat to life and the saving of the nation all are obligated, but even at a time in which there is only a need for a fixed number of soldiers, it was permitted to take a groom from his chamber, for those who are exempt from war have no special right during times of obligatory war. And this is similarly applicable to a discretionary war, they are not exempt unless the victory for Israel is not dependent upon them, in which the army has the numbers it requires without them. But if they are needed they must go to help their brothers” (Sefer Hazon Ish,ibid, p. 167).

In the absence of a Jewish state or Jewish government, the prevailing conception in the Middle Ages until the establishment of the State was that the laws of obligatory war in the form of protection of the Jewish people have no application.. Accordingly, the laws of war do not appear in the 4 parts of the Shukhan Arukh, which purported to establish the halakhah that was relevant in “this time”, i.e. in the period following the destruction of the Temple. On the other hand, the laws of war are set out in Arukh HaShulkhan HeAtid written by R. Yechiel Epstein, author of Arukh HaShulkhan, who lived in Russia in the 20^th century . Despite this, in the period between the 19 century and the beginning of the 20^th century Jews began to participate in wars waged in their host states. Rabbi David Zvi Hoffman, one of the prominent German rabbis, wrote after the First World War that one could not avoid military service the duration of which was “…a year, two years or three years…” just because of the desecration of the Sabbath, because “it is more than just the performance of a commandment for he who does so [avoids serving – translator] causes a discretion of the Divine Name if the matter becomes known (Responsa Melamed Leho’il, p. 1 s. 42).

Naturally, military service in foreign armies created halakhic problems. The following question provides an example: “Concerning young hareidi men who are about to be conscripted into the army, where they will be forced to break their hunger by forbidden foods… are they permitted to eat the forbidden foods immediately upon joining, or should they refrain from tasting anything until they are in danger, and upon reaching that situation are they obligated to make a blessing…?”(Resp. Ma’arkhei Lev, Yoreh Deah 43, of Rabbi Yehuda Leib Charleson, who was the chief rabbi of Serbia-Kishiven region during the period that preceded the Second World War). At the beginning of the 50’s of the previous century, rabbis in the U.S.A asked whether they should participate in the Korean War as army chaplains, given their fears that they would be forced (for example) to desecrate the Sabbath. Rabbi Joseph Soloveitchik ruled that they should enlist and elaborated with respect to even greater challenges: “The Halakhah, which displayed so much alertness to and understanding for all human weaknesses and frailties, has given much thought to the unique psychology of the warrior who, living in constant danger, loses the perspective of spiritual values and ethical norms…therefore, sought to rehabilitate the camp of the warriors and to raise it to a high level of morality and dignity. If the rabbis of today wish to continue this glorious tradition of giving their service where it is needed most, the military camp is the place” (Rabbi Joseph Dov HaLevi Soloveitchik, “"On Drafting Rabbis and Rabbinical Students for the U.S> Armed Forces Chaplaincy, Community, Covenant, and Commitment (ed. Nathaniel Helfgot, 2005) 23)

The Hafetz Haim, who lived in Poland about one hundred years ago, wrote a book called “Camp of Israel: The Laws and Conduct for Army People During their Period in the Army. In this unique work, a number of editions of which were printed, the rabbi addressed the laws of studying Torah in a military framework and compared the obstacle to studying Torah posed by the army to Joseph, who when imprisoned, reviewed the teaching of his father Jacob. He also discussed the laws of prayer in the army, stressing that one should not refrain from praying on a daily basis despite the numerous difficulties involved. From this historical perspective I confess that I felt the need to be grateful to the I.D.F that provides religious services such as military chaplains, religious quorums of ten (minyanim),kosher food, sensitivity to the observance of the Sabbath in non life-threatening situations, numerous classes in Torah for the hareidi Nahal, and the possibility of combining military service with the a yeshiva framework.

I have not written for sake of innovation, and my remarks above are well known to scholars of Torah. The question which presents itself however is what basis is there for opposition to military service in our time? It is well known that “During the War of Independence many young hareidi men joined the army that was fighting for independence….these pamphlets (the journal of the Agudat Yisrael Youth) abound with expressions of identification with the fighters and demonstrate the tremendous motivation that accompanied their military service” (Benjamin Brown – The Hazon Ish: Halakhist, Believer and Leader of the Haredi Revolution 247 (5771-2011).            In other words, the principles and rules governing the commandment of participating in a defensive war are well known and settled among rabbinical authorities and Torah scholars. Indeed, can one ignore the fact that Abraham (Genesis, ch. 14), Moses (Exodus ch.17:8, Numbers ch. 3; ibid., ch. 31; Deuteronomy, ch. 2) Joshua (Joshua, ch. 12) and King David (2 Samuel, ch. 5:6-10); 1 Chronicles, ch. 11, 4-9) all conducted wars. The answer to the question is that the hareidi position today stems from a quasi temporary provision. The halakhah recognizes the notion of a temporary provision (see Talmud Bavli, Tractate Yebbamot 38a and Maimonides, Mishneh Torah, Hil. Sanhedrin 24:4) – a practical consideration stemming from a complex situation, with special needs.

The problem is that reality has changed. The overall number of yeshiva students who are deferring their service ranges at around 60,000 men. As mentioned, over the past few years, the ratio is one out of every seven young men at the age of the annual conscription pool. The forecast based on past experience is that this number will rise. To make matter more concrete: The estimation is that between the years 1968 – 1988 the number of yeshiva students whose Torah was their calling rose four fold, from 4700 to 18,400 and the percentage of yeshiva students from among the total population designated for military service doubled from 2.5% to 5.3% (State Comptroller, 39^th Annual Report (1989), 904, Menahem Hoftung, Israel, State Security versus the Rule of Law 245 (1991). The rate of those who deferred their service under the Law from the annual conscription pool of the total population, rose from 8.4% in 1998 to 14% in 2007 (Statement of Response of Respondents, of 30.12.2008). During the period of the establishment of the State, the group of those whose service had been deferred numbered 400 men only. Towards the end of his days, the first Prime Minister, Ben Gurion expressed the view that he had erred in granting the exemption to the yeshiva students, because he thought at the time that the aforementioned group of 400 students only would not survive and would certainly not thrive (Knesset Proceedings, 13 October 1958; according to a conversation with Rabbi Shlomo Riskin, the chief rabbi of the Efrat settlement, who visited David Ben-Gurion in S’de Boker at the beginning of the seventies; see also letter from David Ben-Gurion to Levi Eshkol, Prime Minister (12.9.1963), Ben –Gurion Archives).

The hareidi community must therefore come to terms with its numerical success and its implications – success and growth that many did not anticipate. This numerical datum in conjunction with the fact that the hareidi public constitutes a steadily growing percentage of the total Israeli population also structures the current reality. The halakhic temporary provision must take this into account. When the State was established the fear was that the Eternal Flame in the House of the Study would be extinguished. In the words of the Israeli Chief Rabbi in 1949 – Ben Zion Ouziel to David Ben-Gurion: “The Assembly of Rabbis has decided to express…its opposition to the conscription of the yeshiva students so that the Torah will not be forgotten from Israel” (Rabbi Ouziel, Mihmanei Ouziel pt. 5, Letters, Correspondences, Part 409, p. 691 (5767-2007)). Quite simply, this fear was particularly tangible in the wake of the Holocaust during which many of the yeshivas in Europe were destroyed. This is no longer the case. The transformation was already described a few decades ago by the Chief Rabbi of Nethanya, Rabbi David Shalush “…Jerusalem the capital of Israel is teeming with its sons, growing and bursting West, East, North and South with buildings of glory and honor. Tens of thousands of scholars of Torah and students are sitting and meditating on Torah, and the voice of Torah and prayer pierces from the walls of the synagogues and houses of study in Jerusalem, as well as in many other cities (Resp Hemdat Genuza, Question 21, p. 233, pt. 8). The renewed building may be viewed as the first stage in the fulfillment of the verse “then I will send rain on your land in its season (Deuteronomy 11:14). In the scriptural context matar means bouteous rains in the land of Israel (Deuteronomy, ch. 28:12, ibid., ch. 28:24 Isaiah, ch. 30:23). At the same time, it is clear that the numerical change is also significant in terms of military conscription. A group as large as that, were it to be conscripted into the army would certainly be able to contribute to state security and even to bring about a more equal division of the burden. This is not just an academic point but a concrete fact. It is all the more true when an enormous increase is expected in the numbers of yeshiva students.

The irony is that there is now a state law that was enacted as a temporary provision that was temporarily extended for a period of five additional years in the Knesset Decision of 2007 (s. 16 of the Law), existing side by side with the approach of the haredi rabbinical authorities, which also concerns a quasi temporary provision, in the halakhic sense. Naturally, this Court does not rule in matters of halakhah and is not supposed to replace the discretion of the Knesset. These matters are presented here for the purpose of giving the full relevant picture. As ruled in the Movement for Quality of Government case, and clarified above, this Court recognized the propriety of the four objectives of the Law: to anchor the deferment of service arrangement in law, having recognition for the national importance of the yeshiva students; reducing the gaps of inequality; integrating the yeshiva students into the work market; creating a gradual consensual arrangement. Finding an appropriate solution to the problem is an exceedingly difficult task. As mentioned, my view is that the Law is not constitutional by reason of its being disproportionate in accordance with the first subtest, regarding the actual rational connection between the means adopted by the Law and its results. In the event that the arrangement fails to achieve the intended purpose, which establishes the proportionality of the Law – and in the present case the failure is unequivocal – then we are left with the grave violation of equality, and nothing else. In this case, the omission in the rational connection or in the conformity between the purpose and the means is not an omission in the regular sense. In other words, our concern is with an examination of the facts and the life experience of the Law for the length of the past decade, and not with a preliminary evaluation of the Law, including its logic. The constitutional defect lies in the lack of a connection in reality between the goals and the purpose.

The practical meaning of this at this time is that the Law cannot be extended. This result leaves a legal vacuum and a challenge for the Legislature. The need has arisen for the enactment of the new law that complies with the requirements of Basic Law: Human Dignity and Liberty. This is not the task of the Court. Our task is to identify when the statutory arrangement is not constitutional. The experiment of the Tal Law did not succeed in the test of results that it established. The possibilities for a new arrangement are many and varied. To reach an arrangement that is appropriate on a constitutional level will require creativity, good will, and sincere and genuine willingness on the part of all the parties to waive and compromise.

3.         Before closing, the subject of the compulsory conscription in defense service should be placed in the appropriate value-based context. To do so, the field of philosophy of logic may be of assistance. The philosopher David Hume, who lived in Scotland in the 17^th century taught us that there are two forms of reasoning: deductive reasoning and inductive reasoning. An example of the first form (deductive reasoning) is that if A is bigger than B, and B is bigger than C, then A must be bigger than C. This is a logical conclusion that may be regarded as a fact, subject to the assumptions presented. An example of the second form (inductive reasoning) is that if the sun rose yesterday and the day before, and in fact for the entire period of human memory, then it may be concluded that it will also rise tomorrow. This conclusion is based on our experience with the laws of nature, and is not a necessary fact from a logical perspective. See for example: David Hume, An Enquiry concerning Human Understanding (1748),

            The State of Israel has existed for 64 years. Since its establishment the sun has risen every day, and, notwithstanding the enormous difference, there has not been a single day without the occurrence of some security threat to the state and its citizens. While we welcome sunrise as part of the natural order and conclude that it will continue to shy away from the rays of the “sun” of the security threat, we try to interfere and to prevent its continuity, and we hope and take measures to ensure that what happened yesterday will not repeat itself tomorrow. This is also the approach of Jewish law. A defensive war is a positive commandment, while at the same time, peace remains the elevated ideal. As it is written “Great is peace for the entire Torah was given for their to be peace in the world, for its says (Proverbs 3:17) “Her ways are ways of pleasantness, and all her paths are peace” (Maimonides, Mishneh Torah, Hilkhot Hannukah, ch,4:14).

            We should cease occupying ourselves with war, including legal discussions concerning the duty of enlisting to the army, therein causing the elevated ideal of our sources to be forgotten. However, until we arrive at peace, the commandment of defending our state is one which has tremendous power to unify the people around it. Notwithstanding its ugliness it also teaches us that that which joints us is greater than what separate us.

 

“To illustrate the importance of the value of serving in the army, I will cite a story I heard from Dr. Feingold about the illustrious scholar, Rabbi Yitzchak Ze’ev Gustmann, of blessed memory, the last of the luminaries of Vilna, who was a members of the Beth Din of Haim Ozer Grodziensky, who experienced the terrors of the Holocaust and lost his only son. Years later he established a yeshiva in Rechavya, in Jerusalem. Among those who were close to Rabbi Gustmann was Professor Oman (Nobel Prize Laureate), whose son Shlomo Oman (may God avenge his blood), was a student of the Hesder yeshiva in Sha’alavim and was killed in the Peace for Galilee War. Upon hearing the news that Shlomo had been killed, Dr. Feingold came to take Rav Gustmann to the funeral. At the end of the funeral Rav Gustmann roamed around the freshly dug graves of the soldiers sighing and grieving for them, and had difficulty in leaving the graveyard. When they returned from the funeral he said “they are all holy”. One of the passengers travelling on the back seat asked him “All of them”? Even those who were not religious? Rabbi Gustmann turned around to the back seat and stated forcefully: “All of them ! All of them !”

When they came to Rechavya, Rabbi Gustmann turned around and said: “Dr. Feingold, perhaps we will go to Professor Oman to say something to him”….. and he turned to the widow, the parents, the brothers and the sisters and said: “My son Meirka was taken from my hands and thrown onto a truck in the kinderakzion…” And then the Rabbi straightened up and spread his hands out and said: “And now I will tell you what is happening in the World of Truth [the afterworld – ed.] My Meirka says to Shlomo “Be happy Shlomo that you were privileged. I was not privileged. I was not privileged to cast myself down in order to save the people of Israel. You were privileged! Professor Oman rose up from the ground and hugged Rabbi Gustman and said “You have comforted me, you have comforted me”.

 

When Dr. Feingold’s sons approached the age of conscription, he asked Rabbi Gustmann, who was admired by all of the great rabbis, even among hareidi circles: What does it say in the Torah of Moses: To go to the army or not? Rabbi Gustman replied: In the Torah of Moses our Teacher it says “Will your brothers go to war while you yourselves sit here?!” (This is what Moses our Teacher said to the sons of Reuven and Gad) (Rav Eliezer Melamed, Peninei Halakhah b’Inyanei Ha’am Ve-haaretz 85-86 (5765)).

 

These comments express an additional value-related aspect of the duty of conscription, which is that the service in the I.D.F is not only a duty but also a privilege.

4.         In conclusion, my view accords with the view of the President, that the Law for Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling (5762-2002) is not constitutional. Given the date upon which the validity of the Law is due to expire, this means that it will not be possible to extend it.

 

Justice

 

Justice A. Grunis

 

1.         Once again we are confronted with the subject of the non-enlistment of the haredi yeshiva students into the Israeli Defense Force. In my view, as opposed to the view of my colleagues, it would be preferable for the Court to altogether avoid addressing the subject and to leave it in the public arena, outside the courtroom. In my opinion given about six years ago in HCJ 6427/02 Movement for Quality Government in Israel v. The Knesset [2], I explained by position according to which there is no justification for applying judicial review in this case, to a law of the Knesset. The reason is that the relevant law – Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law (5762-2002) – is a law in which the majority granted an extra privilege to the minority. As I wrote at the time “When a majority acts by democratic means and adopts a law which confers preference to a minority, the court should not become the patron of the majority (para.1 of my opinion in HCJ 6427 [2]);

2.         In accordance with the result of the majority position in this proceeding (President D. Beinisch, Justice M. Naor, Justice E. Rubinstein, Justice E. Hayut, Justice H. Meltzer and Justice N. Hendel), the Law will remain in effect until its last day 1 August 2012 and it will not be possible to extend it again. By reason of this decision, the Knesset has two possibilities: The first – not to adopt another law to replace the law that expired; the second – to adopt a new law that will attempt to provide a between answer to the problems and defects which were pointed out by the majority justices.

            Should the first possibility be adopted, namely that the Knesset avoids the adoption of a new law on this subject, theoretically it would mean that the young haredi men, who do not currently enlist into the army, would be obliged to enlist, as do the members of the majority. It seems to me that there are very few people in the State (and perhaps even that is an exaggeration) who believe that there is an expectation of a mass enlistment of the members of hareidi yeshivas into the I.D.F. In the event that no new law was adopted, and a petition was filed in which the Government, including the Minister of Defense, was requested to force the enlistment – would a judgment that accepted the petition actually lead to the desired enlistment ?! I think that the answer self-evident.

            The other possibility, which seems more realistic than the previous one, is that in the wake of the judgment, the Knesset would adopt a new law that would attempt to rectify, to an extent, the defects of the current law. It may already be presumed that this law would not satisfy the demands of certain elements of the majority (comprising secular tradition and religious Jews who enlist in the army). As such there is no doubt that in the future another petition would be filed, consisting of the objections to the new law. This Court’s repeated involvement in the subject of the enlistment of haredi men without any substantial progress on the matter, certainly does nothing to enhance the stature of this Court. It is illusory to expect that a judicial decision will lead to the enlistment of the hareidi men into the I.D.F and their entry into the work force. Social and economic changes are able to bring about the hoped for changes. The ability of the Court to influence in cases of this kind is meager.

3.         Summing up, there is no justification for the intervention of the High Court of Justice in this case. The reason for this is that our concern is with a decision of the majority in the State (as per Knesset representation)       to enact a law that gives an extra privilege – not to enlist into the army – to a minority. Where it concerns a right of this nature, which does not involve a violation of the democratic mechanisms, or harm to individuals, in their capacity as individuals, or harm to a minority group – there is no justification for judicial review. And what’s more – the contribution of the Court to changing the social conduct of an entire sector of the Israeli population is particularly limited, and does not justify the interference of the Court in the matter.

4.         Were my opinion to be heard we would deny the petitions.

 

Justice

 

Vice President E. Rivlin

 

I concur in the view of my colleague, Justice A. Grunis that it is doubtful whether there should be a litigation of subject currently concerning us. My reason is that the subject of the enlistment (or non-enlistment) of students in the haredi yeshivas is first and foremost a complex social issue, the solution to which is evolutionary. It has already been held in HCJ 6427/02 [2] that “The change recommended by the Tal Commission, and which the Knesset sought to realize is a gradual social change based on consensus…The Deferment of Service Law deals with one of the basic problems of Israeli society, which cannot be resolved by the stroke of a pen; its concern is with a sensitive matter that requires understanding and agreement; it seeks to provide solutions that are neither easy nor simple. In the first place it was enacted as a temporary provision….all of this compels us to wait with out conclusions. Those implementing the Law should be permitted to fix what they broke. Israeli society in general and specifically the haredi society must be allowed to internalize the arrangements of the Law and the methods by which its provisions are to be realized”. At that time the Court reached the conclusion that “in the event of there being no substantive change in the results of the implementation of the Law, there will be room to consider its declaration as being void”. Like my colleague, Justice E. Arbel I think that notwithstanding the passage of time since decision that was given in HCJ 6427/02 [2], we have still not reached the end of the road, and that it would not be proper at this stage to decide the fate of the petition. As such, I concur with the position of Justice E. Arbel, and the respondents should be given until the month of July 2012 to file an update regarding the rate of progress of the proceedings and the measures that are being adopted by Executive to implement the objectives of the Law.

            As noted by my colleague the President D. Beinisch, it would seem that the Deferment Law has yet to fulfill the many hopes pinned on it. Today, this conclusion is also shared by various political bodies, so that presumably, the result proposed by my colleague the President, which reflects the position of the majority justices in the panel, is also consistent with the emerging political practice. It may be hoped that the legislative body, when conducting its substantive examination of the Law’s provisions, will exploit the time remaining for a meticulous examination and that having regard for the comments of the Court, in this judgment and in the previous judgments dealing with the subject, it will succeed in the determination of a new arrangement, which is constitutional and which arranges the subject in its entirety.

            In view of which I concur with the position of my colleague, Justice E. Arbel, in accordance which the petitions should be left pending, and the respondents should be be ordered to file, in the month of July 2012, an updating notification concerning the rate of progress of the proceedings and the means that are being taken by the Executive to implement the objectives of the Law.

 

Vice President

 

It was decided by the majority opinion – President D. Beinisch, Justice M. Naor, Justice E. Rubinstein, Justice E. Hayut, Justice H. Meltzer, and Justice N. Hendel to grant the petitions and to make the order nisi absolute in the sense that the Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law, 5762-2002, in its present form will not be extended and its effect shall expire on 1 August 2012, against the dissenting view of the Vice President, E. Rivlin, and Justice E.Arbel who opined that the petitions should be left pending the receiving of updating notifications regarding the future implementation of the Law; and as against the dissenting opinion of Justice A. Grunis who opined that the petitions should be denied.

 

Handed down today, 28 Shevat 5772 (21 February 2012)

 

 

   (-)                                            (-)

President                                  Vice President

 

 

   (-)                                (-)                    (-)

Justice                          Justice              Justice

 

 

   (-)                    (-)                    (-)                    (-)

Justice `           Justice              Justice              Justice

 

HCJ 3045/05

HCJ 3046/05

HCJ 10218/05

HCJ 10468/05

HCJ 10597/05

Yossi Ben-Ari

and others

v.

Director of Population Administration, Ministry of Interior

 

 

The Supreme Court sitting as the High Court of Justice

[21 November 2006]

Before President Emeritus A. Barak, President D. Beinisch,
Vice-President E. Rivlin
and Justices A. Procaccia, M. Naor, E. Rubinstein, E. Hayut

 

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

 

Facts: The petitioners are five same-sex couples of Israeli citizens who underwent ceremonies of marriage in Canada in accordance with Canadian law. Upon returning to Israel, they applied to the population registry to be registered as married. Their application was refused. They petitioned the court.

 

Held: (Majority opinion — President Emeritus Barak, President Beinisch, Vice-President Rivlin, Justices Procaccia, Naor, Hayut) Following the rule in Funk-Schlesinger v. Minister of Interior, that the purpose of the registry is merely statistical, the registration official at the population registry is not competent to examine the validity of a marriage. When he is presented with a marriage certificate, he is obliged to register the applicants as married, unless such a registration would be manifestly incorrect. The ‘manifestly incorrect’ exception does not apply in this case.

(Minority opinion — Justice Rubinstein) The rule in Funk-Schlesinger v. Minister of Interior, which held that the registration official is not competent to examine the validity of a civil marriage and should register the applicants as married when presented with a marriage certificate, should not be extended to the case of a same-sex marriage conducted in one of the few countries around the world where such marriages are conducted. Registration at the population registry is not merely statistical; it involves a de facto recognition of same-sex marriages. The question of same-sex marriages differs from that of civil marriages in that civil marriages are almost universally recognized around the world, whereas same-sex marriages are only recognized in a small minority of countries. The registration of same-sex marriages should therefore be left for the Knesset to decide.

 

Petition granted by majority opinion (President Emeritus Barak, President Beinisch, Vice-President Rivlin and Justices Procaccia, Naor and Hayut), Justice Rubinstein dissenting.

 

Legislation cited:

Enforcement of Foreign Judgements Law, 5718-1958.

Evidence Ordinance [New Version], 5731-1971, ss. 3, 29.

Family Court Law, 5755-1995.

Inheritance Law, 5725-1965.

Law of Return, 5710-1950.

National Insurance Law [Consolidated Version], 5755-1995.

Permanent Service in the Israel Defence Forces (Pensions) Law [Consolidated Version], 5745-1985.

Population Registry Law, 5725-1965, ss. 2, 2(a)(5), 2(a)(6), 2(a)(7), 2(a)(8), 3, 15, 16, 17, 19(1), 19(2), 19C.

Prevention of Family Violence Law, 5751-1991.

Residents’ Registry Ordinance, 5709-1949.

 

Israeli Supreme Court cases cited:

[1]      HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1963] IsrSC 17 225.

[2]      CA 630/70 Tamarin v. State of Israel [1972] IsrSC 26(1) 197.

[3]      HCJ 147/70 Steadman v. Minister of Interior [1970] IsrSC 24(1) 766.

[4]      HCJ 1031/93 Pesaro (Goldstein) v. Minister of Interior [1995] IsrSC 49(4) 661.

[5]      HCJ 145/51 Abu-Ras v. IDF Galilee Commander [1951] IsrSC 5 1476.

[6]      HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477; IsrSJ SV 35.

[7]      HCJ 264/87 Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [1989] IsrSC 43(2) 723.

[8]      HCJ 2888/92 Goldstein v. Minister of Interior [1996] IsrSC 50(5) 89.

[9]      HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

[10]    CA 8036/96 Yehud v. Yehud [1998] IsrSC 52(5) 865.

[11]    HCJ 1779/99 Brenner-Kaddish v. Minister of Interior [2000] IsrSC 54(2) 368.

[12]    HCJ 5070/95 Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [2002] IsrSC 56(2) 721.

[13]    HCJ 6539/03 Goldman v. State of Israel, Ministry of Interior [2005] IsrSC 59(3) 385.

[14]    HCJ 80/63 Gurfinkel v. Minister of Interior [1963] IsrSC 17 2048.

[15]    HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [2005] IsrSC 58(5) 412; [2005] (1) IsrLR 268.

[16]    CA 10280/01 Yaros-Hakak v. Attorney-General [2005] IsrSC 59(5) 64; [2005] (1) IsrLR 1.

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

[18]    HCJ 5398/96 Steiner v. Minister of Defence (unreported).

[19]    CA 373/72 Tapper v. State of Israel [1974] IsrSC 28(2) 7.

[20]    HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

[21]    HCJ 4058/95 Ben-Menasheh v. Minister of Religious Affairs [1997] IsrSC 51(3) 876.

[22]    CA 191/51 Skornik v. Skornik [1954] IsrSC 8 141; IsrSJ 2 327.

[23]    CA 640/82 Cohen v. Attorney-General [1985] IsrSC 39(1) 673.

[24]    CrimFH 5567/00 Deri v. State of Israel [2000] IsrSC 54(3) 614.

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

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

 

Israeli District Court cases cited:

[27]    MA 369/94 Steiner v. IDF (unreported).

[28]    CA (Naz) 3245/03 A.M. v. Custodian-General (unreported).

[29]    CrimC (Hf) 477/02 State of Israel v. Bachrawi (unreported).

 

Israeli Magistrates Court cases cited:

[30]    CrimC (BS) 2190/01 State of Israel v. Moyal (unreported).

 

Israeli Family Court cases cited:

[31]    FC (TA) 48260/01 A v. B (unreported).

[32]    FC (TA) 3140/03 Re R.A. and L.M.P. (unreported).

[33]    FC (TA) 6960/03 K.Z. v. State of Israel, Attorney-General (unreported).

[34]    FC (Hf) 32520/97 A v. B (unreported).

[35]    FC (TA) 16610/04 A v. Attorney-General (unreported).

 

Israeli National Labour Court cases cited:

[36]    NLC 54/3-1712 Even v. Tel-Aviv University (unreported).

 

Israeli Regional Labour Court cases cited:

[37]    LabC (TA) 3816/01 Levy v. Mivtahim (unreported).

[38]    NI (TA) 3536/04 Raz v. National Insurance Institute (unreported).

 

American cases cited:

[39]    Hennefeld v. Township of Montclair, 22 N.J. Tax 166 (2005).

[40]    In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

[41]    Lewis v. Harris, 378 N.J. Super. 168 (App. Div. 2005).

[42]    Lewis v. Harris, 2006 N.J. Lexis 1521.

[43]    Samuels v. New York State Dept. of Health, 811 N.Y.S. 2d 136 (2006).

[44]    Seymour v. Holcomb, 790 N.Y.S. 2d 858 (2005).

 

For the petitioners in HCJ 3045/05 and HCJ 3046/05 — D. Yakir, Y. Berman.

For the petitioners in HCJ 10218/05, HCJ 10486/05 and HCJ 10597/05 — O.A. Stock.

For the respondent — Y. Gnessin, D. Marx.

 

 

JUDGMENT

 

 

President Emeritus A. Barak

Two men, who are Israeli citizens and residents, underwent outside Israel a civil marriage ceremony which is recognized in that country. When they returned to Israel they applied to the registration official. They applied to change their registration at the registry from bachelor to married. The registration official refused the application. Was the refusal lawful? That is the question that each of the petitions has presented to us. It should be noted that the question before us is not whether a marriage between persons of the same sex, which took place outside Israel, is valid in Israel. The petitioners are not applying for their marriage outside Israel to be given validity in Israel. The question before us is whether the registration official — whose authority is prescribed in the Population Registry Law, 5725-1965, as interpreted in HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1]) — acted within the scope of his authority when he refused to register the marriage of the two men in the register. The petitions before us address the question of the registration official’s authority and not the question of the validity of the marriage.

A. The petitioners

1.    There are five petitions of five couples before us. Both members of the couple in each of the petitions are men, and they are Israelis citizens and residents. The petitioners in each of the petitions live together in Israel as a couple, and they conduct a family life and maintain a joint household. They married each other in a civil marriage ceremony in Toronto in Canada, which is recognized in accordance with the law in that country. After they returned to Israel, they applied to be registered as married at the Population Registry. They attached to their application documents that authenticated their marriages. Their applications were refused. They were told that ‘marriages of this kind are not legally recognized in the State of Israel, and therefore it is not possible to register them in the register’ (the letter of the director of the Population Administration office in Tel-Aviv dated 24 May 2005). This led to the petitions.

B. The arguments of the parties

The petitioners concentrate their main arguments on the authority of the registry official. According to them, the refusal of the registry official to register their marriages in Toronto is contrary to the rule in Funk-Schlesinger v. Minister of Interior [1], it discriminates against the petitioners in comparison to couples who are not of the same sex and it violates their right to family life. According to them, according to the rule decided in Funk-Schlesinger v. Minister of Interior [1], the registration official acts merely as a statistician. The registration itself is incapable of creating or changing status. The discretion of the registration official, when he is considering an application to register a marriage, is therefore limited. According to the petitioners’ approach, when the registration official is presented with an authenticated marriage certificate, unless there is a suspicion as to its authenticity, he should make a change in the registration and register the applicants as married. The registration official is not competent to examine the question whether the marriage is valid under the laws of the State of Israel, and whether the couple are competent to marry in Israel. These questions are often complex and delicate questions. According to the petitioners, the questions in the petitions before us are difficult ones. The registration official was not given the power to decide them. According to Funk-Schlesinger v. Minister of Interior [1], as long as no judicial decision has been made to the effect that the marriage is not valid, the registration official is obliged to register it in the population registry. The petitioners point out that in Israel there has never been a judicial decision with regard to the validity of a marriage of couples of the same sex in Canada, whether in the Supreme Court or in the lower courts. Therefore no weight should be attributed to the position of the respondent that the marriages are not valid, and he should register them. The petitioners emphasize that this court has repeatedly confirmed the rule in Funk-Schlesinger v. Minister of Interior [1] since it was adopted. It has been applied in matters of personal status both with regard to marriage and also with regard to adoption and parenthood. The rule has also been extended to the registration of the items of religion and ethnicity in the population register. The petitioners’ position is that this case law ruling is desirable, and that it should be applied to their case.

3.    The respondent requests that we deny the petitions. His position is that there is no basis for registering marriages of same-sex couples that took place in a foreign country. This position is based on three main reasons. First, in Israeli law the legal framework of marriage relates only to a marriage between a man and a woman. There is no recognized legal framework of marriage in our law between two persons of the same sex. Funk-Schlesinger v. Minister of Interior [1] is irrelevant to the petitioners’ cases. We should distinguish between registration in the population register of a marriage that took place outside Israel, whatever its validity, as long as it satisfies the existing basic legal framework of marriage in Israel, and registration of a marriage that is inconsistent with the existing legal framework of this concept in Israel. Only the registration of the former marriages is governed by Funk-Schlesinger v. Minister of Interior [1]. Second, the respondent points out that most countries of the world do not recognize marriages of same-sex couples that take place in foreign countries, and they do not register marriages between members of the same sex that took place in foreign countries. Many countries have enacted laws in which it is expressly provided that a marriage can only take place between a man and a woman, and that marriages between members of the same sex that took place in other countries should not be recognized. Therefore, it cannot be said that comparative law requires recognition of these marriages, since it cannot be said that in the few countries that conduct marriage ceremonies between members of the same sex there is an expectation that these marriages will be recognized in other countries. Third, the respondent’s position is that the question of the registration of marriages of same-sex couples is one of those matters that should be regulated in primary legislation of the Knesset. The administrative tool of registration in the population register should not be used to create a new legal framework that is contrary to the intention of the legislature. In enacting the Population Registry Law the legislature did not conceive of making the population registry into a tool for creating new legal frameworks. On the contrary, the legislature’s intention was that the population register should reflect the existing legal frameworks in Israel in matters of status. Creating a new personal status constitutes a primary arrangement that lies within the jurisdiction of the legislature. The proper place for determining the question of recognizing a new personal status of marriage between members of the same sex is the Knesset. This is especially the case in view of the fact that this question concerns controversial public issues with regard to the fabric and values of society.

c.     The proceeding

4.    The petitions were heard before a panel of three justices (President A. Barak and Justices E. Rubinstein and E. Hayut). In the panel’s decision of 16 November 2005, the parties were given the opportunity of supplementing their arguments. It was also held that the justices were considering expanding the panel and that oral argument would be heard. The panel was expanded on 3 March 2006 and oral argument was heard on 28 May 2006. All of the parties told us that they were prepared to regard the case as if an order nisi had been issued in the petitions and the hearing took place accordingly.

d.    The legislative framework

5.    The Population Registry Law, 5725-1965, regulates the activity of the population registry. It provides that items of information concerning residents are registered at the population registry. These items of information are set out in s. 2 of the Population Registry Law:

‘The registry and registration items

2.  (a) The following items concerning a resident and any change to them shall be registered at the population registry:

(1) Family name, personal name and previous names;

 

(2) Parents’ names;

 

(3) Date and place of birth;

 

(4) Sex;

 

(5) Ethnicity;

 

(6) Religion;

 

(7) Personal status (unmarried, married, divorced or widowed);

 

(8) Spouse’s name;

 

(9)           Children’s names, dates of birth and sex;

 

(10) Present and former citizenship or citizenships;

 

(11) Address;

 

(11A) Mailing address, according to the meaning thereof in the Address Update Law, 5765-2005, in so far as notice of this was given;

 

(12) Date of entry into Israel;

 

(13) The date on which a person became a resident as stated in section 1(a).

 

(b) A resident who is registered for the first time shall be given for his registration an identity number.’

The Population Registry Law sets out the significance of the registration in section 3 as follows:

‘The registry — prima facie evidence

3.  The registration at the registry, any copy or extract thereof and also any certificate that was given under this law shall constitute prima facie evidence of the correctness of the registration items set out in paragraphs (1) to (4) and (9) to (13) of section 2.’

Paragraphs (5) to (8) were excluded from the rule of ‘prima facie evidence.’ These paragraphs concern ethnicity (para. (5)), religion (para. (6)), personal status (unmarried, married, divorced or widowed) (para. (7)) and name of spouse (para. (8)). The matter before us — personal status (unmarried, married, divorced or widowed) (para. (7)) — was excluded from the framework of prima facie evidence.

6.    Chapter 3 of the Population Registry Law is concerned with the powers of the registration official. It provides that the registration official may require someone who gave notice of registration items to give the official any information or document in his possession concerning the registration items (s. 19(1)). He is also entitled to record a (written or oral) declaration concerning the truthfulness of the information or document given to him (s. 19(2)). The Population Registry Law distinguishes between initial registration and the registration of changes. Initial registration is made in accordance with a ‘public certificate,’ and if there is no such certificate, in accordance with the applicant’s statement. The registration of changes, which is the context of the petitions before us, shall be made in the following manner (s. 19C):

‘Registration of changes

19C. A change in a registration item of a resident shall be recorded in accordance with a document that is produced under sections 15 or 16 or in accordance with a statement under section 17 that is accompanied by a public certificate that testifies to the change; …’

In the petitions before us, no documents were produced in accordance with s. 15 (which concerns official actions in Israel, such as a marriage that is recorded under the Marriage and Divorce (Registration) Ordinance), nor were any actions carried out under s. 16 (judicial decisions).The petitions before us therefore fall within the scope of s. 17 of the Population Registry Law, which provides:

‘Duty to give notice of changes

17. If a change occurred, other than as stated in sections 15 and 16, in the registration details of a resident, he is obliged to give notice of the change to the registration official within thirty days…’.

This notice should be accompanied by a ‘public certificate that testifies to the change.’ A statement of the applicant alone is insufficient (see CA 630/70 Tamarin v. State of Israel [2]; HCJ 147/70 Steadman v. Minister of Interior [3]; HCJ 1031/93 Pesaro (Goldstein) v. Minister of Interior [4], at p. 676). A ‘public certificate,’ for this purpose, is ‘according to the meaning thereof in the Testimony Ordinance’ (which is now the Evidence Ordinance [New Version], 5731-1971). For our purposes, these are the marriage certificates issued by a competent authority under Canadian law in the place where the marriage ceremony was conducted (see the definition of ‘public certificate’ in s. 29 of the Evidence Ordinance [New Version]).

E. The normative status of the registry and the discretion of the registration official

7.    What is the scope of the registration official’s discretion? This question has been considered in a whole host of judgments. The main judgment is Funk-Schlesinger v. Minister of Interior [1]. This decision was made more than forty-two years ago. In that case Mrs Funk-Schlesinger, a Christian resident of Israel, married Mr Schlesinger, a Jewish resident of Israel. The marriage took place in Cyprus. On the basis of the Cypriot marriage certificate, Mrs Funk-Schlesinger applied to be registered as ‘married’ at the population registry. The Minister of the Interior refused the application. His refusal was based on the outlook that under the rules of private international law that apply in Israel, the spouses were not married. By a majority (Justices Y. Sussman, Z. Berinson, A. Witkon and E. Manny, with Justice M. Silberg dissenting) it was decided to order the registration. The opinion of Justice Y. Sussman, which was the main opinion, was based on the outlook that the Residents’ Registry Ordinance, 5709-1949 —

‘… did not give registration in the residents’ registry the force of evidence or proof for any purpose. The purpose of the ordinance is… to collect statistical material. This material may be correct and it may be incorrect, and no one guarantees its correctness’ (ibid. [1], at p. 249, and also HCJ 145/51 Abu-Ras v. IDF Galilee Commander [5]).

Against this background, it was held that ‘the function of the registration official… is merely a function of collecting statistical material for the purpose of maintaining a register of residents, and no judicial power has been given to him’ (ibid. [1], at p. 244). Therefore —

‘When he registers the family status of a resident, it is not part of the job of the registration official to consider the validity of the marriage. The legislature is presumed not to have imposed on a public authority a duty that it is incapable of discharging. The official should be satisfied, for the purpose of carrying out his office and registering the family status, if he is presented with evidence that the resident underwent a marriage ceremony. The question of what is the validity of the ceremony that took place is a multi-faceted one and examining the validity of the marriage falls outside the scope of the residents’ registry’ (ibid. [1], at p. 252).

In a similar vein, Justice Y. Sussman said that when the Supreme Court hears petitions against a refusal of the registration official to register the marriage of a petitioner, it does not make any legal determination with regard to the validity of that marriage. He wrote:

‘It is not superfluous to emphasize that we are not dealing with the question whether the marriage is valid or not. The question before us is… whether there was a justification for the refusal of the residents’ registry official to register the applicant as a married woman’ (ibid. [1], at p. 242).

Justice Y. Sussman recognizes that there may be cases in which the incorrectness of the details that a resident wishes to register in the registry is manifest and is not subject to any reasonable doubt. In such cases the official is not obliged to carry out the registration.

‘The public official is not obliged to exercise his authority in order to be a party to an act of fraud. When a person who clearly appears from his appearance to be an adult comes before him and applies to be registered as a five year old child, what doubt can there be in such a case that the registration is false and that the act of the person is an act of fraud? In such a case the official will be justified when he refuses to register the details, and this court will certainly not exercise its power… in order to compel the official to “forge” the population register’ (ibid. [1], at p. 243).

8.    Since the decision in Funk-Schlesinger v. Minister of Interior [1], this court has followed it consistently. Over the years its strength has grown. The repeal of the Residents’ Registry Ordinance and its replacement by the Population Registry Law did not change its effect. In HCJ 58/68 Shalit v. Minister of Interior [6], in which the law was decided in accordance with the Population Registry Law, Justice Y. Sussman wrote:

‘The registration official was not given judicial powers, and the purpose of the statute for which he is responsible also does not require him to decide any question. It is therefore unsurprising that neither the ordinance nor the law mentioned above gave the registration official the tools that the court uses in order to discover the truth… A citizen who comes to give a notice as required by the law is presumed to tell the truth. It is not desirable that the official should raise suspicions… The registration is not conditional upon the registration official being convinced that the details given to him are correct… The registration is merely a registration of the details as given to the official… Only one exception has been held with regard to this registration… and this is… when one of the details is inherently untrue and this is manifest, such as when an adult appears before the official and asks to be registered as a five year old… in such a case the official shall refuse to register his age, since he is not liable to be a party to the making of a false registration… The Population Registry Law can be seen from its name to be a registry law. Its purpose is the same as the purpose of the ordinance, its predecessor — to collect statistical material’ (Shalit v. Minister of Interior [6], at pp. 506, 507, 508).

This was also determined to be the law in later cases (see, for example, Tamarin v. State of Israel [2], at p. 227; Steadman v. Minister of Interior [3], at p. 770).

9.    Funk-Schlesinger v. Minister of Interior [1] was considered in HCJ 264/87 Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7]). It was held by the majority (President M. Shamgar and Justices A. Barak, M. Bejski and G. Bach, with Vice-President M. Elon dissenting) that the registration official should register the conversion of a person on the basis of a document that testifies to the conversion in a Jewish community outside Israel. President M. Shamgar wrote:

‘If after receiving details as aforesaid the registration official has a reasonable basis for assuming that the statement is incorrect, he should refuse to register it (s. 19B(b) of the aforesaid law [the Population Registry Law]). A statement that is incorrect means a statement that includes a falsehood (such as when we are dealing with an act of fraud or when there is evidence that the resident is a member of another religion…). It follows from the provisions of the aforesaid law that the registration official does not consider whether a conversion ceremony that took place in a Jewish community abroad and that is confirmed by the document submitted to him is valid or not. From his point of view, a certificate which appears to confirm that a conversion ceremony took place in a Jewish community as aforesaid indicates that such a ceremony requiring registration did indeed take place. This outlook concerning the powers and obligations of the registration official with regard to the registration of religion and ethnicity can also be seen from the approach of this court in the past, as reflected for example in the judgment in HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1]’ (ibid. [7], at p. 732).

Even the minority opinion of Vice-President M. Elon was based on the assumption that ‘the registration official is obliged to register the details given to him in the statement unless he has a reasonable basis for assuming that the statement is not correct (Shalit v. Minister of Interior [6], at p. 507, and following Funk-Schlesinger v. Minister of Interior [1]).’ In that case Vice-President M. Elon was of the opinion that in view of the definition of ‘Jew’ in the Population Registry Law, the official had a reasonable basis for assuming that the statement made by the petitioners with regard to their conversion was incorrect.

10. Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7] considered the power of the registration official with regard to the registration of the items of ethnicity (item 5) and religion (item 6). Pesaro (Goldstein) v. Minister of Interior [4] also considered, inter alia, this question. President Emeritus M. Shamgar, with the agreement of President A. Barak and Justice E. Mazza, M. Cheshin, T. Strasberg-Cohen and D. Dorner, but with the dissent of Justice Tz. Tal, said that:

‘The Population Registry Law is, as aforesaid, a civil law whose purpose is to collect factual information, including statistics. The minister responsible for implementing the Population Registry Law is the Minister of the Interior. He, and the officials of his office, have the power to make the registration of the registry items in accordance with a statement of the resident, and within the framework of the restrictions on the scope of the discretion that have been laid down in case law… According to Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7], in so far as initial registration is concerned, the registration official is not competent to examine the validity of the conversion’ (ibid. [4], at p. 688).

11. Pesaro (Goldstein) v. Minister of Interior [4] considered the question of the conversion in Israel of Mrs Elian Chava Pesaro (Goldstein). This question was not decided in that case. All that was decided was that the Religious Community (Conversion) Ordinance did not apply to her conversion in Israel. It was not held that the conversion that she underwent in Israel was valid. Before the petitioner underwent the conversion proceedings and before judgment was given with regard to her conversion, she married Mr Uri Goldstein in a consular marriage at the Brazilian Embassy in Israel. The couple applied to the registration official with an application that he should register them as married. The official refused. His reason was that the consul of a foreign state had no authority to conduct a marriage ceremony in Israel. The court (Vice-President A. Barak and Justices E. Goldberg and E. Mazza) held that according to the rule in Funk-Schlesinger v. Minister of Interior [1] the registration official should register the couple as married (HCJ 2888/92 Goldstein v. Minister of Interior [8]). I said in my opinion that the question whether it was possible to hold a consular marriage in Israel was a difficult one. In these circumstances, the registration official should act, with regard to a change in registration, on the basis of a public certificate that was submitted to him concerning the marriage. In my opinion I said that:

‘Since Funk-Schlesinger v. Minister of Interior [1] the Supreme Court has repeatedly held that “the function of a registration official under the aforesaid ordinance is merely the function of a collector of statistical material for the purpose of managing the register of residents, and he has not been given any judicial power” (ibid. [1], at p. 244, per Justice Sussman). Therefore, “the official is obliged to register what the citizen tells him” (ibid. [1], at p. 249), unless this amounts to “a manifestly incorrect registration, which is not subject to any reasonable doubt” (ibid. [1], at p. 243). It follows that if the couple present to the registry official a certificate that testifies to the conducting of a marriage ceremony before a consul of a foreign country in Israel, the official should register the couple as married, unless it is clear and manifest that the details are incorrect, or there is no doubt that the consul has no power to marry them…

Thus we see that if a non-Jewish woman (a citizen of country A) and a Jewish man (whatever his nationality) apply to the registry official, and present him with a registration certificate of a marriage between the couple that was conducted by the consul of that country A, the registry official should register the couple as married. Admittedly, there is a doubt with regard to the power of the consul to conduct a marriage ceremony in these circumstances, but the registry official is not entitled to decide this doubt. This doubt is inherent in the Israeli legal system, and as long as a competent court has not decided it, the doubt remains inherent in the legal system… Indeed, as long as this doubt exists, the registry official should register the couple as married, since “the question of the validity of the ceremony that took place is sometimes a multi-faceted one, and considering its validity goes beyond the scope of the residents’ registry” (Funk-Schlesinger v. Minister of Interior [1], at p. 252)’ (ibid. [8], at pp. 93, 94).

In this vein Justice M. Cheshin decided in one case that:

‘It is the duty of the registry official to register in the population register information that is given to him and that is supported by a document (such as a marriage), without him being able to examine the validity of the legal validity of that information (such as whether the marriage is valid or not: see Funk-Schlesinger v. Minister of Interior [1]; Shalit v. Minister of Interior [6])’ (HCJ 164/97 Conterm Ltd v. Minister of Finance [9], at p. 387).

Justice J. Türkel referred to this approach in another case, where he said:

‘Registration of the respondents as the children of the legators in their identity card when the family immigrated to Israel has no significance with regard to recognizing the respondents as the adopted children of the legators (on the significance of registration in an identity card and in other official documents under the Population Registry Law, 5725-1965, see the remarks of the honourable Justice Sussman in Funk-Schlesinger v. Minister of Interior [1]; the remarks of the honourable Justice H. Cohn in Shalit v. Minister of Interior [6] and the remarks of Vice-President A. Barak in Pesaro (Goldstein) v. Minister of Interior [4])’ (CA 8036/96 Yehud v. Yehud [10], at p. 872).

12. Funk-Schlesinger v. Minister of Interior [1] was reconsidered in HCJ 1779/99 Brenner-Kaddish v. Minister of Interior [11]. In that case an adoption order was made in the State of California, according to which the son of one member of a lesbian couple was adopted by the other member. The couple returned to Israel. They applied to the registration official to record the adoption in the registry. The registration official refused. His position was that from a biological viewpoint the existence of two parents of the same sex is not possible, and therefore the incorrectness of the registration is manifest. The petition was granted. Justice D. Dorner said that:

‘In consistent case law over many years beginning with Funk-Schlesinger v. Minister of Interior [1], it has been held that a registration official is not competent to determine the validity of the registration that he is required to make, but that he is liable to register what the citizen tells him, unless it is a case of “a manifestly incorrect registration, which is not subject to any reasonable doubt” (ibid., at p. 243)… The registration before us does not change the biological position, merely the legal position’ (Brenner-Kaddish v. Minister of Interior [11], at pp. 374, 375).

Justice D. Beinisch agreed with this approach. She said that the position of the Minister of the Interior relied on the ‘exception’ recognized in Funk-Schlesinger v. Minister of Interior [1] with regard to the power of the registration official not to register something manifestly incorrect, which is not subject to any reasonable doubt. Justice D. Beinisch said that this exception did not apply in the case before her:

‘In the case before us, the respondent cannot point to any manifest “incorrectness” as aforesaid; the requested registration item is not a biological fact but a matter involving a complex legal question… the respondent’s contention… that the incorrectness of the requested registration is “manifest” because there is no possibility of recognizing two mothers for the same child is merely a different form of the argument that we should not recognize an adoption based on a homosexual relationship between the biological parent and the adoptive parent… In the absence of any contention, which is not subject to reasonable doubt, with regard to the validity of the foreign adoption order or with regard to the correctness of the details of the applicants… the registration should register the details of the petitioners on the basis of the adoption order’ (ibid. [11], at pp. 376, 377).

The minority opinion of Justice A. Zu’bi was also based on the decision in Funk-Schlesinger v. Minister of Interior [1]. His conclusion that the adoption should not be registered was based on two reasons: first, Funk-Schlesinger v. Minister of Interior [1] was based on the assumption that a registration of marriage had no probative force, and its whole purpose was to collect statistical material. With regard to adoption, the registration concerns the item of parents’ names (para. (2)). This registration constitutes prima facie evidence of its correctness. Second, in order to give validity to the adoption order, it should be ‘recognized’ in accordance with the provisions of the Enforcement of Foreign Judgements Law, 5718-1958. Without this recognition, it should be ignored. In this way it is different from a marriage certificate, where registration does not necessitate ‘recognizing’ it. It should be noted that a further hearing is taking place with regard to Brenner-Kaddish v. Minister of Interior [11], and this has not yet been decided.

13. The next link in the chain of judgments based on Funk-Schlesinger v. Minister of Interior [1] was our judgment in HCJ 5070/95 Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12]. The petitioners in that case underwent Reform or Conservative conversions (in Israel or in a Jewish community outside Israel). They sought to be registered in the population register as Jews in the ethnicity and religion items. The registration official refused the application. We decided in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12] that the registration official acted unlawfully. Our approach was based on Funk-Schlesinger v. Minister of Interior [1]. The following is what I wrote (with the agreement of Vice-President S. Levin and Justices T. Or, E. Mazza, M. Cheshin, T. Strasberg-Cohen, D. Dorner, E. Rivlin, but with Justices I. Englard and J. Türkel dissenting):

‘The rule in Funk-Schlesinger v. Minister of Interior [1], which was made approximately forty years ago, continues to remain valid. In so far as the registration of the items of ethnicity and religion are concerned, it states that the function of the registration official is “… a function of collecting statistical material for the purpose of maintaining a register of residents…” (ibid. [1], at p. 244). The registration official has no judicial power and he may not decide an “open” question of law. When he is asked to make an initial registration by virtue of a statement of the applicant, he must grant the request, even if its legal validity is uncertain, and there are different views on the subject, provided that the incorrectness of the statement is not manifest. When the registration official is asked to make a change in a registration by virtue of the applicant’s statement, the application should be accompanied by a public certificate testifying to the change’ (ibid. [1], at p. 744).

This approach was repeated in HCJ 6539/03 Goldman v. State of Israel, Ministry of Interior [13]. Justice M. Cheshin wrote:

‘The Population Registry Law is merely a statistical records law, and its purpose is merely to maintain a database of information concerning the residents of Israel, and since the law is such, it should not be given the task of deciding questions that are beyond its capabilities… The value of the registration in the register — in principle — is the value of a merely statistical-technical registration, and that is indeed its value’ (ibid. [13], at pp. 393, 395).

14. Criticism has been levelled against Funk-Schlesinger v. Minister of Interior [1] (see M. Shava, ‘On the Question of the Validity and Registration of Mixed Marriages before a Foreign Consul in Israel,’ 42 HaPraklit (1995) 188). From its infancy, it was said that the statistical nature of the registration does not ‘exhaust the practical importance of the register’ (per Justice M. Landau in HCJ 80/63 Gurfinkel v. Minister of Interior [14], at p. 2071). Justice Tz. Tal emphasized that ‘the approach of a merely “statistical” register ignores the reality’ (Pesaro (Goldstein) v. Minister of Interior [4], at p. 709). Justice J. Türkel added that ‘I fear that today it may imply a kind of naivety or turning a blind eye to reality’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12], at p. 764). Justice I. Englard said that:

‘… if we are merely dealing with insignificant statistics, why do there continue to be so many struggles with regard to the registration? … The truth is, of course, that the symbolic here is the essence, and without a certain outlook on life there is no decision on the question of registration or statistics’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12], at p. 757).

Indeed, in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12] the state asked us to depart from the rule in Funk-Schlesinger v. Minister of Interior [1]. This request was denied, and we said:

‘The rule in Funk-Schlesinger v. Minister of Interior [1] has laid down roots in case-law, and considerations of great weight are required for us to depart from it. No such considerations have been brought before us. The argument concerning the reliance of state authorities is not at all convincing. State authorities are presumed to act according to the law. Within this framework they should be aware of the limited nature of the registration in the register… Like public authorities — and against the background of awareness of the limited role of the register — the public at large also understands that the registration of the items of religion, ethnicity and personal status in the register “… was only intended for statistical and similar purposes, and it does not give the person registered any special rights” (Justice S.Z. Cheshin in Abu-Ras v. IDF Galilee Commander [5], at p. 1478). Indeed, the registration in the register is “neutral” with regard to the various struggles that have taken place since the founding of the state with regard to matters of ethnicity, religion and marriage, and it ought to remain so. The substantive disagreements on these matters should be conducted by examining the substantive rights, and these lie outside the scope of the register’ (ibid. [12], at p. 745).

Indeed, the rule in Funk-Schlesinger v. Minister of Interior [1] is a proper and good one. It is not proper that without an express provision in the Population Registry Law the registration official — that is to say, the Minister of the Interior — should be given the power to decide fundamental questions of Israeli society. It is not proper that whenever there is a change in the leadership of the Ministry of the Interior there should be a change in policy on key questions of state. These questions ought to be decided by the people through its representatives in the Knesset. As long as the Knesset has not spoken it is proper, in so far as possible, that these ethical decisions should not be made within the framework of the registry. The rule in Funk-Schlesinger v. Minister of Interior [1] gives expression to this approach. Indeed, it is precisely someone who wishes to distance himself from any decision concerning symbols that should support the continuation of the rule in Funk-Schlesinger v. Minister of Interior [1] and its development. This was discussed by Justice M. Cheshin in Goldman v. State of Israel, Ministry of Interior [13]:

‘The Population Registry Law is, in essence, a technical law, and if we place upon its narrow shoulders a heavy burden of fundamental questions it will be unable to support them. The Population Registry Law was not intended in principle to incorporate questions of nationality and ethnicity, of religion and state, of conversion according to Jewish law or not according to Jewish law, of who is a Jew and who is not a Jew. Decisions on these questions and questions similar to them are historic decisions, and as such it is strange — and even absurd — to argue that the registry official should decide them. Decisions of this kind were not delegated to the registry official, nor even to the court when sitting in review of the decisions of the official’ (ibid. [13], at p. 395).

Naturally, Funk-Schlesinger v. Minister of Interior [1] does not prevent a judicial decision on questions of religion, ethnicity and marriage. Notwithstanding, it places the judicial decision in the proper light. Instead of a tangential decision in the technical field of the registry, a decision on the merits of the matter should be made in the proper context. Thus, for example, the question of the validity of non-orthodox conversion should not be made in the artificial context of the powers of the registry official (see Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7] and Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12]), but in the substantive context of the Law of Return (see HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [15]). A change in the procedural context places the difficult questions in their proper light, by presenting the complete picture of the values, principles and rights that should be balanced.

15. In the petitions before us we have not been asked by the state to reconsider Funk-Schlesinger v. Minister of Interior [1]. All the parties have relied on Funk-Schlesinger v. Minister of Interior [1]. The petitioners said repeatedly that they are not asking for a decision on the question whether their marriage in Canada is valid in Israel. The state also does not ask us to decide the question of the validity of the marriage. The scope of the dispute between the parties concerns the scope of the rule in Funk-Schlesinger v. Minister of Interior [1]. The petitioners argue that the five cases before us fall within the scope of that rule. The registration official should register the change in the register on the basis of the marriage certificate that they presented to him, without examining the validity of the marriage in Israel. Counsel for the state argues before us that a marriage between persons of the same sex constitutes a legal framework of marriage that is not recognized in Israel, and therefore the rule in Funk-Schlesinger v. Minister of Interior [1] does not apply. Counsel for the state writes:

‘A distinction should be made between the registration in the population register of a marriage that took place outside Israel but satisfies the basic legal framework of marriage that exists in Israel, whatever its validity — whose registration in the population register is governed by the rule in Funk-Schlesinger v. Minister of Interior [1] — and the registration of a marriage that is inconsistent with the existing legal framework in Israel’ (para. 35 of the supplementary arguments of the respondent that are dated 23 March 2006).

Who is right? Let us now turn to examine this question.

F. The rule in Funk-Schlesinger v. Minister of Interior and the ‘legal framework’ argument

16. All the parties agree that the marriage certificates that were submitted to the registration official are lawful under Canadian law; that a marriage ceremony took place in Canada; that the details appearing in the marriage certificate are correct. On this basis we are prima facie drawn to the conclusion that the registration official should register the couple as married. This is the clear language of Justice Y. Sussman in Funk-Schlesinger v. Minister of Interior [1]:

‘When he registers the family status of a resident, it is not part of the duties of the registration official to consider the validity of the marriage… it is sufficient for the official in carrying out his duty and registering the family status that evidence is brought before him that the resident underwent a marriage ceremony’ (ibid. [1], at p. 252).

The state argues that this rule applies to a family status that falls within the scope of a legal framework that is recognized in Israeli law. This framework reflects the outlook of the legislature with regard to the variety of possible family statuses. For our purposes, these frameworks are ‘unmarried, married, divorced and widowed’ (s. 2(a)(7) of the Population Registry Law). The word ‘married’ in this context implies a marriage that is consistent with the basic legal framework in Israeli law concerning ‘marriage.’ This framework only relates to a marriage between a man and a woman. In this regard, the state distinguishes between a ‘social framework,’ a ‘social framework with a certain legal significance’ and a ‘legal framework.’ The social framework reflects family institutions or inter-personal institutions that are recognized by society. Sometimes there are various social ramifications that do not amount to a legal personal status that can be registered. Then it constitutes a ‘social framework with a certain legal significance.’ This framework is different from a legal framework in that it does not constitute a legal status, as compared with the basic legal framework of a legal status. In the state’s opinion, the petitioners’ marriage falls within the scope of a ‘social framework with a certain legal status.’ It does not fall within the scope of a ‘legal framework.’ Is the state correct?

17. I do not accept the state’s position. It is trying to reintroduce the question of the validity of personal status into decisions concerning registration in the register and the judicial review thereof. With a major effort over more than forty years the decision concerning the validity of the personal status has been excluded from the registration proceedings and the judicial review thereof. Along come the words ‘legal framework’ and they try to bring the issue of status back onto centre stage of the proceedings concerning registration in the register. We cannot agree with this. All the arguments that were raised over the years that support Funk-Schlesinger v. Minister of Interior [1] rule out the idea of the legal framework raised by the respondent. The population registry was not intended to decide the question of the existence or absence of legal frameworks; the registration official is not competent to determine whether there is a recognized ‘legal framework’ or merely a ‘social framework with a certain legal significance’; the register provides statistical data with regard to personal events (such as birth, death, marriage and divorce), not legal constructions that have passed the discerning scrutiny of the registration official. It is not right that the legal struggle concerning personal status should take place in the field of registration.

18. This expression of a ‘recognized legal framework’ is a new one. It did not appear in the state’s arguments in the past. In my opinion, it cannot make any contribution to the matter before us. It raises difficult questions with regard to the level of abstraction of the word ‘framework.’ Does a ‘marriage’ in Canada, which is a valid marriage under Canadian law, not fall within the scope of a recognized ‘legal framework’? Does an adoption of a child of a biological mother by her lesbian partner constitute a ‘recognized legal framework’? Adoption is certainly a recognized legal framework. Does the lesbian character of the joint lifestyle of the couple make this framework of adoption unrecognized? What is the criterion according to which an answer to this question is given? In any case, in Brenner-Kaddish v. Minister of Interior [11] it was decided to register this adoption. Was the registration official in that case — which was before we gave our judgment in CA 10280/01 Yaros-Hakak v. Attorney-General [16] — ordered to register a ‘legal framework that is not recognized’ or a ‘social framework with a limited legal significance’? What is the difference between the registration of a lesbian adoption and the registration of a homosexual marriage?

19. The state recognizes the fact that the joint lifestyle of homosexual couples constitutes a ‘social framework with a certain legal significance.’ Counsel for the state writes:

‘The State of Israel recognizes single-sex couples in many contexts. This recognition is given with regard to socio-economic issues, and also in the context of regulating lawful residence in Israel’ (para. 19 of the preliminary response of 13 November 2005).

In this the state is correct. Indeed, in a whole host of judgments it has been held that homosexual couples have rights under specific laws and arrangements. The following is a partial list: (1) rights under collective agreements that are limited to couples (HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [17]); (2) pension rights, such as surviving relatives’ rights (NLC 54/3-1712 Even v. Tel-Aviv University [36]); LabC (TA) 3816/01 Levy v. Mivtahim [37]); (3) pension rights under the Permanent Service in the Israel Defence Forces (Pensions) Law [Consolidated Version], 5745-1985 (MA (TA) 369/94 Steiner v. IDF [27]); (4) memorial rights (HCJ 5398/96 Steiner v. Minister of Defence [18]); (5) recognition as a ‘spouse’ for the purposes of the Prevention of Family Violence Law, 5751-1991 (FC (TA) 48260/01 A v. B [31]); (6) recognition as a ‘spouse’ for the purposes of the Family Court Law, 5755-1995 (FC (TA) 3140/03 Re R.A. and L.M.P. [32]); (7) recognition of a cohabitee for the purposes of rights under the Inheritance Law, 5725-1965 (CA (Naz) 3245/03 A.M. v. Custodian-General [28]); (8) surviving relatives’ pension under the National Insurance Law [Consolidated Version], 5755-1995 (NI (TA) 3536/04 Raz v. National Insurance Institute [38]). Thus we see that the ‘social framework’ of the homosexual partner has a ‘certain legal significance.’ Why does this significance not amount to a ‘legal framework’? The state’s answer is that these social significances are not ‘legal frameworks’ since they do not amount to a personal status. It follows that the concept of status underlies the state’s distinction. It rejects the ‘legal framework’ of homosexual marriage because it lacks status. So in the state’s opinion, the question of registration derives from the question of the ‘legal framework,’ and the question of the ‘legal framework’ derives from the question of status. According to the state’s approach, the registration official should examine the question of status before he determines the existence or absence of the framework. This approach conflicts directly with the rule in Funk-Schlesinger v. Minister of Interior [1], according to which the question of status is not a matter for the registry; a decision on status is not a matter for the registration official; the judicial review of the decision of the registration official should not consider questions of status. The registration official should not and cannot examine whether a given situation goes beyond a ‘social framework with a certain legal significance’ and amounts to a ‘legal framework.’ The court in exercising judicial review of a decision of the registration official should not consider these questions.

20. We asked ourselves whether it cannot be said that what underlies the concept of ‘legal framework’ is the desire of the state to prevent registration of a marriage that takes place outside Israel and is contrary to public policy in Israel. From the state’s written and oral reply it can be seen that it does not raise any arguments of public policy at all. In her written arguments, counsel for the state said:

‘The position with regard to non-registration does not involve adopting an ethical or public position on the question whether it is proper to recognize a marriage between persons of the same sex, but a professional-legal position with regard to the existing legal position’ (para. 94 of the respondent’s preliminary response of 13 November 2005).

In reply to our questions during oral argument, counsel for the state said that she is not raising any arguments concerning ‘public policy.’

21. In her arguments, counsel for the state said that according to the rule in Funk-Schlesinger v. Minister of Interior [1], the registration official should not register something that is manifestly incorrect and is not subject to any reasonable doubt. According to her, the registration of a homosexual couple as married is a registration that is tainted, from a legal viewpoint, with manifest incorrectness, since Israeli law does not recognize this marriage. This argument is fundamentally unsound, for two reasons: first, the incorrectness to which the rule in Funk-Schlesinger v. Minister of Interior [1] refers is factual incorrectness, whereas the state is arguing with regard to legal incorrectness (see Brenner-Kaddish v. Minister of Interior [11], at pp. 375, 377). Justice D. Dorner rightly pointed out in that case (which concerned the registration of an adoption involving a lesbian relationship) that ‘the registration before us does not reflect the biological position, only the legal position’ (ibid. [11], at p. 371). Justice D. Beinisch also said that:

‘The respondent’s contention in this case that the incorrectness of the requested registration is “manifest” because there is no possibility of recognizing two mothers for the same child is merely a different form of the argument that we should not recognize an adoption based on a homosexual relationship between the biological parent and the adoptive parent’ (ibid. [11], at p. 377).

Second, concerning the existence of a ‘manifest mistake,’ the question is not whether homosexual marriage is recognized in Israel. The question is whether Israeli law will recognize a homosexual marriage that is valid where it was contracted. The answer to this question is not at all simple. It requires us to make precise and detailed examinations. In any case, the decision on this issue — according to Funk-Schlesinger v. Minister of Interior [1] — will not be made in registration proceedings and in the judicial review thereof.

22. The state’s arguments are based on the contention that there is no social consensus in Israel on the question of the recognition of marriage between persons of the same sex; that the court should not decide these questions; that recognition of a status of same-sex marriages is an ethical question, which ought to be decided by the legislature. I agree with these arguments, to the extent that they concern the possibility that the court should decide the question whether same-sex couples may marry in civil marriages in Israel itself. An expression of that can be found in several judgments (see CA 373/72 Tapper v. State of Israel [19]; HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [20]; HCJ 4058/95 Ben-Menasheh v. Minister of Religious Affairs [21]; Yaros-Hakak v. Attorney-General [16]). In Ben-Menasheh v. Minister of Religious Affairs [21], the petitioner asked us to order the Minister of Religious Affairs to appoint an official who would conduct civil marriages in special cases. The petition was denied. This is what I wrote in my opinion:

‘The question of conducting civil marriages between couples who do not have a religious community — just like the conducting of civil marriages for couples who belong to different religious communities — is a difficult and complex question. There is no national consensus on this. It concerns the recognition of status, which operates vis-à-vis everyone. In this situation, it appears prima facie that the proper institution for dealing with and regulating the matter is the Knesset and not the court’ (ibid. [21], at p. 878).

Indeed, I accept that the question of conducting civil marriages in Israel, including marriages between persons of the same sex, should be determined first and foremost by the legislature. This is not the question before us. We are not dealing at all with marriage in Israel. Moreover, there is no application before us to recognize a marriage between two persons of the same sex that took place outside Israel. When this question arises, it will be examined in accordance with out accepted rules of private international law. All that is before us, and that Funk-Schlesinger v. Minister of Interior [1] seeks to resolve, is the question of registration — registration, not recognition — of a marriage between persons of the same sex that took place outside Israel. The state’s approach that we should deny the petitions because the marriage that the petitioners contracted is not a ‘legal framework’ recognized in Israel is an approach that seeks to adopt a position on the question of status; it is an approach that asks the court to rule on a social question that is the subject of dispute. The importance of the rule in Funk-Schlesinger v. Minister of Interior [1] is, inter alia, that it does not result in the court making a decision on matters of status. It is precisely the approach of the state with regard to a recognized ‘legal framework’ that makes it necessary to make decisions that the state itself believes ought to be left to the legislature.

23. Before we conclude, let us reemphasize what it is that we are deciding today, and what it is that we are not deciding today. We are deciding that within the context of the status of the population registry as a recorder of statistics, and in view of the role of the registration official as a collector of statistical material for the purpose of managing the registry, the registration official should register in the population register what is implied by the public certificate that is presented to him by the petitioners, according to which the petitioners are married. We are not deciding that marriage between persons of the same sex is recognized in Israel; we are not recognizing a new status of such marriages; we are not adopting any position with regard to recognition in Israel of marriages between persons of the same sex that take place outside Israel (whether between Israeli residents or between persons who are not Israeli residents). The answer to these questions, to which we are giving no answer today, is difficult and complex (see Y. Yonay, ‘The Law on Homosexual Orientation in Israel: Between History and Sociology,’ 4 Mishpat uMimshal 531 (1998); A. Harel, ‘The Courts and Homosexuality — Respect or Tolerance?’ 4 Mishpat uMimshal 785 (1998); M. Tamir (Yitzhaki), ‘The Right of Homosexuals and Lesbians to Equality,’ 45 HaPrakit 94 (2000); A. Harel, ‘The Rise and Fall of the Homosexual Legal Revolution,’ 7 HaMishpat 195 (2002); Y. Marin, ‘Marriage between Same-Sex Couples and the Failure of Alternatives to Legal Regulation of Single-Sex Couples,’ 7 HaMishpat 253 (2002); Y. Biton, ‘The Effect of the Basic Law: Human Dignity and Liberty on the Status of Single-Sex Couples,’ 2 Kiryat HaMishpat 401 (2002); see also E. Heinze, Sexual Orientation: A Human Right (1995); R. Wintemute, Sexual Orientation and Human Rights (1995); R. Wintemute and M. Andenas (eds.), Legal Recognition of Same-Sex Partnerships (2001); D.R. Pinello, Gay Rights and American Law (2003); E. Gerstmann, Same-Sex Marriage and the Constitution (2004)). It is to be hoped that the Knesset can direct its attention to these, or some of them.

The result is that we are making the order nisi absolute. The respondent shall register the petitioners as married in item 2(a)(7) of the population register.

 

 

President D. Beinisch

I agree with the opinion of President Emeritus Barak and with his reasoning. Many years of legal tradition have created and established in our legal system the distinction between the population registry, its function and the limits of its power and the very difficult issues of determining personal status. The fact that, from the viewpoint of the petitioners, the register and the declaration included in it is of importance does not affect the significant distinction that has been created in the case law rulings issuing from this court between the question of the registry and the question of personal status. This approach of our case law created a framework that left undecided those questions that are most complex from a legal viewpoint, and that left the question of social and ethical recognition to the Knesset and the legislature. All of this was discussed and emphasized by my colleague the president in his opinion, and I therefore agree with his position.

 

 

Vice-President E. Rivlin

I agree.

 

 

Justice A. Procaccia

I agree with the opinion of my colleague President Emeritus A. Barak.

 

 

Justice M. Naor

I agree.

 

 

Justice E. Hayut

I agree.

 

 

Justice E. Rubinstein

Introduction

1.    I fear that my opinion differs from that of my colleagues in this case. Forty-three years ago, this court decided by a majority the case of Funk-Schlesinger v. Minister of Interior [1], which held that an official of the population registry should register a couple as married if the couple come before him with prima facie evidence that proves that a marriage ceremony was conducted in another country, and the official should not examine the validity of the marriage. The judgment concerned a Jew and a Christian who were married in a civil marriage in Cyprus. Later this case law ruling became an established principle in the case law of this court in matters subject to dispute, and it was used in Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7], Pesaro (Goldstein) v. Minister of Interior [4] and Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12] with regard to the registration of ethnicity, religion and conversion, and in Brenner-Kaddish v. Minister of Interior [11] with regard to lesbian adoption (it is not superfluous to point out that in the last case there is a further hearing — HCJFH 4252/00 Minister of Interior v. Kaddish). Now my colleague the president, and with him most of the panel, also wish to apply this ruling to a marriage between persons of the same sex. My opinion is different. My opinion is that we are really not dealing in this case with a mere statistical registration which was the original nature of the register, a definition that long ago became obsolete, but with a social-public symbol, and that is the true purpose of the petitioners. This is because there are now no economic or ‘practical’ issues that led them to petition the court. I therefore have doubts as to the distinction between registration and recognition in this context that my colleagues make. In a nutshell, my opinion on the issue raised in the petition is that the question of marriage between persons of the same sex — which is a relatively new matter in public debate, certainly from a historical viewpoint, and is not recognized in the vast majority of countries of the world, and which by its nature raises difficulties in various contexts in view of the attitude of parts of the population to it — lies within the jurisdiction of the legislature and not within the creative interpretation of the court.

2.    My colleague the president ‘sanctifies’ the rule in Funk-Schlesinger v. Minister of Interior [1], since he believes that its usefulness increases and becomes more widespread over the years, since it allows — in his words — ‘social quiet’ (along the lines of ‘industrial quiet’) in sensitive areas.

3.    The question in my opinion concerns the scope and limits of the rule in Funk-Schlesinger v. Minister of Interior [1]. I believe that its limits have already been stretched too far, and there is no room to extend them further. The purpose that this rule initially served, when it sought to resolve the registration of civil marriage that exists in most countries but was not consistent with the marriage system in Israel, is different from its continuing expansion into areas that do not fall within this framework. Specifically, in the present case, we are speaking of a matter that is the subject of dispute both all over the world and in Israel. The ordinary person does not distinguish between registration and the recognition of status; were we to go out onto the street and ask people, I believe that no one would question the fact that they are one and the same. In such circumstances, this court should ask the legislature to have its say. This is my approach in a nutshell. I shall now clarify it in greater detail.

On the ruling in Funk-Schlesinger v. Minister of Interior

4.    Mr Schlesinger, a Jew, and Miss Funk, a non-Jew, were married in a civil marriage in Cyprus. When they came to Israel, they applied to be registered as married. The registry official refused and they petitioned the court. The following are the remarks of Justice Sussman, who wrote the majority opinion:

‘It is clear and free of doubt that the function of the registration official, under the aforesaid ordinance [the Residents’ Registry Ordinance, 5709-1949, which was replaced by the Population Registry Law, 5715-1965] is merely a function of collecting statistical material for the purpose of managing the register of residents, and he has not been given any judicial power’ (at p. 244).

These remarks of Justice Sussman rely inter alia on the opinion of the Attorney-General (of 10 March 1958) in which it was stated that ‘the civil administration authorities are neither authorized nor capable, and they therefore are also not entitled, to make rulings and to decide issues of religious prohibitions’ (p. 246; emphasis in the original). Justice Sussman also said that the ordinance ‘… did not give registration in the residents’ registry the force of evidence or proof for any purpose. The purpose of the ordinance is… to collect statistical material. This material may be correct and it may be incorrect, and no one guarantees its correctness…’ (ibid. [1], at p. 249), and he gave examples to show that the registry has no probative value.

5.    The court, in the majority opinion, did not want to enter the minefield of Jewish religious law. Therefore it held fast to the rule in CA 191/51 Skornik v. Skornik [22], by saying that:

‘The State Attorney did not argue before us that the marriage should be void because it was celebrated in a civil ceremony; there was no basis for this contention because this court has already held that the form of the marriage is governed by the law in the place where the ceremony took place (Skornik v. Skornik [22]) and in the absence of any evidence to the contrary, a ceremony that was celebrated in a foreign country is presumed to have been celebrated according to law’ (ibid. [1], at p. 252).

Justice Sussman went on to say:

‘The marriage will be declared invalid… if an Israeli judge, in giving expression to the feelings of the Israeli public, will be obliged to say that the validity of such a marriage is inconsistent with our lifestyle… Something that disqualifies a marriage under religious law will be a very weighty consideration, but it does not need to be the only consideration. The Israeli public is today divided into two camps. One camp that observes the religious precepts or most of them is confronted by another camp that emphasizes the separation between a state governed by civil law and a state governed by Jewish religious law. The outlooks of the members of the two camps are completely opposed to one another. Public order in Israel does not mean that the judge will force the outlook of one camp on the other camp. Life requires an attitude of tolerance to others and respect for different outlooks, and therefore the criterion that guides the judge can only be a balance of all the outlooks prevalent among the public’ (ibid. [1], at p. 256; emphasis supplied).

Therefore the majority opinion reached the conclusion that the marriage ceremony is decisive for the purpose of registering the status, that examining the validity of the marriage is not the concern of the registration official and that prima facie evidence of the ceremony is sufficient in order to oblige him to register the ceremony. It should be noted that Justices Witkon and Berinson left unanswered the question of the recognition of the validity of civil marriage (p. 258), whereas Justice Sussman thought that it should not be held that civil marriage is definitely invalid. We see, however, that the court based its judgment on the doubt concerning the validity of the marriage under Israeli law (something that has no parallel in the case before us), and emphasized the need for a criterion that is ‘a balance of all the outlooks prevalent among the public.’ I cannot refrain from saying with regard to the remarks of Justice Sussman that even from the perspective of that time I doubt whether the polarized divergence that he described between two supposedly opposing camps, the supporters of civil law against the supporters of Jewish religious law, reflected the complex Israeli reality, which is multi-faceted. I will merely say that even among religiously observant Jews there were (and are) many whose attachment to Jewish religious law does not detract at all from their attitude to the state as a state governed by civil law, and who see a conceptual harmony in the combination of the two.

6.    Justice Silberg, in the minority, was of the opinion that the marriage under discussion, between a Jew and a Christian, had no validity under the laws of the state because Jewish law was the personal law of the man (Schlesinger); consequently, if the registration official —

‘… is persuaded that the man is not married, he is prohibited from registering something that, in his opinion, is absolutely false. This is because the registration questionnaire asks about the legal family status of the person being registered, and not about the vague fact of whether he underwent a marriage ceremony or not’ (p. 239; emphasis in the original; see also Dr Silberg’s article of 1941, ‘A Modern Question of the Law of Marriage’ (in his book Coming As One, at p. 225), where he says, following the case law of Mandatory Palestine, that ‘a mixed marriage of a Jew who is a national of Palestine is void…’ (at p. 230)).

Justice Silberg, who did not ignore human and practical needs, also made a practical suggestion for cases such as Funk-Schlesinger, which in his opinion could help in ‘removing the painful aspect of the vast majority of difficult cases’ (at p. 241). This was to add in the law after the word ‘married’ the words ‘in a civil ceremony’ or ‘in a religious ceremony.’ This requires legislation, and the legislature did not accept the recommendation. We have therefore come to where we now stand.

7.    There will be some who ask — even though for practical purposes the question is no longer relevant ­— whether ab initio there was a need for the rule in Funk-Schlesinger v. Minister of Interior [1], and whether Justice Silberg was not correct in his approach that implied that if there was a basis for bridging the gap between a marriage that is not recognized in Israel and the registration of Israelis who married abroad in such marriages, this was a task for the legislature. But it can also be argued in support of the approach of Justice Sussman, in the majority opinion, that it is a fact that for forty-three years now marriage under the personal law, which is recognized in Israel, and the registration of civil marriage have coexisted, and the judgment perhaps prevented public battles that would not have contributed to the welfare of the public. Even those who criticize the rule in Funk-Schlesinger v. Minister of Interior [1] should not minimize the importance of this factor in that context and similar contexts. Moreover, the legislature is not quick to provide solutions, even though there is considerable distress and there are significant problems with regard to issues of marriage, and we will merely mention those persons who are Israeli citizens by virtue of the right of return but are not Jewish, for whom the law does not provide a proper framework; as the number of non-Jews according to Jewish religious law who came to Israel under the Law of Return (the children and grandchildren of Jews and their spouses) increased — especially in recent years, although these problems began to arise already in the first wave of immigration from the former Soviet Union — the question of their marriage possibilities arose. This question is not at all insignificant, and this is why there have been initiatives such as the draft Civil Union Law (see the article of S. Lifshitz, ‘Registration of Relationships,’ in the Menasheh Shava Book (A. Barak, D. Friedman eds., 2006) 361, at p. 419). The legislature has not yet addressed these issues, and the question of how to resolve existing problems in the face of the delicate fabric of religious marriage laws. But are there no limits to the rule in Funk-Schlesinger v. Minister of Interior [1]? We are dealing with a marriage between persons of the same sex, in a legal framework that no one disputes did not exist in the past, and which was created recently as a part of radical cultural changes in certain sectors of society. Is it not the role of the legislature to address this? In my opinion the answer is that this is its function; and if indeed the legislature decides upon a certain outlook, or even if it does not adopt any position at all, the meaning will be that this is what it wanted.

8.    In concluding our analysis of the rule in Funk-Schlesinger v. Minister of Interior [1], I thought it would be appropriate to cite some of the remarks of Justice Türkel in Yaros-Hakak v. Attorney-General [16]:

‘There are cases where, after a legal ruling is handed down, it goes beyond its original scope and spreads to areas that the persons who made it never imagined it would reach. In my opinion, a blatant example of such a situation is the ruling that was made in HCJ 143/62 Funk-Schlesinger v. Minister of Interior…’ (ibid [16], at p. 142 {95}).

See also the remarks of Prof. Shava following the decision in Brenner-Kaddish v. Minister of Interior [11]:

‘The Supreme Court should reconsider the rule in Funk-Schlesinger v. Minister of Interior especially after its extension in the Goldstein case and its implementation out of all proportion… in HCJ 1779/99 (Brenner-Kaddish v. Minister of Interior)’ (M. Shava, ‘Registration and Recognition of a Foreign Adoption Order within the Framework of a Lesbian Family,’ 1 Kiryat HaMishpat 103 (2001), at p. 132).

On the registry

9.    Whether true or not, Funk-Schlesinger v. Minister of Interior [1] has prima facie established in the ‘legal’ consciousness the idea that the population registry is merely a statistical tool. I say once again that this is not the case; the population registry is the ‘entry gate’ into the Israeli legal reality. When confronted by a couple who present an Israeli certificate that declares them to be married, an ordinary person is incapable of making fine distinctions as to whether it is merely a case of registration or a recognition of status. But this is not only true of the ordinary man. This was discussed by Justice Landau a short time after the judgment in Funk-Schlesinger v. Minister of Interior [1] was given:

‘The statement… that “the purpose of the ordinance… is to collect statistical material” is certainly true in itself, but it does not exhaust the practical importance of the registry… Therefore the value of the registration should not be denigrated entirely as if it were merely the addition of another digit to the total statistical account of the registry’ (Gurfinkel v. Minister of Interior [14], at p. 2071; see also Pesaro (Goldstein) v. Minister of Interior [4], at pp. 711-712).

Several years later Justice Landau reiterated this approach:

‘And in truth, how is it possible to denigrate the value of the registration, from a political and social viewpoint, which is no less important than the narrow technical viewpoint… and it is possible to ask: if all of this is a matter of no significance, why is the petitioner fighting in his petition with such stubborn persistence… Is it really true that “all the people are in error” in understanding the importance of the registry?’ (Shalit v. Minister of Interior [6], at p. 526).

This approach was shared by President Agranat:

‘I ought to emphasize that I am in agreement with my colleague Justice Landau when he says that such a registration, when it has been approved, will not merely have technical value, but also has value from a political-social viewpoint, something which is proved both by the great debate conducted by the members of the Knesset… and by the great interest caused by the trial before us among the public at large’ (ibid. [6], at p. 598).

President Agranat also warned about the manner in which what is today called merely technical and statistical is likely to be interpreted in the future: ‘There are grounds for concern that allowing the registration as aforesaid is likely to be interpreted, in the course of time, as a revolution that has ramifications… also on other walks of life’ (ibid. [6]). His remarks are most pertinent. The path outlined by these great jurists was followed later by Vice-President Elon:

‘Indeed, the registration of the ethnicity item as “Jewish” in the population registry does not constitute prima facie evidence for any matter of personal status… and since this is so, it is argued before us that it is of no consequence. But when the legislature decided to register the item of ethnicity… we ought not to denigrate its national-public importance, and we should regard it with the proper respect. Moreover, the petitions before us, and the extensive deliberations and arguments required with regard thereto, prove how important and fundamental is the decision in them to all of the litigants before us’ (Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7], at pp. 736-737).

This was followed by Justice Tal, who disagreed in Pesaro (Goldstein) v. Minister of Interior [4] with the determination of Justice Sussman in Funk-Schlesinger v. Minister of Interior [1] and presented a long list of practical ramifications of the registration, but also considered the public significance:

‘The approach that registration is merely “statistical” ignores reality… Not only do the organs of state and its citizens rely on the registry, but even the legislature itself has given the registry a status far beyond that of a mere statistical registration…

The question is therefore why these “married persons” should be registered in the population registry… when these marriages, as we have seen, have no local legal validity…

There is also considerable public significance to registration as a Jew in the population registry, far beyond the “statistical” significance. The public does not make the fine distinction between registration for the sake of the registry and registration for the sake of the right of return…’ (Pesaro (Goldstein) v. Minister of Interior [4], at pp. 705-708).

For this reason, Justice Tal held that ‘I cannot agree with the easy solution of registration for registration’s sake’ (ibid.). Justice Englard also continued along this path, when he said bluntly that all the substantial elements inherent in registration constitute a symbol, and it was this — the symbolic nature of the registration — that was under consideration:

‘Indeed, if we are merely dealing with insignificant statistics, why do there continue to be so many battles with regard to the registration? Why are there so many judgments containing dozens of pages in which the justices are divided in their opinions? The truth is, of course, that the symbolic here is the essence, and without a given outlook on life there is no decision on the question of registration or statistics’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12], at p. 756; emphasis supplied).

Thus we see that the registry is not merely statistical and that it has practical and social ramifications upon the opinions of the public, the authorities and the legislature. It would appear that in recent decades the registry in the legal context has been mainly a battlefield for a struggle over symbols. This was the focus of the petitions mentioned above, and it is also the focus of the petition before us. Should the de facto struggle over symbols be the work of the court? And is it proper that it should be done in a roundabout manner, within the framework of the population registry, by continually extending the rule in Funk-Schlesinger v. Minister of Interior [1]?

10. It might be asked in what way is the marriage of persons of the same sex different from a civil marriage that is also not recognized in Israel but is registered by virtue of the rule in Funk-Schlesinger v. Minister of Interior [1] and is almost unchallenged. The answer in my opinion is not difficult: civil marriage is, as we have said, a recognized institution in many countries, probably in the vast majority of them, and logic dictates that there is no alternative to registering it, even if we do not regard the registration official merely as a recorder of statistics. But this is not the case with same-sex marriages: when the official looks at these, he will immediately know that he is facing a new legal creation, which the state described in this case as a framework ‘that our ancestors did not imagine,’ and which has been recognized only in small minority of countries around the world — apparently in approximately six out of more than one hundred and ninety, which is approximately three per cent. Is this therefore the very area in which the court in Israel, with its special character, should march out in front of the legislature? Is this not a situation in which the reasonable official can argue that in his opinion there is a ‘manifestly incorrect registration, which is not subject to any reasonable doubt’ (Justice Sussman in Funk-Schlesinger v. Minister of Interior [1], at p. 243), and therefore it should be addressed and decided by the legislature? Moreover, is the registration sought in this petition ‘a balance of all the outlooks prevalent among the public’ of which Justice Sussman spoke?

On the petitioners and the court

11. I would like to make a clear distinction between this case and the petitioners’ human dignity, to which they are obviously entitled as human beings, like every other human being, and as a constitutional right under the Basic Law: Human Dignity and Liberty, according to which their private lifestyle is their own concern. As the petitioners and the state both said, during the last decade the mutual economic, social and personal rights of same-sex couples have been regulated in case law and the opinions of government authorities, and indeed my colleague the president listed the main points in this field, which speak for themselves. In this way the courts and the authorities have addressed the dignity and fair economic rights of same-sex couples.

12. This petition does not concern a comparison of the social and economic rights of same-sex couples with the rights of married couples. The thrust of the petition, in my opinion, is not the protection of the rights of the petitioners as citizens, as human beings, who are entitled to dignity and equality. As I have said, in recent years, little by little, in field after field, and not without some hesitation, this court has made decisions towards the equality of rights. Indeed, at the beginning of the 1980s, Justice Barak wrote: ‘It is obvious that if two men or two women come before the court and apply for approval of an agreement between them as a spouses’ property agreement, the court will not approve it, since the applicants are not spouses’ (CA 640/82 Cohen v. Attorney-General [23], at p. 689). Much has happened since then, and the proper recognition of the need to continue to realize the protection of social and economic rights has steadily increased within the framework of the values of equality and dignity.

13. I think that the path began with the judgment of this court in El-Al Israel Airlines Ltd v. Danielowitz [17] (which was, admittedly, decided by a majority), and it continued with the other cases that the president mentioned in his opinion; but the main work has been done in the trial courts that apply on a daily basis the principles determined by this court. As the president said, in 2004 the Family Courts overturned his determination in Cohen v. Attorney-General [23] and recognized two men as ‘spouses’ for the purposes of the Family Court Law (with regard to approving a property agreement, see Re R.A. and L.M.P. [32], per Justice Rish-Rothschild; FC (TA) 6960/03 K.Z. v. State of Israel, Attorney-General [33], per Justice Granit, with regard to protection orders under the Prevention of Family Violence Law, see FC (Hf) 32520/97 A v. B [140], per Justice Globinsky). Fairness requires that we point out that there is conflicting case law — for a detailed survey see FC (TA) 16610/04 A v. Attorney-General [35], per Justice Gefman; but it is clear that what in the past was obvious is today, at the very least, a matter of dispute). Meanwhile, government authorities have also recognized the requirements  of dignity and equality, and I believe that for years there has been a clear trend of granting the applications of same-sex couples (for a detailed survey, see para. 41 of the petition in HCJ 3046/05).

14. In reply to my question, counsel for the petitioners said that there are additional rights that have not been given to the petitioners, and he referred to s. 3 of the Evidence Ordinance [New Version], 5731-1971, which provides that ‘In a criminal trial, one spouse is not competent to testify against the other, nor may one spouse be compelled to testify against a person who is charged together with the other in one indictment.’ Without making any firm determinations on this issue, which is not currently before us, I will point out that the trial courts have given the section a purposive interpretation and extended the exemption also to recognized cohabitees who are not married (see CrimC (BS) 2190/01 State of Israel v. Moyal [30], per Justice Meged; see also CrimC (Hf) 477/02 State of Israel v. Bachrawi [29], per Vice-President Pizam and Justices Razi and Shiff), from which it may be understood that such a determination is not far off. The principle is that each issue should be examined on its merits to see whether any material right is violated, but the desire for registration has a wider purpose than ensuring specific rights; it involves the recognition of a symbol. I am therefore of the opinion that a distinction should and can be made between issues that have a direct ramification on the petitioners as citizens and as human beings that are entitled to dignity and equality and questions of a general public nature, with a symbolic significance that has no major practical ramifications. It should also be remembered that granting rights is mainly dependent upon a recognition of status — a matter of principle that we have not been asked to decide in this petition — rather than registration that does not even constitute prima facie evidence of the correctness of its content (s. 3 of the Population Registry Law).

15. Indeed, my colleagues, following their approach, hold fast to the decision in Funk-Schlesinger v. Minister of Interior [1]; but even according to the supporters of the decision in Funk-Schlesinger v. Minister of Interior [1], do we have before us a case like that in Funk-Schlesinger v. Minister of Interior [1], and is it possible to compare the registration of a civil marriage, which is an accepted arrangement in many countries, with a marriage between persons of the same sex that has been recognized in only a few countries? In my opinion, the answer is no. In my opinion, the state is correct in its position that the judicial system should not decide this matter, and its policy should not be seen, albeit unintentionally, as an attempt to predetermine the issue; the legislature should consider the matter and have its say.

On public confidence

16. In my opinion, this court should also consider the question of to what extent it is distancing itself from the social consensus, since both my colleague the president and the petitioners themselves do not dispute that in this case no such consensus exists and since it is very difficult to speak of ‘a balance of all the outlooks prevalent among the public.’ Public confidence is often mentioned as a fundamental prerequisite for the proper functioning of the court. This means that in matters that are the subject of a major disagreement among the public, the court should consider whether it is essential that it should enter into the dispute; sometimes the answer will be yes, but there are times when it is not. In my opinion, the difference when making the relevant balance lies in the question of the degree to which substantive human rights are really violated in this context of the registry. As I have said, there is no violation in this case beyond the symbolic; the socio-economic rights have been regulated in a reasonable manner, and what remains, if anything, is negligible, and can be regulated in the future, if necessary.

17. Public confidence, according to President Barak in the very important books that he has written, means ‘that the judge does not express his own views but the fundamental outlooks of society’ (The Judge in a Democracy, at p. 50, and see also his remarks in Yaros-Hakak v. Attorney-General [16], at p. 117), that ‘when the judge is obliged to balance values according to their weight, he should aim to do so in accordance with what seem to him the basic outlooks of society’ (Judicial Discretion (1987), at p. 188). Elsewhere the question, together with the answer, are clearly presented by Prof. Barak:

‘Should the judge exercise his discretion in such a way that the legal norm that results from exercising the discretion (whether by way of statutory or case law interpretation or in another way) should also enjoy a social consensus? …

My opinion is that the judge should take into account among his considerations the degree of social consensus for the social values and legal norms that result from them. The judge should aspire to find a solution that is consistent with the social consensus, or at least does not contradict it. In my opinion, it is desirable to avoid choosing an option that directly goes against the basic outlooks of the public… The reason for this approach lies in democratic considerations, considerations of the separation of powers and the need to ensure public confidence… An act that conflicts with the social consensus will, in the long term, harm public confidence in the court system and the ability of the courts to function property’ (Judicial Discretion, at pp. 289-290 (emphases supplied); these remarks were also cited in Ben-Menasheh v. Minister of Religious Affairs [21], at p. 880).

Admittedly, public confidence does not mean —

‘… popularity and following the trends prevailing among the public. Public confidence does not mean bowing to public opinion polls and surveys. Indeed, public confidence means a recognition that “a judge administers justice in accordance with the law” ’ (CrimFH 5567/00 Deri v. State of Israel [24]).

The court is not a slave to opinion polls and it is not guided by them, but it is proper to examine matters, not merely from the perspective of individual justice for the petitioners, but also from the perspective of ‘public justice,’ which means, in my opinion, seeking the broadest common denominator between the different parts of Israel’s divided society and avoiding its extremes. Indeed, it is difficult to please everyone; but even if public confidence does not mean pleasing the public, as President Barak said on one occasion, it is not based on extremes. No one denies that social conditions may change, and this has happened to a considerable degree with regard to homosexual relationships (see The Judge in a Democracy, at pp. 60-61; El-Al Israel Airlines Ltd v. Danielowitz [17], at pp. 781-782). The court has made its contribution to preventing discrimination in socio-economic contexts, as we have said, and these have been regulated to a large degree. Even if this is not completely to the petitioners’ satisfaction, it is very close to it; but is there no point at which the need to act within the framework of public confidence, within the framework of the broadest common denominator, will lead the court to say that it has reached the limits of its role, beyond which the legislature should have its say, on matters that are the subject of great controversy?

The role of the court

19. Indeed, the recognition of economic and social rights is a fundamental aspect of human decency that is not opposed by any real conflicting value. By contrast, the line that is crossed by a registration of marriage indicates to everyone a de facto recognition of status and a conflict of values that ought to be decided by the legislature. It might be argued that, once the economic and social rights have been recognized, it makes no difference whether they are also accompanied by registration. But to tell the truth, once we saw that the registration is not merely for statistical purposes as stated in Funk-Schlesinger v. Minister of Interior [1], even if registration of personal status does not constitute evidence of its correctness (s. 3 of the law), it has great symbolic significance. A people lives by its symbols, and we should reiterate that, were this not the case, both statute and custom in Israel would not attribute much significance to them; moreover, truth be told, I think that the petitioners would not be fighting the battle that they are fighting in this petition. Justice Zu’bi has already said in Brenner-Kaddish v. Minister of Interior [11] that ‘in practice the petitioners are not merely seeking registration, but they are looking for de facto recognition of the adoption.’ I think that Justice Cheshin expressed these judicial feelings well, in a minority opinion in a different context:

‘The real subject of the petition before us is not the introduction of road signs [in Arabic] by the respondent municipalities. The subject is — from start to finish — the cultural and ethnic rights of Arabs in Israel. These rights, to the best of my understanding, go beyond the recognized rights that accompany the status of the individual in Israel… It is the nature of things that the court is not the proper forum to consider this issue and decide it, since the political system — and first and foremost the Knesset — has not recognized the rights of the kind that the petitioners desire’ (HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [25]), at p. 460; square parentheses supplied).

20. My colleague the president utterly rejects almost the entire legal position of the respondent. With respect, my opinion is different. Like the Attorney-General, I am of the opinion that we are dealing with a matter that should be decided by the legislature. The words of Justice Cheshin in Yaros-Hakak v. Attorney-General [16] are appropriate here: ‘… the court was not intended to march in the vanguard, nor was it charged with testing uncharted waters. The judiciary, in essence, was not given the task of delineating and paving new paths in social matters’ (ibid. [16], at p. 135 {86}). The remarks of my colleague the president in his book, The Judge in a Democracy, are also relevant: ‘The judge should generally not be the standard bearer of a new social consensus. As a rule, judges should reflect values and principles that exist in their society rather than create them’ (The Judge in a Democracy, at p. 47, which is cited in Yaros-Hakak v. Attorney-General [16], at p. 117 {64}). I am personally of the opinion that in so far as the rights of the individual are concerned, it is possible that on occasions the court will continue to march in the vanguard, and the same is true with regard to shaping the norms of public administration; but it should not do so in matters of a collective nature that are the subject of a controversy concerning changes in beliefs and outlooks. In these matters, I find the remarks of Vice-President Mazza in Yaros-Hakak v. Attorney-General [16] apt:

‘… whether it is desirable that this court should establish, in case law, a primary arrangement on this sensitive and controversial issue, which concerns giving a recognized legal status to single-sex couples. In my opinion, the answer to this question is no. The principle of the separation of powers, and the special sensitivity of the issue brought before us, require us to act in this case with caution and restraint’ (ibid. [16], at p. 79 {15-16}; emphases in the original).

21. With regard to the executive authority, President Barak has said:

‘… that there are matters of a unique kind in which the executive authority does not have the power to make fundamental decisions on basic questions that divide Israeli society. There are matters of this kind in which the decisions should be made by the Knesset, whereas the executive authority should restrict itself to the policy for implementing them’ (HCJ 3267/97 Rubinstein v. Minister of Defence [26], at p. 523 {194}).

The president will say: I am only dealing with the registry, whereas the primary arrangement will be made by the legislature. But in my opinion the registry in this regard is a significant step on the way to a comprehensive arrangement, and therefore its place lies in the legislative domain.  

Some remarks on comparative law

22. This court is not the first to contend with the question of the approach to marriages between persons of the same sex that took place in another country. Similar questions are the subject of huge dispute in the various states of the United States, and they are a part of a very vigorous public debate. Admittedly the dispute concerns the question of recognition of the actual marriage, but as we have said the question before us also goes beyond the scope of a mere statistical registration. In the United States the question also arises as to the line separating the work of the court from the work of the legislature. Indeed, in an absolute majority of states in the United States there are legislative arrangements that reject recognition of marriages between persons of the same sex that were contracted outside the state (the Defense of Marriage Act (DOMA)). For a survey of the legislative arrangements by state, see appendix to the article of A. Koppelman, ‘Recognition and Enforcement of Same Sex Marriage,’ 153 U. Pa. L. R. 2143 (2005), at p. 2165. The constitutionality of the provisions of the DOMA laws has been scrutinized in several cases, but no judgment has been given by the Supreme Court of the United States in this regard. However there are states, such as New Jersey, in which there is no legislative regulation and where a similar question to the question before us has arisen, and this also concerned a marriage that was contracted in Canada.

23. In Hennefeld v. Township of Montclair [39], the court of the State of New Jersey refused to recognize a marriage between persons of the same sex that took place in Canada. It held that —

‘… this court finds that the marriage laws of Canada which recognize same-sex marriage are not consistent with those of New Jersey which do not recognize same-sex marriage... Accordingly, the Plaintiffs’ Canadian marriage cannot be afforded comity in New Jersey.’

Canadian marriages have not been recognized in states where there are DOMA laws (see In re Kandu [40]). This case law relied on previous case law according to which the state constitution did not require recognition of marriage between persons of the same sex (Lewis v. Harris [41]). In that case the court addressed its role in recognizing the right of persons of the same sex to marry. With regard to the provisions of the constitution, the court held:

     ‘This constitutional provision does not give a court the license to create a new constitutional right to same-sex marriage simply because its members may feel that the State should grant same-sex couples the same form of recognition as opposite-sex couples who choose to marry… there is no basis for concluding that our society now accepts the view that there is no essential difference between a traditional marriage of a man and woman and a marriage between members of the same sex’ (emphasis supplied).

Even in the State of New Jersey no one disputes that same-sex couples should be given the same rights as heterosexual couples (to this end New Jersey even enacted the Domestic Partnership Act), but the manner, or the ‘framework,’ in which society chooses to confront the issue — such as whether it constitutes marriage, or a civil union, or another approach — is generally regarded as a public question that the legislature, and not the court, should address.

24. After I wrote the aforesaid, the Supreme Court of the State of New Jersey held, by a majority, that same-sex couples have a constitutional right to the same rights and benefits as heterosexual couples, but it was held that the question of the ‘name,’ the framework, by which the relationship will be known is a question for the legislature to decide (Lewis v. Harris [42]). The court held that it was not possible to strip the term ‘marriage’ of its loaded meanings, and therefore it was the legislature that should decide whether to use it with regard to same-sex couples:

     ‘Raised here is the perplexing question — “what’s in a name?” — and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? We are mindful that in the cultural clash over same-sex marriage, the word marriage itself — independent of the rights and benefits of marriage — has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples… The Legislature is free to break from the historical traditions that have limited the definition of marriage to heterosexual couples or to frame a civil union style structure, as Vermont and Connecticut have done.’

In so far as the question of framework or symbol is concerned, the court therefore was of the opinion that public debate, as expressed in the work of the legislature, should be allowed to have its say. The court said that traditionally, since ancient times, the word ‘marriage’ has been used only for the relationship between a man and a woman, and therefore:

     ‘To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. When such change is not compelled by a constitutional imperative, it must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government.’

When the court in New Jersey discussed the reasoning for this determination, which requires the referral of the question of the framework or symbol to the legislature, it addressed the same consideration that I addressed above, namely the need to act within the scope of public confidence:

     ‘Some may think that this Court should settle the matter, insulating it from public discussion and the political process. Nevertheless, a court must discern not only the limits of its own authority, but also when to exercise forbearance, recognizing that the legitimacy of its decisions rests on reason, not power.’

All seven justices of the New Jersey court in that case supported the approach that same-sex couples should not be deprived of legal rights and benefits in the law that are given to heterosexual couples. The minority opinion of three justices saw no reason to distinguish between these rights and the right to the ‘title of marriage.’ This minority opinion also considered the question of symbols — the linguistic use of the term ‘marriage’ — and it held that there was no basis for depriving the petitioners in that case of the symbol, so that it would not appear that the commitment in a relationship between persons of the same sex is weaker than that of persons of different sexes, and it also held that labels perpetuate prejudices. Thus we see that a debate took place and the majority referred the question of symbols to the legislature.

25. The Supreme Court of the State of New York, another state where there are no DOMA laws, held that the question of the registration of the marriage of same-sex couples is a matter for the legislature. While relying, inter alia, on the judgment in Hennefeld v. Township of Montclair [39] from the State of New Jersey, the court in the State of New York held:

     ‘The role of the courts is “to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes”… Deprivation of legislative authority, by judicial fiat, to make important, controversial policy decisions prolongs divisiveness and defers settlement of the issue; it is a miscarriage of the political process involved in considering such a policy change… Judicial intervention is warranted only where the Legislature has placed an unreasonable restriction on access to the legislatively defined right.’

(See also Samuels v. New York State Dept. of Health [43]; Seymour v. Holcomb [44]).

Conclusion

26. The essence of the matter is this: my colleague the president, like the petitioners, is not satisfied by the respondent’s argument that in Israel there is no appropriate legal framework for a marriage of same-sex couples; according to him, the ‘legal framework’ concept is new, it does not contain a proper criterion and there is no difference between the registration of homosexual marriage and the approval of a lesbian adoption, as decided in Brenner-Kaddish v. Minister of Interior [11]. Indeed, my opinion in that case is like the minority opinion of Justice A.R. Zu’bi. Personally, I do not think that giving socio-economic rights to homosexual couples for reasons of human and legal decency is a ‘legal framework’ similar to the registration of marriage. There is a dividing line between them, and crossing this line is a matter that should be addressed by the legislature. The line is the very symbol, the value decision, which calls for the legislature to consider the matter, since registration is ultimately tantamount to an official stamp of approval given by the state for the creation of a family unit that is recognized only in a small minority of countries around the world. Therefore, were my opinion heard, we would not grant the petitions.

 

 

Petition granted by majority opinion (President Emeritus Barak, President Beinisch, Vice-President Rivlin and Justices Procaccia, Naor and Hayut), Justice Rubinstein dissenting.

30 Heshvan 5767.

21 November 2006.

HCJ 6924/98

Association for Civil Rights in Israel

v

1.  State of Israel

2.  Minister of National Infrastructures

3.  Minister of Finance

 

The Supreme Court sitting as the High Court of Justice

[9 July 2001]

Before Justices M. Cheshin, I. Zamir, D. Beinisch

 

Objection to an order nisi issued March 14, 1999.

 

Facts: In this petition, the petitioner, the Association for Civil Rights in Israel, asked the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance to nullify the appointment of some of the representatives on behalf of the Government in the Israel Lands Council and to appoint in their stead, Arabs as members of the Council.

 

Held: The court analyzed the substance and applicability of the principle of equality and decided that given that the Government is to appoint an additional six representatives on its behalf as members of the Council, the order nisi is to be made absolute in the sense that the respondents are ordered to weigh, in accordance with what was detailed in the judgment, whether it is possible to appoint an additional Arab as a member in the Israel Lands Council.

 

 

Basic Laws cited:

Basic Law: Israel Lands ss. 1, 2.

Basic Law: Human Dignity and Liberty s. 1.

 

Legislation cited:

Israel Land Administration Law, 5720-1960, ss. 1, 2, 4A.

Israel Lands Law, 5720-1960.

Israel Land Administration Law (Amendment) 5755-1995, s. 5.

Government Corporations Law 5735-1975, ss. 18A, 18A1, 60A

Women’s Equality of Rights Law 5711-1951.

Equal Pay for Female and Male Employees Law, 5724-1964.

Equal Employment Opportunities Law 5748-1988, s. 2.

Authority for Advancement of Women Law, 5758-1998.

Civil Service Law (Appointments), 5719-1959, ss. 15A, 15A (b), 15A (b) (2).

National Insurance Law [Consolidated Version] 5755-1995, ss. 20, 22.

Employment Service Law, 5719-1959, s. 42.

Patient’s Rights Law 5756-1996, s. 4.

 

Draft legislation cited:

         Draft Proposal for the Israel Land Administration Law, 5720-1960 

         Draft Proposal for the Israel Land Administration Law (Amendment) (Israel Land Administration Council) 5755-1994.

         Draft Proposal for the Israel Land Administration Law (Amendment no. 3), 5758-1998.

         Draft Proposal for the Government Corporations Law (Amendment no. 13) (Appropriate Representation for the Arab Population) 5760-2000.

         Draft Civil Service Law (Appointments) (Amendment no. 11) 5760-2000.

          

Israeli Supreme Court cases cited:

[1]      HCJ 6698/95 Ka’adan v. Israel Land Administration Authority, IsrSC 54(1) 258. [2000] IsrLR 51.

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

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

[4]      HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs, IsrSC 54(2) 164; [2000] IsrLR 133.

[5]      HCJ 421/71 Yaf Ora Ltd v. Broadcasting Authority, IsrSC 25(2) 741.

[6]      HCJ 2814/97 Upper Tracking Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport, IsrSC 54(3) 233.

[7]      HCJ 953/87 Poraz v. Mayor of the City of Tel-Aviv-Jaffa, IsrSC 42(2) 309.

 

Israeli books cited:

[8]      Y. Weisman, Property Law – General Part (1993).

[9]      U. Benziman, A. Manzur, Subtenants – Arabs of Israel, their Status and the Policy toward Them (1992).

[10]    I. Zamir, Administrative Power (Volume A. 1996).

 

Israeli articles cited:

[11]    D. Barak-Erez ‘A Dunam Here and a Dunam There: The Israel Lands Administration in the Vise of Interests’ Iyunei Mishpat 21 (1998) 613.

[12]    I. Zamir, M. Sobel ‘Equality before the Law,’ Mishpat U’Memshal E (2000) 165.

[13]    F. Radai, ‘As to Affirmative Action’ Mishpat U’Memshal C (1995-1996) 145.

[14]    A. Rubinstein, ‘On the Equality for Arabs in Israel’ Kiryat Hamishpat A (2001) 17.

 

Foreign books cited:

         [15] D. Kretzmer The Legal Status of the Arabs in Israel (Boulder, 1990).

 

Other:

[16]    State Comptroller – Annual Report 44 for the Year 1193 and for the Accounting Year 1992 (1994).

[17]    Declaration of the Establishment of the State of Israel.

[18]    Report of the Subcommittee as to the Status of Minorities in Civil Service and in Public Services (1989).

[19]    The Regime of the State Israel – Book of Sources (Y. Galnor, M. Hafnung eds., 1993).

 

For the petitioner – Hadas Tagari.

For the respondents – Osnat Mendel, Head of High Court of Justice Department, State Attorney’s Office.

 

 

JUDGMENT

 

Justice I. Zamir

1.    The Association for Civil Rights in Israel (hereinafter: ‘the petitioner’) asks the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance (hereinafter: ‘the respondents’) to nullify the appointment of some of the Government representatives in the Israel Lands Council and to appoint in their place, Arabs as members of the Council.

The Law

2.    The law which establishes the Israel Lands Council (hereinafter: ‘the Council’) is the Israel Land Administration Law, 5720-1960 (hereinafter: ‘the law’).  Section 3 regulates the appointment and the role of the Council in stating:

‘The Government will appoint an Israel Lands Council which will establish the land policy according to which the Administration will operate, will supervise the actions of the Administration, and will approve its budget proposal that will be established in the law’.

The composition of the Council was established in section 4A as follows:

‘4A(A) The Minister, who will be the chairperson, and members whose numbers will not be less than eighteen and not more than twenty four, which the Government will appoint, by proposal of the ministers, will serve in the Council, as detailed below:

(1)  Half of the Council members will be on behalf of the Government, and half will be on behalf of the Jewish National Fund and by its proposal;

(2) (a)  At least half of the members on behalf of the Government will be State employees, holding senior positions in the government offices connected to the matter, and the remainder will be individuals from academia and representatives of the public;

(b)  The members on behalf of the Jewish National Fund will be members of the Board of Directors, employees of the Jewish National Fund or individuals from academia; the Jewish National Fund is also permitted to propose one representative on behalf of the Jewish Agency;

(3) Members of the council who hold positions not in civil service nor in the service of the Jewish National Fund, and who in these positions have an interest in land policy (hereinafter – interest holder in land policy), will not make up more than a third of the number of the Council members, and of them no more than one half will hold positions in the agricultural sector.

(B) The Government will be given details as to the qualifications of the candidates, including their curriculum vitae, their education, their dealings in the past and present, their experience, and any other detail which is substantive and relates to the matter.

(C)  The Minister, with the approval of the Council, will appoint a substitute for the Chairperson from among its members.

(D)  Notice as to the appointment of the members of the Council will be published in the register.

 

Additional clauses in the law establish provisions as to limitations on appointing members to the Council, the period of tenure, the conclusion of the tenure, the appointment of alternates for a member of the Council, protocols in the Council and more.

The minister who today serves as the Chairperson of the Council is the Minister of National Infrastructures.

The two ministers that according to section 4A(a) of the law propose to the Government the names of the candidates for appointment to the Council are today the Minister of Finance and the Minister of National Infrastructures.

3.    The law also establishes the Israel Lands Administration (hereinafter: ‘the Administration’).  Section 2 of the law establishes that the Government will set up the Administration which will ‘administer the Israel Lands’; that it will appoint the Director of the Administration and that the Administration employees will be civil servants.  The authority of the Administration is sweeping authority that is almost not regulated by the law.  However, section 4 of the law establishes that the Director of the Administration will submit to the Council a report of the activities of the Council at least once a year, and it is clear that the Administration must act according to the policy established by the Council, and that it is subject to the supervision of the Council.  See section 3 of the law, supra, paragraph 2.

As to the Administration see HCJ 6698/95 Ka’adan v. Israel Land Administration Authority [1] (hereinafter: ‘the Ka’adan case’) at pp. 269-272.

4.    Israel Lands which are subject to administration by the Administration, were defined in the Basic Law: Israel Lands.  Section 1 of the basic law establishes that Israel Lands are ‘the lands in Israel, of the State, of the Development Authority or of the Jewish National Fund.’  This section further establishes that the ownership of Israel Lands will not be transferred, whether by sale or by any other means.  However, section 2 of the basic law, removes from the application of the prohibition types of lands and types of transactions which have been established for this purpose in the law.  Such transactions were established in the Israel Lands Law, 5720-1960.  As to the Basic Law: Israel Lands and as to Israel lands in general see Y. Weisman, Property Law – General Part [8], p. 195 and on.

In actuality, Israel Lands include more than 90% of all the lands in the State.  See Weisman in his book supra [8] at p. 193.  If so, it is clear that the land policy determined by the Council and the oversight of the Council over the Administration has enormous influence over all that relates to development of the Land both from a national and from a private aspect.  See D. Barak-Erez ‘A Dunam Here and a Dunam There: The Israel Lands Administration in the Vise of Interests’ [11].  From here it is also clear that there is great importance to the composition of the Council.

Composition of the Council

5.    The law that established the Council and the Administration in 1960 – did not state a word about the composition of the Council. How so?  As stated in the explanatory notes to the Draft Proposal for the Israel Land Administration Law, 5720-1960, at that time the covenant between the State and the Jewish National Fund (hereinafter: ‘JNF’), was about to be signed, and it contained provisions as to the Council and the Administration (hereinafter: ‘the Covenant’).  The legislator made due with the fact that the composition of the Council would be coordinated in the Covenant.  And indeed, that Covenant that was signed on November 28, 1961 and published in the Yalkut Pirsumim 5728-1968, no. 1597, arranged the composition of the Council.  According to the Covenant, the number of the members in the Council would be thirteen, and half less one would be appointed by proposal of the JNF.

Over the years the number of Council members was increased on three occasions, until it reached twenty-seven.  The number was increased, as stated by the State Comptroller, without the need for this being clarified and with the numerical relationship between members from the JNF and other members being maintained.  See State Comptroller – Annual Report 44 for the Year 1993 and for the Accounting Year 1992 [16] at pp. 224-225.

6.    The situation in fact was not satisfactory.  It raised criticism on the part of the State Comptroller.  See said Annual Report of the State Comptroller [16] at p. 221 and on.  Following the report of the State Comptroller a private Draft Law (on behalf of three members of Knesset) was submitted to the Knesset which was primarily intended to arrange the composition and the functionality of the Council:  Draft Proposal for the Israel Land Administration Law (Amendment) (Israel Land Administration Council) 5755-1994.  In the explanatory notes to the Draft Law (p. 179) it was stated:

‘The actions of the Administration in all that relates to Israel lands take place via an internal legislative body which is the Council of the Administration.  This Council operates by power of undefined arrangements, primarily internal, and in a manner which deviates from the proper order and the proper administration.

In report 44 of the State Comptroller, criticism was expressed . . .  in that report the State Comptroller revealed that in fact a majority that is connected in one way or another to the agricultural sector in actuality controls the Council and its various committees.  Indeed, the law does not relate to the need to give expression in the Council to one sector or another, but it would be preferable, if there were not in the Administration Council a majority for a specific economic group.’

On the basis of this Draft Law, the Israel Land Administration Law (Amendment) 5755-1995 (hereinafter: ‘the amending law’) was passed.  The amending law added section 4A to the law, which regulates the composition of the Council, and additional sections which related to the Council.  See supra paragraph 2.  In accordance with section 5 of the amending law, the period of tenure of the Council members ended in February 1997, and the Government was meant to appoint new members to the Council in accordance with the amending law.

7.    Looking toward the appointment of new members to the Council the petitioner, in February 1997 approached the respondents in a letter.  In the letter, it said, inter alia, as follows:

‘The actions of the Council have great impact over various sectors in the population, and in fact the composition of the Council, has to date reflected the interests of various sectors of the public.  However, this representation did not apply as to the Arab population, and as said today not even one Arab member has been included in the Council.  Therefore, we turn to you with a request that in the Council that is to be appointed there will be appropriate representation of Arab members, of appropriate professional experience and qualifications.

We are of the view that the situation that has existed to date, according to which there is no representation for the Arab population in the body that determines the policy of the Administration, is illegitimate at its core.  The Arab population which is about a fifth of the State’s population has unique interests on the subject of lands, interests which are not represented by other entities.  The principle of equality necessitates that this population will be granted appropriate representation in the Israel Lands Council.  Half of the members of the Council – twelve out of twenty four – are representatives of the government, of which at least six are senior civil servants, and the rest (up to six) are individuals from academia and representatives of the public.  This diverse composition that the law established, and in particular the membership of about six members who are individuals from academia and representatives of the public, was intended to enable flexibility in determining the composition of the Council, flexibility that would ensure proper representation for diverse publics.’

8.    On March 21 1997, the Government decided to appoint eighteen members to the Council: of them nine on behalf of the Government, all civil servants who represent various government offices, and nine on behalf of the JNF.  Among the members that were appointed there was not a single representative of the public nor was there a single Arab member.

On June 15, 1997 Dan Meridor, the then Minister of Finance wrote to the petitioner and said as follows: ‘I am of the view that there is nothing to prevent the appointment of Arab citizens to the Israel Lands Council.  Your proposal will be taken into account in my considerations, at the time of making a decision as to the inclusion of additional [members] to the Administration Council.’

In the meantime, as arises from the pleadings, five additional members have been appointed (at an unknown date), of which three are on behalf of the Government and two on behalf of the JNF, and among them there is not one Arab member.

Since the quota of members on behalf of the Government as established in section 4A of the law was filled, no available space remained for an Arab member in the Council.  ‘There is therefore no other recourse’ so wrote the legal counsel of the Ministry of National Infrastructures on July 26, 1998 to the petitioner ‘but to amend the law in order to create more spaces for representatives of the public.’

9.    On June 15, 1998, a government sponsored draft law was published which proposed to increase the maximum number of members in the Council from twenty-four to thirty: Draft Israel Land Administration Law (Amendment no. 3), 5758-1998.  In the explanatory notes to this draft law (p. 374) it was stated: ‘. . . with the goal of ensuring representation on behalf of the public in the Israel Lands Council, it is proposed to establish that the number of representatives on behalf of the Government who are civil servants will  not be greater than twelve.’

The legal counsel in the Ministry of National Infrastructures announced to the petitioner that the Minister intends to act, after the draft law becomes law, to appoint a representative from among the Arab public out of the quota of representatives of the public in the Council.

However, the draft law, although it passed a first reading in the Knesset (on July 7, 1998), was never submitted for a second or third reading, and it is impossible to know if and when it will be made into law.

The petition

10.  This being so, the petitioner filed the petition to this Court, in which it requests that the Government nullify the appointment of some of the Government representatives on the Council and appoint in their stead Arab members in a proportion which constitutes an appropriate representation of the overall Council members.

After an initial hearing on the petition the Court issued an order nisi (on March 14, 1999).  The response to the petition was submitted in two levels: the level of principle and the level of practice.  On the level of principle, the respondents claimed that the Government on whose behalf half of the members are appointed must appoint senior civil servants who will represent the government offices which have a connection to the matter and will act to implement the land policy of the Government.  Moreover, the respondents claim that even if the Government appoints representatives of the public to the Council, it is not clear that it must give ‘appropriate representation’ to the Arab population.  In any event, according to their claim, there is no need for the Court to make a determination on this question in the level of principle, as the question is standing before a resolution in the practical level.

In the practical level, the respondents gave notice that the government intends to appoint an Arab member to the Council in the near future even if the Draft Israel Land Administration Law (Amendment no. 3) (supra paragraph 9) is not passed.  In the view of the respondents, the appointment of an Arab member to the Council out of the maximum quota of six representatives of the public is an appropriate representation of the Arab population in the Council.

11.  Indeed, after a time, the Government decided (on May 14, 1998) to appoint Mr. Salah Suleiman as a representative of the public who represents the Arab sector in the Council.  However, following the request of the Attorney General to conduct a re-examination of the question of Mr. Suleiman’s political affiliation the Government decided to limit the appointment to a period of about half a year.  Later (in the month of January 2001) the Government extended the appointment for an additional half a year until the month of July 2001.

In a supplementary notice by the State Attorney’s office (from April 5, 2001) it was stated that the Attorney General directed the legal counsels from the various government offices which relate to the matter to prepare for the appointment of an Arab member to the Council, who would replace Mr. Suleiman, in the month of July, 2001.  Even at the time of the hearing it was said to the Court by the counsel for the respondents that the Government intends to appoint an Arab member to the Council when the period of tenure of Mr. Suleiman ends.

Based on what has been stated, the Court presumes that when the time comes an Arab member will be appointed as a representative of the public in the Council in the place of Mr. Suleiman.

12.  The respondents, who object to the claim that they have a legal duty to give appropriate representation to the Arab population on the Council, are of the opinion that even if there is such a duty imposed on them they have fulfilled it by appointing one Arab representative of the public to the Council.  Is this indeed so?  The question what the duty to give appropriate representation necessitates where such a duty is imposed is a difficult question.  The answer depends to a great extent on the context, including the statutory provisions, the identity of the entity, the essence of its role, and the other circumstances of the given case.  See HCJ 453/94 Israel Women’s Network v. Government of Israel (hereinafter: ‘the first Israel Women’s Network case’) at pp. 527-528.

However, be the duty to give appropriate representation what it may be, in the given case it is clear that the appointment of one Arab member as a representative of the public out of a maximum quota of six representatives of the public on the Council fulfills the duty of appropriate representation of the Arab population among the representatives of the public on the Council.

Therefore it becomes unnecessary to discuss and determine in this petition the question if indeed a duty is imposed on the respondents to give appropriate representation to the Arab population among the representatives of the public on the Council.

13.  The petitioner is not satisfied with the appointment of one Arab among the representatives of the public to the Council.  It claims that the Government has a duty to give the Arab population appropriate representation not only among the representatives of the public but in the Council in its entirety.  In the Council there are twenty four members.  One Arab member is not considered, according to its claim, appropriate representation for the Arab population which makes up about one fifth of the population in Israel.  Therefore, it requests that additional Arab members be appointed to the Council.

Indeed, the petitioner, who is aware that the law requires the appointment of half of the members of the Council on behalf of the JNF, does not ask for the appointment of Arab members on behalf of the JNF.  The explanation for this is, apparently, that the JNF is a Jewish organization which is obligated, by its articles of incorporation to purchase lands for the settlement of Jews in the land of Israel.  However, the petitioner asks for the appointment of additional Arab members on behalf of the Government in order to reach an appropriate representation of the Arab population in the Council.  It claims that such representation is necessitated by the principle of equality.

The question that is before the Court is therefore whether the principle of equality necessitates the appointment of additional Arabs as members of the Council.

Principle of equality

14.  As to the importance of the principle of equality it is no longer necessary to go on at length.  In the words of Justice M. Cheshin ‘It is a first among principles in royalty, head and shoulders above all the other principles.’ HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs (hereinafter: ‘the Second Israel Women’s Network case’) [3] at p. 650.  As to equality in general see I. Zamir, M. Sobel ‘Equality before the Law’ [12]. 

The Court has given a broad meaning to the principle of equality in a large number of decisions and has applied it to almost every type of distinction between people on the basis of irrelevant considerations.  Thus, for example, a distinction between people who seek to receive a subsidy based on the place they live or the date of application may be considered a violation of the principle of equality.  However, the original meaning of the principle of equality, and it appears that it is also the precise definition, is a narrower definition.  In this meaning, which is also accepted in other countries, the principle of equality relates to a limited list of defined grounds which can be called the classic grounds of equality, and Justice M. Cheshin calls them generic grounds of equality.  These are for example, religion, race, nationality and gender: every person is entitled to equality without distinction as to religion, race, nationality and gender.  The principle of equality in this sense, as distinguished from the broad sense, is considered in many states, and is worthy of being considered, a constitutional right.  Not without a reason did the Declaration of the Establishment of the State of Israel [17] note the obligation of the State to keep up ‘total social and political equality of rights for all its citizens without distinction as to religion, race and gender.’

Violation of the principle of equality in the narrow sense is considered particularly severe, and so said Justice M. Cheshin in the Second Israel Women’s Network case [3] (at pp. 658-659):

‘An additional example of generic discrimination [in addition to the discrimination against a woman for being a woman. I.Z.] is the discrimination against a person for the color of their skin or for their race.  Generic discrimination, as has already been said, is discrimination which mortally wounds human dignity.’

See also the Ka’adan case [1] (supra paragraph 3) at pp. 275-276.

15.  Such is also discrimination against an Arab for being an Arab, and it is the same if the discrimination is based on religion or nationhood.  It is a violation of the principle of equality in the narrow sense.  Therefore, it carries particular severity. 

The principle of equality in this sense is the soul of democracy.  Democracy demands not only one vote for one person in elections, but also equality for all at all times.  The real test for the principle of equality is anchored in the treatment of the minority: religious, national or other.  If there is no equality for the minority there is no democracy for the majority.

This is also so as relates to equality toward Arabs.  However, the difference between the question of equality toward Arabs and the question of equality toward others is not to be ignored.  Thus, for example, is the question of equality toward women.  This question is not unique to the State of Israel.  It is universal.  Discrimination against women in the State of Israel like in other states stems primarily from prejudicial opinion.  The struggle against such opinion has been taking place for some time with determination in Israel, based on broad social consensus, and it is achieving a significant amount of success.  So too, as an additional example, is the struggle for equality of people with disabilities.  This struggle, as well, takes place on a broad foundation of understanding and empathy.  These struggles do not awaken, at least in an open realm, fundamental resistance or emotional recoil.  This is not so with the question of discrimination against Arabs.  Indeed in the legal realm there is no fundamental difference between the question of equality toward the Arab population and the question of equality toward another group.  In that realm the question of equality is the question of equality toward a religious or national minority, be it what it may be.  This too is a universal question and it too has a universal answer.  The answer is that a religious or national minority, and especially such a minority, is entitled to equality.  However, in the practical realm in the State of Israel there is a special significance to the question of equality toward Arabs.  This question is connected to a complex relationship that has developed between Jews and Arabs in this country over a long period of time.  Despite this, and perhaps particularly because of this, there is a need for equality.  The equality is vital to life together.  The good of society and in the real calculation the good of every individual in society necessitate nurturing the principle of equality between Jews and Arabs.  In any event, this is the dictate of the law, and therefore it is the duty of the Court.

And President Barak said as follows in the Ka’adan case [1] (supra paragraph 3, at pp. 282).

‘The State of Israel is a Jewish state in which various minorities, including the Arab minority, live. Each of the minorities living in Israel enjoys complete equality of rights. It is true, members of the Jewish nation were granted a special key to enter home (see the Law of Return-5710-1950), but once a person is lawfully at home, he enjoys equal rights with all other household members. . .  There is, therefore, no contradiction between the values of the State of Israel as a Jewish and democratic state and between the absolute equality of all of its citizens. The opposite is true: equality of rights for all people in Israel, be their religion whatever it may be and be their nationality whatever it may be, is derived from the values of the State of Israel as a Jewish and democratic state.’

16.  According to the principle of equality there is, inter alia, a duty to allocate State resources in an equal manner to Arabs as to Jews. See HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs [4] (hereinafter: ‘the Adalah case’).  Civil service jobs also constitute resources of the state.  These are particularly important resources, as they carry with them the possibility of impact on many issues, including on the distribution of monetary and other resources.  Therefore, the principle of equality necessitates that state jobs are allocated without discrimination between Jews and Arabs.  The meaning is that a person’s appointment to a state job is not to be prevented just because he is an Arab.

However, does this also mean that the Arab population is entitled to appropriate representation in civil service and associated entities, such as, for example, the Israel Lands Council?

The duty of appropriate representation

The principle of equality in its common meaning, both the narrow meaning and the broad meaning, does not necessitate appropriate representation.  Indeed there is a connection between the principle of equality and appropriate representation, but there is also a difference between them.  The principle of equality in its common meaning is fundamentally a passive concept: it may prohibit a person from taking into account irrelevant considerations such as religion, nationality, race or gender.  On the other hand appropriate representation is at its core an active concept: it may require a person to act to reach appropriate representation, including taking into account considerations such as religion, nationality, race or gender as a relevant consideration.

The essence of appropriate representation is expressed in the first Israel Women’s Network case [2] (supra paragraph 12).  Section 18A of the Government Corporations Law 5735-1975 stood at the center of this case.  And this is the language of the section:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of both genders.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the gender that is not properly represented at that time on the board of directors of the corporation.’

In the decision, Justice Mazza clarified that the duty established in section 18A to give proper expression to representation of both genders, is a duty of affirmative action.  Affirmative action is generally directed at correcting a social distortion that has harmed equality.  In said case it stems from the reality of sub-equality in the representation of women in boards of directors of government corporations and is directed at advancing equality between the genders on these boards of directors.  Therefore, said Justice Mazza, affirmative action, while it appears to harm equality because it preferences members of a certain group on the basis of considerations of religion, nationality, race, gender and the like, in fact is derived from the principle of equality and serves as a means to achieve equality.  As to affirmative action see F. Radai, ‘As to Affirmative Action’ [13]; Zamir and Sobel, in said article [12] at pp. 200-204.

18.  Is there a place to analogize the first Israel Women’s Network case [2] and the present case?  In this case, like in the first Israel Women’s Network case [2] the petitioner is not asking the court to direct the respondents to act in the appointment of members according to the common meaning of equality, as the petitioner is not making the claim that the Government rejected a candidate for membership in the Council because he is an Arab.  But what? The petitioner is requesting that the Court order the respondents to act in appointment of members to the Council by way of affirmative action toward the Arab population.  The Court so ordered in the first Israel Women’s Network case [2] since women had weak representation in the boards of directors of government corporations; in the petitioner’s opinion, it is to be similarly ordered in this case, since Arabs have weak representation in civil service, and included in this in the Council.

Despite this, there is no room for analogy between the first Israel Women’s Network case [2] and the present case.  In the first Israel Women’s Network case [2] a duty was imposed on affirmative action in order to advance the appropriate representation of women in an explicit statutory directive, meaning in section 18A of the Government Corporations Law.  On the other hand in the present case there is no such an explicit provision which requires appropriate representation of Arabs in the Council.  There is therefore no statute that provides a foundation for the petitioner’s claim that there is a duty to provide the Arab population appropriate representation in the Council.

19.  The petitioner claims, however, that the duty to give the Arab population appropriate representation in the Council does not require an explicit statutory directive, but it exists by power of the principle of equality.  The basis for this claim is the decision in the second Israel Women’s Network case [3] (supra paragraph 14).  How is the second Israel Women’s Network case [3] different from the first Israel Women’s Network case [2]?  In the second Israel Women’s Network case [3] the Court applied the duty of appropriate representation to women even without an explicit statutory directive.

In the second Israel Women’s Network case [3] the appointment of a deputy to the Director of the National Insurance Institute was discussed.  At that time the Director of the National Insurance Institute had eight deputies including a woman who was on vacation, apparently for the purpose of retirement.  After the position of one of the deputies was vacated the Minister of Labor and Welfare decided to appoint a certain person, a man and not a woman, to the position that was vacated, for a trial period.  The petitioner asked that this appointment be nullified and that the minister be obligated to appoint a woman to the position that was vacated in order to advance the representation of women among the Deputy Directors of the National Insurance Institute.

The Court examined statutes and case law as to the principle of equality of the genders, including the requirement of appropriate representation of women in civil service, and the applicability of statutes and case law to the management of the National Insurance Institute.  As the Court noted, at first came the Declaration of the Establishment of the State of Israel [17], which declared the obligation of the State to fulfill complete political and social equality of rights without difference as to religion, race and gender.  Later came the Women’s Equality of Rights Law 5711-1951, and statutes which required equality between the genders in the work area, including, Equal Pay for Female and Male Employees Law, 5724-1964, Equal Employment Opportunities Law 5748-1988,  and Authority for Advancement of Women Law, 5758-1998.  Alongside the statutes the Court ruled clearly that every administrative authority is required, even without a statutory provision, to fulfill the equality between genders.  Against this background Justice M. Cheshin (Ibid [3] at p. 658) said as follows:

‘Statutes we have brought and case law we have surveyed have seemed to us as points of light, and the light is the light of equality, equality for man and woman in each and every matter.  We will go from one point of light to another, and the doctrine of equality will reveal itself before us in its full glory.’

On this foundation of statutes and case law against discrimination on the basis of gender statutory provisions grew which required affirmative action in order to advance appropriate representation of women in public service.  Section 18A of the Government Corporations law requires ‘appropriate expression’ for the representation of women in the Boards of Directors of government corporations, and section 60A of this statute requires that it will also be so with certain entities (detailed in the addendum to the law) that were established by statute, such as the Council for Film Critique and the National Council for Planning and Construction.  Section 15A of the Civil Service Law (Appointments) 5719-1959, requires ‘appropriate expression’ for the representation of women ‘among the employees in civil service’.  This requirement also applies to the appointment of employees to local councils.  See ibid [3] at p. 661.  And since section 22 of the National Insurance Law [Consolidated Version] 5755-1995 establishes that appointments of employees of the Institution will be according to the rules established for appointment of civil servants, the duty of appropriate representation of women, as established in section 15A of the Civil Service Law (Appointments), also applies to the appointment of employees in the National Insurance Institute.  Justice M. Cheshin summarized the statutory provisions and said (at pp. 662-663):

‘These representation directives were not intended only to instruct about themselves.  They came to instruct about a new direction in the Israeli legal system, a direction which we have not recognized or known in the past.  A new and good wind has begun to blow among Israeli statutes. . .  We have likened legal provisions which deal with equality for women and prohibit their discrimination as points of light.  We have drawn a line between all the points of light and here a doctrine in the law of the land has revealed itself before us, a doctrine whose force goes beyond the particular legal provisions.  Joining the points of light one to its neighbor created a type of critical mass and so the doctrine was created, whose ramifications reach far. . .  all the representation directives, despite the differences between them, constitute – each to itself – a crystallization of that matter and express the same core principle.  And the principle is: the provision of appropriate representation to women and men in public bodies as a need made necessary by the principle of equality.’

However, as it turned out, the legal provisions as to appropriate representation for women, while they cover the majority of the civil service, they leave islands here and there that are not covered.   This is so, among others, in the National Insurance Institute.  Indeed the duty of appropriate representation for women, as determined in section 15A of the Civil Service Law (Appointments) applies to the appointment of employees of the Institute, as said in section 22 of the National Insurance Law [Consolidated Version]; however, ‘surprisingly’, in the words of Justice M. Cheshin, this duty does not apply to the appointment of the management of the Institute, meaning the Director, the Assistant Director, and the deputies, that according to section 20 of the law are appointed by the Minister.  See ibid [3] at pp. 646,648.  Why and how? There is no explicit or clear answer to this.  Absent a reason the answer that apparently appears is that this is none other than a happenstance omission, meaning a deficiency in the law and not negative regulation.  This being so the power of the doctrine as to appropriate representation of women in public service is great enough to fill in the blank and also apply itself to the management of the Institute for National Insurance.  And indeed this is how the Court ruled in the second Israel Women’s Network case [3].

Appropriate representation for Arabs

20.  Therefore, is there room to make an analogy between the second Israel Women's Network case [3] and the present case?  At the time the petition was filed the answer, apparently, was in the negative.  The statutory provisions and case law which required equality for women, and in particular appropriate representation in public service via affirmative action, were several fold more numerous and heavier than the statutory provisions and case law which required equality for Arabs.  The cumulative weight of the statutory provisions and case law which required equality for women gave a basis to say, as the Court said in the second Israel Women's Network case [3], that ‘a doctrine whose force goes beyond the particular legal provisions’ (Ibid, at p. 622) had been created as to appropriate representation of women in public entities.  See supra paragraph 19.  On the other hand the cumulative weight of statutory provisions and case law which required equality for Arabs was much smaller.  In this situation there was not, apparently, a basis to say that a similar doctrine was created as to the appropriate representation of Arabs in public entities.

21.  Even if this is the case, claims the petitioner, in any event there is a need for a doctrine as to appropriate representation of Arabs in public entities, as the Arab population suffers generic discrimination which violates human dignity.  The petitioner presents data: although Arabs constitute close to a fifth of the total residents in the State, the proportion of Arab employees in civil service is only approximately 4.2%; among the senior employees in civil service the proportion of Arab employees is only about 1% and there are government offices in which the proportion of Arab employees is even lower.  The petitioner relies for this matter on various sources.  See, inter alia: U. Benziman, A. Manzur, Subtenants – Arabs of Israel, their Status and the Policy toward Them [9], and in particular at pp. 142-143 as well as D. Kretzmer The Legal Status of the Arabs in Israel [15].

The respondents have not presented (apparently because they did not see a need to present from a legal standpoint) data as to the relative proportion of Arabs in civil service.  But they also did not deny the data that the petitioner presented.  Indeed, words of truth are apparent in the petitioner’s claim.  In the Report of the Subcommittee as to the Status of Minorities in Civil Service and in Public Services [18] from the year 1989 (which was appointed by the public-professional committee, known as the Koverski Committee, for overall examination of the civil service and of entities supported by the State budget) data was presented as to the relative proportion of minorities employed in eight government offices.  It was found that the proportion of minorities of the overall employees was approximately 5%, and apparently even lower.  The conclusion, as stated in the report, is ‘that the proportion of minorities employed in civil service is generally low and at times even very low’.  See select sections of this report in the book The Regime of the State of Israel – A Source Book, at p. 346.

Recently, Mr. Elyakim Rubinstein, Attorney General, wrote in a published article that ‘the representation of the Arab minority in civil service and public service is far less than their part in the population, and stands at single digit percentages only,’ and he mentioned a government decision from 1993, following a recommendation of the Koverski Committee, to advance educated Arabs at senior levels of civil service by way of creating job openings exempt from the duty of a tender: A. Rubinstein, ‘On the Equality for Arabs in Israel’ [14] at p. 21.

In the second Israel Women's Network case [3] Justice M. Cheshin stated, (at p. 664) as to the representation of women in public entities that ‘the phenomenon that appears to us is this, that the place of women is missing in public entities to a degree and in circumstances that the laws of statistics would have difficulty explaining without adding to the system the element of discrimination as well’.  Is there no place to say so as well as to the representation of Arabs in public entities?

22.  Be the answer what it may be, and be the explanation what it may be, the situation today is different from the situation that was.  It is different first and foremost because of the growing awareness as to the existing situation and the need to change the situation.  And indeed, lately there has been a change.  The change found expression in moderate improvement of representation of the Arab population in civil service, and it found striking expression in new statutes.  A few years only after the statutory provisions as to appropriate representation of women in public service – section 18A of the Government Corporations Law and section 15A of the Civil Service Law (Appointments) – were passed, the legislator came along and also applied these provisions to the appropriate representation of Arabs.  Following this the great gap that existed in legislation between the duty of equality toward women and the duty of equality toward Arabs in all that relates to representation in public entities was almost closed.  Therefore, it now needs to be examined, against the present day legal situation, if there is a basis to say that a doctrine has been created as to appropriate representation of Arabs in public service similar to the doctrine that was created, as determined in the second Israel Women's Network case [3], as to appropriate representation of women.  What arises from this examination?

23.  Most of the legal sources which require equality for women, including appropriate representation for women in public service, also require in the same breath equality, including appropriate representation, for Arabs.

One can open with the Declaration of the Establishment of the State of Israel [17] which speaks of the responsibility of the State to fulfill complete social and political equality of rights without differences as to ‘religion, race, or gender’.  Moreover, the declaration also called to Arabs in Israel, in the height of the War of Independence, to preserve the peace and take part in building the State on the basis of full and equal citizenship ‘and on the basis of appropriate representation in all its institutions, temporary and permanent’.  It is proper to emphasize: appropriate representation in all its institutions.  As has been ruled, the Declaration represents the ‘I believe’ of the State, and therefore it serves the Court as a source for statutory construction.  Moreover, section 1 of the Basic Law: Human Dignity and Liberty declares that the basic rights of a person in Israel ‘will be respected in the spirit of the principles in the Declaration of the Establishment of the State of Israel’.

Indeed, the Court has spoken in many decisions, in which it relied on the principle of equality, in one breath on equality in terms of gender and equality in terms of religion and nationality.  Thus, as one example among many, in HCJ 421/71 Yaf Ora Ltd v. Broadcasting Authority [5] at p. 743, Justice H. Cohn stated:

‘. . . it is the law (although for now still unwritten) that any discrimination on the grounds of race, gender, religion, belief, political or other view, or the like, is prohibited to any authority operating by law.’

Accordingly, the court noted the duty of the State to act with equality to Arabs, inter alia, in the allocation of resources of the State.  See lately the Adalah case [4] supra paragraph 15; HCJ 2814/97 Upper Tracking Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport [6].

24.  Similarly in legislation.  Generally it is common in legislation which requires equality to bind together the prohibition to discriminate on grounds of gender with the prohibition to discriminate on the grounds of religion, race or nationality.  See for example: Employment Service Law, 5719-1959, s. 42; Equal Employment Opportunities Law 5748-1988, s. 2; Patient’s Rights Law 5756-1996, s. 4.

25.  Most important of all, in the present matter, after the legislator saw fit to impose an obligation to advance appropriate representation of women in public service, it saw the need after a few years to impose the same duty toward Arabs.  In March 2000 a private draft law was submitted to the Knesset on this issue: Draft Proposal for the Government Corporations Law (Amendment no. 13) (Appropriate Representation for the Arab Population) 5760-2000.  In the explanatory notes of the draft law (at p. 345) it was said that ‘the number of directors from among the Arab population in Government Corporations is very low’; it was therefore proposed to add to the Government Corporations law a provision which would establish, similar to the appropriate representation of women that was established in section 18A of the law, a duty of appropriate representation for the Arab population.  On the basis of this draft proposal section 18A1 was added to the Government Corporations Law, and this is its language:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of the Arab population.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors from among the Arab population.

(c) For purposes of this section ‘the Arab population’ – includes the Druze and Circassian population’

On October 24, 2000, the Attorney General issued a guideline to the Prime Minister and cabinet members as to the implementation of this section.  See this guideline as an addendum to said article by Rubinstein [14] at p. 29.  Inter alia, the Attorney General states in the guideline as follows:

‘It cannot be denied that the said statutory amendment came against the background of a dearth of appointments from among the Arab population for roles of the said type.  This provision therefore comes to achieve a result that it is appropriate to reach for, in these entities and others, by power of basic rules of equality and fairness, even without this being anchored in Knesset legislation.’

And he concludes the guideline with a call to the Prime Minister and the members of the cabinet to fulfill the duty of appropriate representation according to this provision, inter alia, in order to prevent a ground for disqualifying the appointment.

Does the duty of appropriate representation according to this provision also apply to the Israel Lands Council?  The answer is in the negative.  The Council is not a government corporation, as it is defined in the Government Corporations Law.  Indeed according to section 60A of this law the duty of appropriate representation also applies to entities established by statute, and they are detailed in an addendum to this statute.  However the Council is not counted among the entities detailed in the addendum to the law.  The result is that section 18A1 of the law which requires appropriate representation for the Arab population, does not apply to the Council.

26.  Approximately a year ago the Government submitted the Civil Service Law (Appointments) (Amendment no. 11) 5760-2000.  In the explanatory notes to this draft proposal (at p. 496) it was said as follows:  ‘The Arab population, including the Druze population and the Circassian population in the State, although it constitutes almost a fifth of the State’s population, is represented in civil service only at the rate of about 5% of the totality of the government employees, and among the senior position holders in civil service at an even lower rate.’  Therefore, it was stated in the explanatory notes, in continuation of the legislative trend which found expression in the addition of section 18A1 to the Government Corporations Law, it is proposed to establish, in a statute, provisions as to appropriate representation in civil service for the Arab population.  On the basis of this draft proposal section 15A of the Civil Service Law (Appointments) was amended.  The language of the section today is as follows:

‘(a)  Among the employees in civil service, including all the professions and the ranks, in each office, and support unit, appropriate expression will be given, under the circumstances, for the  representation of members of both genders, of people with disabilities, and of members of the Arab population, including the Druze and Circassian (in this law – appropriate representation).

(b)  The Government will operate to advance appropriate representation among the employees in civil service in accordance with the objectives it will set, and for this purpose, inter alia –

(1)  The office or support units which relate to the matter, as well as the Civil Service Commission, each in their field, will undertake the necessary means under the circumstances which can enable and encourage appropriate representation. . .

(2)  The Government may designate job openings in which, to the extent possible, will be employed only candidates who are qualified for the job, from among a group which is entitled to appropriate representation according to the provisions of subsection (a) which is not appropriately represented, as the Government shall determine.

(3)  The Government may order, as to a job opening or a group of job openings or a rank or a group of ranks, which will be detailed in the order, and for a period that will be determined, the granting of preference to candidates from among the group that is entitled to appropriate representation according to the provisions of subsection (a) that is not represented in an appropriate manner, where they have similar qualifications to the qualifications of other candidates. . .

(c) The provisions of this section will apply to all manner of acceptance to employment and advancement in employment according to this statute, including appointment by way of a tender, employment without a tender and appointment in fact.’

The section goes on to establish provisions which do not relate to the matter discussed in the petition as to fulfilling the duty to provide appropriate representation.

27.  It is clear that section 15A of the Civil Service Law (Appointments) establishes a duty of affirmative action for the Arab population in appointments to civil service.  However, the section is not simple.  It raises various questions.  There is no need to discuss them in this petition.  In this petition it is a sufficient question whether the section requires granting appropriate representation to members of the Arab population in the Israel Lands Council.

The Civil Service Law (Appointments) regulates appointments in civil service.  However the Israel Lands Council is not part of the civil service.  Most of the members in the Council are also not civil servants, but representatives of the public or representatives of JNF.  Indeed, the Council is by its composition and its substance, a satellite body, outside of the government mechanism, similar to other public councils, investigative committees, administrative tribunals and more.  As to satellite bodies see I. Zamir, Administrative Power (Volume 1) [10] at p. 411 and on.  It appears that section 15A does not apply to satellite bodies including the Israel Lands Council.

28.  However, even if section 15A of the Civil Service Law (Appointments) does not directly apply to the Israel Lands Council, it still has indirect weight on the question whether it is appropriate to grant appropriate representation to the Arab population in the Council. As in fact, this section joins up as an additional component to a network of legal sources which oblige equal treatment of the Arab population.  See supra paragraphs 22-25.  The cumulative weight of all of these is very similar to the cumulative weight of legal sources which require equal treatment of women.  Therefore, the conclusion also has to be similar.  As to the legal sources which require equality to women, Justice M. Cheshin in the second Israel Women's Network case [3] said that these sources are similar to ‘points of light’, and that ‘Joining the points of light one to its neighbor created a type of critical mass and so the doctrine was created’ (Ibid, at p. 662) as to appropriate representation for women in public entities.  See supra paragraph 19.  Similarly, it is to be said as to legal sources which require equal treatment of Arabs: alongside the doctrine which requires granting appropriate representation to women they create a doctrine which requires granting appropriate representation to Arabs in public service.  What is the duty which stems from this doctrine?

29.  The Court gave the answer in the second Israel Women's Network case [3].  There, the Court ruled that the duty of appropriate representation of women, according to section 15A of the Civil Service Law (Appointments), applies to all the employees of the National Insurance Institute, except for members of the Institute’s management.  See supra paragraph 19.  Here, the duty of appropriate representation of women, people with disabilities, and members of the Arab population, according to that section, applies to all the employees of the Israel Lands Administration, excluding members of the Council.  There, the Court ruled that the doctrine as to appropriate representation for women also extends over the appointment of the members of the management of the National Insurance Institute.  By power of that doctrine, the Court further ruled, that there is a duty on the Minister when coming to appoint a Deputy Director of the Institute to work toward advancing the representation of women.  What does this mean?  This does not mean that there is a duty on the Minister to appoint a woman to this job.  But rather what?  In the words of Justice M. Cheshin (Ibid, at p. 671):

‘It is imposed on the Minister to fulfill his duty according to the doctrine, the duty to act in order to give appropriate representation to women: to make an effort and to diligently work toward finding suitable candidates to fill the job of deputy director in the National Insurance Institute.’

Justice M. Cheshin noted (Ibid, at p. 670) that there exists a difference between the duty to grant appropriate representation according to section 15A of the Civil Service Law (Appointments) and the duty to grant appropriate representation according to the doctrine.  What is the difference?  The duty the statute imposes in section 15A, is not just to act but to achieve a result: the result is ‘appropriate expression’ for the representation of women, of people with disabilities, and of members of the Arab population.  It is clear that a result depends on action: the authorized authority must act to achieve appropriate representation.  For this purpose the statute establishes various means, such as designating positions for employing candidates from among the group entitled to appropriate representation according to section 15A(b)(2) of the Civil Service Law (Appointments).  As long as there is not appropriate representation the authorized authority has the burden to prove that it has done all that is necessary and possible by law under the circumstances to achieve appropriate representation.

On the other hand the duty imposed based on the doctrine relates primarily to the discretion of the authorized authority.  The authority authorized to make an appointment is obligated, like any administrative authority as to any power, to consider all the relevant considerations and give each relevant consideration the appropriate weight.  Generally, religion, nationality and race are irrelevant considerations, and therefore the authorized authority is prohibited from taking them into consideration for purposes of using the power.  However, as to appointment to public service, belonging to the Arab population, is, by force of the doctrine, a relevant consideration.  Accordingly, not only is the authorized authority entitled to bring it into account, but it even is required to bring it into account as one of the relevant considerations and give it the appropriate weight.  There is no great innovation here.  The principle of equality is in any case, and without connection to the doctrine, a relevant consideration that the authorized authority must bring into account when it makes an appointment. See HCJ 953/87 Poraz v. Mayor of the City of Tel-Aviv-Jaffa [7]. And still there is innovation in the doctrine.  The innovation is in the substance of the relevant consideration.  According to the doctrine the relevant consideration says that in an appointment to public service it is not sufficient to act with equality toward an Arab candidate but it is also necessary to act with affirmative action toward an Arab candidate with the goal of providing the Arab population with appropriate representation in public service.  See Zamir and Sobel in their article [12] at pp. 200-204.  However, this consideration is still only one from among the relevant considerations.  The authority must weigh all the relevant considerations, and particularly the personal fitness of the candidate to fill the role, in order to reach the proper balance.  However, in the framework of the balancing, the candidate’s belonging to the Arab population is, as long as appropriate representation has not been achieved, a relevant consideration in the candidate’s favor.  This is the affirmative action required by the doctrine in order to fulfill the principle of equality toward the Arab population.

In fact, the difference between the duty imposed by the statute and the duty imposed by the doctrine may be hazy.  But is exists first of all in the fundamental realm, and additionally in the practical realm.  Inter alia, the provisions established in section 15A(b) of the Civil Service Law (Appointments) such as designating jobs in order to advance the appropriate representation, apply only to the duty imposed by the statute.

The present case

30.  What is the conclusion that arises from all that has been said, as to the present case.  Section 4A of the Israel Land Administration Law, establishes that the Government will appoint, by proposal of the ministers, half of the members (in fact, twelve members) in the Israel Lands Council and among them at least half (in fact six) ‘civil servants, holding senior positions in the government offices connected to the matter. . .’ see supra paragraph 2.  This authority is subject to the doctrine.  According to the doctrine it is incumbent on every minister who proposes a candidate for membership in the Council to weigh, inter alia, the need to also give appropriate representation to the Arab population in the Council and to give this consideration appropriate weight.  For this purpose the Minister must inquire whether there is among the senior office-holders in his office an Arab candidate substantively qualified for appointment as a member of the Council.  If there is such an individual, and there is no good reason to deny his candidacy or to prefer another candidate over him, it is proper to propose him for appointment as a member of the Council.

A similar duty is imposed on the Government when it receives the proposals of the Ministers for appointment of members in the Council and must decide on an appointment.  It must consider the question whether there is in these proposals to provide appropriate representation to the Arab population.  If not, it must inquire if nonetheless there is no practical possibility to find a worthy Arab candidate among the senior office-holders in the government offices which relate to the matter in order to advance the appropriate representation of the Arab population.

31.  It is a question what the duty to give appropriate representation to the Arab population in a certain entity requires, and in this case – the Council.  The answer may change depending on the circumstances of the case.  Appropriate representation is not a formal duty, but a substantive duty, that has purpose and an objective.  Therefore it is not correct to say that section 18A of the Government Corporations Law, which requires giving appropriate expression in the Boards of Directors of Government Corporations to women, requires that in every such Board of Directors the women will be half of the overall members.  But it also is not to be said that the symbolic presence of one woman is sufficient in order to fulfill the duty of appropriate expression.  The required extent of representation is dependent on the context.  See the first Israel Women's Network case [2] (supra paragraph 12), at pp. 527-528.  It is also to be said thus as to appropriate representation of the Arab population in Boards of Directors of Government Corporations, as is required by section 18A1 of the Government Corporations Law.  This section does not require that the number of Arab members in every Board of Directors of a Government Corporation will be one fifth of the overall members.  Similarly it is also to be said as to the duty to give appropriate representation in civil service whether for women, whether for members of the Arab population or for persons with disabilities.

The question of what constitutes appropriate representation in a specific entity is dependent, inter alia, on the substance of the entity, including the practical importance of the entity in terms of the group entitled to appropriate representation.  Accordingly, it appears that the importance of representation and the force of representation in the Israel Lands Council are greater as to members of the Arab population than as to, for example, people with disabilities.  The Government and the ministers that relate to the matter are to also bring this consideration into account in the process of appointing members to the Council.

32.  In the present case, the statute establishes that civil servants are not to be appointed as members in the Council unless they are ‘senior’ civil servants in the offices which relate to the matter.  The petitioner presumes that there are no such Arab employees.  The Court does not know if this presumption has a basis.  In any event, this is not sufficient to exempt the ministers who relate to the matter and the government from the duty to employ their discretion in a manner that is intended to advance, if possible, the appropriate representation of the Arab population.  If indeed it turns out that among the ‘senior’ civil servants in the government offices there is not a single Arab employee who will be qualified for appointment as a member of the Council, then this is proof of a distorted situation, which s. 15A of the Civil Service Law (Appointments) and s. 18A1 of the Government Corporations Law were intended to repair.  However, repair of the distorted is a process, and as is the way of such processes it takes time.  In such a case there is no recourse but to wait until there will be senior civil servants in the government offices which relate to the matter, as is necessitated by s. 15A of the Civil Service Law (Appointments).  The Court is not entitled to take, or order the Government to take, a short cut, in contradiction of a statutory provision.  However, according to the law the government must take the road at the appropriate speed.

If it turns out that today there is not among the senior government employees in the government offices which relate to the matter a single qualified Arab employee who is qualified to be appointed as a member of the Council, it is appropriate that the Government also consider the possibility of appointing an additional Arab from among individuals in academia and public representatives which the Government is qualified to appoint as members in the Council.

33.  The petitioner requested that the Government nullify the appointment of some of the members in the Council in order to enable the appointment of Arabs in their place in a manner that will constitute appropriate representation for the Arab population.  However, as the petitioner recently notified the Court, and the respondents affirmed, several Council members recently retired, and of the quota of twelve members who are appointed to the Council on behalf of the Government today only six members are serving in the Council.  Meaning, the Government is now authorized to appoint six additional members to the Council.  Indeed, as the respondents’ counsel notified the Court several days ago, the Minister of National Infrastructures sent the Minister of Finance a proposal for the appointment of six additional members to the Council on behalf of the Government.

The respondents’ counsel did not note in the notice who the candidates are who were proposed by the minister.  However, since the notice does not state otherwise, one would think that there is not an Arab among the candidates.  The notice also does not state that there is not among the senior office-holders in the government offices which relate to the matter an Arab who is qualified to be appointed as a member of the Council.  This being so, the ministers have a duty to consider anew the list of candidates in light of what has been said in this judgment.

Summary

34.  In summary, the Government has appointed during the time of the hearings in the petition an Arab as a representative of the public in the Israel Lands Council, and it has taken upon itself to appoint, upon the conclusion of his tenure, an Arab as a representative of the public in his place.

Now the Government is to appoint an additional six representatives on its behalf as members of the Council.  As to the appointment of these members I propose making the order nisi absolute, which orders the respondents to weigh, according to what has been stated in this judgment, if it is possible to appoint an additional Arab as a member in the Israel Lands Council.

The respondents will bear the court costs of the petitioner in a total sum of 10,000 NIS.

 

 

Justice M. Cheshin

I agree.

 

 

Justice D. Beinisch

I agree.

 

It has been decided as per the decision of Justice Zamir.

 

18 Tamuz 5761

9 July 2001

      

 

 

            HCJ 246/81

HCJ 260/81

         

"AGUDAT DEREKH ERETZ" ET AL.

v.

BROADCASTING AUTHORITY ET AL.

 

 

 

The Supreme Court Sitting as the High Court of Justice

[July 28, 1981]

Before Landau P., Shamgar J., Ben-Porat J., Barak J. and Bejski J.

 

 

Editor's synopsis -

          The Elections (Modes of Propaganda) Law, 1959, provides free radio and television broadcasting time for each of the party lists participating in the Knesset elections. Until 1981, that Law provided that each such party shall receive 25 minutes on the radio and 10 minutes on television, and that each party represented in the outgoing Knesset shall receive an additional four minutes radio time and four minutes television time in respect of each of its members in the outgoing Knesset. An amendment of that Law in 1981 reduced the time allotted to each party participating in the election to 23 minutes on radio and eight minutes on television, while it increased the allocation of radio and television time per member of the outgoing Knesset to six minutes. The effect of this amendment was to decrease the radio and television time allocated to new party lists while it increased considerably the time allocated to the large parties represented in the outgoing Knesset. The amendment was not passed by an absolute majority of the members of the Knesset, as is required in the case of legislation that concerns elections and that deviates from the principle of equality.

         

          The Respondents appear in response to orders nisi, issued at the request of the Petitioners who argue that the amendment violates the principle of equality in elections and is therefore void, not having been enacted by the required absolute majority. The court, composed of five Justices, ruled unanimously that the order be made absolute. The five Justices delivered five separate opinions, each setting forth his reasons for the decision.

         

          The President of the court, Justice Landau, repeated his assertions in the Bergman case, supra, p. 13, to the effect that equality of opportunity in elections cannot be measured mechanically. Therefore, the substantial discrepancy in the broadcasting times allocated to the various lists under the amendment is not in and of itself determinative of the issue. Although there is a presumption in favor of the validity of legislation enacted by the Knesset, examination of the legislative history in this case reveals that at no point did the Knesset give any consideration to the impact of the amendment on the rights of new party lists, but rather, it completely disregarded this issue. In these circumstances, the presumption of validity fails and the amendment is invalid.

         

            Justice Barak thought that the amendment fails to meet the requirement of equality since it does not allow small parties and new parties the time minimally necessary to enable them to present their views before the public while it gives the large veteran parties more than such minimal time. Although he agreed that the issue could not be determined mechanically, he was of the opinion that the judge's common sense, experience and sense of expertise enable him to distinguish between the permitted and the forbidden. In this respect, the decision is no different from judicial decisions frequently made concerning the fairness and reasonableness of acts done by government officials.

           

            Justice Shamgar reaffirmed his preference for as simple and basic a standard of formal equality as is possible. Agreeing that there are circumstances and considerations which would justify deviations from such formal equality, he expressed the opinion that Basic Law: The Knesset provides for such contingencies but requires that the deviation be voted by an absolute majority of the Knesset. This approach is preferable, in his opinion, to the alternative, which waters down the concept of equality by taking into account other ideals and which results in the loss of any clear constitutional standard to serve as a guideline to the legislature.

           

            Justice Bejski thought that all that could be demanded was relative equality, not absolute equality. surveying the solutions adopted in many countries, he concluded that even relative equality entails no small amount of problems. In his opinion, the principal fault of the new Law lies in the large and unreasonable gap that it creates between the broadcasting time allocated to large existing parties and that allowed new parties. This gap violates even the relative equality required by the Basic Law and, therefore, must be approved by an absolute majority of the Knesset.

           

            Justice Ben-Porat pointed out that the allocation of equal time to each party is not a sine qua non of formal equality, since such formal equality might be achieved by means of some other criterion, such as one based on the relative sizes of the parties. The equality of opportunity to which the new parties are entitled requires allocation of time that is sufficient for their need to present their platform and special message before the viewing public in order to justify their presence in the Knesset. This standard was not met in the Amending Law.

           

Note -As indicated in the opinions, the supreme Court handed down its decision shortly after the argument but did not give its reasons at that time. The Knesset responded to this decision by re-instating the wide gaps in the allocation of broadcasting time with some slight changes. The new legislation was enacted by the required absolute majority in all three readings, all in a single day, just seventeen days after the court's decision to invalidate the Law, and was made effective retroactively in order to legalize the broadcasts that had been made under the Law that was invalidated. Only six weeks later, after the elections had taken place, did the court give the reasons for its decision. It has been suggested that had the Justices revealed their reasons earlier, perhaps the Knesset might have been more impressed by the court's high regard for the value of equality. see Klinghoffer, "Legislative Reaction to Judicial Decisions in Public Law", 18 Israel Law Review 30, 31-34 (1983). Compare, however. the legislative developments after the Rubinstein case (infra, pp. 60-62).

 

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. 60/77, Ressler v. Chairman of Knesset Central Elections Committee 31P.D.(2)556.

 

American case referred to:

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

 

Y. Leshem, A. Ramot for the Petitioners in H.C.246/81.

M. Corinaldi for the Petitioner in H.C.260/81.

R. Yarak, Senior Deputy State Attorney, for the Respondents.

 

JUDGMENT

 

          LANDAU P.: On May 29, 1981 the orders in these two petitions were made absolute, in these terms:

         

          We are of the opinion that for the passage of the Elections (Modes of Propaganda) (Amendment No. 6) Law, 1981, a majority of Knesset members was required in accord with the concluding portion of section 4 of Basic Law: The Knesset, and for that reason it cannot be acted upon unless its provisions are adopted by the required majority. In this sense we make absolute the order nisi in the two petitions against the Broadcasting Authority, the first Respondent. There is no order as to costs in the two petitions.

 

And these are my reasons for making the orders absolute:

 

          Sections 15 and 15A of the Elections (Modes of Propaganda) Law, 1959 (pursuant to the Elections (Modes of Propaganda) (Amendment No. 3) Law, 1969) provide that each of the parties participating in the Knesset elections shall receive for the broadcasting of election propaganda, 25 minutes on the radio and 10 minutes on television and, in addition, each of the parties represented in the outgoing Knesset shall receive 4 minutes on the radio and 4 minutes on television in respect of each of its members holding office in the outgoing Knesset.

         

          On March 16, 1981 a private bill proposed by Knesset members Ben-Meir, Virshuvsky, Hashai and Corfu was published in Reshumot (Elections (Modes of Propaganda) (Amendment No. 6) Bill, 1981). The bill proposed that section 15 of the Elections (Modes of Propaganda) Law allow with respect to the radio, a broadcasting time of 23 minutes instead of 25 minutes for each party and each candidates list and, in addition, 6 minutes for each Knesset member of each party represented in the outgoing Knesset; with respect to television it was proposed to amend section 15A so that each party and candidates list be given 8 minutes of broadcasting time instead of 10 minutes and, in addition, each party represented in the outgoing Knesset would be given 6 minutes instead of 4 minutes for each of its Knesset members. In the explanatory notes to this private bill it was said:

         

            The present version of the Law creates an unreasonable situation concerning the time allotted to a party group with one Knesset member as distinguished from the time allotted to a party group with a larger number of Knesset members.

 

The present bill is intended to temper slightly the ratio of the two time quotas but it continues to give a party group with a single Knesset member an amount of time which is larger than that given to a single Knesset member in a large party group.

 

            This private bill passed the preliminary reading on March 4, 1981 and it was decided to refer it to the Constitution, Law and Justice Committee for preparation for the first reading. It passed the first reading on March 23, 1981 and the second reading on April 1, 1981, after a reservation of Knesset member Shulamit Aloni to section 2 of the bill, concerning television broadcasts, was rejected by a majority of 5 votes against 4, and thereafter the entire bill passed the third reading. The proceedings of the session do not note by what majority the bill passed each of the three readings, but it is not disputed that no more than a dozen Knesset members were present at the session of the second and third readings - a number that is far from a majority of the Knesset members.

           

            The Petitioners in the two petitions before us, "Agudat [Association] Derekh Eretz" (H.C. 246/81) and "Shorashim [Roots]..." (H.C. 260/81) -both Ottoman societies that intended to submit new candidates lists for the elections to the tenth Knesset but were not represented in the outgoing ninth Knesset - argued that the above mentioned Elections (Modes of Propaganda) (Amendment No. 6) Law, 1981 (hereinafter "the Amendment No. 6 Law") is invalid because it contradicts the requirement of equality in section 4 of Basic Law: The Knesset, and that the Amendment No. 6 Law did not pass by the required majority, that is, a majority of the Knesset members, as provided in the conclusion to section 4 of the Basic Law. Orders nisi were issued against the Broadcasting Authority and the Chairman of the Central Elections Committee for the Tenth Knesset and the Central Elections Committee itself.

           

            As in the case of Bergman v. Minister of Finance [1], which dealt with the Knesset and Local Authorities Elections (Financing, Limitation of Expenses and Audit) Law, 1969, this time, too, complex constitutional issues could have arisen concerning justiciability and the power of a later Knesset to deviate in ordinary legislation from an "entrenched" provision in a basic law adopted by an earlier Knesset. There the court refrained from dealing with these issues, and we shall act likewise this time - and in the present case we have before us an explicit written statement on behalf of the Attorney General, in paragraphs 4 and 5 of his arguments in response to the order nisi, that he does not intend to raise those issues since he wishes the court to decide on the merits of his arguments concerning the Amendment No. 6 Law, to the effect that this Law does not contravene the equality principle in section 4 of the Basic Law and, therefore, an ordinary majority was sufficient for its adoption. This was the issue upon which we deliberated in these two petitions.

 

            Before examining this question we must dispose of a procedural argument made by Mr. Yarak, who represented the Respondents in an intelligent and dignified manner as befits the weighty matter before us. He argued, in passing, that the large party groups in the outgoing Knesset should have been summoned to the hearing of these petitions since they will lose the additional broadcasting time that the Amendment No. 6 Law gives them if that Law is declared void. I do not intend to delve into the general issue of the parties to whom a petition of prime constitutional character, such as the two present petitions, should be addressed, and whether any person who might argue that the subject of a petition affects his interests should indeed be summoned to the proceedings. In any event the argument must be dismissed in the present instance because, as already mentioned, the Central Elections Committee was made party to the hearing and, therefore, the fact that these petitions are being heard before the court was brought to the attention of the party groups represented in the Committee. Anyone interested in participating in the proceedings could have applied to the court by motion to be joined as a Respondent and to make himself heard. Apparently the large party groups believed that they could depend on the representative of the Attorney-General to present an argument to the court that would adequately protect also their interests - and indeed that has been the case.

           

            Another contention made by Mr. Yarak, which must be dismissed immediately, is that the provision in section 4 of Basic Law: The Knesset, that the Knesset shall be elected by "equal ... elections ... in accordance with the Knesset Elections Law", should be read to include the Elections (Modes of Propaganda) Law. Such a construction is incongruous with the statutory language, since "the Knesset Elections Law" (in the singular) clearly refers to the Knesset Elections Law and no other Law, even if its subject is related to the Knesset elections.

           

            Mr. Leshem, on behalf of the "Derekh Eretz" Association, and Dr. Corinaldi, on behalf of the Shorashim movement, who endorsed Mr. Leshem's arguments and supplemented them, made the Bergman case [1] the point of departure for their arguments. Indeed, the two matters - the funds that the parties receive from the state treasury to finance the Knesset elections, a significant (if not the greater) part of which are spent on election propaganda, and the matter of election propaganda by way of radio and television - are closely related. In Bergman the equality principle in section 4 of Basic Law: The Knesset, was construed to extend to equality of opportunity for the lists competing in the Knesset elections, including the new candidates lists unrepresented in the outgoing Knesset. That principle should also be applied to the use of state-controlled media, which have forceful impact on the public - a captive audience to the television (this being the primary concern) which broadcasts on a single channel leaving the viewer no refuge (unless he is resolute enough to turn the set off). Two points should nevertheless be emphasized: first, the Financing Law, which Bergman held to be invalid, purported to give nothing to the new lists, whereas the Amendment No. 6 Law leaves something for the new lists (8 minutes on television and 23 minutes on the radio); second, and no less important, no one argues that equality in this matter means mechanical equality. The Bergman judgment itself intimated as much, with reference to the subject of financing ([1], p. 699):

 

... [W]e are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. ... This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. ... [A]ll 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. And all agree furthermore that the principle of equality in financing should not be applied in such a way as to encourage the submission of candidates lists that would not have formed at all were it not for the temptation that they would receive an advance against the funding. 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, and the fact that its representatives do not participate in the election committees except as observers after publication of the list. All these restrictions inevitably derogate from absolute equality.

 

            The same applies to the election propaganda broadcasts, and perhaps even more so. The large "historical" parties that are vying with each other for primacy in the next Knesset, naturally require far more time than a newly created list so as to give an account to the voter of their actions in the near and far past and to criticize the shortcomings of their opponents. Mechanical equality of the thirty-one lists submitted in the elections for the tenth Knesset, in the allocation of equal time slots to each of them, would cause serious distortion in the sense of summa aequalitas summa iniuria. Mr. Yarak also rightly pointed out that the large parties alone are subject to a special statutory limitation, since their leaders may not appear in the frame of the general television broadcasts even if they take part in events that are suitable material for coverage as daily news. If the large parties insisted on their full quota and every other list also received an equal time allocation, one can easily imagine the flood of verbiage that would descend on the public to a degree that renders all of this propaganda valueless to the stupefied viewers drowning in the spate of colorful propaganda sent forth by thirty-one lists. That, clearly, would fail to realize the lofty idea of equality before the law, but rather would create a caricature of the democratic process of elections.

 

            It follows, necessarily, that the equality mentioned in section 4 of the Basic Law, as applied to election propaganda, need only be substantive equality with due consideration given to the factors that distinguish a new list from a large party, and even a new list from an existing small party. But where should the permitted line be drawn upon these considerations? It is pointless to seek an exact formula for guidance in this matter. All that can be said is that the equality principle in this sense is violated when a new list is wholly denied a fair opportunity to present itself and its platform to the public. All agree that they may not be silenced nor denied a right of appearance, free of charge, on the electronic media. But what is the minimal time required for that purpose, below which their appearance before the viewer becomes substantially ineffective?

           

            At first I was of the opinion that we would find guidance in this matter from the Elections (Confirmation of Validity of Laws) Law, 1969. This Law, which was enacted, as will be recalled, as a result of the Bergman decision [1], provided "for the removal of doubt" that the provisions in the election Laws are valid for the purpose of any Law and any matter from the date of their coming into force, and "election Laws" also include the Modes of Propaganda Law in its version at the time the above Confirmation Law came into effect. I thought that this Confirmation Law set the line of equality as regards broadcasting time in accord with the provisions of sections 15 and 15A in their original version, the validity of which was confirmed in that Law. It should be noted here that in the Knesset debate on the Elections (Modes of Propaganda) (Amendment No. 3), Law, which introduced the original arrangement, the then chairman of the Constitution, Law and Justice Committee, Knesset member Moshe Una, voiced the opinion that the time allotted to the small parties and to the lists appearing for the first time was insufficient for them to present their concerns in a complete manner (see D.H. 55 (5729-30) 3661, right column). I am persuaded, however, that this Law should not be referred to for guidance in resolving the issue before us. This court discussed it in the Ressler case [2]. The conclusion from the discussion there is that the Confirmation Law indeed ratified "the election Laws" mentioned therein by virtue of the absolute majority with which it was passed consonantly with the concluding portion of section 4 and section 46 of Basic Law: The Knesset. But it says nothing with respect to the question whether the validity of the election Laws or any of their provisions, that were confirmed for the removal of doubt", was in any event consistent with the equality principle in section 4, or whether they were confirmed despite their inconsistency with the equality principle.

           

            The question, therefore, remains: is the allocation of 23 minutes on the radio and, especially, of 8 minutes on television beneath the limit of tolerance? In this respect learned counsel for the Petitioners emphasized the huge gap between the time slots allotted to the large parties and those allotted to the new lists. Not only was "the poor man's lamb stolen"* from the small ones, in reducing their already meager time slots (8 minutes instead of 10), but the large ones received additional broadcasting time, beyond that which they were entitled to previously. Mr. Leshem calculated that in this way a party numbering 30 Knesset members gained 58 more minutes on television, and that the difference in percentage between such party and a new list rose from 1200% to 2350%.

 

            I admit that I was not much impressed by these calculations, for having found that mechanical equality between an existing large party and a new list is immaterial as regards broadcasting times, there is no reason to hang the decision on this or that algebraic ratio, but rather, as aforesaid, the new list must be assured of the minimal time required for effective propaganda on television and radio. Whoever wishes to invalidate a law of the Knesset bears a heavy "burden of proof', for the Knesset is presumed to have acted within the framework of section 4 of the Basic Law. As stated in the Bergman case (at p. 699):

 

              [A] Law of the Knesset is presumed to be valid as adopted. Therefore this court's primary inclination must be to uphold the law and not to strike it down, even when the argument against it is that it contradicts an "entrenched" statutory provision ...

           

            As for myself, I would be prepared to go far in accepting the decision of the Knesset, as expressed in the Amendment No. 6 Law, since we do not have any substantiated data that ten minutes (according to the original Law) is a sufficient and reasonable time for a new list's television propaganda, whereas eight minutes is less than sufficient and reasonable. Eight minutes might suffice for one person to succeed in his efforts at persuasion, whereas another would not succeed in twice that period of time - all according to the speaker and the audience.

            When does this apply? When we have some indication that the Knesset indeed considered the rights of new lists. I found no such indication in the short "legislative history" of the Amendment No. 6 Law. I have already cited above the explanatory notes to the private bill that was initiated by the four Knesset members. There the issue is presented as a matter of doing justice to the large party groups as opposed to a one-member party group. The small ones are entitled to the basic time slot of 10 minutes for the party group and 4 more minutes in respect of the personal time slot of the single Knesset member, while the large party group is entitled only to the same basic time slot and the personal time slot in respect of each of its members. Thus in the final account the Knesset member from the one-man list is entitled to a larger time slot than the individual Knesset member from the large party group. That wrong is rectified by reducing the basic time slot and enlarging the personal time slot. One could challenge this explanation on the ground that the contestants in our system of Knesset elections are the lists, and not the individual candidates on the list. But the. main shortcoming is that there is also a third side to the problem, that is, the new lists whose equality of opportunity in the elections must be preserved, as explained in the Bergman case. They are principally prejudiced by the new arrangement because their basic time slot is reduced without any increment with respect to their personal time quota. The explanatory notes totally ignore their position, advertently or otherwise. The concrete result of the new proposal, in the overall account, was to add four hours of television broadcasts with respect to the personal quota, mostly to the benefit of the large lists, against a saving of two minutes in respect of each of the lists on account of the basic quota of the party groups as such, including the new lists whose interests, it seems, were totally overlooked.

 

            This was the case throughout the debates on the bill. At the preliminary reading M.K. Yehuda Hashai repeated the explanatory notes on behalf of the proposers without any mention of the new lists. Similarly, at the first reading M.K. Hashai again explained the bill as an issue between an existing large party group and an existing one-person party group, without further ado. During the debate on this reading M.K. Shulamit Aloni, in passing, mentioned new lists together with existing small lists, but her statement evoked no response. This situation recurred at the second and third readings, when M.K. David Glass, chairman of the Constitution, Law and Justice Committee, again presented the issue without mentioning the amendment's effect on new lists. M.K. Aloni commented again on the situation of a new party group "which, in any event, is in a Procrustean bed; and here its time is reduced even more", but her words fell on deaf ears, and the proposers of the bill did not attempt in any way to discuss the matter.

           

            In view of all this I am constrained to conclude that the Amendment No. 6 Bill was presented to the Knesset, in all its readings, in complete disregard of the important issue of preserving the new lists' equality of opportunity - the issue that was raised before us in these two petitions. This issue was not given any parliamentary consideration. Therefore, it should not be considered in these petitions on the presumption that the Knesset did not deviate from the provisions of an entrenched statutory enactment - the presumption that ordinarily applies to every Law adopted by the Knesset, even by a simple majority of a small number of Knesset members who voted for it. I am of the opinion that in these circumstances the Amendment concerned constitutes a violation of the equality principle that cannot be tolerated. For this reason I voiced the opinion, together with my esteemed colleagues, that the Amendment No. 6 Law should not be acted upon unless its provisions be adopted by a majority of the Knesset members as required under section 4 of Basic Law: The Knesset.

 

            BARAK J.: The equality principle determined in section 4 of Basic Law: The Knesset does not mean merely "one man one vote" but also "equality of opportunity for the various candidates lists that compete in the Knesset elections" (in the words of Landau P. in the Bergman case ([1], at 698). This equality does not mean merely equality as between the large lists or as between the small lists or as between the lists that are represented in the outgoing Knesset. Equality of opportunity means equality of prospects and opportunity as between all the lists participating in the elections. Therefore, equality of opportunity must be attained between a large list and a small list; between a list represented in the outgoing Knesset and one unrepresented in the outgoing Knesset. The need to attain this equality raises two inherent questions: first, what are the legal standards that determine equality of opportunity among all the competing lists? second, did the Knesset adhere to these standards when it enacted the Elections (Modes of Propaganda) (Amendment No. 6) Law (hereinafter - the Amendment No. 6 Law)? I shall deal with each of these questions separately.

           

The standard with regard to equality of opportunity

 

            2. The starting premise, in my view, in determining equality of opportunity between the various lists, large and small, old and new, is that one should not adhere to a standard that equates equality with identity. Granting the same time to each list certainly results in identity ("formal equality") but does not create equality ("material equality"). The reason is that the starting positions of the various party lists are not uniform. The large, veteran list, which takes a stand on a broad range of topics, must naturally spend more time on explaining its positions, platform, personalities, acts and omissions, failures and successes, than a newly formed list which takes a stand on defined, specific topics. Therefore, to secure equality of opportunity for these two lists at the finishing point they must be given different amounts of time at the starting point. Indeed equality of opportunity is often secured by non-identical allocation of resources. In the words of Professor J. Stone ("Justice in the Slough of Equality", 29 Hastings L.J. (1978) 995, at 1012):

           

              Equal treatment can and often does mean, especially in the welfare state, treatment by a differentiating rule which yields a greater residual equality between the subjects.

           

            By varying the measure of the time allocation one can lead lists that start from unequal points to equality of opportunity at the finishing line. There is no paradox in acting differentially so as to achieve equality. Blackmun J. expressed this well in Regents of the University of California v. Bakke ([3] at 407):

           

            ... in order to treat some persons equally, we must treat them differently.

           

            Indeed, granting the rich and the poor an equal opportunity to sleep under a bridge does not create equality between the two as regards the chance of a good sleep.

           

            3. We have said that identity in allocating broadcasting times does not ensure equality of opportunity to the competing lists. How can we ensure equality of opportunity? For that one must ponder the meaning of equality of opportunity. What is the purpose of the equality that we want to achieve? In the present context it appears that equality of opportunity means equality of opportunity to compete for the voter's ballot. To maintain this equality of opportunity, two requirements must be satisfied:

           

            First, one should not allow a situation to develop in which some of the lists have adequate time to explain to the voting public their platforms, personalities and distinguishing features, while other lists do not have such adequate time. Equality of opportunity does not exist where the time at the disposal of one list allows it to present itself properly while the time at the disposal of another list does not so allow.

           

            Second, one should not allow a situation to develop in which some of the lists have time that is sufficient only to show their "identification card" to the public, while other lists have time that is not only sufficient to explain their positions but is also left over for additional use, not given to the first lists, in competing for the voter's ballot. The existence of this additional time for some of the lists creates an inequality of opportunity, since some of the lists can only explain their platforms, whereas other lists can undertake additional functions. These additional activities find external expression mostly in the fact that in the voter's consciousness, the list which does not have additional time becomes blurred and absorbed in the additional "residual" time that allows the other lists to dominate the media.

           

            It follows that in order to secure equality of opportunity in the elections each list should have at its disposal the amount of time - no more and no less - that allows it to present its platform and positions to the voting public in proper fashion. If some lists receive time that is not sufficient to present their platforms properly then, in order to secure equality of opportunity, one of two measures must be taken: either to bring about a similar "deficiency" with the other lists or to fill in the deficiency of the lists that are short. Similarly, if some lists get "additional" time beyond what is necessary for proper presentation of their platform then, in order to secure equality of opportunity, one of two measures must be taken: to give additional time to the remaining lists as well, or to abolish the additional time itself.

 

            4. One could say - and it has been argued before us - that the effect of allocating election broadcasting time according to the above-mentioned standards would be the devotion of considerable broadcasting time to the various lists. Naturally this time would come at the expense of alternative use, such as news coverage, culture and art shows, and the like. Moreover, the provision of a minimum broadcast time for each new list, might be an incentive for ephemeral lists to take part in the election process, which could in turn cause fragmentation of the political map and prevent a stable regime. These arguments are all very well, and perhaps right, but they have nothing to do with the equality principle. Whoever argues that too much time is spent on election propaganda and that it should be reduced to prevent political fragmentation etc., is not making an argument about equality, but rather about other principles that are more important in that person's eyes than the equality principle. It is true that equality is not the only principle that ought to be considered. Often an unequal effect can be justified on other grounds, such as national security, political stability, and similar considerations that appear to the person weighing them more important than the equality principle. Professor I. Berlin said in this respect ("Equality", 56 Proceedings of the Aristotelian Society (1955-56), 301, at 317):

           

            ...in considering what kind of society is desirable, or what are "sufficient reasons" for either demanding equality or, on the contrary, modifying it in specific cases, ideals other than equality conspicuously play a vital role.

           

            Therefore, if the Knesset wishes to prevent the allocation of time as required under the principle of equality, because it wants to achieve other goals that it regards as more important, it has the power to do so by modifying the principle of equality as determined in section 4 of Basic Law: The Knesset, in a legislative act that is passed by a majority of the members of the Knesset. The legitimacy of that Law would not derive from the equality principle but from the special majority that adopted the Law, despite its incompatibility with the equality principle.

           

            5. In the Bergman case, Landau P. said the following with respect to equality of opportunity:

           

            [W]e are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. ... This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer.

           

            I respectfully agree with these words, so long as it is made clear that this "retreat" from the equality principle can be maintained only if the other important principles find expression in a statute that is adopted by a majority of the Knesset members, and that otherwise the equality principle must prevail. One cannot - in logic or law -justify a deviation from the equality principle in its substantive sense on grounds of the same equality principle. Any deviation from the equality principle, whether in its "primary" sense (one man, one vote) or in its "secondary" sense (equal opportunity), must be effected in the manner determined in the Basic Law, that is, through legislation adopted by a majority of the Knesset members. Of course this relates to a significant and substantial deviation from the equality principle and not a trivial deviation.

           

Equal opportunity in the Amendment No. 6 Law

 

            6. Does the Amendment No. 6 Law secure equality of opportunity, as defined by us? It would appear that in order to answer this question one must define the standards that determine the differences and the differentiation between the various lists. According to these standards one can consider whether the allocation of time in the Amendment No. 6 Law realizes the principle of equal opportunity. Determining these standards is very difficult. Aristotle defined justice as equal treatment of equals and unequal treatment of unequals, all this being relative to the relevant difference between them. But how are we to determine such relevant difference? Is the size of the list determinative? Is the range of the issues dealt with by the list the decisive factor? These and other questions are difficult because one must take into consideration the new lists, whose size is an unknown, and who wish to compete for the voter's ballot. It seems that all agree that the standards should not merely perpetuate the existing situation, since the opportunity for change lies at the core of elections. But what are the proper standards? (See E. Katz, "Platforms and Windows: Reflections on the Role of Broadcasting in Election Campaigns", 48 Journalism Quarterly (1971) 304 at 311.)

           

            7. I have reached the conclusion that we do not need to answer these hard questions in the present case and that we can leave them open for further consideration, since whatever the proper standard may be, the time allotted to the various lists in the Amendment No. 6 Law is unable to bring about equality of opportunity. This for two reasons:

           

            First, the time slot of eight minutes allotted to the new lists for television broadcasts does not allow (all or some of) the new lists to present their position to the public in a proper way. In this respect one should bear in mind that neither new nor veteran lists can buy additional broadcasting time, and all they have - in view of the Broadcasting Authority's monopolistic status - are those same eight minutes spread over a period of one month. In my view this short time is not sufficient for (all or some of) the new lists properly to present their platform and candidates, while attempting to clarify their distinguishing features and to give a satisfactory reply to the criticism leveled against them by other lists during the course of the election broadcasts.

 

            Second - and, in my view, more important - the veteran large lists were given broadcasting time that is far longer than the minimal time required to present their positions properly. This additional time is generally used by them for ongoing response to election events, for broadcasting news items that cannot be covered in the regular news programs because of restrictions in the Elections (Modes of Propaganda) Law, and for other activities. This additional time is not given to the new lists or the small veteran lists. Indeed, it appears that the result- which is a side effect of the difference in broadcasting times - is that the public finds the new as well as the small veteran lists submerged in the large amount of time at the disposal of the large veteran lists. It appears that the impression made by the new and the small veteran lists is blurred, and that only the large veteran lists remain in the voter's consciousness. Indeed, in my research I did not find any state in the world where the gap between the time designated for new or small veteran lists and that designated for large veteran lists is as great as in Israel (see Hand, European Electoral Systems Handbook (1972) 39, 70, 107, 205).

 

            8. In light of this approach, I do not need to resolve the troublesome question whether the very fact that each new list receives the same time does not violate the equality principle, since the new lists differ in the number of their members, the range of issues that concern them and their modes of propaganda. A similar problem arose also in the Bergman case, with respect to party financing, but the available solution in that situation is that after the elections the new lists that pass the minimal percentage of votes are entitled to funding which reflects their success in the elections. Retrospectively, therefore, the funding for each new list is not identical. A similar arrangement is not possible with respect to propaganda time, because it is not an asset that can be borrowed and compensated for after the elections. It is indeed possible that the very fact that new lists take part in the elections prevents equal application of time allocation because of the special nature of the matter. If that is so, there may be no solution in this matter other than the enactment of a special Law that is passed by a majority of the Knesset members, and which allows for a suitable arrangement that is not compatible with the equality principle.

           

            9. 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.

           

            10. I have reached the conclusion that the Amendment No. 6 Law violates the equality principle without referring at all - with respect to resolving the equality issue - to the legal situation that prevailed before the amendment under the Elections (Modes of Propaganda) Law, the validity of which was confirmed "for the removal of doubt" in the Elections (Confirmation of Validity of Laws) Law, adopted by a majority of the Knesset members. Is this the right path? Should it not be said that the legal situation in effect before the Amendment No. 6 Law, in light of its confirmation by a majority of the Knesset members in the Election (Confirmation of Validity of Laws) Law, constitutes an arrangement that is consistent with the equality principle, and therefore all that needs to be examined is whether the change effected by the Amendment No. 6 Law is substantive - and forbidden, or minor - and permitted?

           

            In my view the only issue before us concerns the relationship between the Amendment No. 6 Law and the principle of equality as determined in section 4 of Basic Law: The Knesset. We need not deal at all with the relationship between the Amendment No. 6 Law and the arrangement concerning radio and television propaganda in the Elections (Modes of Propaganda) Law, as confirmed in the Elections (Confirmation of Validity of Laws) Law. The reason is that there is no assurance that the earlier Law was not itself tainted with a violation of the equality principle. Even if that were so - and this question is not before us in any way - it is clear that one deviation from the equality principle cannot be justified by an earlier deviation from that principle. The time allocated prior to the Amendment No. 6 Law, determines a standard for the legality of the broadcasts. It does not determine a standard for equality in them. The broadcasts might be legal, even though they violate the principle of equality.

 

            11. As noted by the esteemed President, the Elections (Confirmation of Validity of Laws) Law determines that the provisions contained in the Knesset Elections Laws - including the Elections (Modes of Propaganda) Law - are valid for any purpose or matter. It follows, in my view, only that the broadcasting times determined in the Elections (Modes of Propaganda) Law (before its amendment by the Amendment No. 6 Law) are legal and valid. I am not prepared to say - without further examination - that those broadcasting times are adequate and reasonable. Moreover, I am prepared to assume that the majority of the Knesset members assumed that they were not exploiting the new lists. But I am not prepared to assume, without further examination, that the new lists were not in fact exploited. Ultimately the question before us is not whether the time allotted in the Elections (Modes of Propaganda) Law is adequate or reasonable, and whether it exploits the new lists or not. The only question before us is whether the allotted time is consistent with the equality principle. It is possible that the time is reasonable according to various criteria of reasonableness, but does not create equality according to the rules of equality. Equality and reasonableness are not one and the same thing. To give each of ten guests an identical portion of cake might be an act of equality, but it would be unreasonable if one of the guests dislikes cake. It all depends on the standard according to which equality is determined, and upon the standard according to which reasonableness is determined. These standards are not necessarily identical.

           

            12. My esteemed colleague, the President, points out that the legislative history of the Amendment No. 6 Law shows it was enacted in total disregard of the question of equal opportunity for the new lists. This legislative history is indeed instructive, and it supports my conclusion that the Amendment No. 6 Law violates the equality principle. However, I am not willing to rest the entire decision on this legislative history. I myself would have reached the same conclusion even if it transpired that Knesset members had expressed the view that the change does not affect the new lists and maintains their equality of opportunity. Ultimately the decision must be made upon analysis of the law and not upon psychoanalysis of the legislature.

           

            SHAMGAR J.: 1. Section 4 of Basic Law: The Knesset provides:

           

            The Knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset.

           

            This provision in the Basic Law delineates the constitutional principles that determine our electoral system. Some of these principles are an inalienable part of every democratic system of elections, since no system worthy of that title can take shape and exist without them - e. g., the principles that determine general, equal and secret elections. Other such principles are the statutory expression of a choice between alternatives that are optional in democratic regimes, e.g., the principle that determines national and proportional, as opposed to regional, elections.

           

            2. The introductory part of section 4, as cited above, also refers to the Knesset elections "in accordance with the Knesset Elections Law". These words do not serve to modify or interpret the constitutional principles with which section 4 opens, nor do they determine that anything provided in the Knesset Elections Law, as amended from time to time, automatically validates the constitutional aspects of such statutory provision as regards its compatibility with the foundations of the elections system laid down in section 4. The meaning of section 4 is that the Knesset shall be elected by general, national (etc.) elections, in accordance with the processes and specified procedures determined in the Knesset Elections Law. In addition, therefore, to the determination of principles, there is also a complementary reference to the procedural element. These two main components in the opening portion of section 4, i.e., the constitutional elements on the one hand and the referral to the particularization in the Elections Law on the other hand, are separate but cumulative substantive provisions that relate to different areas: the one, as aforesaid, to the guiding principles, and the second to their translation into concrete processes; but that translation cannot, by its very nature, override the duty to maintain the principles.

           

            The reference to the Knesset Elections Law is governed by the rule of interpretation found in section 41 of the Interpretation Ordinance [New Version], since there is no provision that limits its application with respect to basic laws, and also since there is nothing in the context or substance of the matter from which one could infer otherwise; that is, the above mentioned phraseology of section 4 does not, as it were, refer at any given time to the Knesset Elections Law in its current form, as opposed to the said Elections Law in its version at the time that Basic Law: The Knesset was enacted. There is nothing, therefore, in the wording of the section that limits the phrase "in accordance with the Knesset Elections Law" to any initial version. Likewise, there is nothing in the wording of the opening portion of section 4 in general, or in the phrase "in accordance with the Knesset Elections Law" in particular, that limits the effect of the closing portion of section 4, according to which any variation with respect to the constitutional elements enumerated in the opening portion of the section requires a special and specific procedure, as provided there.

           

            To summarize this point: the principles embodied in the above-mentioned section 4 are self-sustaining and independent, and constitute a binding guideline that cannot be varied by way of an amendment to the Knesset Elections Law unless the legislation is passed in the manner determined in the concluding portion of section 4. The reference to generality, nationality, equality and the other elements determines guiding principles that reflect upon the system and fashion its character. The words "in accordance with the Knesset Elections Law" refer to specific procedures, as opposed to the said principles, but one may not infer from the text of section 4 that a statutory provision in the Knesset election Laws can in itself modify those principles without having been passed by the required majority, or that such was the legislature's intention in formulating the principles and the words "in accordance with the Knesset Elections Law" in one textual sequence.

           

            3. And now we come to the principle of equality, the meaning of which has been examined by us in these petitions.

           

            According to the mode of interpretation that commends itself to me, the words "equal.. .elections" relate to formal equality, that is, to as simple and basic a standard as is possible, any deviation from which requires passage by a majority of the Knesset members. I have used the words "as is possible" because even the determination of formal equality entails no small degree of theoretical and practical problems.

           

            Equality of rights has the aura of an absolute standard, as if it concerns the result of a mathematical calculation (J. Stone, "Equal Protection and Search of Justice" [1980] Ariz.L.Rev. 1), but its actual application frequently illustrates that formal equality does not necessarily and in all circumstances coincide with the just and fair, as where equal portions are given to both needy persons and those not in need. Furthermore, the Aristotelian point of departure mentioned by my esteemed colleague, Barak J., according to which equality means equal treatment of equals and unequal treatment of unequals, still leaves open the determination of attributes and components that measure equality, and their evaluation and measurement in the concrete case. The difficulty in determining the complex of relevant attributes and components that create the "badge of entitlement" (see Stone, ibid., at 6) is not the only factor that makes it difficult to actually apply the standard of equality, and the theoretical offshoots of the problems that are formed in this area are innumerable. One ensuing question is, for instance, whether immediate equality achieves a just result, or whether there are circumstances in which equality can be achieved only by adopting measures of unequal treatment, as in the application of reverse discrimination (see, inter alia, the deliberation of this issue in the decision of the U. S. Supreme Court in the Bakke case [3], at 272).

           

            I have raised these matters to illustrate that equality, too, as a formal concept resting on a uniform and quasi-mathematical index or yardstick, is not necessarily easy to apply, but an attempt to adopt standards of substantive equality would impede tenfold a clear definition of the boundaries. Moreover, any attempt to make substantive distinctions resting on the characteristics and features of those receiving the allocation, that seek to add a dimension of justice or fairness to the mathematical distribution, will be influenced inevitably by subjective evaluations or variable normative assessments and will create a full range of possibilities with blurred and undefined lines and boundaries.

           

            4. As explained by the learned President in the Bergman case [1],

           

[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.

 

            My esteemed colleague, the President, related in the Bergman case to the theoretical origins of the equality principle that finds expression in our electoral system, and referred in this respect to the elementary principle of equality for all before the law, which is, according to him, at the very essence of our entire constitutional regime.

           

            The learned President, proceeding to analyze the concrete forms that the equality principle ought to take in relation to elections, distinguished between equality before the law in its simple classic meaning and equality as expressed in the right to be elected (ibid., at 699):

           

[A]s we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. ... [A]ll 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.

 

            It follows from these statements that sometimes there are reasons, grounded in the welfare of the democratic regime, for deviation from the absolute formal equality under which each contestant is entitled, prima facie, to the very same portion, and according to which it would be forbidden to prescribe any restriction that is not imposed at the same time on all those competing for the voter's ballot.

           

            The recognition that absolute equality must at times defer to other interests, which, too, have evolved and were fashioned in order to protect liberty and the democratic regime, is not unique to the election system practised in Israel, and the question how to divide broadcasting time among the parties while preserving the principle of equality has arisen in the case law of other democratic countries too. Thus, for example, the Constitutional Court of West Germany noted in a decision on the petition of the Free Democratic Party of Nordrein-Westphalen (BVR. 158/62 of May 30, 1962, Entscheidungen des Bundesverfassunggerichts, vol. 14, p. 121) that in light of the principle of equality in competitive opportunity, the broadcasting networks must, indeed, conduct themselves in a neutral manner with respect to the political parties, but the securement of equal opportunity need not express itself in the allocation of absolutely identical time to each party and it is possible to maintain distinctions between the broadcasting times given to the various parties for "especially important reasons". Thus the following should be considered (ibid., at 134):

           

The elections in the parliamentary democracy are not designed merely to bring about the election of a parliament that reflects as faithfully as possible the various popular opinions, but also to form at the same time a parliament that can establish a government capable of acting. In a system of proportional elections, a meticulous application of equality in rights might allow small groups with meager constituencies or organizations with specific interests to gain parliamentary representation, and thereby increase the risk of excessive party fragmentation, and also - as the experience of the Weimar constitution has taught - to make it difficult or even impossible to form a government. In the face of this state political danger the decisions of the Constitutional Court always found important reasons to empower the legislature, as an extraordinary measure in narrowly defined and specific areas, to digress from the principle of formal equal rights while consolidating the details of the right to vote. This explains, for example, why there are no constitutional grounds for complaint against a provision in the elections law which fixes a reasonable minimum percentage of votes for representation.

 

            For these reasons, the constitutional court there was of the opinion that different parties could be granted broadcasting times of varying durations for election propaganda, taking into account to a certain degree their present strengths (cf. the same court's decision in 2 BVR 7/57, at vol. 9, p. 100).

 

            The above remarks indicate that the search for absolute formal equality is subordinate to other decisive factors that outweigh it. My esteemed colleague, the President, said as much in the Bergman case ([1] at 699):

           

            [W]e are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. There is no better example of this classic meaning than the rule of "one man one vote". This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it "clashes with other important principles" to which it must defer.

           

            The other important principles are, for example, principles of fairness and justice (see Stone's above-mentioned article) or the aspiration to safeguard the existence of a democratic regime that has the power to survive.

           

            5. The theoretical question that arises in this context is whether, contrary to the opinion expressed in paragraph 3 above, 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 described above.

           

            I am aware that those who prefer the method of broad and flexible construction to its alternative, do so because in constitutional parlance it appears to preserve the equality principle. A 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 would be 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, if it found expression in the allocation to each party of equal and identical broadcast time. Needless to say, such equality is neither reasonable nor just, especially in a country in which 31 lists are competing in the Knesset elections.

 

            If one decides to determine an unequal standard, one that is anchored only in general evaluations as to what is just and fair, it is better to admit clearly that it is just or even necessary, as explained above, to deviate from the equality principle. When the Elections (Modes of Propaganda) Law has provided up to now that each party receives 10 minutes for television broadcasts and 4 extra minutes for each Knesset member, it means that a party with one Knesset member has a total of 14 broadcasting minutes whereas a new party has 10 broadcasting minutes. The result is inequality which might indeed be justified on the merits but still remains an instance of formal inequality between those competing for the voter's ballot, although there is good reason for its creation and actual perpetuation.

           

            Awareness of the fact that circumstances create inequality would require legislative action in accordance with the concluding part of section 4 and would also alert the legislature to the nature of the action required from it.

           

            In light of the text of section 4, caution in making constitutional changes will be promoted if the point of departure is absolute equality and any variation requires a legislative process as befits an entrenched statutory provision; that is to say, it is effected with awareness of the substance of the act and, consequently, with due consideration to the justification for such measure. If, on the other hand, one adopts a flexible method, under which deviations from equality are still named as equality so long as the court considers the deviation to be reasonable, then one loses any useful constitutional standard to serve as an a priori guideline for the legislature.

           

            As mentioned above, until now each party had 10 broadcasting minutes and 4 additional minutes for each Knesset member, and thus the difference was between 14 minutes for a single Knesset member and 10 minutes for a new list that did not yet have a Knesset member. The statute amending the Elections (Modes of Propaganda) Law, discussed here, varied the times, allotting to a new list only 8 minutes and a list with one Knesset member 6 additional minutes for that member. The question is, therefore, where to draw the line between the reasonable, that can still be regarded as within the range of substantive equality, and the unreasonable, which goes beyond substantive equality. Will 9 minutes suffice to maintain equality, or perhaps, only the existing quota of 10 minutes sanctify the circumstances and stamp them with equality? The difficulty is compounded when we consider the radio broadcasts. Each list was entitled to 25 minutes, and now that time has been reduced to 23 minutes. Where is the line beyond which substantive equality is absent, and what standard can be applied in a way that is clear, open and understandable to every citizen now, and also when the statute is amended next time?

 

          6.(a) As explained above, I accept the idea that there are times when fairness, justice and even the democratic regime's existence necessitate deviation from absolute equality, be it by determining a blocking percentage, by requiring a bond, or by distinguishing in terms of broadcasting time between a body that has already taken part in elections and has passed the test, and a newly established list. The determination of a non-identical standard, or the deference of equality to more important values, as mentioned in the Bergman case, must be done consciously and expressly as a variation on the principle of full equality, that is, in the manner prescribed in the concluding part of section 4 of the Basic Law. We will thus preserve constitutional clarity, which is important inter alia because of the educational element it embodies and addresses to the general public. It is good that the citizen know when a deviation from the equality principle has been effected, and its purpose. In my view it is preferable not to blur the concept of equality with numerical manipulations that rest, ultimately, only on the intuition of the person making the calculations and that lead to a dead end in which there is no clear standard, open and known in advance.

         

          (b) The previous deviations from the principle of equality, as in effect at the time the Knesset adopted the Elections (Modes of Propaganda) (Amendment No. 6) Law, and which also failed to give identical and equal times to all the lists, were confirmed, albeit retrospectively, in the manner prescribed in section 4 of the Basic Law, by the Elections (Confirmation of Validity of Laws) Law.

         

          The adoption of the 1969 statute established that the deviation from absolute equality was effected lawfully and in accord with the course designated in our Basic Law. On the other hand, it did not give a stamp of full and perfect equality to the existing time distribution, as prescribed in sections 15 and 15A of the Elections (Modes of Propaganda) Law, until the enactment of Amendment No. 6.

         

          Any further variation of the provisions regarding broadcasting times, that would derogate in any way from the rights granted to the various lists under the prevailing law and widen the deviation from the principle of full formal equality, required a vote in accord with the concluding part of section 4 of the Basic Law, which must be read, naturally, together with section 46 of the Basic Law.

         

          Since it transpired that the Elections (Modes of Propaganda) (Amendment No. 6) Law was not passed by the majority required under section 4 of the Basic Law, I decided to concur in the decision of May 29, 1981, as cited in full in the opinion of my esteemed colleague, the President.

         

            BEJSKI J.: 1. The attempt to formulate principles for the notion of "equality" in our instant context, raises difficult problems of the kind of squaring a circle. Apparently all agree that for this purpose no schematic-arithmetic equality is envisaged, such as according equal broadcasting time to each of the lists appealing to the voter. Even though this simplistic construction would follow strictly from a prima facie reading, yet, having regard to the subject-matter, no greater inequality could be created than would result from such a construction. For that reason it was rejected in the Bergman case [1], and the Petitioners in the present case do not urge it either. But that in no way facilitates the search for other principles that would lead to an appropriate construction, with due consideration given to the range of diverse aspects that the democratic regime weighs in order to grant every list or candidate an equal opportunity to take part in parliamentary life. This objective itself exists and is expressly sanctioned, but the aspiration to attain it requires the erection of barriers to prevent over-fragmentation of power concentrations as a result of ephemeral lists - whether or not they pass the blocking percentage, which would make it difficult to form a government and to maintain orderly parliamentary life. At the same time one must consider budgetary problems entailed in realizing the objective, the sum of broadcasting hours that can be allotted, and also the citizen who must forgo viewing and listening to other programs that interest him in favour of propaganda broadcasts on the same, single, television channel.

 

            2.But the truth is that already at the basic point of departure there is a lack of equality between the lists represented in the legislature and the new ones seeking to gain representation. The former are more or less known and familiar to most of the voting public, for better or for worse, from their activity in the legislature before the elections; all the media provide ongoing coverage of such activities over the years of the Knesset term. Not so with respect to the new list, which for the first time addresses the voter, who usually knows nothing about it. As regards equality of opportunity, one might claim with a degree of logic that a list of this kind needs not only the minimum time it requires to present its platform and creed, but also time in order to challenge the parties represented in the Knesset in a debate on its advantages over the veteran parties, which would obviously also include criticizing their past activities, emphasizing their faults, and so on. As regards equality of opportunity, therefore, the new lists are in an inferior position from the very start of the contest, and the disadvantage grows with the difference in the allotted time. I doubt whether the inequality in the allocation of broadcasting time as between the veteran or large lists and the new ones, can be justified on the ground that the former need more time to explain their acts and omissions during their term in office. It appears to me that as much time is required to challenge the acts and omissions of the large and veteran parties and to call them to account, which is, after all, the only chance to persuade the voter to prefer a new, as-yet-unknown list to the others. One cannot, therefore, deny that the differentiation in allotted broadcasting times is also a differentiation in equality of opportunity. While the new list consumes its small time quota merely to introduce itself, the large list has abundant, ten-fold time, both to defend and justify itself and to attack and discredit other lists, and the small list might become lost in the extra verbiage and photography of the large lists to the extent that its presence is not felt at all. From this point of view, the explanatory notes to the bill of the Elections (Modes of Propaganda) (Amendment No. 6) Law are not at all persuasive and, in fact, underline the inequality of opportunity. It is said there:

 

            The present Bill is intended to temper slightly the ratio of the two time quotas, but it continues to give a party group with a single Knesset member an amount of time which is larger than that given to a single Knesset member in a large party group.

           

            This commentary is possibly pertinent and meaningful with respect to regional elections or in a presidential regime, where a single candidate opposes a single candidate. But in proportional elections, such as ours, the contestants are the lists and not the persons who comprise them, and the equality that is aspired to relate to the lists inter se. A 30-member list in the outgoing Knesset still has only one common platform, and its presentation does not require 30 times longer than the platform of a one-person party group. Likewise with respect to the acts and omissions that the individual member of the party group wishes to explain and attribute to the group. It is not the individual in the large party group who is running for election but a political party, a list, a party group; that is why any attempt to equate the single candidate with the individual in a large party group does not promote equality, but has the opposite effect.

           

            3. Counsel for the litigants brought to our attention the situation in various countries in which the principle of equality in elections is a cornerstone of the parliamentary democracy. In some of these, the arrangements regarding broadcasting times are determined by legislation, and in others the arrangement is reached through a parliamentary committee, or even by means of an agreement between the political parties on the one hand and the broadcasting authority on the other. Obviously, one should not adopt any specific system from a given country, and it is even hard to draw analogies, because in each country the relevant arrangement, whether legislated or otherwise established, evolved from its particular political history and parliamentary tradition and is adapted to them. One cannot compare a state which has constituency elections - and usually a small number of candidates lists - to a state with a different elections system and a larger number of political parties. As for us, the circumstances, background and tradition are essentially different: we are blessed with more than 30 lists at the starting line; the television, which is apparently the focus of the main battle, broadcasts on only one channel. And there is no possibility to purchase radio and television broadcasting times beyond those allocated under the law.

           

            Although one cannot draw analogies or copy a system from another state, it is interesting to note that most countries practise a system of relative equality which gives a clear advantage to parties represented in the outgoing parliament. The mode of time distribution - even between the represented parties, whose strength is known - is not necessarily arithmetic and proportional. In other words, the quest for this relative equality is the lesser of evils, and the relativity is determined (whether through legislation or other means) in accord with local considerations that appear to ensure reasonable opportunity for all participants in the elections.

           

            In England, where there is no legislation on the subject, the arrangement is made before the elections between the broadcasting networks and the principal parties, and the main allotment of time goes to the parties represented in Parliament, some time being allotted to other groups as well. For instance, in the 1966 elections the Liberal party had an 11.2% representation in the outgoing Parliament and was allotted 35 minutes of television and 30 minutes of radio time, whereas the Labour party, with a 44.4% parliamentary representation and the Conservative party with 43.4%, received one hour on television and 55 minutes on the radio. All the remaining groups were allotted 5 minutes on radio and television. In this case the relativity was effected clearly in favor of the small Liberal party.

           

            In the U.S.A. where the broadcasting and television networks are private and cannot be compelled to offer their services to the political parties, section 315 of the Federal Communications Act provides that if any network allows a candidate for public office to use its station, it must allow the same to other candidates for the same office under the same conditions. This provision appears to reflect absolute equality. but it is doubtful whether that is the effect in practice - because only candidates who are backed by parties capable of bearing the heavy expense of buying broadcasting time would benefit from this equality right.

 

            In Italy the broadcasting time is distributed by a parliamentary committee with each party and the government receiving a uniform basic time, while the large parties are allotted additional time in proportion to their size. In the Federal Republic of Germany the broadcasting time is divided among the parties represented in the parliament, and as can be gleaned from the decision of the German Constitutional Court of 30 May 1962, which has been mentioned by my esteemed colleague, Shamgar J. (2 BVR 158/62), the internal distribution was not proportionate to the parliamentary representation. The Constitutional Court did not regard this as a shortcoming affecting equality of opportunity. Only since the 1965 elections has the television broadcasting time been divided under an agreement between the parties represented in the parliament on the basis of their representative strength.

           

            In Holland the broadcasting time is divided equally among all the parties and groups represented in the parliament.

           

            In France the matter was statutorily arranged in 1966, and the broadcasting time is divided among the parties and groups represented in the Conseil d'Etat, without taking into account the Senate's composition. Without dwelling on the details of the arrangement, which has its origin in a presidential regime, the practical result was that in the elections at the time the majority ruling party gained 36.26% of the votes and received the same broadcasting time as all the remaining opposition groups which gained 63.7% of the votes (taken from Ch. Debbash, Traite du Droit de la Radiodifusion Radio et Television (Paris, 1967); Ch. Debbash, "Le droit a l'entenne a propos de l'organisation de la campagne electorale" (Chronique III, BBC Handbook 1963; 1967).

           

            4. These particulars are not mentioned for analogy, but to illustrate that although the principle of equal opportunity is avowed in each of the states mentioned - and there is no doubt that it is their genuine objective to maintain democracy and orderly parliamentary life in their countries - there are no common principles for a solution that satisfies the wishes of all the groups taking part in the election campaign. Absolute equality is clearly not the solution, as Debbash points out, supra:

           

            To give the same broadcasting right to a party that embraces several million voters and a group of a few visionaries creates a wrong exercise of equality. As already said elsewhere, on the authority of the Conseil d'Etat, one cannot treat equally persons or groups that are situated differently. Absolute equality would contradict the democratic principle, whereas relative equality satisfies it.

           

            Relative equality also entails no small amount of problems, and suffice it to point to the many differences between the various solutions reached in the various states. The only common denominator that can be pointed to is the sincere will to grant a reasonable opportunity to all the groups seeking to participate in the elections, while granting advantages to those that have already proven themselves in parliamentary life, yet safeguarding at the same time its orderly functioning. However, the means to achieving these purposes are different and removed from one another.

           

            5. I do not believe that we can formulate guidelines as to where the limits should be drawn. Is the allocation of 10 broadcasting minutes for a small party within the range of reasonable equal opportunity, and would a reduction of 2 minutes constitute an intolerable infraction? What about a further cut in the few remaining minutes? In the present case, however, we are not called upon to answer these difficult questions.

 

            Even if the times determined in the original statute transgressed the limits of relative equality, they were nevertheless determined in a statute adopted by a special majority of the Knesset, as required under section 4 of Basic Law: The Knesset. The Elections (Modes of Propaganda) (Amendment No. 6) Law introduces change on two points: in reducing the basic broadcasting times for the parties and candidates lists from 25 to 23 minutes on the radio, and from 10 to 8 minutes on television, and in allotting an additional 2 minutes on both media to every party represented in the outgoing Knesset, in respect of each of its Knesset members. As for myself, I regard the main violation of equality in the second part of the provision, which creates a large and unreasonable differentiation, beyond what is acceptable. As regards the broadcasting time at their disposal, even previously the small and new lists were in a Procrustean bed in competing with the large parties. I, for one, was indeed impressed by Dr. Leshem's calculations with respect to the gap created in favor of a 30-member party as against a new list, and I view this as a conspicuous violation of the relative equality established under the original statute, to the extent that even the relative equality of opportunity is eroded and violated. And since I too am convinced that this violates equality, a special majority was required under section 4 of Basic Law: The Knesset.

           

            For these reasons I agreed to the absolute orders made on May 29, 1981.

           

            BEN-PORAT J.: Although at the time I had no hesitation in concurring in the result we reached unanimously, I must admit that I deliberated much before deciding upon the meaning of the equality principle in section 4 of Basic Law: The Knesset. There is much reason, with all due respect, in the approach of my esteemed colleague, Shamgar J. , that it concerns formal equality grounded in an a quasiarithmetic, basic, uniform, and absolute standard, and that whenever important principles justify deviation from such equality only a special majority, as required under section 4, can determine the solution that is acceptable to it. Formal equality that allocates identical time to each list can probably be justified, materially speaking, in only one case: when a state is electing for the first time its Knesset members according to an election system of competing lists. I said "probably" because there is always a theoretical possibility that the parties in the outgoing Knesset are all equal in strength and there are no new lists. But, identical time for each party group and list is not a conditio sine qua non for the existence of formal equality, since one can determine a yardstick or uniform indicator of another kind, such as a progressive time measure in accord with the relative size of the parties. This too is a quasi-arithmetic calculation that can be regarded as formal equality and perhaps even material (on condition that it is based on a reasonable coefficient and initial allotment). By extending the equality principle in this way, it is also possible to reconcile my view with the ruling given in the Bergman case [1], by Landau J.- as he then was, today the honorable President of this court. It was stressed there, rightly and justly so (at p. 698) that "[this equality] must ... find expression in equality of opportunity" among both the existing parties and the various candidates lists competing in the Knesset elections. Likewise, it was stressed there - and it is also acceptable to me - that "the parties should not be put in an absolutely equal position by allocating funds equally without considering each party's size...". In short, equality that finds expression in equal time allocation to each party and list regardless of its size, is inherently incompatible with the decisive principle that is equality of prospects or (I would prefer to say) opportunity. In applying a progressive standard as suggested above, one comes across an initial difficulty, which is the existence of new lists that should not be deterred from testing their strength, despite the legitimate wish to prevent their excessive proliferation. As said in the Bergman case (at 699), the prospect of a new list to become a party group in the Knesset is one of the clear identifying marks of a democratic regime, and the new list should not be put at a disadvantage vis-a-vis the old party groups. However, not knowing in advance whether a new list will pass the blocking percentage, and if it does, how many Knesset members it will elect, we lack an indicator for applying the uniform progressive measure, and this calls for a suitable independent solution by way of a special majority of the Knesset members.

 

            The Elections (Modes of Propaganda) Law (hereinafter - "the Main Law"), that was confirmed inter alia by the Elections (Confirmation of Validity of Laws) law (hereinafter - "the Confirming Law), provided an arrangement that is not based on a uniform standard, but is composed of two cumulative elements, the one fixed and the other progressive: (1) 25 minutes of propaganda broadcasting on radio and 10 on television for every party of the outgoing Knesset and every new list; (2) 4 additional minutes on radio and television for each member of a party in the outgoing Knesset. I do not believe that this complies with formal equality. It is possible that this arrangement is ultimately just and fair, but it is enough, in my opinion, to conclude that it constitutes a deviation from the equality principle (according to my construction) so as to require the sanction of a special majority. It was therefore clearly necessary, in my opinion, that the Confirming Law give effect to such arrangement. The same applies, obviously, to the Elections (Modes of Propaganda) (Amendment No. 6) Law (hereinafter - "the Amending Law") under discussion here. This latter Law reduced the broadcasting time of the parties and lists by two minutes (that is, substituted 23 for 25 minutes on radio and 8 for 10 minutes on television), and at the same time increased by two minutes the additional time for each member of the outgoing Knesset (that is, substituted 6 for 4 minutes on radio and television). The technical nature of the arrangement remains as it was, applying a twofold measure, the one static and the other progressive, but the gap in time allocation between a new list (or small party) and the large parties, has grown incomparably. If we regard the overall outcome of this situation (and not merely the difference in minutes as an isolated factor) there is no escaping the conclusion, in my opinion, that the equality principle has been violated, even if we assume (contrary to my own view) that it was preserved in the Confirming Law.

 

            Incidentally, a look at the explanatory notes to the bill of the Amending Law (which related only to the increment for each Knesset member) reveals an admission that the bill deviates from equality, although on grounds that I, with all due respect, find unacceptable. To clarify my position I shall cite the text:

           

            The present version of the Law creates an unreasonable situation concerning the time allotted to a party group with one Knesset member as distinguished from the time allotted to a party group with a larger number of Knesset members.

           

            The present bill is intended to temper slightly the ratio of the two time quotas but it continues to give a party group with a single Knesset member an amount of time which is larger than that given to a single Knesset member in a large party group.

(Emphasis added -M.B.P.)

 

            This is, therefore, support for the view that the main Law deviated at the time from the principle of equality, to the disadvantage of the large parties, because an arithmetic calculation for each member shows that the time (per member) at the disposal of the small parties is longer than that for the large ones; and this "wrong" (which, in my humble opinion, is an illusory wrong) grows incrementally with the number of members belonging to the party. In our present matter it is important that the Amending Law was regarded as a partial removal of the distortion. It appears that they used a uniform measure (the time quota for each party member), that is, progressive equality which I accept as formal equality, so as to examine whether the result was just, and that they reached the conclusion that it was not so. I have said that this reasoning is unacceptable to me, because under the existing conditions the application of the said formal equality would necessarily lead to an unjust result with respect to the new lists, which were wholly overlooked, as clarified in the opinion of Landau P. The opportunity to which they are entitled, requires an allocation of time that suits their need to present to viewers and listeners the platform and special message that might justify their presence as a party group in the Knesset. I do not have the tools nor the expertise to express an opinion as to how much time is required, considering all the aspects of the problem, but the fact that the distortion as between the existing parties was also rectified at the expense of the new lists, points to a deviation from the principle of equal opportunity. It might be noted, in passing, that the total abolition of the "distortion" referred to in the explanatory notes, is possible only if the fixed time allotted to every party is entirely abolished (which is further proof that the combination of these two factors is incompatible with equality).

 

            I have not surveyed the situation in other countries, because that was done in a comprehensive and painstaking manner by my esteemed colleagues, to which I could not add much.

           

            Judgment given on July 28, 1981

 

* Samuel 12:4-Ed.

 

 

 

 

 

 

 

 

 

 

 

 

 

Justice I. Zamir

1.  The petitioner is an association whose purpose is to advance the rights of the Arab minority.  It claims that in the budget year 1999 the Arab minority is not receiving from the Ministry of Religious Affairs funds for cemetery maintenance, which it is entitled to receive, inter alia, based on the principle of equality.  The following is the primary issue which arises from the petition: is the Ministry of Religious Affairs violating the principle of equality in the allocation of funds for the maintenance of cemeteries? 

The Background to the Petition

2. This petition developed out of a previous petition that was also filed by the petitioner along with other entities and persons from the Arab population: HCJ 240/98 Adalah Legal Center for the Rights of the Arab Minority in Israel v. Minister of Religious Affairs [1].  In that petition the petitioners claimed that the budget of the Ministry of Religious Affairs discriminates against the Arab population in the allocation of funds  for religious purposes in general, and not just in the realm of cemetery maintenance, and therefore requested that the court declare to be void certain sections in the Budget Law of 1998.  The petitioners claimed as follows (at page 173):

"The relative proportion of the Arab communities in the budget of the Ministry of Religious Affairs does not reflect their relative proportion in the population, and in any case is not sufficient to fulfill their needs.  This discrimination in allocation of resources...  violates the right of the Arab minority to respect, to freedom of religion and conscience, and the necessary conclusion from this is that these budget sections and others are to be declared unconstitutional, while also declaring that the Arab communities are entitled to a budget appropriate to their proportion in the population."

In the judgment that was handed down in that petition the Court agreed that it would appear that  the funds that were allocated in the budget of the Ministry of Religious Affairs for the religious purposes of the Arab population are not  in proper proportion to the proportion of that population in the general population.  Justice Cheshin said the following on this matter (at p. 178):

". . .  The Arab communities constitute about 20% of the State's population, but the Ministry of Religions only allocates 2% of its budget for their religious needs.  Regarding this disparity one is to say res ipsa loquitur."

At the conclusion of the decision Justice Cheshin added (at p. 192):

"Reading the petition raises genuine challenges which it is proper and appropriate to try and find a way to resolve...  The program that the Ministry of Religions initiated at the time was titled ‘One Law.’  Let us remember from where the name of the program was taken: "there shall be one law for you, for the stranger as for the citizen it shall be, as I am the Lord your G-d" (Leviticus 24, 22). [30]

Despite this, the Court denied the petition.  The reason for the denial was that the petition was not focused on a particular matter, with a proper basis on facts, in such a manner that the court could examine the factual foundation, determine if it proves discrimination, and decide accordingly what the proper remedy should be.  In the words of Justice Cheshin (at 171):

"The petitioners preferred to spread out their arguments and their complaints from one end to the other -- from the east end to the west end -- and on the basis of these claims they have asked us to declare as void a law of the Knesset.  This is not the way and this is not the Court’s way of doing justice."

What then is the proper path to be taken?  As one can see from the decision, it was proper for the petitioners, in their struggle for equality in the allocation of funds for the Arab population, to focus on one issue, for which they would properly prepare a factual foundation, which the Court could then properly review.

The petitioner understood one thing from another and filed this petition, which focuses on the claim of breach of equality in allocation of funds for the maintenance of Arab cemeteries.   On the basis of this claim it petitions for specific sections in the Budget Law for the year 1999, relating to the allocation of funds for the maintenance of cemeteries, to be declared void.

The petition raises additional claims in support of the petitioner’s position.  It claims that those sections violate human dignity, as established in the Basic Law: Human Dignity and Liberty as well as other rights of Arabs, including freedom of religion and conscience.   However, these arguments, in the manner put forth in the petition, are not forceful, and in any case, we have found that it is not necessary to consider them in this petition.

The first question, which must be answered in this petition, is whether the Ministry of Religious Affairs is obligated to allocate funds, from the Ministry’s budget, in an equal manner to all segments of the population, without distinction as to religion or nationality.

The Principle of Equality in the State Budget

3. In the Declaration of the Establishment of the State of Israel [28] it was stated that the state “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex.”  One of the expressions for the principle of equality is, as was stated in the Declaration, that the state “will safeguard the Holy Places of all religions.”  In that vein, the Declaration calls “to the Arab inhabitants of the state of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship.”   Therefore, from the State of Israel’s first day, the declaration established the principle of equality as one of the basic values of the State.  Over the years, the principle of equality was established and developed, via legislation and case law, and has also earned for itself, beyond the status of a basic value, the status of a basic right.  (See I. Zamir, M. Sobel ‘Equality before the Law’ [24]).

The principle of equality binds every public entity in the State.  First, it binds the State itself.  The principle of equality applies to all the areas in which the State operates.  It applies first and foremost to the allocation of the State’s funds.  The resources of the State, whether in land or money, as well as other resources, belong to all citizens, and all citizens are entitled to benefit from them in accordance with the principle of equality, without discrimination on the basis of religion, race, gender or other illegitimate consideration.

The principle of equality must also guide the legislative authority, which too, like any other authority in the State, must act as a fiduciary to the public in accord with the basic values of the State of Israel as a Jewish and democratic state, which include equality.  This is the case in each and every law, and this is also the case in the Budget Law.

However it is not sufficient that the laws of the State fulfill the principle of equality, rather, it is no less important than this that the implementation of the laws be consistent with this principle.  This is the case for every law, so too the Budget Law.  Indeed, since the laws of the State generally fulfill the principle of equality, the primary threat to this principle stems from the implementation of the law.  The threat is particularly severe in implementation of the Budget Law.  From a practical standpoint, in implementing the Budget Law the relatively easy possibility exists, occasionally to the point of temptation, of discrimination in allocation of funds by state authorities, on the grounds, inter alia, of religion or nationality.  Such discrimination, particularly if it is methodical, may cause very severe damage, not only to a specific person or a specific entity, but also to the social fabric and the feeling of partnership which is a pre-condition for proper living in community.  In any event, such discrimination is illegitimate at its core, from both a moral as well a legal perspective. 

4.  Recently the Court has clarified well the prohibition on discrimination on the grounds, among others, of religion or nationality, in the allocation of state funds.  In HCJ 6698/95 Ka’adan v. Israel Land Administration [2], the claim was made of illegitimate discrimination against an Arab, because he was an Arab, in the allocation of state lands.  In that instance the State allocated land to the Jewish Agency for Israel, and on that land, the Jewish Agency established a communal settlement, the settlement of Katzir, which would only enable land purchase and home construction in the settlement to Jews.  In the judgment President Barak stated (in paragraphs 23, 24, 31, 34):

“The State’s obligation to act in accordance with the principle of equality applies to all of its actions. As such, it also applies to the allocation of state land . . .    all agree that equality precludes different treatment on the grounds of religion or nationality. . .  There is, therefore, no contradiction between the values of the State of Israel as a Jewish and democratic state and between the absolute equality of all of its citizens. Indeed, the opposite is true: the principle of equal rights for all people in Israel, irrespective of their religion or nationality, stems from the values of the State of Israel as a Jewish and democratic state.  .  .  The State’s duty to respect equality in allocating rights in land is violated by the transfer of land to a third party that itself discriminates on the basis of nationality or religion. The State cannot escape its obligation to respect the principle of equality merely by going through a third party that acts according to a discriminatory policy. What the State cannot do directly, it cannot do indirectly.”

Therefore the Court declared that the State was prohibited from allocating the land to the Jewish Agency for the purpose of establishing the communal settlement on the basis of discrimination between Jews and those who are not Jews.

5.   Discrimination on the basis of religion or nationality in allocation of state funds, which is even prohibited if it is done indirectly, certainly is a fortiori prohibited when it is done directly.  A marked example is discrimination in allocation of funds from the state budget by a government office.  In HCJ 59/88 Tzaban v. Minister of Finance (at p. 706) [3] Justice Barak stated:

"Budget funds are state funds.  Government authorities authorized to use them do not have the right to do with them as they please.  Government authorities are fiduciaries of the public, the expenditure and distribution of these funds must be done in a manner that is consistent with this trust...  Support must be provided based on principles of reasonableness and equality."

Indeed, it is standard for budget funds not to be sufficient for all the needs and all the needy, and therefore it is necessary to allocate funds according to a list of priorities which create differences between one person and another and between one group and another.  But the preferences and the differences must be based on relevant considerations which are consistent with the principle of equality, and not illegitimate considerations, such as, religion or nationality.  Justice Mazza clarified this in HCJ 205/94 Nof v. Ministry of Defence [4] (at p.  463), and he stated as follows:

"Where the authority wishes to provide for a specific public need and the resources at its disposal are lesser than the resources that would be necessary to fully fulfill that need, the authority is obligated to establish criteria for allocation of its resources.  But these criteria must be egalitarian; and under no circumstances does the existence of budgetary constraints justify establishing criteria which cross the line of equality."

The duty incumbent on all authorities to allocate state funds in an equal manner is expressed in the Budget Principles Law, 5745 – 1985.  Section 3a of this law coordinates provision of support by government offices from the state budget to public institutions operating for purposes of education, culture, religion, and more.  It establishes that such support will be distributed exclusively "according to egalitarian criteria."

The principle of equality in allocation of funds from the state budget is not limited to the provision of support to public institutions, as established in section 3a of the Budget Principles Law, but it also applies, even without a law that establishes this explicitly, in allocation of funds from the state budget in another manner, and for other purposes.  This was recently stated, for example, in HCJ 1703/92 C.A.L. Freight Airlines Ltd v. The Prime Minister [5] as to the provision of a subsidy for the funding of security expenses for airlines, and it was also so stated in HCJ 1/98 MK Eitan Cabel v. Prime Minister of Israel [6] (paragraph 28 of the decision of Justice Cheshin) as to provision of support for the building of rental apartments.

In HCJ 2422/98 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Labor and Social Affairs [7] the petitioners claimed that the Ministry of Labor and Social Affairs was acting in a discriminatory manner in the allocation of funds from the Ministry's budget for the support of the needy during the period leading up to the Passover holiday (in the framework of operation "Passover Flour"), and was not allocating funds for the Arab needy during their holiday times.  The Ministry of Labor and Social Affairs acknowledged its duty to act in an equal manner in the provision of support for the needy of different religions.  As a result, the parties reached an agreement according to which the Ministry of Labor and Social Affairs would amend the criteria relating to support of needy families on the occasion of the Passover holiday such that it would also apply to members of other religions.  The Court granted the parties’ application and granted the agreement the status of a judgment.

6.  From the general to the specific.  It is clear that the Ministry of Religious Affairs must act in an egalitarian manner when it allocates funds from the Ministry’s budget to provide for the religious needs of members of the various religions.  In fact, there are differences in the religious needs of members of the different religions: each religious community has holidays of its own, tradition of its own, institutions of its own and needs of its own.  It is possible and appropriate to take these differences into consideration, in connection with the allocation of funds from the State budget, out of a desire to provide for the special religious needs of each and every community.  (See for example HCJ 98/54 Lazarovitch v. Jerusalem Food Inspector [8] (at 55-56); HCJ 200/83 Wathad v. Minister of Finance [9]).  Therefore, allocation of funds from the state budget for the satisfaction of religious needs does not need to be equal in the formal sense.  It must be equal in the substantive sense.  An unequal allocation of funds can still be equal in a substantive sense.

However, from a substantive perspective, the differences that exist between living individuals, members of different religions, are blurred for deceased individuals of those same religions.  The dignity of deceased individuals, which is derived from the dignity of living individuals, requires that the cemetery where they are buried be well-kept and well-maintained, and this is one and the same whether Jews, Muslims, Christians, or Druze are buried there.  Therefore, substantive equality, relating to allocation of funds from the State budget for the maintenance of cemeteries, approximates formal equality.

Indeed, counsel for the Minister of Religious Affairs wholeheartedly agreed that the equality imperative also applies to the Ministry of Religious Affairs in the allocation of funds for the maintenance of cemeteries.

The question is, and opinions differ on this, whether the Ministry of Religious Affairs breached the equality imperative in its allocation of funds for the maintenance of cemeteries.  In order to answer this question, it must be ascertained first what the directives of the Budget Law are as they pertain to the support of the Ministry of Religious Affairs for the maintenance of cemeteries, and then, how the Ministry implemented the law’s directives.

The Law's Directives

7.  The petitioner aims its arrows at two paragraphs in the budget of the Ministry of Religions (section no. 22) in the Budget Law of 1999: the first, which is found in Chapter (02) of Religious Services, is section 02-17 that deals with cemeteries; the second, which is found in Chapter (08) of Religious Sites, is section 08-20 which also deals with cemeteries.  These sections are, according to the petitioner's claim, the root of the discrimination against Arabs as relates to cemeteries.  To be precise, the petitioner does not claim discrimination against the Druze, who received in a separate budget in 1999 a relatively large sum (6 million NIS) for their cemeteries.  The petitioner makes claims therefore, in the name of Muslim Arabs and Christian Arabs.  These Arabs, according to its claim, receive from the Ministry of Religious Affairs only a small portion of the funds allocated for cemeteries, which does not reflect the relative proportion of Arabs in the general population.

The respondents claim, in turn, that the Budget Law itself, in the sections which relate to cemeteries, including sections that were not mentioned by the petitioner, does not discriminate between Jews and those who are not Jews, and that the  implementation of the law by the Ministry of Religious Affairs also does not create such discrimination.  In fact, they claim, the Arabs receive for their cemeteries the full proportional share they are entitled to of funds that are allocated for these purposes.

What, then, does the Budget Law establish as pertains to cemeteries?

8.  The two sections in the budget of the Ministry of Religious Affairs, on which the petition relies, state (in the expenditure page) as follows:

02--17

Cemeteries

403 Thousand NIS

02--17—14

Contribution to the budget of cemetery councils

201 Thousand NIS

02--17—15

Evacuation, relief, burial

202 Thousand NIS

08—20

Cemeteries

16,457 Thousand NIS

08--20—12

Development of cemeteries

8025 Thousand NIS

08--20—13

Development of cemeteries for alternative burial

868 Thousand NIS

08--20—15

Reserves for cemeteries

2508 Thousand NIS

08--20—17

Reserve for a master plan for multi-level burial

5056 Thousand NIS

9.  The petitioner claims that these two sections allocate money for Jewish cemeteries only, and therefore it asks that the Court determine that they are unlawful.  In my opinion, it is neither necessary nor appropriate to determine that these sections are unlawful and that, therefore, they are void.

First, the Budget Law is a law, and the Court, respectful of the dignity of every law, is not willing to declare a directive in the law void unless it contradicts a directive with constitutional status.  Indeed, the Budget Law is a unique law, and has special status in relation to the Budget Principles Law, 5745 – 1985.  Indeed, the question has come up whether or not the Court has the grounds to declare as void a directive in an annual budget law which contradicts a directive in the Budget Principles Law, 5745 – 1985.  (See HCJ 1438/98 Conservative Movement v.  Minister of Religious Affairs [10]).  However, that is not the question in the case before us.  In the case before us the question is more difficult.  The question is, whether the Court has the grounds to declare as void a directive in an annual budget law, even when it does not contradict a directive in the Budget Principles Law, for the reason that it violates the principle of equality.  As said, the Court is not willing to declare as void a directive in the law unless it contradicts a directive with constitutional status.  Such are the directives of the basic laws.  However, there is not a directive in the basic laws, which specifically establishes the principle of equality.  Indeed, there is a view, which also includes the view of judges, that human dignity, which was established as a directive in the Basic Law: Human Dignity and Liberty, includes by deduction the principle of equality.  But this view has not risen to the status of law.  Therefore, it does not consist, in its status today, of enough to declare as void a directive in the Budget Law, even if that directive violates the principle of equality. 

Second, even if one section or another in the Budget Law allocates money for the needs of Jews alone, such as for the cemeteries of Jews alone, this still is not sufficient to indicate that it violates the principle of equality.  After all, it is possible that along with this section there will be another section that will allocate money for the needs of Muslim Arabs, or the needs of Christian Arabs, in a manner that will not violate the equality between members of different religions.  For example, in the budget of the Ministry of Religious Affairs for 1999 there are to be found, in the framework of allocation for religious services (section 02), the following sections: Religious Services for Karaites (section 02 -- 31), the Druze Religious Council (section 02 -- 32), Religious Services for Muslims (section 02 -- 33), Religious services for Christians (section 02 -- 34), and more.  Are there grounds to say that a section which allocates money for Karaites or for Muslims, for needs related to religion, violates the principle of equality and therefore is to be declared void?  In order to determine if there has been a violation of the principle of equality the full picture must be seen, namely the full budget, and a partial picture is not sufficient, namely just one section of the budget.  Accordingly, one must see whether a section in the Budget Law which explicitly allocates money to members of a specific religion, or to members of another group, is not balanced out by other sections in the Budget Law, in a manner that realizes equality.  From now on it is to be said that even if it were established explicitly in section 02-17 and in section 08 – 20, that they allocate money only to Jewish cemeteries, this would still not be sufficient to indicate that they violate the principle of equality, as long as the Budget Law, in an overall manner, fulfills this principle.

This is all the more so, when these two sections, based on their wording, refer to cemeteries and not to cemeteries for members of a certain religion.  It is known, that it is a broad rule that it is proper to interpret every law, where the language and context permit, in a manner that will be commensurate with the basic values of the legal system, including the principle of equality.  Certainly it is proper to do so before declaring as void a directive in the law as a result of violation of such a value.  Therefore, this is also the appropriate action to be taken as to section 02 -- 17 and section 08 -- 20 in the budget of the Ministry of Religious Affairs.

The conclusion is that it is neither appropriate nor necessary for the court to determine, as per the petitioner’s application, that these two sections are unlawful and therefore void.

If so, the question that needs to be clarified is whether the Ministry of Religious Affairs is implementing the Budget Law, in all that pertains to cemeteries, in a manner that fulfills the principle of equality.

Implementation of the Law

10.  The Ministry of Religious Affairs claims that it distributes the funds that were allocated in the Budget Law for cemeteries in a manner that fulfills the principle of equality and does not discriminate between Jewish cemeteries and other cemeteries.

The rule is that any discrimination is illegitimate, even if it is denied.  Camouflage will not salvage discrimination.  The substance and not the form are determinative.  As Justice Berinson has said in a different context, HCJ 98/54 Lazarovitch v. Jerusalem Food Inspector [8] at p. 47: "This Court examines, as usual, both the external form and the internal substance of the acts of the authorities, the peel and the insides together, and will not leave as is, acts which indeed are wrapped in kosher outer clothing but whose insides are not as their outsides."  From here on in it is to be said that it is sufficient that a government office implements the Budget Law in a manner that creates prohibited discrimination, for example on the basis of religion or nationality, to invalidate the implementation, and the fact that intent to discriminate was not proven or that intent to discriminate was denied is not sufficient to validate the discrimination.  Attractive words are not sufficient to validate bad acts.  The illegitimacy in discrimination is embodied within the act of discrimination. (See HCJ 1/98 MK Eitan Cable v. Prime Minister of Israel [6] (paragraph 21 of the judgment of Justice Cheshin).  See also HCJ 392/72 Berger v. District Committee for Building and Planning, Haifa Region [11] (at p. 770); HCJ 118/62 Landau v. Minister of Agriculture [12] (at p. 2544); HCJ 953/87 Poraz v. Mayor of Tel Aviv -- Jaffa [13] (at p.  334)).

The question, therefore, is whether the sections of the Budget Law pertaining to cemeteries have been implemented in a manner that is discriminatory.

11.  The primary facts as to the implementation of the sections in the Budget law that pertain to cemeteries are not in dispute.  And these are the facts:

A. Section 02 -- 17 -- 14 establishes an amount of 201,000 NIS as "participation in the budget of the cemetery councils."  However, in practice, a cemetery council has only been established for Jews in Jerusalem.  See the Council of Jewish Cemeteries in Jerusalem Regulations 5727-1967.  Therefore the Ministry of Religious Affairs allocated the entire amount to participation in the budget of the Jewish Cemeteries in Jerusalem Council.

B. Section 02 -- 17 -- 15 allocates the amount of 202,000 NIS for removal of fatal casualties in times of emergency.  It is clear that in this matter there is no difference between fatal casualties on the basis of   religion or nationality.  In practice, during calm times this section is used for the purchase of equipment for times of emergency.  This is how it has been for the past few years.  The result is that in practice this section does not serve the needs of cemeteries.  However there are no grounds to say that use of this section is discriminatory.

C.  Section 08 -- 20 – 12 allocates the amount of 8,025,000 NIS to the "development of cemeteries.”  The Ministry of Religious Affairs has established criteria for distribution of sums according to this section, and has not limited them to Jewish cemeteries.  This is so in theory.  However, in practice, out of this sum, 2,000,000 NIS has been allocated by the Ministry of Religious Affairs to restore the ancient cemetery in T’zfat (which is a Jewish cemetery) and the cemetery in Mount Olives in Jerusalem (also a Jewish cemetery), the remainder of the sum is distributed among 120 religious and regional councils, all of them Jewish.  In practice there is not a single Muslim or Christian religious or local council that received money on the basis of this section.

D.  Section 08 -- 20 -- 13 establishes the amount of 868,000 NIS for "the development of cemeteries for alternative burial," in accordance with the Right to Alternative Civilian Burial Law, 5756-1996.  This law was intended, as was stated in the explanatory note of the Bill, "to solve the problem of the burial of Jews, those who are not Jews or members of other recognized religious communities, who desire a burial that will take place according to their principles and worldview."  (See Hatza'ot Chok--Official Gazette-Bills No. 2520, 5756-1996 at p. 600).  However, the petitioner claims that in fact, Arabs do not need and will not request for themselves alternative civilian burial.  Indeed, as can be seen from the response of the Ministry of Religious Affairs, to date there has not been a request on behalf of Arab entities, and it is not known of a request by Muslims or Christians, to use alternative burial services.  It appears therefore that the section will not serve, and in any event will not serve in a significant manner, the burial needs of Arabs, at least in the near future.

E.  Section 08--20 -- 15 allocates the amount of 2,508,000 NIS as "reserve for cemeteries."  This section is designated for general development of Jewish cemeteries only.

F.  Section 08--20 -- 17 was established as "reserve for a master plan for multi-level burial" and allocates the amount of 5,056,000 NIS for this purpose.  To date, this section served to implement this program in Jewish cemeteries in the large cities (Jerusalem, Tel Aviv and Haifa).  The Ministry of Religious Affairs notes that "in the future expanding the program to additional communities and additional religious communities will be considered"; and is of the opinion that half of the sum that was determined in this section is to be seen as a sum that is not designated specifically for members of a certain religion.   However, in response to the petitioner's questions, the Ministry stated that it does not know of an Arab community in which there will be multi-level burial in the said budget year, and that no amount of money based on this section has ever been allocated to an Arab community, and that no request has been submitted on behalf of an Arab community to implement multi-level burial.  It is clear, therefore, that in said budget year this section will not serve the burial needs of Arabs at all.  Moreover, the likelihood that this section will serve the burial needs of Arabs in the near future is not great, among other reasons because the land shortage, which incentivizes multi-level burial, exists primarily in the large cities, and not in Arab communities.

In conclusion, of the budget of the Ministry of Religious Affairs designated for cemeteries in the year 1999, in section 02 -- 17 and in section 08 -- 20, only the amount of 202,000 NIS, which is designated for clearing of fatal casualties in times of emergency, and which appears not to be used to maintain cemeteries, may also serve a population that is not Jewish.  The remainder of the amount, namely, the amount of 16,658,000 NIS serves Jewish cemeteries entirely (or almost entirely). 

What is the reason that Arab, Muslim and Christian cemeteries, which serve more than one sixth of the total population in Israel, do not receive their portion of budget sections designated to serve cemeteries?  We have not heard any reason from the Ministry of Religious Affairs that would explain why it has implemented these sections in a manner that seemingly violates equality. 

12.  The Ministry of Religious Affairs claims that this is only seemingly so but not so in practice, as, in the budget of the Ministry there is an additional section, section 08 -- 21, which is also utilized for Arab cemeteries.  This section allocates the amount of 6,375,000 NIS for “religious structures of non-Jewish communities," and out of this amount 3,009,000 NIS for Muslim religious structures, 602,000 NIS for Bedouin religious structures, and 2,006,000 NIS for religious structures of  Christian communities.  What constitute religious structures for purposes of this section?  The Ministry of Religious Affairs responds that it includes Mosques, Churches, Holy Places, and more, and this also includes cemeteries.  What is the amount that is allocated, in the framework of this section, for cemeteries?  The amount of 2,006,000 NIS, which is allocated for religious structures of Christian Communities, serves entirely for the development of religious tourist structures in anticipation of the year 2000, and is not used for cemeteries; although the Ministry of Religious Affairs notes the possibility that an additional budget will be allocated for the purpose of the Ministry’s preparedness for the year 2000, and if it is received, the amount of 300,000 NIS will be set aside for Christian cemeteries.  Parenthetically, it is worth noting that from the Ministry of Religious Affairs’ response it appears that both in 1997 and in 1998 no funds were allocated for Christian cemeteries.  And as for Muslim religious structures, the Ministry of Religious Affairs estimates that of the amount of 3,009,000 NIS allocated for these structures, the amount of approximately 1,000,000 NIS will be used for cemeteries.  Similarly, the amount of 200,000 NIS will be directed to Bedouin cemeteries.

However, even so, this section does not substantively change the picture as to the allocation of funds for Muslim and Christian cemeteries.  First, to the extent that this section is also used for Muslim and Christian cemeteries, it is a matter of a small sum relative to the proportion of the Muslims and Christians in the population, which is not sufficient for realizing the requisite equality.

Second, according to the criteria of the Ministry of Religious Affairs, funds from this section are not allocated to a local authority (with the exception of the local authority of Bedouins in the Negev) but rather to one type of religious structure each year.  Accordingly, the local authority must choose whether to ask for funds from this section, for example, to renovate a mosque or renovate a cemetery, and cannot ask for funds for both.  It appears that here too equality has been harmed, as this is not the case for Jewish religious structures.  For them, separate budget sections exist: for example, section 02-15 in which the amount of 2,157,000 NIS is set for “synagogues”, and section 08-13 in which the amount of 38,119,000 NIS is set for the “development of synagogues and ritual baths”.

Third, in the framework of section 08-21 the Ministry of Religious Affairs does not participate in the ongoing maintenance costs of Arab cemeteries, as it does for Jewish cemeteries, but only in the costs of renovation and development of the cemeteries.

Fourth, if we turn to other sections that may be used for Arab cemeteries, such as section 08-21, it is proper to inquire whether there are also other sections which serve Jewish cemeteries.  This is the petitioner’s claim.  According to its claim, it is also necessary to take into account the budgeting for local religious councils in accordance with the Jewish Religious Services Law [Consolidated Version] 5731-1971.  According to section 02-12 in the budget of the Ministry of Religious Affairs, Jewish religious councils receive the amount of 149,827,000 NIS for 1999.  As can be seen from the Ministry’s response, about 10% of this amount is used for burial services.  It appears that there is no equivalent or similar financing for burial services of Arabs.  Therefore, if the budget of the Jewish religious councils is also taken into account, it appears that the inequality in the allocation of funds for Arab cemeteries is only exacerbated.

13.  I would like to add a comment to all this.  After I turned the Ministry of Religious Affairs’ budget over and over, as would an interpreter of dreams, for the purpose of answering the question what amount was allocated to Jewish cemeteries and what amount to other cemeteries, I felt as though I was getting lost in the midst of the sections and numbers.  One can’t see the answer for the sections.  Because of the structure and the dispersion of the sections it can be argued one way, as the petitioner does, or otherwise, as the Ministry does, and we don’t have a clear answer.

This is not how a government ministry’s budget should be constructed.  The Ministry’s budget should be clear as is to the average person outside the Ministry, including a judge, and not just to those who are in the know in the Ministry of Religious Affairs, or Ministry of Finance.  As, after all, the budget is the law of the State, and this is why it benefits from the status and immunity of a law, and this is the law that determines what will be done with the State’s assets, which are the assets of all the citizens.  And so, is it not obvious that the law should be clear?  The law, including the budget law, should be clear, not only so that any person can read and understand the law, as is the imperative of democracy, but also so that a path will not be opened before the employees of the Ministry, of any ministry, to make inappropriate manipulations of the budget.

Why for example, does section 08 -- 20 refer to "cemeteries" generally, and in its framework section 08 -- 20 -- 12 refers to "development of cemeteries" generally, and seemingly it relates to cemeteries for members of all religions, but the Ministry of Religious Affairs states that development of cemeteries for Muslims is included in section 08 -- 21, which refers to "religious structures for non-Jewish communities"?  If section 08 -- 20 is intended to serve only Jewish cemeteries, as is in fact the case, it is appropriate to state this explicitly, and then it is appropriate to establish a separate section for other cemeteries; but the Ministry does not say this, rather it says in its response that section 08 -- 20 also partially serves cemeteries that are not Jewish; if that is the case, why is it necessary to hide Muslim cemeteries also in section 08 -- 21 which deals with religious structures?

It would be proper for the Ministry’s employees who prepare the budget proposal, and no less so for employees of the Ministry of Finance, to take diligent care that the budget law is clearer and more methodical.

14.  In any event, there is no need to state specific amounts in order to conclude that the petitioner has shown that inequality exists in the allocation of funds from the budget of the Ministry of Religious Affairs for Jewish cemeteries on the one hand and Arab cemeteries (excluding Druze cemeteries) on the other.  The petitioner has shown this with dual significance.  First, it has shown this in numerical data from the Budget Law.  Second, it has also shown this in descriptions and pictures that were attached to the petition, as to the difficult situation that prevails in Arab cemeteries.  The Ministry of Religious Affairs claims in its response that the pictures and descriptions relate to deserted cemeteries, which the Ministry no longer deals with.  However, the picture arises from the petition of severe neglect also of Arab cemeteries that are not deserted, if only some of them, and does not give respect neither to the dead nor to the living.

This picture is in line with the picture that arises from a letter of the Attorney General, dated 1.26.95, to the Prime Minister and the Minister of Religious Affairs in which he alerted that "the non-Jewish population [receives] a low proportion of the support budget [of the Ministry of Religious Affairs] without any proportion to its segment in the general population in Israel," and raised a proposal for "more balanced budgeting for the religious needs and the religious judicial services of the non-Jewish communities in the State."  Similar things were also said in the Report of the State Comptroller, number 46 from the year 1995 [29], and the following was stated (at p. 287) in it: "in the opinion of the office of the State Comptroller, the Ministry of Religious Affairs is to operate to increase the equality among the various segments of the population, and to ensure that the portion the Muslims have in the budget of the Ministry will match their relative proportion in the population."  This Court received a similar impression in the previous petition submitted by the petitioner: HCJ 240/98.  See supra paragraph 2.

This being the case, and after the petitioner has shown that the Ministry of Religious Affairs did not fulfill its duty of equality in allocation of funds for cemeteries in the year 1999, the question arises what is the remedy that may and that should be awarded under the circumstances.

The Remedy

15.  Seemingly, it would be appropriate for the Court to make a declaration that the Ministry of Religious Affairs is to operate in an equal manner with Jewish cemeteries and other cemeteries in all that relates to allocation of funds for cemeteries.  However, such a declaration is superfluous, not only because the matter is clear and obvious on its own, but also because the Ministry Of Religious Affairs takes upon itself, and in its response to the court even glorifies, the principle of equality.

The problem does not lie with the principle but with the implementation.  The question is, first of all, what is the implementation that is dictated by the principle.  Therefore, it is appropriate for the court to explain, in order to remove any obstacles down the road, what the implementation is that is dictated by the principle of equality in the above matter.

Since the Ministry of Religious Affairs, like any public entity, is obligated by the principle of equality in all that it does, it must fulfill this principle already at the phase of the preparation of the proposed budget for the next year.  At that phase, the employees of the Ministry, together with the employees of the Ministry of Finance, can act in one of two primary ways.  In the first way, the Ministry of Religious Affairs can establish in the budget bill one sum for the cemeteries of all the religions, in order for this amount to be distributed later by the Ministry of Religious Affairs amongst the cemeteries of the various religions, of course in an equal manner.  In the second way, the Ministry of Religious Affairs can allocate in the budget bill various amounts to cemeteries according to the various religions, for each religion a set sum.

16.  According to the second way, the Ministry of Religious Affairs needs to fulfill the duty of equality already at the bill phase.    This means that that the amounts that will be allocated to the cemeteries of the various religions, according to religious affiliation, will match the relative proportion of members of each religion within the population in Israel.  And why? Because this proportionality is, in relation to cemeteries, the primary criterion, even if not the only criterion, on the path to equality.

It is appropriate to add, in order to avoid error, several comments as road markers.  First, according to the proportionality criterion, the goal for distribution of the money among the cemeteries must be allocation according to the relative proportion of members of each religion in the population, and the result of the distribution of the money must match the said proportion closely.  What does this mean?  In distributing the money significant deviation from the relative proportion must be avoided; with that, it is doubtful whether it is possible to be exacting as in a mathematical formula, and whether it is necessary to be accurate to the hair's breath, in dividing the money.  A slight deviation from the relative partiality does not necessarily mean discrimination.

Second, the criterion of proportionality is not necessarily the only criterion.  It is possible to knowingly deviate from this criterion, inter alia, for purposes of affirmative action.  Affirmative action of a specific public or specific group, that seemingly violates equality, in fact advances equality.  See, for example, HCJ 453/94 Israel Women’s Network v. Government of Israel [14].  It is permitted, and may be appropriate, when it is directed at compensating a weak public or a weak group, which suffers from a situation of sub-equality, in particular if this situation stems from ongoing deprivation, knowing or unknowing, intentional or unintentional.  This court so decided, for example, regarding government support for the establishment of permanent settlements for Bedouins:  HCJ 528/88 Avitan v. Israel Land Administration [15].  The court determined that it is not illegitimate for such support to be given to Bedouins alone.  And this is what Justice Or said (at page 299):

"The principle of equality comes to serve the purpose of achieving a just result.  It is neither the ‘technical’ nor ‘the formal’ equality that is to be protected, but rather substantive equality.  Meaning, equality among equals.  People, or groups of people, differ in more ways than one in their conditions, characteristics, and needs, and at times it is necessary to discriminate between those that are not equal in order to protect the weak person or the needy person, to encourage him and advance him.  Equality among those that are not equal is not, at times, anything other than mockery of the poor.”

We need not go far to attest to this.  The Ministry of Religious Affairs adopted a five-year plan for advancing the Druze community, and in the framework of this program allocated in said budget year the amount of 6,000,000 NIS for Druze cemeteries.  That is an amount that is relatively high compared to the amount allocated to Muslim and Christian cemeteries.  It turns out that this is affirmative action that came to compensate the Druze community for lesser support in the past and to advance equality.  Therefore, this is not prohibited, as long as such preference is not done at the expense of equality among the other communities.  Meaning, affirmative action which benefits the Druze community is not meant to come at the expense, for example, of the Muslim community, in a manner that will create inequality or exacerbate inequality, for example, between Muslims and Jews.  In other words, affirmative action toward the Druze does not justify inequality between Muslims and Jews.

Third, the proportionality criterion, in the context of cemeteries, is built primarily on religious affiliation, as burial in Israel is primarily religious burial.  However there are exceptions to this.  These exceptions have recently received legitimacy in the law: the Right to Alternative Civilian Burial Law, 5756-1996.  According to this law every person has a right to be buried in a civilian cemetery in which the burial is done according to their worldview, and for this purpose the law determines that there will be cemeteries for alternative civilian burial in various regions of the country with reasonable distances between them.  Therefore, at the time that money allocated for cemeteries is distributed, the need to allocate money in an appropriate measure for alternative civilian burial cemeteries is also to be taken into account, in accordance with the proportionality criterion.

Finally, even though the Ministry of Religious Affairs must fulfill the duty of equality already at the phase in which it prepares the bill, the question remains what is the possible appropriate remedy if the Ministry does not fulfill the duty of equality at that phase.  It is known that there is a difference, as to every administrative authority, between the realm of the duty of the authority and the realm of the judicial remedy.  The remedy the court sees fit to award is dependent on the circumstances of the case, including the substance of the administrative act.  Accordingly, it is possible that an administrative authority will breach a duty, and despite this the court will not find it proper under the circumstances, to grant a remedy for the breach, for example, if the petition was delayed in its filing or the act is not justiciable.   Inter alia, the court will not see fit to award a remedy in the case of a defect in the legislative process, from the stage of the bill proposal to the stage of the Knesset vote, with the exception perhaps of rare and unusual cases. (See MApp 166/84 Yeshivat Tomchei T’mimim Mercazit v State of Israel [16]; HCJ 761/86 Miari v. Knesset Speaker [17]).  What will the appropriate remedy be, then, at the phase of preparation of an annual budget law which clearly violates the principle of equality?  There is no need to answer this question in this petition.  However, without connection to the question of the judicial remedy, it is to be hoped that employees of the Ministry preparing the bill, as well as employees of the Ministry of Finance and the legal advisors that guide them in legal questions, fulfill the duty of equality lawfully.

17.  And what if the budget law takes the first path, and allocates one sum for all cemeteries, without distinction based on religious affiliation?  In such a case, it is the duty of the Ministry of Religious Affairs to follow the appropriate path such that this sum will be distributed in an equal manner.  The appropriate path is to determine egalitarian, clear and transparent criteria.  Indeed section 3a of the Budget Principles Law, which requires the establishment of egalitarian criteria for the purpose of providing support from the state budget for public institutions, does not apply to support from the state budget for local authorities.  But there are situations or matters in which distribution of the resources of the State or award of certain rights requires the establishment of egalitarian criteria.  Such was decided regarding support of public institutions even before the Budget Principles Law required the establishment of egalitarian criteria.  (See, for example HCJ 59/88 Tzaban v. Minister of Finance [17] (at p. 706)).  This has also been decided in other contexts. (See HCJ 205/94 Nof v. Ministry of Defence [4] at p. 463; HCJ 1689/94 Harrari v. Minister of the Interior [18] at p. 19; HCJ 4146/95 Estate of the Deceased Lily Dankner v. Antiquities Authority [19] at pp. 790-791.  See also I. Zamir Administrative Power (1996) [22] at pp. 780-782.)  This is also appropriate in this context.

18.  The petitioner who requested that egalitarian criteria be established for distribution of the amount that was allocated for cemeteries, does not suffice with this.  It requests, in addition, that the Minister of Religious Affairs give a reason "as to why sums of money designated for the maintenance, expansion and renovation of cemeteries of the Arab communities in Israel are not to be allocated."

Indeed, as arises from this decision, the amount of money that was allocated to cemeteries in the budget of the Ministry of Religious Affairs for the year 1999 was not distributed in an equal manner, and from a substantive perspective it would have been appropriate to order the Ministry of Religious Affairs to change the distribution for that year in such a manner that the equality between cemeteries belonging to different religions would be fulfilled.  However, as occurs more than once in petitions of this type, in particular when there is a need to discuss facts or make determinations as to a substantive question, the discussion goes past a given budget year.  Indeed, even in such a case the court still can, if it is justified by the circumstances of the case, provide a remedy that will relate retroactively to a budget year that has already ended.  But in every such case the difficulty involved in granting an order that will obligate a government ministry to allocate money from the current year's budget for purposes of a matter that was not included in this budget, such as, for purposes of support that should have been given from the budget of the last year, is not to be ignored.

In order to overcome a difficulty of this type the Court may, if in its opinion the circumstances of the case justify it, issue an interlocutory order that will secure a specific amount from the budget of the said year until the petition is decided, or take other steps in order not to frustrate the granting of an appropriate remedy.  But in the circumstances of the present case, the Court did not find it appropriate to issue this or any other interlocutory order.

In my opinion in the circumstances of the present case there is no justification to order the payment of money from this year’s budget of the Ministry of Religious Affairs for the purpose of maintenance of Arab cemeteries for the year that has passed.  The money is needed to a great extent for ongoing expenses, such as cleaning work, gardening, security and the like.  It is proper to assume that the money for these and other expenses that was not available last year was not spent.  If this is the case, what is the justification for paying money for expenses that were not spent?  So too, it is not possible to pay money without detailed and well grounded requests as to last year, which we do not have.  Who is to be paid and how much is to be paid?  Indeed the local Arab authorities or other Arab entities, which maintain the cemeteries, are not even represented before the Court, and the court does not know what their needs and requests are.  And finally, the primary purpose of the petition is not to be found in the receipt of money for the year in which the petition was filed, but rather, the purpose of the petition is primarily to change the situation from here on in, in a manner that will fulfill the principal of equality.

Therefore, in my opinion the balance of considerations which relate to the issue leads to the conclusion not to order the Ministry of Religious Affairs to pay the local authorities or other unknown entities unknown sums for the past year.  

19. The situation is different as to the present budget year: the year 2000.  In the present year it is still possible to distribute the money from the budget of the Ministry of Religious Affairs in a manner that realizes equality between the cemeteries of the different religions, and it is still possible to order and to receive requests for financial support on behalf of authorities and entities which maintain the cemeteries of members of the various religions.

The Ministry of Religious Affairs, that last year did not fulfill the duty of equality between cemeteries, can and must prepare to fulfill the duty this year, and from here on in, as is required by this judgment.          

Indeed, it is possible that the Ministry of Religious Affairs has already decided how to allocate the amount that was determined in the budget of the Ministry for cemeteries this year; it is possible that it has already notified the entities that are to receive the money, and they have certainly made plans to operate this year in accordance with the notification; and it is also possible that it has already transferred part of this money to these entities.  However, and despite a possible difficulty, the Ministry still can and needs to get ready, at this stage in the year, in a manner that will realize equality among the cemeteries, even if this entails administrative effort and even if it entails adding to the budget for cemeteries.  If indeed there is a need for additional budget, the Ministry will need to operate (with the assistance of the Ministry of Finance, if the assistance is needed) in order to obtain the necessary additional budget by means of savings on the Ministry’s other budget sections, or from the Ministry’s reserve budget section, or by another way

20.  In conclusion, the Ministry of Religious Affairs is to operate based on the principle of equality, as stated in this judgment, as relates to the allocation of money that was determined in the Ministry’s budget for cemeteries.

In accordance with this principle, we order the Ministry of Religious Affairs to allocate the money that was determined in the budget of the Ministry of Religious Affairs for the year 2000, for the purpose of the cemeteries of members of the various religions, in an equal manner.

The Ministry of Religious Affairs will pay the petitioner court expenses in the total amount of 20,000 NIS.

 

Justice D. Beinisch

I agree with the judgment of my colleague Justice Zamir.  In light of the conclusion which my colleague reached relative to the breach of the principle of equality by the Ministry of Religious Affairs in the implementation of the Budget Law, I do not see a need to relate to the weighty question as to whether the principle of equality is part of human dignity.

 

President A. Barak

I agree with the judgment of my colleague, Justice Zamir.  I wish only to add the following: my fundamental position is that equality constitutes a right possessing constitutional status (see A. Barak, Judicial Construction (Vol. 3, 1994) [23] at p. 423).  It is contained within the right to dignity.  Indeed, the principle of equality is derived from human dignity and is bound to it by an unseverable bond (see Y. Carp, ‘The Basic Law: Human Dignity and Liberty – A Biography of Power Struggles’ [25] at p. 352, and Henkin, ‘Human Dignity and Constitutional Rights’ [27] at p. 212). 

H. Cohn expressed this well when he noted:

“The dignity which may not be violated and which is entitled to protection is not just a person's good name, but also his status as equal among equals.  The damage to his dignity is not just in slander or insults and curses, but also in discrimination and deprivation, unequal treatment and treatment that is racist or degrading.  The protection of human dignity is not just the prohibition of defamation, but also the assurance of equality of rights and chances, and the prevention of any discrimination for reasons of gender, religion, race, language, opinion, political or social association, family affiliation, ethnic origins, property or education" (H. H. Cohn, ‘The Values of a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Liberty’ [26] at 32).

Therefore, I am prepared -- if called upon -- to examine whether a regular law violates the principle of equality unlawfully (meaning, without fulfilling the directives of the limitations clause).  In this framework it would be appropriate to examine whether the Budget Law has a problematic aspect that is unique to it.  This examination is not necessary in the petition before us -- and my comments therefore are obiter dicta -- since my colleague's interpretation of the Budget Law -- an interpretation that is agreeable to me -- leads to the conclusion that the allocation of funds established in it must be undertaken in an egalitarian manner.  Indeed, of two possible interpretations one must choose the interpretation that is consistent with the Basic Law (see HCJ 4562/92 Zandberg v. Broadcasting Authority [20] (at p. 810)).  The accepted approach today is thereby expressed, according to which "the Court will not decide a constitutional problem...  if there is another reason on the basis of which it is possible to determine the matter under consideration" (President Shamgar in CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [21] (at p. 350)).

 

Therefore, it has been decided as per the judgment of Justice I. Zamir.

 

13 Nissan 5760

April 18, 2000

 

HCJ 7052/03

Adalah Legal Centre for Arab Minority Rights in Israel and others

v

1.         Minister of Interior

2.         Attorney-General

3.         Jewish Majority in Israel

4.         Victims of Arab Terror

5.         Shifra Hoffman

HCJ 7102/03

MK Zahava Gal-On and others

v

Attorney-General and others

HCJ 7642/03

Shama Mahmud Musa and another

v

Minister of Interior and others

HCJ 7643/03

Ibrahim Alyon others

v

Minister of Interior and others

HCJ 8099/03

Association for Civil Rights in Israel

v

Minister of Interior and others

HCJ 8263/03

Rami Mohammed Askafi and others

v

Minister of Interior and others

 

HCJ 10650/03

Mirfat Taysir Abed Al Hamid and others

v

Minister of Interior and others

 

 

The Supreme Court sitting as the High Court of Justice

[14 May 2006]

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

 

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

 

Facts: Since September 2000, Palestinians have mounted a barrage of terror attacks on the State of Israel and its citizens and residents. The intensity of these attacks led the government to adopt various measures to protect the security and safety of Israeli citizens and residents. Because some of the terror attacks were perpetrated with the assistance of persons who were originally Palestinians living in the occupied territories and had received permission to live in Israel within the framework of family reunifications, the government decided in 2002 to stop giving permits to Palestinians from the occupied territories to live in Israel. This decision was subsequently passed by the Knesset into legislation in the form of the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (‘the law’); the law was valid for one year and was extended several times.

Petitions were filed in the High Court of Justice against the constitutionality of the law. In the course of the legal proceedings, the Knesset amended the law and introduced various concessions. These mainly allowed Palestinians from the occupied territories to apply to live in Israel within the framework of family reunifications, if the applicant was under the age of 14 or over the age of 35 (for a man) or 25 (for a woman).

The main question raised by the petitions is whether a constitutional right has been violated by the law, which, even in its amended, more lenient form, contains a blanket prohibition against allowing Palestinians between the ages of 14 and 35 (for a man) or 25 (for a woman) from entering Israel for the purposes of family reunifications.

The court was therefore called upon to consider whether the blanket prohibition of family reunifications (with Palestinians of certain ages) violates constitutional rights, and if it did, whether the violation of those rights satisfies the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty, and was therefore constitutional. The blanket prohibition in the law was considered with reference to the position that prevailed before the law was enacted, whereby applications of Palestinians to live in Israel were considered on an individual basis, with a view to whether the applicant presented a risk to the security and safety of the Israeli public.

 

Held: (Minority opinion — President Barak, Justices Beinisch, Joubran, Hayut, Procaccia) The law violates two constitutional basic rights. It violates the right to family life, which is a derivative of human dignity, since the right to family life means the right of an Israeli citizen or resident to live with his family in Israel. The law also violates the right to equality, since only Israeli Arabs marry Palestinians from the occupied territories and therefore the only persons harmed by the law de facto are Israeli Arabs. These violations of constitutional rights lead to the law being unconstitutional, since the law does not satisfy the last condition of the limitations clause in the Basic Law: Human Dignity and Liberty, namely that the violation of the constitutional rights should not be excessive. The blanket prohibition in the law against all Palestinians between certain ages provides somewhat more security than the system of individual checks, but it increases the violation of constitutional rights considerably. In view of the small increase of security and the large increase in the violation of rights, the law is disproportionate in adopting a blanket prohibition rather than a system of individual checks. It is unconstitutional and therefore void.

(Majority opinion — Vice-President Cheshin, Justices Grunis, Naor) Like other countries around the world, Israel does not recognize a constitutional right that a person may have foreign members of his family immigrate to Israel. Such a right exists only to the extent that statute grants it. Therefore the law does not violate a constitutional right to human dignity. The law also does not violate the constitutional right to equality. The fact that the Palestinian Authority is de facto waging a war or quasi-war against Israel makes the residents of the territories enemy nationals. The law, in prohibiting family reunifications with enemy nationals, makes a permitted distinction between family reunifications with persons who are not enemy nationals, and family reunifications with persons who are enemy nationals. This is a permitted distinction in view of the current circumstances, and therefore the law is not discriminatory. The law was therefore constitutional. Nonetheless, the state should consider adding to the law a provision allowing exceptions in special humanitarian cases.

(Majority opinion — Justice Adiel) The law violates the constitutional right to family life which is a part of human dignity, but not the constitutional right to equality. Notwithstanding, in view of the bloody conflict between the Palestinians and Israel, the violation of the constitutional right is proportionate. Therefore the law is constitutional.

(Majority opinion — Justice Rivlin) There is no need to consider the petitions since the law is about to expire and it cannot be known in what format, if at all, the Knesset will re-enact it. The question is therefore moot. Subject to this, the law does violate a constitutional right to family life. However, the conflicting national security interest is really, in this case, made up of the rights of all the individual members of the public to life and security. In view of this, the law satisfies the proportionality test, and is therefore constitutional.

(Majority opinion — Justice Levy) The law violates both the right to family life and the right to equality. With regard to the conditions of the limitations clause, the main problem lies in the requirement that the law should adopt the least harmful measure. The blanket prohibition will have to be replaced by an individual check of each applicant for family reunification. In this check, in view of the clear hostility of the Palestinian Authority, applicants should be regarded to have a presumption of dangerousness, which they must rebut. The applicant should not be present illegally in Israel while the application is pending and he should be required to declare his loyalty to the state of Israel. Notwithstanding, since declaring the law void would create a void in security arrangements, the law should be allowed to stand, but if changes are not made, the law will be unlikely to satisfy judicial scrutiny in the future.

 

Petition denied, by majority opinion (Vice-President Cheshin and Justices Rivlin, Levy, Grunis, Naor and Adiel), President Barak and Justices Beinisch, Procaccia, Joubran and Hayut dissenting.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1, 1A, 2, 3, 4, 5, 6(a), 7(a), 8, 12.

Basic Law: the Government, ss. 50, 50(d).

Basic Law: the Knesset, s. 38.

Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, ss. 2, 3, 3A, 3A(1), 3A(2), 3B, 3B(2), 3B(3), 3D, 3E, 4, 5.

Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5764-2004.

Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5765-2005.

Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order (no. 2), 5765-2005.

Citizenship Law, 5712-1952, ss. 4, 4A(1), 4A(2), 5(a), 7.

Entry into Israel Regulations, 5734-1974, r. 12.

Law of Return, 5710-1950, ss. 2(b)(3), 4A.

Prevention of Terror Ordinance, 5708-1948.

Providing Information on the Effect of Legislation on Children’s Rights Law, 5762-2002.

 

Israeli Supreme Court cases cited:

[1]    HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[2]    HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[3]      HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[4]    HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [2003] IsrSC 57(1) 385; [2002-3] IsrLR 123.

[5]      HCJ 7957/04 Marabeh v. Prime Minister of Israel [2005] (2) IsrLR 106.

[6]    HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

[7]    CA  6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

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

[9]    HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

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

[11]  HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[12]  HCJ 4128/02 Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[13]  HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786.

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

[15]  CrimApp 5934/05 Malka v. State of Israel [2005] IsrSC 59(2) 833.

[16]  HCJ 316/03 Bakri v. Israel Film Council [2003] IsrSC 58(1) 249; [2002-3] IsrLR 487.

[17]  CA 238/53 Cohen v. Attorney-General [1954] IsrSC 8 4; IsrSJ 2 239.

[18]  CA 337/62 Riezenfeld v. Jacobson [1963] IsrSC 17(2) 1009; IsrSJ 5 96.

[19]  CA 488/77 A v. Attorney-General [1978] IsrSC 32(3) 421.

[20]  HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

[21]  LFA 377/05 A v. Biological Parents (not yet reported).

[22]  LCA 3009/02 A v. B [2002] IsrSC 56(4) 872.

[23]  CFH 7015/94 Attorney-General v. A [1996] IsrSC 50(1) 48.

[24]  HCJ 3648/97 Stamka v. Minister of Interior [1999] IsrSC 53(2) 728.

[25]  AAA 4614/05 State of Israel v. Oren (not yet reported).

[26]  LCA 4575/00 A v. B [2001] IsrSC 55(2) 321.

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

[28]  HCJ 114/79 Burkan v. Minister of Finance [1978] IsrSC 32(2) 800.

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

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

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

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

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

[34]  HCJ 2618/00 Parot Co. Ltd v. Minister of Health [2001] IsrSC 55(5) 49.

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

[36]  HCJ 392/72 Berger v. Haifa District Planning and Building Committee [1973] IsrSC 27(2) 764.

[37]  HCJ 328/88 Avitan v. Israel Land Administration [1989] IsrSC 43(4) 297.

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

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

[40]  HCJ 6924/93 Association for Civil Rights in Israel v. Government of Israel [2001] IsrSC 55(5) 15.

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

[42]  HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.

[43]  HCJ 200/57 Bernstein v. Bet-Shemesh Local Council [1958] IsrSC 12 264.

[44]  HCJ 337/81 Miterani v. Minister of Transport [1983] IsrSC 37(3) 337.

[45]  CA 333/85 Aviel v. Minister of Labour and Social Affairs [1991] IsrSC 45(4) 581.

[46]  CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [1991] IsrSC 45(4) 529.

[47]  CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC 53(4) 526; [1998‑9] IsrLR 409.

[48]  LCA 4905/98 Gamzu v. Yeshayahu [2001] IsrSC 55(3) 360.

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

[50]  CA 7155/96 A v. Attorney-General [1997] IsrSC 51(4) 160.

[51]  HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (not yet reported).

[52]  HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[53]  HCJ 4330/93 Ganem v. Tel-Aviv District Committee, Bar Association [1996] IsrSC 50(4) 221.

[54]  HCJ 205/94 Nof v. Ministry of Defence [1996] IsrSC 50(5) 449; [1997] IsrLR 1.

[55]  HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [1996] IsrSC 50(2) 769.

[56]  CA 5942/92 A v. B [1994] IsrSC 48(3) 837.

[57]  HCJ 3512/04 Shezifi v. National Labour Court (not yet reported).

[58]  CA 232/85 A v. Attorney-General [1986] IsrSC 40(1) 1.

[59]  CA 5587/93 Nahmani v. Nahmani [1993] IsrSC 49(1) 485; [1995-6] IsrLR 1.

[60]  CFH 6041/02 A v. B [2004] IsrSC 58(6) 246.

[61]  CA 2266/93 A v. B [1995] IsrSC 49(1) 221.

[62]  HCJ 5394/92 Hoppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3) 353.

[63]  CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [1993] IsrSC 47(5) 189.

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

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

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

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

[68]  HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [1998] IsrSC 52(2) 193.

[69]  HCJ 1074/93 Attorney-General v. National Labour Court [1995] IsrSC 49(2) 485; [1995-6] IsrLR 149.

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

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

[72]  HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [1981] IsrSC 35(4) 1; IsrSJ 8 21.

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

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

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

[76]  HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [2005] IsrSC 58(5) 412; [2005] (1) IsrLR 268.

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

[78]  EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [2003] IsrSC 57(3) 793.

[79]  LCA 9041/05 Imrei Hayyim Registered Society v. Wiesel (decision of 30 January 2006, not yet reported).

[80]  HCJ 9333/03 Kaniel v. Government of Israel (not yet reported).

[81]  LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.

[82]  HCJ 4676/94 Meatreal Ltd v. Knesset [1994] IsrSC 50(5) 15.

[83]  HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [2003] IsrSC 57(1) 750.

[84]  HCJ 1384/98 Avni v. Prime Minister [1998] IsrSC 52(5) 206.

[85]  HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

[86]  HCJ 5627/02 Saif v. Government Press Office [2004] IsrSC 58(5) 70; [2004] IsrLR 191.

[87]  EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.

[88]  CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 54(1) 721.

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

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

[91]  HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[92]  HCJ 6226/01 Indor v. Mayor of Jerusalem [2003] IsrSC 57(2) 157.

[93]  HCJ 490/97 Tenufa Manpower Services and Holdings Ltd v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

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

[95]  HCJ 278/73 Horeh v. Mayor of Tel-Aviv-Jaffa [1974] IsrSC 28(1) 271.

[96]  HCJ 6249/96 Israel Contractors and Builders Federation v. Sasson [1998] IsrSC 52(2) 42.

[97]  HCJ 552/04 Guzman v. State of Israel, TakSC 2005(3) 4.

[98]  HCJ 6268/00 Kibbutz HaHoterim Agricultural Cooperative Society v. Israel Land Administration [2001] IsrSC 55(5) 640.

[99]  HCJ 6893/05 Levy v. Government of Israel [2005] IsrSC 59(2) 876.

[100] AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

[101] EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.

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

[103] HCJ 13/86 Shahin v. IDF Commander in Judaea and Samaria [1987] IsrSC 41(1) 197.

[104] HCJ 9098/01 Ganis v. Ministry of Building and Housing [2005] IsrSC 59(4) 241; [2004] IsrLR 505.

[105] HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [1989] IsrSC 43(2) 22; IsrSJ 10 229.

[106] CrimA 2831/95 Alba v. State of Israel [1996] IsrSC 50(5) 221.

[107] CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

[108] HCJ 8172/02 Ibrahim v. IDF Commander in West Bank (not yet reported).

[109] HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [2004] IsrSC 58(5) 385; [2004] IsrLR 200.

[110] HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria [1996] IsrSC 50(1) 353.

[111] HCJ 482/71 Clark v. Minister of Interior [1973] IsrSC 27(1) 113.

[112] HCJ 754/83 Rankin v. Minister of Interior [1984] IsrSC 38(4) 113.

[113] HCJ 4156/01 Dimitrov v. Minister of Interior [2002] IsrSC 56(6) 289.

[114] HCJ 2527/03 Assid v. Minister of Interior [2004] IsrSC 58(1) 139.

[115] HCJ 758/88 Kendall v. Minister of Interior [1992] IsrSC 46(4) 505.

[116] HCJ 1689/94 Harari v. Minister of Interior [1997] IsrSC 51(1) 15.

[117] HCJ 9778/04 Alwan v. State of Israel (not yet reported).

[118] HCJ 282/88 Awad v. Prime Minister [1988] IsrSC 42(2) 424.

[119] HCJ 100/85 Ben-Israel v. State of Israel [1985] IsrSC 39(2) 45.

[120] HCJ 740/87 Bentley v. Minister of Interior [1990] IsrSC 44(1) 443.

[121] HCJ 576/97 Scharf v. Minister of the Interior (not yet reported).

[122] HCJFH 8916/02 Dimitrov v. Minister of Interior (unreported).

[123] HCJ 6708/04 Badar v. Minister of Interior (not yet reported).

[124] HCJ 8986/04 Riash v. Minister of Interior (not yet reported).

[125] HCJ 8030/03 Samuilov v. Minister of Interior (not yet reported).

[126] HCJ 3403/97 Ankin v. Minister of Interior [1997] IsrSC 51(4) 522.

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

[128] HCJ 24/01 Ressler v. Knesset [2002] IsrSC 56(2) 699.

[129] HCJ 4370/01 Lipka v. Minister of Interior [2003] IsrSC 57(4) 920.

[130] HCJ 1031/93 Pesaro (Goldstein) v. Minister of Interior [1995] IsrSC 49(4) 661.

[131] LCrimA 8472/01 Maharshak v. State of Israel [2005] IsrSC 59(1) 442.

[132] HCJ 2208/02 Salama v. Minister of Interior [2002] IsrSC 56(5) 950.

[133] AAA 9993/03 Hamdan v. Government of Israel (not yet reported).

[134] HCJ 2455/95 Dragma v. Minister of Interior (unreported).

[135] HCJ 7206/96 Mansour v. Minister of Interior (unreported).

[136] HCJ 1227/98 Malevsky v. Minister of Interior [1998] IsrSC 52(4) 690.

[137] HCJ 442/71 Lansky v. Minister of Interior [1972] IsrSC 26(2) 337.

[138] HCJ 7061/05 A v. Minister of Interior (not yet reported).

[139] HCJ 5304/02 Israel Victims of Work Accidents and Widows of Victims of Work Accidents Association v. State of Israel [2005] IsrSC 59(2) 135.

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

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

[142] HCJ 4915/00 Communications and Productions Network Co. (1992) Ltd v. Government of Israel [2000] IsrSC 54(5) 451.

[143] HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[144] CrimA 3439/04 Bazak (Bouzaglo) v. Attorney-General (not yet reported).

[145] CA 621/69 Nissim v. Euster [1970] IsrSC 24(1) 617.

[146] CA 79/83 Attorney-General v. Shukran [1985] IsrSC 39(2) 690.

[147] CA 6434/00 Danino v. Mena [2002] IsrSC 56(3) 683.

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

[149] CA 6106/92 A v. Attorney-General [1994] IsrSC 489(2) 833.

[150] CA 549/75 A v. Attorney-General [1976] IsrSC 30(1) 459.

[151] CA 1212/91 LIBI The Fund for Strengthening Israel’s Defence v. Binstock [1994] IsrSC 48(3) 705; [1992-4] IsrLR 369.

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

[153] HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [1991] IsrSC 55(4) 800.

[154] ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258.

[155] HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [1992] IsrSC 52(3) 346.

[156] HCJ 7862/04 Abu Dahar v. IDF Commander in Judaea and Samaria [2005] IsrSC 59(5) 368; [2005] (1) IsrLR 136.

[157] HCJ 6358/05 Vaanunu v. Home Front Commander (not yet reported).

[158] HCJ 5578/02 Manor v. Minister of Finance [2005] IsrSC 59(1) 729.

[159] CA 5604/94 Hemed v. State of Israel [2004] IsrSC 58(2) 498.

[160] HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [1997] IsrSC 51(3) 46.

[161] CrimA 6696/96 Kahane v. State of Israel [1998] IsrSC 52(1) 535.

[162] LCA 6709/98 Attorney-General v. Moledet-Gesher-Tzomet List for Elections to Upper Nazareth Local Authority [1999] IsrSC 53(1) 351.

[163] HCJ 448/85 Dahar v. Minister of Interior [1986] IsrSC 40(2) 701.

[164] HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.

[165] HCJ 494/03 Physicians for Human Rights v. Minister of Finance [2005] IsrSC 59(3) 322.

[166] HCJ 8093/03 Artmeyer v. Ministry of Interior (not yet reported).

[167] HCJ 4906/98 Free People Society for Freedom of Religion, Conscience, Education and Culture v. Ministry of Housing [2000] IsrSC 54(2) 503.

[168] HCJ 680/88 Schnitzer v. Chief Military Censor [1988] IsrSC 42(4) 617; IsrSJ 9 77.

[169] CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[170] HCJFH 4418/04 Government Press Office v. Saif (not yet reported).

[171] HCJ 258/79 Amira v. Minister of Defence [1980] IsrSC 34(1) 90.

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

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

[174] HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures (unreported).

[175] HCJ 73/85 Kach Faction v. Knesset Speaker [1985] IsrSC 39(3) 141.

[176] CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) (unreported).

[177] CA 506/88 Shefer v. State of Israel [1994] IsrSC 48(1) 87; [1992-4] IsrLR 170.

[178] HCJ 4827/05 Man, Nature and Law Israel Environmental Protection Society v. Minister of Interior (not yet reported).

[179] HCJ 7190/05 Lobel v. Government of Israel (not yet reported).

[180] HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women v. Council for Cable TV and Satellite Broadcasting [2004] IsrSC 58(3) 65; [2004] IsrLR 20.

[181] HCJ 6126/94 Szenes v. Broadcasting Authority [1999] IsrSC 53(3) 817; [1998-9] IsrLR 339.

[182] HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[183] HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

 

American cases cited:

[184]  Schenck v. United States, 249 U.S. 47 (1918).

[185]  Korematsu v. United States, 323 U.S. 214 (1944).

[186] Roberts v. United States Jaycees, 468 U.S. 609 (1984).

[187] Griswold v. Connecticut, 381 U.S. 479 (1965).

[188] Loving v. Virginia, 388 U.S. 1 (1967).

[189] Lawrence v. Texas, 123 S. Ct. 2472 (2003).

[190] Fiallo v. Bell, 430 U.S. 787 (1977).

[191] Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990).

[192] Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal (2006) (not yet reported, decision of 21 February 2006).

[193] Aptheker v. Secretary of State, 378 U.S. 500 (1964).

[194] Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).

[195] Sugarman v. Dougall, 413 U.S. 634 (1973).

[196] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

[197] City of Richmond v. Carson, 488 U.S. 469 (1989).

[198] Johnson v. City of Cincinnati, 310 F.3d 484 (2002).

[199] Gratz v. Bollinger, 539 U.S. 244 (2003).

[200] Grutter v. Bollinger, 539 U.S. 982 (2003).

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

[202] Railway Express Agency v. New York, 336 U.S. 106 (1949).

[203] Knauff v. Shaughnessy, 338 U.S. 537 (1949).

[204] Ekiu v. United States, 142 U.S. 651 (1892).

[205] Landon v. Plasencia, 459 U.S. 21 (1982).

[206] Moore v. East Cleveland, 431 U.S. 494 (1977).

[207] United States v. Carroll Towing Co., 159 F.2d 169 (1947).

[208] Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

[209] Ex parte Milligan, 71 U.S. 2 (1886).

[210] Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947).

[211] Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

[212] Roe v. Wade, 410 U.S. 113 (1973).

[213] Southern Pac.Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498 (1911).

 

Australian cases cited:

[214] Macabenta v. Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202.

 

Canadian cases cited:

[215] R. v. Sharpe [2001] 1 S.C.R. 45.

[216] Irwin Toy Ltd. v. Quebec (Attorney General) [1989] 1 S.C.R. 927.

[217] Canadian Council of Churches v. Canada [1992] 1 S.C.R. 236.

[218] New Brunswick (Minister of Health and Community Services) v. G [1999] 3 S.C.R. 46.

[219] R. v. Keegstra [1990] 3 S.C.R 697.

[220] McKinney v. University of Guelph [1990] 3 S.C.R. 229.

[221] Libman v. Quebec (Attorney-General) [1997] 3 S.C.R. 569.

[222] RJR–MacDonald Inc. v. Canada (Attorney-General) [1995] 3 S.C.R 199.

[223] Edwards Books and Art Ltd. v. R. [1986] 2 S.C.R. 713.

 

English cases cited:

[224] Liversidge v. Anderson [1941] 3 All ER 338.

[225] R. v. Governor of Pentonville Prison [1973] 2 All ER 741.

[226] R (on the application of the Crown Prosecution Service) v. Registrar General of Births, Deaths and Marriages [2003] 1 All ER 540 (C.A.).

[227] Re Connor, an Application for Judicial Review [2004] NICA 45; [2005] NI 322 (C.A.).

[228] Secretary of State for the Home Department v. Rehman [2001] UKHL 47; [2002] 1 All ER 122.

[229] A v. Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68.

 

European Court of Human Rights cases cited:

[230] Berrehab v. Netherlands (1988) 11 E.H.R.R. 322.

[231] Moustaquim v. Belgium (1991) 13 E.H.H.R. 82.

[232] Ciliz v. Netherlands (2000) 33 E.H.R.R. 623.

[233] Carpenter v. Secretary of State, ECR I-6279 (2002).

[234] Campbell v. United Kingdom (1993) 15 E.H.R.R. 137.

[235] Abdulaziz Cabales and Balkandali v. U.K. (1985) 7 E.H.R.R. 471.

[236] Ahmut v. The Netherlands, no. 21702/93 [1996] ECHR 61.

[237] Gül v. Switzerland, no. 23218/94 [1996] ECHR 5.

 

German cases cited:

[238] BVerfGE 76, 1 (1987).

[239] BVerfGE 6, 389 (1957).

[240] BVerfGE 19, 342 (1965).

 

Irish cases cited:

[241] Fajujonu v. Minister of Justice [1990] 2 IR 151.

 

South African cases cited:

[242] Dawood v. Minister of Home Affairs, CCT 35/99; 2000 (3) SA 936 (CC).

[243] Makinana v. Minister of Home Affairs, (Cape of Good Hope) Case No 339/2000, 8 February 2001, unreported).

[244] Booysen v. Minister of Home Affairs, CCT 8/01; 2001 (4) SA 485 (CC).

 

Jewish law sources cited:

[245]  Genesis 1, 27; 2, 18; 2, 24.

[246]  Ecclesiastes 3, 1; 3, 8.

 

For the petitioners in HCJ 7052/03 — H. Jabarin, O. Cohen.

For the petitioners in HCJ 7102/03 — D. Holtz-Lechner.

For the petitioners in HCJ 7642/03 and HCJ 7643/03 — Tz. Sasson.

For the petitioners in HCJ 8099/03 — D. Yakir, S. Avraham-Weiss.

For the petitioners in HCJ 8263/03 — M. Halila.

For the petitioners in HCJ 10650/03 — A. Lustigman

For the State — Y. Gnessin, D. Marks.

For Jewish Majority in Israel — Z. Ferber

 

 

JUDGMENT

 

 

President A. Barak

The Citizenship and Entry into Israel Law (Temporary Provision), 5753-2003, provides that the Minister of the Interior shall not grant citizenship to a resident of Judaea, Samaria or the Gaza Strip (the ‘area’ or the ‘territories’), nor shall he give him a permit to live in Israel. The law also provides that the area commander shall not give such a resident a permit to stay in Israel. This provision does not apply to Israelis who live in the territories. It has several qualifications. It prevents, inter alia, the possibility of family reunification between an Israeli Arab and his or her Arab spouse who lives in the territories (where the husband from the territories is under the age of 35 or the wife from the territories is under the age of 25). This provision also imposes restrictions on the contact between a parent who is an Israeli resident and his child who is registered in the population register in the territories. The purpose underlying these provisions is security. It is intended to prevent the realization of the danger, which has occurred in the past, that a man from the territories, who was given the possibility of living in Israel with his Israeli wife, may assist persons involved in hostile terror activity. The law is not based on any ‘demographic’ purpose of restricting the increase of the Arab population in Israel. Against this background, the question arises whether the provisions of the Citizenship and Entry into Israel Law unlawfully violate the right of the Israeli spouses and children. The question is not what is the right of the foreign spouses in the territories. The question is whether the provisions of the law, in so far as they apply to the reunification of families between an Israeli Arab spouse and his or her Arab spouse living in the territories, and to the contact between parents who are Israeli residents and their children registered in the territories, are constitutional. Do they violate the human dignity of the Israeli spouse or parents? Is the violation lawful? These are the questions before us.

A. The security and normative background

(1) The security background

1.    In September 2000, the second intifada broke out. An intense barrage of terror descended upon the State of Israel. Most of the terror attacks were directed against civilians. They harmed men and women, the elderly and children. Complete families lost their loved ones. The attacks were intended to harm human life. They were intended to sow fear and panic. They sought to disrupt the way of life of Israeli citizens. The terror attacks are carried out inside Israel and in the territories. They take place everywhere. They hurt people on public transport, at shopping centres and markets, at cafés and inside homes and towns. The main target of the attacks is town centres in Israel. The attacks are also directed at Israeli towns in the territories and at traffic arteries. The terror organizations make use of various methods, including suicide attacks (‘live human bombs’), car bombs, placing explosive charges, throwing Molotov cocktails and grenades and shooting firearms, mortars and rockets. Several attempts to attack strategic targets failed. From the beginning of the acts of terror until January 2006, more than 1,500 attacks were made within the State of Israel. More than one thousand Israelis lost their lives within the State of Israel. Approximately six thousand and five hundred Israelis were injured. Many of the injured were severely disabled. On the Palestinian side also the armed conflict has caused many dead and injured. The bereavement and suffering overwhelm us (for a description of this situation, see, inter alia, HCJ 7015/02 Ajuri v. IDF Commander in West Bank [1], at p. 358 {87}; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2]).

2.    The State of Israel took a series of steps to protect the lives of its residents. Inter alia, military operations were carried out against the terror organizations, including the ‘Protective Wall’ operation (March 2002) and the ‘Determined Path’ operation (June 2002) (see HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [3]; HCJ 3278/02 Centre for Defence of the Individual v. IDF Commander in West Bank [4]). It was decided to build a separation fence that would make it harder for terrorists to carry out attacks against Israelis, and would facilitate the struggle of the security forces against the terrorists (see Beit Sourik Village Council v. Government of Israel [2]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [5]).

3.    Among these steps, restrictions were imposed on the entry of residents of the territories into the State of Israel, because, according to the assessment of the security establishment, the entry into Israel of residents of the territories, and their unrestricted movement within it, significantly endangers the safety and security of the citizens and residents of the State of Israel. Against this serious security reality, and in view of these security arrangements, the Citizenship and Entry into Israel Law (Temporary Provisions), 5763-2003, (hereafter — ‘the Citizenship and Entry into Israel Law’ or ‘the law’) was also enacted. Subject to qualifications, the law prevents residents of the territories from entering the State of Israel. Within this framework, restrictions were also imposed, inter alia, on the reunification of families where one spouse is an Arab with Israeli citizenship or a permanent resident in Israel (mainly in Jerusalem) and the other is a resident of the territories. What underlies this arrangement is the concern that allowing residents of the territories to take up residence in Israel by means of marriage and reunification of families would be abused for the purposes of the armed conflict. This concern was based, inter alia, on the actual involvement of residents of the territories, who received a status in Israel by virtue of their marriage to Israelis, in acts of terror that were perpetrated within the State of Israel. The respondents claim that twenty-six of the residents of the territories who received a status in Israel as a result of marriage were involved in terror activity. Some of these were involved in carrying out the attacks themselves. Some assisted in bringing terrorists into Israel. Some assisted in gathering intelligence about targets for attacks. This concern was also based on the future risk arising from the contacts which the residents of the territories who become residents of Israel maintain with their relations and other residents of the territories, including persons involved in terror activity. So the background that led to the enactment of the Citizenship and Entry into Israel Law is the serious security reality that has prevailed in Israel in recent years, and the security threat to the citizens and residents of the State of Israel from the acts of terror organizations. An element of this threat is the involvement of Palestinians, who are residents of the territories and acquired a status in Israel as a result of their marriage and family reunification, in acts of terror that were committed inside the State of Israel, and the future threat deriving from these persons, according to the State. The Citizenship and Entry into Israel Law is intended to contend with these threats.

(2) The normative background

4.    At first, restrictions were imposed on the reunification of families by virtue of a government decision. In 2002 the government determined (decision no. 1813) a new procedure for dealing with the ‘policy of family reunifications concerning residents of the Palestinian Authority and foreigners of Palestinian origin.’ The decision (of 12 May 2002) said:

‘B. Policy concerning family reunifications

In view of the security position, and because of the ramifications of immigration processes and the residency of foreigners of Palestinian origin in Israel, including by means of family reunifications, the Ministry of the Interior, together with the relevant government ministries, shall formulate a new policy for dealing with applications for family reunifications. Until this policy is formulated and finds expression in new procedures and legislation, as necessary, the following rules shall apply:

1.            Dealing with new applications, including applications in which no decision has yet been made

a.            A resident of the Palestinian Authority — no new applications shall be accepted from residents of the Palestinian Authority for a residency status or any other status; an application that has been submitted shall not be approved, and the foreign spouse shall be required to live outside Israel until any other decision is made.

b.            Others — the application shall be considered with reference to the origin of the person concerned.

2.            Applications that are in the staged process

During the interim, a permit that was given shall be extended, subject to the absence of any other impediment. There shall be no upgrading to a higher status.’

According to this procedure, the regular treatment of applications for family reunification was stopped, in so far as residents of the Palestinian Authority were concerned. Several petitions were filed in the High Court of Justice against this procedure (see, for example, HCJ 4022/02, HCJ 4608/02, HCJ 7316/02, HCJ 7320/02). No decision was made with regard to these petitions, since while they were pending, the Citizenship and Entry into Israel Law was enacted.

5.    On 6 August 2003, the Citizenship and Entry into Israel Law was published. In essence, it enshrined government policy. The law is valid for one year. It provides that the government may, with the approval of the Knesset, extend its validity in an order, for a period that shall not exceed one year each time (s. 5). When the year ended, the law was extended for six months (until 5 February 2005: see Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5764-2004, and the decision of the Knesset on 21 July 2004). At the end of this period, the validity of the law was extended for four additional months (until 31 May 2005: Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5765-2005, and the decision of the Knesset on 31 January 2005). At the end of this period, the law was extended for three additional months (until 31 August 2005: Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order (no. 2), 5765-2005, and the decision of the Knesset on 30 May 2005). At the same time, the government prepared drafts for amendments to the law which extended the qualifications to the law’s application (see the draft law in HatZaot Hok (Draft Laws) 5765 (2004-5) no. 173, at p. 560). The amended law was published on 1 August 2005. It stated that it was valid until 31 March 2006. By virtue of s. 38 of the Basic Law: the Knesset, the validity of the law was extended for an additional three months.

6.    The Citizenship and Entry into Israel Law contains five sections. It is set out below in its entirety:

‘Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003

Definitions

1.  In this law —

‘area’ — any of the following: Judaea, Samaria and the Gaza Strip;

 

‘Citizenship Law’ — the Citizenship Law, 5712-1952;

 

‘Entry into Israel Law’ — the Entry into Israel Law, 5712-1952;

 

‘area commander’ — for Judaea and Samaria — the IDF commander in Judaea and Samaria, and for the Gaza Strip — the IDF commander in the Gaza Strip or whoever is authorized by the Minister of the Interior, with the consent of the Minister of Defence;

 

‘resident of an area’ — whoever is registered in the population register of the area, and also whoever is living in the area even without being registered in the population register of the area, except for a resident of an Israeli town in an area.

Restriction on citizenship and residency in Israel

2.  As long as this law is valid, notwithstanding what is stated in any law including section 7 of the Citizenship Law, the Minister of the Interior shall not grant citizenship under the Citizenship Law to a resident of an area nor shall he give him a licence to reside in Israel under the Entry into Israel Law, and the area commander shall not give a resident as aforesaid a permit to stay in Israel under the security legislation in the area.

Permit for spouses

3.  Notwithstanding the provisions of section 2, the Minister of the Interior may, at his discretion, approve an application of a resident of the area to receive a permit to stay in Israel from the area commander —

 

(1) with regard to a male resident of an area whose age exceeds 35 years — in order to prevent his separation from his spouse who lives lawfully in Israel;

 

(2) with regard to a female resident of an area whose age exceeds 25 years — in order to prevent her separation from her spouse who lives lawfully in Israel.

Permit for children

3A. Notwithstanding the provisions of section 2, the Minister of the Interior, at his discretion, may —

 

(1) give a minor under the age of 14 years, who is a resident of an area, a licence to live in Israel in order to prevent his separation from his custodial parent who lives lawfully in Israel;

 

(2) approve an application to obtain a permit to live in Israel from the area commander for a minor under the age of 14 years, who is a resident of the area, in order to prevent his separation from his custodial parent who lives lawfully in Israel, provided that such a permit shall not be extended if the minor does not live permanently in Israel.

Additional permits

3B. Notwithstanding the provisions of section 2, the area commander may give a permit to stay in Israel for the following purposes:

 

(1) medical treatment;

 

(2) work in Israel;

 

(3) a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.

Special
permit

3C. Notwithstanding the provisions of section 2, the Minister of the Interior may grant citizenship or give a licence to live in Israel to a resident of an area, and the area commander may give a resident of an area a permit to stay in Israel, if they are persuaded that the resident of the area identifies with the State of Israel and its goals and that he or a member of his family has made a real contribution to promoting security, the economy or another important interest of the State, or that the granting of citizenship, giving the licence to live in Israel or giving the permit to stay in Israel, as applicable, are a special interest of the State; in this paragraph, ‘family member’ — spouse, parent, child.

Security impediment

3D. A permit to stay in Israel shall not be given to a resident of an area under section 3, 3A(2), 3B(2) and (3) and 4(2), if the Minister of the Interior or the area commander, as applicable, determines, in accordance with an opinion from the competent security authorities, that the resident of the area or his family member are likely to constitute a security risk to the State of Israel; in this section, ‘family member’ — spouse, parent, child, brother, sister and their spouses.

Transition provisions

4.  Notwithstanding the provisions of this law —

 

(1)    the Minister of the Interior or the area commander, as applicable, may extend the validity of a licence to live in Israel or of a permit to stay in Israel, which were held by a resident of an area prior to the commencement of this law, while taking into account, inter alia, the existence of a security impediment as stated in section 3D;

 

(2) The area commander may give a permit for a temporary stay in Israel to a resident of an area who filed an application to become a citizen under the Citizenship Law or an application for a licence to live in Israel under the Entry into Israel Law, before the first of Sivan 5762 (12 May 2002) and with regard to which, on the date of commencement of this law, no decision had been made, provided that a resident as aforesaid shall not be given citizenship, under the provisions of this paragraph, nor shall he be given a licence for temporary residency or permanent residency, under the Entry into Israel Law.

Validity

5.  This law shall remain valid until the second of Nissan 5766 (31 March 2006), but the government may, with the approval of the Knesset, extend its validity in an order, for a period that shall not exceed one year each time.’

B.    The petition and the hearing thereof

(1) The petitioners and the respondents

7.    Some of the petitioners before us are married couples to whom the Citizenship and Entry into Israel Law applies. Thus the second petitioner in HCJ 7052/03 is an Arab citizen of Israel, a resident of Kefar Lakia in the Negev, who is a lawyer by profession. He became acquainted with the third petitioner, a Palestinian resident of Bethlehem, who is a social worker by profession and a university lecturer, in 2000, when they studied together at a university in Canada. After they completed their education, and when the relationship between them became stronger, they decided to marry. They became engaged on 20 February 2003, and on the same occasion they made a marriage agreement that was given validity by the Sharia Court in Jerusalem. Their application to give a status in Israel to the third petitioner (which was filed on 19 March 2003) was rejected (on the basis of government decision no. 1813). The marriage ceremony took place on 11 July 2003. For the purpose of the ceremony, the third petitioner was permitted to stay in Israel for one week only. Since then she has not been allowed to enter Israel. The fourth petitioner in HCJ 7052/03 is an Arab woman who is an Israeli citizen living in Shefaram and whose profession is teaching literature, which she does at the Sahnin Technological High School. After an acquaintance of one year, on 6 November 1999 she married the fifth petitioner, a Palestinian from Shechem, who is an electrician by profession and worked in Nazareth and whose stay in Israel was lawful. The spouses live in Shefaram and they have two daughters (the sixth and seventh petitioners). The fourth petitioner applied to the Ministry of the Interior in the area where she lives in order to obtain a residency licence for her husband. The fifth petitioner was given a temporary licence to stay in Israel. As a result of the government’s decision, the process in which the fifth petitioner was becoming a citizen was stopped, and since then he has been staying in Israel by virtue of temporary permits that are renewed from time to time, at the discretion of the Minister of the Interior. The first petitioner in HCJ 8263/03 is an Arab citizen of Israel who lives in Haifa. On 12 July 2002, he married the second petitioner, a Palestinian from the Hebron area, and they have a son. The petitioners’ application for the second petitioner to be given a status was rejected on the basis of the government’s decision, and now the Citizenship and Entry into Israel Law prevents the possibility of them entering into the staged process in order to obtain a status for the second petitioner. The petitioners claim that they cannot go to live in the territories, inter alia, in view of the danger that threatens the life of the second petitioner. The first petitioner in HCJ 7082/03 is an Arab citizen of Israel, who lives in Beit Tzafafa in Jerusalem. On 21 December 2002 he married the second petitioner, a Palestinian from nearby Beit Sahour. At the beginning of 2003, their application was filed to obtain a status for the second petitioner in Israel. The application was rejected in view of the government’s decision, and subsequently the Citizenship and Entry into Israel Law came into effect. The first petitioner in HCJ 10650/03 was born in Jerusalem and is a resident of the State of Israel. In 1988 she married a resident of Ramalla and went to live with him. In 2000 the petitioner returned to live in Jerusalem. The couple have seven children. The oldest of these is sixteen and the youngest is three. Four of the children were born while she was living in the territories, and they were registered in the population register there. After she returned to live in Jerusalem, she applied, in 2002, for her children to be given the status of residents. Her request was rejected in view of the government’s decision, and subsequently the Citizenship and Entry into Israel Law came into effect.

8.    We therefore have before us various kinds of petitioners who are injured by the law. The petitioners with a personal interest in the clarification of the petitions are married couples, where one of the couple is an Israeli Arab and the other is a Palestinian Arab who is a resident of the territories. Some of them have children. The cases of some of the couples were not dealt with in view of the government’s decision and the Citizenship and Entry into Israel Law that incorporated it into legislation. The cases of other petitioners are undergoing the staged process, but the law prevents the process from being completed and it prevents the Palestinian spouse from being given Israeli citizenship. In addition to the petitioners with a personal interest, we have many public petitioners, including Knesset members (MK Taleb El-Sana, MK Mohammed Barakeh, MK Azmi Bishara, MK Abdulmalik Dehamshe, MK Jamal Zahalka, MK Wasil Taha, MK Ahmad Tibi, MK Issam Makhoul, MK Zahava Gal-On and MK Roman Bronfman), Knesset factions (the Meretz faction), the Supreme Monitoring Committee for Arab Affairs in Israel and human rights organizations (Adalah, the Association for Civil Rights in Israel, the Centre for the Defence of the Individual). The respondents are the Minister of the Interior and the attorney-general.

(2) The claims of the petitioners

9.    The petitioners claim that the Citizenship and Entry into Israel Law is unconstitutional, since it unlawfully violates rights that are enshrined in the Basic Law: Human Dignity and Liberty, on the basis of ethnic and national groupings. The petitioners claim that the law violates the right of citizens of the State who wish to be united with their spouses or their children in order to have a family life in their country. They claim that this violation breaches the right of the Arab citizens of Israel to equality, and the discrimination in this violates human dignity. The Citizenship and Entry into Israel law prevents the spouse of an Israeli citizen from becoming a citizen, if the spouse lives in the territories and is not a resident of an Israeli town there. Since the vast majority of those persons who are married to residents of the territories (who do not live in an Israeli town) are Arab citizens, it follows that the law mainly injures the Arab citizens of Israel. Therefore, this is a case of a discriminatory denial of rights, on an ethnic basis or a national basis. Against this background, the petitioners claim that the Citizenship and Entry into Israel Law should not be regarded as applying merely to immigration policy, but one should also focus on the injury that it causes to Israeli citizens and residents. They claim that the law besmirches a whole sector of the public with the suspicion of disloyalty to the State and classifies it as being a security risk. The petitioners claim that all of these involve a serious and mortal blow to the right of equality and the right to human dignity. The petitioners claim that the law violates additional basic rights enshrined in the Basic Law: Human Dignity and Liberty. Thus they claim that it violates the private life of Arab citizens who are married to residents of the territories that do not live in Israeli towns. The right to personal freedom is also violated. Furthermore, the natural right of a parent to have contact with his child and the right to build a family are violated. In all these respects, the petitioners claim that the Citizenship and Entry into Israel Law violates the provisions of international law that recognize the rights of marriage, family life and the reunification of families. In addition, the petitioners claim that the law applies retroactively to couples whose cases were pending, and so it also violates the right of due process.

10. The petitioners further claim that the violation of the basic rights that they indicate does not satisfy the limitations clause in the Basic Law, and therefore the Citizenship and Entry into Israel Law should be declared void. In so far as the purpose of the law is concerned, their claim is that it is an improper one. They claim that the sections of the law have no internal logic, and this indicates that the purpose of the law is not a security purpose at all. From the provisions of the law it appears that the legislature is prepared to allow the entry of Palestinian workers into Israel, but it is not prepared to permit the entry of parents and spouses so that they may have a family life. Therefore the purpose that appears from the Citizenship and Entry into Israel Law is to prevent the persons who are requesting visas for family purposes from entering or staying in Israel. The petitioners point to the desire of the Ministry of the Interior, which was already apparent in 2002, to reduce the phenomenon of the reunification of families with Palestinian spouses for demographic reasons. They also deduce the demographic purpose from the chart that was presented to the government before it made its decision (on 12 May 2002), which concerned this factor, and from the remarks of those participating in the Knesset debates before the Citizenship and Entry into Israel Law was enacted. In view of this, the petitioners claim that the purpose of the law is improper and does not befit the values of the State of Israel. The petitioners further claim that the severe violation caused by the law to human rights is disproportionate. According to them, it is possible to examine the security concern inherent in the Palestinian spouses on an individual basis, and there is no basis for denying the possibility of family reunification for a whole sector of the public because of the wrongdoing of individuals. This is especially the case when, from the respondents’ figures, it can be seen that the involvement of those who became citizens in terror activities, notwithstanding the severity with which this should be regarded, is very marginal. According to the petitioners, the purpose of the staged process followed by the Ministry of the Interior was, inter alia, to allay security concerns. Therefore, there is no basis for cancelling it and replacing it with a law that creates an absolute prohibition against the possibility of family reunification.

11. In addition to the substantive claims against the contents of the law, the petitioners further claim that defects occurred, according to them, in the legislative process of the Citizenship and Entry into Israel Law. Thus, when the draft law was considered, it was alleged that there was a security need for enacting it, in view of the increasing involvement in terror attacks on the part of Palestinians who received a status in Israel by virtue of family reunifications. But no exact data was provided about the number of the persons who received a status in Israel, how many of these were children and how many adults, and what was the extent of their involvement in terror. Moreover, the effects of the Citizenship and Entry into Israel Law on the rights of children were not considered, although this was required by the provisions of the Providing Information on the Effect of Legislation on Children’s Rights Law, 5762-2002. The petitioners also claim that the Internal Affairs Committee was not given an opportunity to hold a debate with regard to objections made regarding the constitutionality of the law. According to them, these defects go to the heart of the legislative process, to an extent that justifies the voidance of the law.

(3) The claims of the respondents

12. The respondents reject the claims of the petitioners. According to them, the Citizenship and Entry into Israel Law is constitutional. They focus on the security background that led to its enactment, and its security purpose. The Israeli-Palestinian conflict underwent a change in September 2000, and the terror activity component in it increased significantly. Many Israelis lost their lives as a result of this activity. Within the context of the armed conflict between the Palestinians and Israel, the Palestinian side avails itself, in some cases, of Arab citizens of the State of Israel, and especially persons who were residents of the territories and received a status in Israel as a result of the family reunification process. To the best of the knowledge of the security authorities, since 2001, twenty-six residents of the territories who received a status in Israel as a result of family reunifications were involved in real aid and assistance to terror attacks against Israelis. In these attacks, fifty Israelis were killed and more than a hundred were injured. Therefore, the assessment of the security forces is ‘that there is a security need to prevent, at this time, the entry of residents of the territories, as such, into Israel, since the entry of residents of the territories into Israel and their free movement within the State by virtue of the receipt of Israeli documentation is likely to endanger, in a very real way, the safety and security of citizens and residents of the State’ (para. 3 of the respondents’ response of 3 November 2003). The respondents’ position is that giving a permit to stay in Israel for the purpose of permanent residence in Israel to a resident of a state or a political entity that is waging an armed conflict with Israel involves a security risk, since the loyalty and commitment of that person is to the state or the political entity that is involved in a conflict with Israel. The respondents’ position is that ‘within the context of the loyalty and commitment of that person, and his close ties to the territory where and whence the terror against the State of Israel originates, it is possible to exert pressure on someone whose family continues to live in such a place so that he will help the terror organizations, if he does not want any harm to come to his family’ (para. 13 of the state’s response dated 6 November 2005).

13. The respondents emphasize that the purpose of the law is to reduce the danger of harm to the lives of Israeli citizens and residents. It is the duty of the State to protect its citizens. It is also its right to act in self-defence. Preventing persons from the territories from entering or staying in Israel is based upon a security concern, which is not theoretical, of an almost certain risk to public security and safety. The respondents reject the claim that the Citizenship and Entry into Israel Law suffers from a lack of internal logic; admittedly, the law retains the possibility of allowing Palestinian workers from the territories to enter Israel, but the entry of these is restricted to periods of calm, and it is easy to supervise their stay in Israel, unlike Palestinian spouses who stay in Israel on a permanent basis. A large-scale entry of residents of the territories into Israel is dangerous. Their free movement in Israel is likely to endanger significantly the safety and security of the citizens and residents of Israel.

14. The respondents claim that the law does not violate the human rights enshrined in the Basic Law: Human Dignity and Liberty. First, in so far as we are concerned with the rights of foreigners who wish to immigrate into Israel, there is no constitutional right that a foreigner may immigrate into Israel for any reason, including marriage. Moreover, our law, like the law practised around the world, recognizes a wide discretion given to the state in determining its immigration policy. As a rule, the state is not required to give reasons to a foreigner as to why it refuses to allow his entry into it. Second, the respondents are of the opinion that the law also does not violate the rights of the Israeli citizens enshrined in the Basic Law: Human Dignity and Liberty. Their fundamental position is that the Basic Law should be interpreted in accordance with the social consensus that prevailed at the time it was enacted. According to this consensus, the right of human dignity should be given its basic meaning that includes protection against blatant violations of human dignity — physical and emotional violations, humiliation, degradation, etc. — and there is no basis for including in it the whole scope of the right of equality or the right to family life. According to them, both constitutional history and the objective and subjective intention of the constitutive authority support this conclusion. Third, the respondents’ claim is that there is no need at all to consider the question of the circumstances in which a violation of equality will amount to a violation of the constitutional right to dignity, since the law does not violate the right to equality. The distinction that the law makes is an objective and justified distinction in the circumstances of the case, namely that a person belongs to a political entity that is in an armed conflict with the State of Israel. The respondents’ view is that improper discrimination exists only where citizens are treated differently because of an irrelevant difference (such as sex, religion, race and nationality). But the law does not make any distinctions on the basis of the characteristics of the Israeli spouses, only a distinction based on certain characteristics of the foreign spouse. Therefore, there is no basis for the claim of discrimination and the claim of a violation to the constitutional right to equality. Fourth, the respondents further claim that the law does not violate any other basic rights enshrined in the Basic Law: Human Dignity and Liberty. Thus, as they understand it, the right of the petitioners to freedom is not violated, since there is no violation of the right to freedom by means of imprisonment, arrest, extradition or the like. The right of privacy is also not violated, since the law denies benefits in the field of immigration only, and it does not affect the individual’s freedom to choose a spouse. In so far as the right to family life is concerned, the respondents claim that the temporary provision ‘does not prevent family life, nor does it limit the autonomy of choosing a spouse, nor does it deny the right to family life in principle, but it does not allow the realization of the right specifically in the State of Israel’ (para. 35 of the response dated 3 November 2005). If so, the law does not prevent the choice of spouse, but merely does not allow the realization of the right specifically in Israel. This realization is not protected by the Basic Law: Human Dignity and Liberty. With regard to the international conventions to which the petitioners refer, the respondents claim that these are not a part of internal Israeli law, and that even on the merits their provisions are subject to restrictions of national security. According to them, international law protects the right of a person who is staying in a country to leave it and to move freely within it, but the right of entry into the state is reserved for the citizens of the state only. Contractual international law, which concerns the protection of the family unit, does not provide an obligation on the part of the state to allow the entry of the foreign spouse into its territory for the purpose of living there. Moreover, the Basic Law: Human Dignity and Liberty allows every person to leave Israel (s. 6(a)), but allows only a citizen to enter Israel (s. 6(b)). Against this background, the respondents claim that there is, in this case, no violation of the rights enshrined in the Basic Law.

15. Finally, the respondents claim that even if the law violates rights under the Basic Law, these violations still satisfy the requirements of the limitations clause. First, the respondents emphasize that we are dealing with temporary provisions that are of a transient nature. Second, they claim that the right to life of the persons living in the State of Israel and the interest in protecting their security is a proper purpose that befits the values of the State of Israel. The fact that the purpose of the law is to protect the right to life, which is a basic right, should affect the examination of the law in accordance with the tests of the limitations clause. Taking this into account, their third claim is that the law also satisfies the requirement of proportionality. The respondents point to the difficulty inherent in their being able to examine the cases of persons requesting a status in Israel on an individual basis. In the case of many applicants, and especially those that live in the areas of the Palestinian Authority (areas A and B), there is no security information. The fact that there is no negative security information concerning an applicant does not mean that he is not involved in activity harmful to security. In addition, even someone who has already received a permit to stay in Israel may be recruited by terror activists. The respondents are of the opinion that the provisions of the law are not retroactive. The law does not apply to requests that were filed or approved before it came into effect. In addition, the respondents refer to the transition provisions that allow the extension of the validity of a licence to live or stay in Israel. Finally, the respondents claim that the legislative process was proper and that the provisions of the law were considered carefully, and even underwent important changes in the course of the deliberations that were held with regard to it.

(4) The hearing of the petitions

16. The petitions against the Citizenship and Entry into Israel Law were filed shortly after it was enacted. After we heard the arguments of the parties, an order nisi was made (on 9 November 2003). Interim orders were also made to prevent the deportation of the Palestinian petitioners staying in Israel. Other applications for interim orders, and an application for an interim order that would prevent the law from coming into effect, were denied. It was decided that the petitions would be heard before an extended panel of the court. We also decided to join as a respondent to the petitions the ‘Victims of Arab Terror’ association, which emphasized the right of Israeli citizens to a quiet and safe life. We also decided to join as a respondent the ‘Jewish Majority in Israel’ association, which emphasized the demographic consideration according to which the Jewish majority in Israel should be preserved. Before we had time to make a decision on the petitions, a year passed from the date on which the law was published, and the Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5764-2004, was published; this extended the validity of the law by an additional six months. Together with the decision to extend the validity of the law by half a year, the government adopted a decision to prepare an amendment to the law that would make changes to it, and in particular expand the qualifications to the application of the law. In view of this, we were of the opinion (in a decision on 14 December 2004) that our judgment should be given on the basis of the new normative reality that was about to be created. Before the process of amending the law was completed, the six months expired, and the Citizenship and Entry into Israel (Temporary Provision) (Extension of the Validity of the Law) Order, 5765-2005, was published; this extended the validity of the law for an additional four months, for the purpose of completing the legislative process. In view of the restricted period of the extension of the law’s validity, we decided (on 1 March 2005) that we ought to allow the legislator to complete the complex legislative process. The legislative process was completed. The amended law was published. After the amendment, we again (on 14 February 2006) heard the arguments of the parties and studied the supplementary arguments. The time has come to decide the petitions on their merits.

C.    The questions that require a decision and the methods of deciding them

(1) The questions that require a decision

17. The focus of the petitions before us is the Israeli spouse. The main question before us is whether the constitutional rights of the Israeli spouse have been violated unlawfully. The question is whether rights that were given to him in the Basic Law: Human Dignity and Liberty have been violated unlawfully. In view of the centrality of the right of the Israeli spouse and in view of my conclusion that the right of the Israeli spouse has been violated, I see no reason to consider the rights of the non-Israeli (foreign) spouse), whether under international law concerning human rights (such as the International Covenant on Civil and Political Rights, 1966, the International Covenant on Economic, Social and Cultural Rights, 1966, and the International Convention on the Elimination of All Forms of Racial Discrimination, 1965) or under humanitarian international law that applies to him because he lives in Judaea and Samaria, which are subject to a belligerent occupation (in this regard, see Marab v. IDF Commander in Judaea and Samaria [3] and A. Rubinstein & L. Orgad, ‘Human Rights, Security of the State and the Jewish Majority: the Case of Immigration for the Purposes of Marriage,’ 48 HaPraklit 315 (2006)). Indeed, even if the rights of the foreign spouse have been violated under international human rights law and humanitarian human rights law — and even if the rights of the Israeli spouse to the extent that they are enshrined only in those laws were violated — this violation was made by virtue of the Citizenship and Entry into Israel Law. Express local legislation is capable, from the internal viewpoint of Israeli law, of violating rights given in international law. No matter how much the latter constitutes customary international law, it is unable to overcome Israeli legislation that expressly violates it. This is not the case with the Israeli spouse under the Basic Law. In so far as he has rights under the Basic Law: Human Dignity and Liberty, an ordinary law (such as the Citizenship and Entry into Israel Law) cannot violate it lawfully, unless it satisfies the requirements of the limitations clause. This is the clear expression of Israel’s constitutional democracy. We adopted this approach with regard to the rights of the Israelis who were compelled to leave the Gaza Strip (see HCJ 1661/05 Gaza Coast Local Council v. Knesset [6]). According to the same normative system we should examine the constitutional rights of the Israeli spouses, in so far as the Citizenship and Entry into Israel Law violates them. Naturally, we cannot ignore the foreign spouse. We should recognize his rights and the effect of those on his life and the life of his Israeli spouse. Nonetheless, from the viewpoint of legal analysis, we will focus on the Israeli spouse, because he can call upon the Basic Law: Human Dignity and Liberty to support his case.

(2) The constitutional scrutiny

18. According to the petitioners, the two main rights that this law violates are the right to family life and the right to equality. Their position is that these rights are enshrined in the Basic Law: Human Dignity and Liberty, and they are violated in defiance of the conditions set out in the limitations clause. The scrutiny of a claim against the constitutionality of the Citizenship and Entry into Israel Law is done in three stages (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [7]; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [8]; HCJ 6055/95 Tzemah v. Minister of Defence [9]; HCJ 1030/99 Oron v. Knesset Speaker [10]; HCJ 4769/95 Menahem v. Minister of Transport [11]; Gaza Coast Local Council v. Knesset [6]). The first stage examines whether the law — in our case the Citizenship and Entry into Israel Law — violates a human right enshrined in the Basic Law. If the answer is no, the constitutional scrutiny ends, since an ordinary law, which contains an express provision, may violate a human right that is enshrined in an earlier ordinary law or in Israeli common law (see, for example, HCJ 4128/02 Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12]). If the answer is yes, the legal analysis passes on to the next stage. In the second stage, we examine the question whether the violation of the right satisfies the requirements of the limitations clause. Indeed, not every violation of a human right is an unlawful violation. Sometimes a law violates a constitutional human right, but the constitutionality of the law is upheld, since the violation satisfies the requirements of the limitations clause (see, for example, HCJ 2334/02 Stanger v. Knesset Speaker [13]; HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14]). If the violation of the constitutional arrangement is lawful, the constitutional examination ends. If the violation is unlawful, the analysis continues on to the next stage. This third stage examines the consequences of the unconstitutionality. This is the relief or remedy stage.

(3) Is there a basis for constitutional scrutiny in times of war?

19. It may be argued that the cases before us deal with the prevention of terror in a time of war. They are not usual cases of preventing family reunification. We are dealing with an exceptional case of family reunification, where the spouse or child of the person claiming his constitutional right to family reunification is situated in an area which is in a state of war with the State of Israel. In such circumstances — so the argument would continue — the ordinary laws concerning the three-stage constitutional scrutiny should not be applied. This situation falls outside the normal framework. It is a matter of existence. À la guerre comme à la guerre; the security need prevails over the right of the individual.

20. I cannot accept this argument. The Basic Laws do not recognize two sets of laws, one that applies in times of peace and the other that applies in times of war. They do not contain provisions according to which constitutional human rights recede in times of war. Thus, for example, section 50 of the Basic Law: the Government, which authorizes the government to enact emergency regulations, states expressly that ‘Emergency regulations are incapable of… permitting a violation of human dignity’ (subsection (d)). The Basic Law: Human Dignity and Liberty further provides that ‘It is permitted to enact emergency regulations… which will contain a denial or restriction of rights under this Basic Law, provided that the denial or restriction are for a proper purpose and for a period and to a degree that are not excessive’ (s. 12). Indeed, Israeli constitutional law has a consistent approach to human rights in periods of relative calm and in periods of increased fighting. We do not recognize a clear distinction between the two. We do not have balancing laws that are unique to times of war. Naturally, human rights are not absolute. They can be restricted in times of calm and in times of war. I do not have a right to shout ‘fire’ in a theatre full of spectators (see the analogy of Justice Holmes in Schenck v. United States [184], at p. 52, which was cited in CrimApp 5934/05 Malka v. State of Israel [15], at p. 843). War is like a barrel full of explosives next to a source of fire. In times of war the likelihood that damage will occur to the public interest increases and the strength of the harm to the public interest increases, and so the restriction of the right becomes possible within the framework of existing criteria (see HCJ 316/03 Bakri v. Israel Film Council [16], at p. 283 {523-524}). Indeed, we do not have two sets of laws or balances, one for times of calm and the other for times of terror. This idea was well expressed by Lord Atkin more than sixty-five years ago, during the Second World War, in a minority opinion where he said:

‘In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which… we are now fighting, that the judges… stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law’ (Liversidge v. Anderson [224], at p. 361).

21. Moreover, there is no possibility of making a clear distinction between the status of human rights in times of war and their status in times of peace. The dividing line between terror and calm is a fine one. This is the case everywhere. It is certainly the case in Israel. There is no possibility of maintaining it over time. We must treat human rights seriously both in times of war and in times of calm. We must free ourselves from the naïve belief that when terror ends we will be able to put the clock back. Indeed, if we fail in our task in times of war and terror, we will not be able to carry out our task properly in times of peace and calm. From this viewpoint, a mistake by the judiciary in a time of emergency is more serious than a mistake of the legislature and the executive in a time of emergency. The reason for this is that the mistake of the judiciary will accompany democracy even when the threat of terror has passed, and it will remain in the case law of the court as a magnet for the development of new and problematic rulings. This is not the case with mistakes by the other powers. These will be cancelled and usually no-one will remember them. This was well expressed by Justice Jackson in Korematsu v. United States [185], where he said:

‘A judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty… A military order, however unconstitutional, is not apt to last longer than the military emergency… But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need… A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image’ (Korematsu v. United States [185], at p. 245).

22. Thus we see that there is only one track within which framework the petitions before us should be examined. This track is — with regard to any claim against the constitutionality of a statute — the track of the Basic Laws. Within the framework of this track, we should follow the well-trodden path of examining the constitutionality of the law. There is no parallel track; there is no alternative route. There is one path that applies at all times. It applies in times of calm. It applies in times of war.

D. Stages of the constitutional scrutiny: 1. Has a constitutional right been violated?

(1) The problems presented

23. It was argued before us that the Citizenship and Entry into Israel Law violates the right of the Israeli spouse to human dignity. This violation, so it is claimed, is two-fold: first, the right of the Israeli spouse to human dignity is violated, since his right to family life is violated; second, the right of the Israeli spouse to human dignity is violated, since his right to equality is violated. This argument presents us with three fundamental questions: first, are the right of the Israeli spouse to family life and his right to equality recognized in Israel? This question concerns the very existence of the right to family life and the right to equality. Second, are these human rights to family life and equality included within the scope of the constitutional right to human dignity, which is enshrined in sections 2 and 4 of the Basic Law: Human Dignity and Liberty? This question concerns the existence of the right to family life and equality as a constitutional right, within the scope of the Basic Law: Human Dignity and Liberty. Third, does the Citizenship and Entry into Israel Law violate the constitutional right to human dignity (with respect to family life and equality) of the Israeli spouse? We will begin with the first question, by considering separately the right to family life of the Israeli spouse and his right to equality.

(2) Does Israeli law recognize the right of the Israeli spouse to family life and equality?

(a) The right of the Israeli spouse to family life

24. Is the right of a person to family life recognized in Israel? Within the context of the petitions before us, we do not need to decide all the aspects of this question. We can focus mainly on two specific aspects of family life: first, do we recognize the right of the Israeli spouse to live in Israel together with the foreign spouse? Second, do we recognize the right of the Israeli spouse to live together with his children in Israel and the right of Israeli children to live together with their parents in Israel? Other aspects of the fundamental question, including the definition of family for this purpose, can be left undecided at this time (see Y. Marin, ‘The Right to Family Life and (Civil) Marriage — International and Local Law,’ Economic, Social and Cultural Rights in Israel (Y. Rabin and Y. Shani eds. (2004) 663).

25. The right to family life, in the broad sense, is recognized in Israeli law. It is derived from many statutes, which provide arrangements whose purpose is to preserve, encourage and nurture the family unit. Spouses are given social rights, tax, accommodation and housing benefits. They enjoy rights of medical and pension insurance. They have visitation rights in hospitals and prisons. They have privileges and defences in the laws of evidence. The criminal law protects the family; spouses have rights of inheritance, maintenance and mutual support during the marriage, and rights to a division of property when the marriage ends. Although the various statutes deal with specific aspects, it is possible to deduce from them that the family unit is recognized in Israel law and protected by it. Indeed, the family unit is ‘the basic unit… “of Israeli society” ’ (per Justice S.Z. Cheshin in CA 238/53 Cohen v. Attorney-General [17], at p. 53}). ‘Human society cannot exist unless we protect with our lives its basic unit, which is the family unit’ (per Justice M. Silberg in CA 337/62 Riezenfeld v. Jacobson [18], at p. 1021 {107}). It is ‘an institution that is recognized by society as one of the basic elements of social life’ (per President Y. Olshan, ibid. [18], at p. 1030 {118}). ‘It is our main and basic duty to preserve, nurture and protect the most basic and ancient family unit in the history of mankind, which was, is and will be the element that preserves and ensures the existence of the human race, namely the natural family’ (per Justice M. Elon in CA 488/77 A v. Attorney-General [19], at p. 434). ‘Protecting the institution of the family is a part of public policy in Israel. In the context of the family unit, protecting the institution of marriage is a central social value… there is a supreme public interest in protecting this status and in regulating… the scope of rights and duties that formulate it’ (HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [20], at p. 783). Indeed, the family relationship, and the protection of the family and its basic elements (the spouses and their children) lie at the basis of Israeli law. The family has an essential and central purpose in the life of the individual and the life of society. Family relationships, which the law protects and which it seeks to develop, are some of the strongest and most significant in a person’s life.

26. Protection of the family unit finds special expression when the family unit includes a minor. This protection is required both by the right of the parents to raise their children, and by the rights of the child himself. Indeed, ‘the right of the parents to raise their children is a natural, basic right, whose importance can hardly be exaggerated’ (P. Shifman, Family Law in Israel, vol. 2, 1989, at p. 219). ‘The connection between a child and his parents who gave birth to him is one of the fundamentals on which human society is based’ (LFA 377/05 A v. Biological Parents [21], at para. 46). As my colleague, Justice A. Procaccia, said:

‘The depth and strength of the parental bond, which contains within it the natural right of a parent and his child to a bond of life between them, has made family autonomy a value of the highest legal status, and a violation of this is allowed only in very special and exceptional cases. Every separation of a child from a parent is a violation of a natural right’ (LCA 3009/02 A v. B [22], at pp. 894-895).

And in the words of my colleague Justice M. Cheshin:

‘It is the law of nature that a mother and father naturally have custody of their child, raise him, love him and care for his needs until he grows up and becomes a man… this bond is stronger than any other, irrespective of society, religion and country… the law of the state did not create the rights of parents vis-à-vis their children and vis-à-vis the whole world. The law of the state adopts what already existed, and seeks to protect the innate instinct within us, and it turns an “interest” of parents into a “right” under the law, namely the rights of parents to have custody of their children’ (CFH 7015/94 Attorney-General v. A [23], at p. 102).

27. The right to family life is not exhausted by the right to marry and to have children. The right to family life means the right to joint family life. This is the right of the Israeli spouse to lead his family life in Israel. This right is violated if the Israeli spouse is not allowed to lead his family life in Israel with the foreign spouse. He is thereby forced to choose whether to emigrate from Israel or to sever his relationship with his spouse. This was discussed by Justice M. Cheshin in HCJ 3648/97 Stamka v. Minister of Interior [24]. In that case, the court considered the policy of the Minister of the Interior with regard to granting citizenship to a foreign spouse in Israel. Justice M. Cheshin recognized the ‘basic right of an individual — every individual — to marry and establish a family’ (at p. 782 [24]). In his opinion, Justice M. Cheshin says:

‘The State of Israel recognizes the right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel. Israel is committed to protect the family unit in accordance with international conventions… and although these conventions do not stipulate one policy or another with regard to family reunifications, Israel has recognized — and continues to recognize — its duty to provide protection to the family unit also by giving permits for family reunifications. Thus Israel has joined the most enlightened nations that recognize — subject to qualifications of national security, public safety and public welfare — the right of family members to live together in the place of their choice’ (Stamka v. Minister of Interior [24], at p. 787).

Against this background, it was held that this protection extends not only to married spouses, but also to recognized couples who are not married. My colleague Justice D. Beinisch wrote that the state recognizes:

‘… that the family unit, which is not based on a formal bond of marriage, is also worthy of protection, and the partners who comprise it should be allowed to live together and to continue to live in Israel, provided that it is a real, genuine and established relationship. This policy gives expression to the commitment of the state to the right to family life, which includes the right of the individual to choose his partner and to establish a family with him. This right is recognized in our law and is also protected in international law’ (AAA 4614/05 State of Israel v. Oren [25], at para. 11 of the opinion of Justice D. Beinisch).

Indeed, this right of the Israeli spouse to family life in Israel together with the foreign spouse finds expression in s. 7 of the Citizenship Law, 5712-1952 (hereafter — ‘the Citizenship Law’), which makes it easier for the foreign spouse to become a citizen. This right also finds expression in the discretion of the Minister of the Interior with regard to immigration to Israel. Admittedly, the right to family life in general, and the right of the Israeli spouse to realize it in Israel in particular, is not an absolute right. It can be restricted. Nonetheless, these restrictions are not capable of restricting the actual existence of the right. The right exists in Israel. It is recognized by Israeli law. It constitutes a general purpose of all legislation (see Efrat v. Director of Population Registry, Ministry of Interior [20], and thus assists in the interpretation of legislation (see Barak, ‘General Principles of Law in Interpretation of the Law,’ Weisman Book 1 (2002)). It constitutes a part of Israeli common law, from which it is possible to derive rights and duties.

28. The right to family life is also the right of the Israeli parent that his minor children will grow up with him in Israel and the right of an Israeli child to grow up in Israel together with his parents. Israeli law recognizes the importance of making the civil status of the parent equal to that of the child. Thus, s. 4 of the Citizenship Law provides that a child of an Israeli citizen shall also be an Israeli citizen, whether he is born in Israel (s. 4A(1)) or he is born outside it (s. 4A(2)). Similarly, r. 12 of the Entry into Israel Regulations, 5734-1974, provides that ‘A child who is born in Israel, to whom s. 4 of the Law of Return, 5710-1950, does not apply, shall have the same status in Israel as his parents.’ Even though this regulation does not apply, according to its wording, to children of residents who were not born in Israel, it has been held that the purpose for which r. 12 was intended applies also to the children of permanent residents who were born outside Israel. Thus, for example, it was held that:

‘As a rule, our legal system recognizes and respects the value of the integrity of the family unit and the interest of safeguarding the welfare of the child, and therefore we should prevent the creation of a difference between the status of a minor child and the status of his parent who has custody or is entitled to have custody of him’ (per Justice Beinisch in HCJ 979/99 Carlo (a minor) v. Minister of the Interior (not yet reported), at para. 2 of the opinion of Justice D. Beinisch).

Respect for the family unit has, therefore, two aspects. The first aspect is the right of the Israeli parent to raise his child in his country. This is the right of the Israeli parent to realize his parenthood in its entirety, the right to enjoy his relationship with his child and not be severed from him. This is the right to raise his child in his home, in his country. This is the right of the parent not to be compelled to emigrate from Israel, as a condition for realizing his parenthood. It is based on the autonomy and privacy of the family unit. This right is violated if we do not allow the minor child of the Israeli parent to live with him in Israel. The second aspect is the right of the child to family life. It is based on the independent recognition of the human rights of children. These rights are given in essence to every human being in as much as he is a human being, whether adult or minor. The child ‘is a human being with rights and needs of his own’ (LFA 377/05 A v. Biological Parents [21]). The child has the right to grow up in a complete and stable family unit. His welfare demands that he is not separated from his parents and that he grows up with both of them. Indeed, it is difficult to exaggerate the importance of the relationship between the child and each of his parents. The continuity and permanence of the relationship with his parents are an important element in the proper development of children. From the viewpoint of the child, separating him from one of his parents may even be regarded as abandonment and affects his emotional development. Indeed, ‘the welfare of children requires that they grow up with their father and mother within the framework of a stable and loving family unit, whereas the separation of parents involves a degree of separation between one of the parents and his children’ (LCA 4575/00 A v. B [26], at p. 331).

(b) The right of the Israeli spouse to equality

29. The right to equality constitutes an integral part of Israeli law. It is a central element of Israeli common law (see I. Zamir and M. Sobel, ‘Equality before the Law,’ 5 Mishpat uMimshal 165 (1999); F. Raday, ‘On Equality,’ 24 Hebrew Univ. L. Rev. (Mishpatim) 241 (1994); A. Bendor, ‘Equality and Executive Discretion — On Constitutional Equality and Administrative Equality,’ Shamgar Book (Articles, vol. 1, 2003) 287; A. Rubinstein, ‘On Equality for Arabs in Israel,’ Paths of Government and Law: Issues in Israeli Public Law 278 (2003); A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (fifth edition, vol. 1, 1997), at p. 271). Since the establishment of the State, the Supreme Court has repeatedly held that equality is the ‘soul of the whole of our constitutional system’ (per Justice M. Landau, in HCJ 98/69 Bergman v. Minister of Finance [27], at p. 698 {17}). It is ‘a basic constitutional principle, which runs like a golden thread through our basic legal conceptions and constitutes an integral part thereof’ (Justice M. Shamgar in HCJ 114/79 Burkan v. Minister of Finance [28], at p. 806). Equality lies at the basis of social existence. It is the cornerstone of democracy (see HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [29], at p. 415; HCJ 10026/01 Adalah Legal Centre for Arab Minority Rights in Israel v. Prime Minister [30], at p. 39). A violation of equality is ‘worse than anything’ (Justice M. Cheshin in HCJ 7111/95 Local Government Centre v. Knesset [31], at p. 503). I discussed this in HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [32]:

‘Equality is a basic value for every democratic society… The individual is integrated within the overall fabric and takes his part in building society, knowing that the others are also acting as he is. The need to ensure equality is natural to man. It is based on considerations of justice and fairness. Someone who wishes his right to be recognized must recognize the right of others to seek similar recognition. The need for equality is essential to society and to the social consensus on which it is based. Equality protects government from arbitrariness. Indeed, there is no more destructive force to society that the feeling of its members that they are treated unequally. The feeling of a lack of equality is one of the worst feelings. It undermines the forces that unite society. It harms a person’s identity’ (Poraz v. Mayor of Tel-Aviv-Jaffa [32], at p. 332; see also HCJ 104/87 Nevo v. National Labour Court [33], at p. 760 {150}).

Indeed, ‘discrimination erodes relationships between human beings until they are destroyed. The feeling of discrimination leads people to lose their self-restraint and leads to the destruction of the fabric of inter-personal relationships’ (per Justice M. Cheshin in Local Government Centre v. Knesset [31], at p. 503).        ‘Discrimination is an evil that undermines the basis of democracy, penetrates and shakes its foundations, until it finally brings about its collapse and destruction’ (HCJ 2618/00 Parot Co. Ltd v. Minister of Health [34], at p. 52). Within this framework, religious or race discrimination is harsh and cruel; such generic discrimination inflicts a ‘mortal wound’ (per Justice M. Cheshin in HCJ 2671/98 Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 658; A. Barak, ‘General Principles of Law in Interpretation of the Law,’ supra, at p. 142). It has therefore been held, in a long line of cases, that discrimination against Israeli Arabs merely because they are Arabs violates the equality that is enjoyed by all Israelis (see HCJ 392/72 Berger v. Haifa District Planning and Building Committee [36]; HCJ 328/88 Avitan v. Israel Land Administration [37]; HCJ 6698/95 Kadan v. Israel Land Administration [38]; HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [39]; HCJ 6924/93 Association for Civil Rights in Israel v. Government of Israel [40]; HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41]; see also I. Zamir, ‘Equality of Rights vis-à-vis Arabs in Israel,’ 9 Mishpat uMimshal 11 (2006); A. Saban, ‘The Palestinian Arab Minority and the Supreme Court: Not a Black and White Picture (and Forecast),’ 8 Mishpat uMimshal 23 (2005)). This was well expressed by Justice I. Zamir, who said:

‘A violation of the principle of equality in the narrow sense is considered particularly serious… this is also the case with discrimination against an Arab because he is an Arab, and it makes no difference whether the discrimination is based on religion or on nationality. This is a breach of the principle of equality in the narrow sense. Therefore it is particularly serious. The principle of equality in this sense is the soul of democracy. Democracy demands not merely one vote for each person when there are elections, but also equality for every person at all times. The real test of the principle of equality lies in attitudes to a minority, whether religious, national or any other. If there is no equality for the minority, there is also no democracy for the majority… in a practical sphere, there is special significance in the State of Israel to the question of equality for Arabs. This question involves a complex relationship that has developed between Jews and Arabs in this country over a long period. Notwithstanding, or perhaps for this very reason, we need equality. Equality is essential for co-existence. The welfare of society, and, when considered properly, the welfare of each member of society, requires that the principle of equality is nurtured between Jews and Arabs. In any case, this is the requirement of law, and therefore it is the duty of the court’ (Association for Civil Rights in Israel v. Government of Israel [40], at pp. 27, 28).

(3) Is the right of the Israeli spouse to family life and equality a part of human dignity?

(a) The right to family life as a part of human dignity

30. The right to family life is a part of Israeli common law. Notwithstanding the importance of common law, a statute is capable of violating a right enshrined in common law, provided that the statute is phrased in clear, unambiguous and express language (see HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [42], at pp. 1531-1532; HCJ 200/57 Bernstein v. Bet-Shemesh Local Council [43], at p. 268; HCJ 337/81 Miterani v. Minister of Transport [44], at p. 359; CA 333/85 Aviel v. Minister of Labour and Social Affairs [45], at p. 596; CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [46], at p. 561). The Citizenship and Entry into Israel Law is phrased in clear, unambiguous and express language. Constitutional review of its clear, unambiguous and express provisions is possible only if the right to family life is protected in a Basic Law. The relevant Basic Law for our purposes is the Basic Law: Human Dignity and Liberty. Is the right to family life enshrined and protected in it?

31. The Basic Law: Human Dignity and Liberty does not contain an express provision with regard to the right to family life. The question is whether it is possible to include this right within the framework of the right to human dignity. Is the right to family life a ‘right without a name’ that is derived from the right to dignity (see H. Sumer, ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ 28 Hebrew Univ. L. Rev. (Mishpatim) 257 (1997))? Note that the question is not whether in addition to the rights set out in the Basic Law: Human Dignity and Liberty it is possible to include additional human rights that are not expressly stated in it. The question is whether within the framework of the rights stated expressly in the Basic Law — in our case, within the framework of the right to human dignity — there is also included an aspect of human dignity which concerns family life. Indeed, the question is not whether there is a ‘lacuna’ in the Basic Law: Human Dignity and Liberty with regard to the right to family life, and whether it is possible to fill this lacuna. The question is whether the interpretation of the right to human dignity leads to a conclusion that within the framework of this express right there is also included the aspect of the autonomy of individual will that is directed towards having a family life and realizing it in Israel. Indeed, the right to human dignity is, by nature, a ‘framework’ or ‘general’ right. The nature of such a right is that, according to its wording, it does not give explicit details of the particular types of activity to which it applies. It is open-ended (see A. Barak, Legal Interpretation: Constitutional Interpretation (1994), at p. 357; CA 2781/93 Daaka v. Carmel Hospital [47], at p. 577 {463}). The situations to which it applies are derived from the interpretation of the open language of the Basic Law against the background of its purpose. These situations can be classified, for convenience, into categories and types, such as the right to a dignified human existence (see LCA 4905/98 Gamzu v. Yeshayahu [48]; HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [49]); the right to physical and emotional integrity (Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 59); the right to a name (Efrat v. Director of Population Registry, Ministry of Interior [20]); the right of an adult to be adopted (CA 7155/96 A v. Attorney-General [50]), and similar ‘specific’ rights that are derived from the general right. In constitutional literature they are called derivative constitutional rights norms (see R. Alexy, A Theory of Constitutional Law (2002), at p. 35). Naturally the scope of application of the derivative rights raises difficult questions of interpretation. As long as they have not been separated by the Knesset from human dignity and stated independently, there is no alternative to interpretational activity that focuses on human dignity and seeks to determine the scope of this right, while attempting to formulate the types of cases included in it. Naturally, this categorization will never reflect the full scope of the right to human dignity, nor does it intend to do so. It is intended to assist in understanding the framework provision concerning human dignity (see Y. Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ 25 Hebrew Univ. L. Rev. (Mishpatim) 129 (1995); Sumer, ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ supra; H.H. Cohn, ‘The Values of a Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty,’ HaPraklit Jubilee Book 9 (1994); D. Statman, ‘Two Concepts of Dignity,’ 24 Tel-Aviv University Law Review (Iyyunei Mishpat) 541 (2001); O. Kamir, Question of Dignity (2005). We discussed the scope of the right to human dignity in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [51]:

‘The right to human dignity constitutes a collection of rights which must be safeguarded in order to uphold the right of dignity. Underlying the right to human dignity is the recognition that man is a free entity, who develops his person and his abilities as he wishes in the society in which he lives; at the centre of human dignity is the sanctity of human life and liberty. Underlying human dignity are the autonomy of the individual will, freedom of choice and freedom of action of the person as a free entity. Human dignity is based on the recognition of the physical and spiritual integrity of man, his humanity, his value as a human being, all of which irrespective of the extent of his usefulness’ (Movement for Quality Government in Israel v. Knesset [51], at para. 35 of my opinion; see also HCJ 5688/92 Wechselbaum v. Minister of Defence [52], at p. 827; HCJ 7015/94 Attorney-General v. A [23], at p. 95; HCJ 4330/93 Ganem v. Tel-Aviv District Committee, Bar Association [53], at p. 233; HCJ 205/94 Nof v. Ministry of Defence [54], at p. 457 {9}; Daaka v. Carmel Hospital [47], at p. 577 {463}; Gamzu v. Yeshayahu [48], at p. 375; HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [55], at p. 783; Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518; CA 5942/92 A v. B [56], at p. 842; Gaza Coast Local Council v. Knesset [6], at p. 561; Commitment to Peace and Social Justice Society v. Minister of Finance [49]; HCJ 3512/04 Shezifi v. National Labour Court [57]).

This conception of the right to dignity is based on the conception that the right to dignity ‘should not be restricted merely to torture and degradation, since thereby we will miss the purpose underlying it. We should not extend it to include every human right, since thereby we will make redundant all the other human rights provided in the Basic Laws’ (Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518). This leads to the conclusion that the scope of the derivative rights deriving from the general right of human dignity will not always be identical to the scope of the derivative right had it been provided as an express and independent right in the Basic Law. I discussed this in Commitment to Peace and Social Justice Society v. Minister of Finance [49], where I said:

‘In deriving rights that are not mentioned expressly in the Basic Laws that speak of rights, but are included within the concept of human dignity, it is not always possible to comprehend the full scope that the “derivative” rights would have if they were independent rights… Deducing the rights implied by human dignity is therefore done from the viewpoint of human dignity, and in accordance with this perspective. This approach determines the scope of the implied rights. This is the case with regard to the implied civil rights… and it is also the case with regard to the implied social rights’ (ibid. [49], at p. 28).

Against this background the following question arises: is the right of the Israeli spouse to family life in Israel included within the right to human dignity provided in ss. 2 and 4 of the Basic Law: Human Dignity and Liberty?

32. The answer to this question is complex. Not all aspects of family life are derived from human dignity. We must focus on those aspects of family life that are incorporated within the scope of human dignity. The premise is that the family is a ‘constitutional unit’ (see CA 232/85 A v. Attorney-General [58], at p. 17). It is entitled to constitutional protection. This protection is found in the heart of the right to human dignity. It also relies on the right to privacy (see s. 7(a) of the Basic Law: Human Dignity and Liberty). Indeed, the right to live together as a family unit is a part of the right to human dignity. It falls within the scope of the essence of the right to dignity (see CA 5587/93 Nahmani v. Nahmani [59], at p. 499 {14}). One of the most basic elements of human dignity is the ability of a person to shape his family life in accordance with the autonomy of his free will, and to raise his children within that framework, with the constituents of the family unit living together. The family unit is a clear expression of a person’s self-realization. This was discussed by Justice D. Beinisch, who said:

‘In an era when “human dignity” is a protected constitutional basic right, we should give effect to the human aspiration to realize his personal existence, and for this reason we should respect his desire to belong to the family unit of which he regards himself to be a part’ (CA 7155/96 A v. Attorney-General [50]; see also CFH 6041/02 A v. B [60], at p. 256; CA 2266/93 A v. B [61]).

The family ties of a person are, to a large extent, the centre of his life (see Roberts v. United States Jaycees [186], at pp. 618-619). There are few decisions that shape and affect the life of a person as much as the decision as to the person with whom he will join his fate and with whom he will establish a family. This is also the case with regard to the right of parents to raise their children. ‘The law regards the relationship between a parent and his child as a natural right of constitutional dimensions’ (per Justice A. Procaccia in LCA 3009/02 A v. B [61], at p. 894); ‘the right of parents to have custody of their children and to raise them, with all that this implies, is a natural and basic constitutional right as an expression of the natural relation between parents and their children. This right is reflected in the privacy and autonomy of the family’ (per President M. Shamgar in CA 2266/93 A. v. B [61], at p. 235).

33. The right to family life enjoys constitutional protection in the internal law of many countries. It is provided as a constitutional right in the constitution of European countries, such as France (the preamble of the constitution of 1958), Ireland (article 41 of the Constitution of 1937), Spain (article 18 of the Constitution of 1978), Germany (article 6 of the Basic Law), Sweden (article 2 of the Constitution of 1975) and Switzerland (article 14 of the Constitution of 2000). Even in American law, notwithstanding the absence of an express right to family life in the constitution, the right to marry and to have a family life has been recognized as a constitutional right derived from the constitutional rights to liberty and privacy (see Griswold v. Connecticut [187]; Loving v. Virginia [188]; Lawrence v. Texas [189]). We should mention that the family also enjoys protection in international law (see article 16 of the Universal Declaration of Human Rights, 1948; article 23 of the International Covenant on Civil and Political Rights; article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms).

34. Thus we see that from human dignity, which is based on the autonomy of the individual to shape his life, we derive the derivative right of establishing the family unit and continuing to live together as one unit. Does this imply also the conclusion that realizing the constitutional right to live together also means the constitutional right to realize this in Israel? My answer to this question is that the constitutional right to establish a family unit means the right to establish the family unit in Israel. Indeed, the Israeli spouse has a constitutional right, which is derived from human dignity, to live with his foreign spouse in Israel and to raise his children in Israel. The constitutional right of a spouse to realize his family unit is, first and foremost, his right to do so in his own country. The right of an Israeli to family life means his right to realize it in Israel. In this regard, the remarks of Justice M. Cheshin in Stamka v. Minister of Interior [24] are apposite, and in view of their importance I will cite them once again:

‘The State of Israel recognizes the right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel. Israel is committed to protect the family unit in accordance with international conventions… and although these conventions do not stipulate one policy or another with regard to family reunifications, Israel has recognized — and continues to recognize — its duty to provide protection to the family unit also by giving permits for family reunifications. Thus Israel has joined the most enlightened nations that recognize — subject to qualifications of national security, public safety and public welfare — the right of family members to live together in the place of their choice’ (Stamka v. Minister of Interior [24], at p. 787).

Indeed, the constitutional right of the Israeli spouse — a right that derives from the nucleus of human dignity as a constitutional right — is ‘to live together in the place of their choice.’

35. The question of the relationship between human dignity as a constitutional right and the right to family life in general, and the right to realize this right by means of living together in a family unit in particular, arose in the case of Dawood v. Minister of Home Affairs [242]. The judgment was given by the Constitutional Court of South Africa. The constitution of South Africa (in article 10) includes an express right concerning human dignity (‘Everyone has inherent dignity and the right to have their dignity respected and protected’). The constitution does not include an express provision concerning the right to family life. An ‘ordinary’ statute (the Aliens Control Act 96 of 1991) imposed restrictions on the entry into South Africa of a foreign spouse of a South African citizen. The question arose whether the provisions of the statute violated the right to dignity. The Constitutional Court replied (unanimously) that it was. Justice O’Regan analyzed human dignity as a constitutional value and as a constitutional right, and went on to say:

‘The decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many if not most people and to prohibit the establishment of such a relationship impairs the ability of the individual to achieve personal fulfillment in an aspect of life that is of central significance. In my view, such legislation would clearly constitute an infringement of the right to dignity. It is not only legislation that prohibits the right to form a marriage relationship that will constitute an infringement of the right to dignity, but any legislation that significantly impairs the ability of spouses to honour their obligations to one another would also limit that right. A central aspect of marriage is cohabitation, the right (and duty) to live together, and legislation that significantly impairs the ability of spouses to honour that obligation would also constitute a limitation of the right to dignity’ (Dawood v. Minister of Home Affairs [242]).

A year later, the question arose in South Africa whether a provision in the statute (the same Aliens Control Act), which provided that foreigners who want a work permit must submit their application while they are still outside South Africa, and which restricted the areas of professions for which a work permit may be requested, was constitutional. The High Court of South Africa, Cape of Good Hope Provincial Division, held that it was an unconstitutional provision, since it restricted the ability of spouses to live together, and therefore violated human dignity (Makinana v. Minister of Home Affairs [243]). The Constitutional Court confirmed this ruling unanimously (Booysen v. Minister of Home Affairs [244]).

36. The right to family reunification is also recognized as a component of the right to family life in international law and in the constitutional law of many countries. Thus, article 8 of the European Convention on Human Rights was interpreted by the European Court of Human Rights as including the right of family members to live together, and therefore as imposing restrictions on the validity of the European Union’s policy in the field of immigration. It was held, in a long line of judgments, that decisions concerning immigration that harm the relationship between spouses or the relationship between a parent and his child are likely to violate rights under article 8 of the Convention (see, for example, Berrehab v. Netherlands [230]; Moustaquim v. Belgium [231]; Ciliz v. Netherlands [232]; Carpenter v. Secretary of State [233]).

37. Following the Treaty of Amsterdam (which came into force in 1999), issues of immigration were also transferred to the authority of the European Community. In consequence, the Council of the European Union issued a directive concerning immigration in 2003 (2003/86/EC), which binds all the member states of the Union (except for Denmark, the United Kingdom and Ireland, which were excluded from this directive). This directive is based, inter alia, on article 8 of the European Convention on Human Rights and Fundamental Freedoms, and provides in the preamble that: ‘Family reunification is a necessary way of making family life possible.’ It grants a broad right to the reunification of families for all citizens of the European Union, whether the foreign spouse is a citizen of a member state in the Union or not (see mainly para. 5 of the preamble, articles 2 and 3, and art. 7 which provides a right of family reunification, on the conditions provided there).

38. The right to family reunification is also regarded as an element in the constitutional right to family life in the internal law of many countries. Thus, in 1978, the Conseil d’État in France ruled that an immigration policy that violated the right of citizens of France to live in their country together with their spouse was unconstitutional, since it violated the undertaking of the State, which is provided in the preamble to the Constitution of 1946, to act in order to promote and develop the family (Arrêt GISTI (C.E.) of 8 December 1978). The Constitutional Court (Conseil Constitutionnel) followed this ruling and even extended it. It was held that the constitutional right to family reunification extended also to persons who had a right of residency in France:

‘Considérant que le dixième alinéa du préambule de la Constitution de 1946 dispose que: “La Nation assure à l’individu et à la famille les conditions nécessaires à leur développement”;

Considérant qu’il résulte de cette disposition que les étrangers dont la résidence en France est stable et régulière ont, comme les nationaux, le droit de mener une vie familiale normale ; que ce droit comporte en particulier la faculté pour ces étrangers de faire venir auprès d’eux leurs conjoints et leurs enfants mineurs sous réserve de restrictions tenant à la sauvegarde de l’ordre public et à la protection de la santé publique lesquelles revêtent le caractère d’objectifs de valeur constitutionnelle;…’ (Décision n° 93-325 DC du 13 août 1993).

‘The tenth paragraph of the Preamble to the 1946 Constitution states that: “The Nation shall provide the individual and the family with the conditions necessary to their development;”

As a result of this provision aliens who have resided ordinarily and legally in France have the right to lead a normal family life in the same way as French nationals; this right specifically allows these aliens to send for their spouses and children who are minors on condition of restrictions relating to preserving public order and protecting public health which are constitutional objectives;…’ (Decision 93-325 DC of 13 August 1993).

The right to family reunification has also been recognized in German law as an element of the constitutional protection to the institution of the family that is enshrined in article 6 of the German Basic Law. It has been held that the right to family life does not mean merely the right of each individual to marry, but also the right of the married spouses to have a family life, to live together and to raise their children. For this reason, the constitutional right to family life extends also to the foreign spouse of a German citizen:

‘Denn es gibt im Hinblick auf Ehepartner und Familienangehörige nur eine einheitliche Ehe oder Familie. Dem Leitbild der Einheit von Ehe und Familie und der durch Art. 3 Abs. 2 GG verbürgten Gleichberechtigung der Ehegatten liefe es im Kern zuwider, wenn der Schutzbereich des Art. 6 Abs. 1 GG in persönlicher Hinsicht gegenüber einem dem sachlichen Schutzbereich der Norm unterfallenden Hoheitsakt materiell — wie verfahrensrechtlich auf ein bestimmtes Ehe — oder Familienmitglied beschränkt bliebe.’

‘With respect to spouses and family members, there is only one joint marriage or family. It would be contrary to the essence of the ideal of unity of marriage and family and the equal rights of spouses set down in Art. 3(2) of the Basic Law if the scope of protection afforded by Art. 6(1) were to be substantively and procedurally restricted to a certain marital partner or family member with regard to a sovereign act falling within the norm’s material scope of protection’ (BVerfGE 76, 1 [238]).

The same is the case in the Republic of Ireland, where it was held that the constitutional right of a minor who is a citizen of Ireland to family life may render the state liable to provide permanent residency or citizenship to his parents, even if they entered Ireland unlawfully and they are staying there unlawfully. Justice Finlay wrote:

‘… there can be no question but that those children, as citizens, have got a constitutional right to the company, care and parentage of their parents within a family unit. I am also satisfied that prima facie and subject to the exigencies of the common good that that is a right which these citizens would be entitled to exercise within the State’ (Fajujonu v. Minister of Justice [1990] 2 IR 151; see also S. Mullally, ‘Citizenship and Family Life in Ireland: Asking the Question “Who Belongs?”,’ 25 Legal Studies, The Journal of the Society of Legal Scholars, vol. 25, (2005), 578).

In the United States it has also been held that the right to family reunification is protected within the framework of the constitutional protection given to the right to family life. This subject arose in Fiallo v. Bell [190]. The Immigration and Nationality Act of 1952 that was in force at that time enshrined the right of United States citizens and residents to family reunification. It was provided, inter alia, that United States citizens or residents were entitled to bring their foreign spouses and children into the country. ‘Child’ for the purpose of this law was defined as a legitimate child, step-child or adopted child. In addition, the law allowed an illegitimate child to be brought into the country for the purpose of his reunification with his American mother. No similar right of the father of such a child was recognized. It was alleged that this law was unconstitutional. The Supreme Court accepted the position that a violation of the right of family reunification was a violation of a protected constitutional right, and therefore the statute under consideration was, in principle, subject to judicial scrutiny. Opinions differed as to the question of the level of scrutiny. The majority opinion was that the proper level in this case was the lowest level (rational basis). On this basis, the majority justices held that the statute was constitutional. Justices Marshall, Brennan and White, in the minority, held that the level of judicial scrutiny for the violation of the right to family unity was the most strict level (strict scrutiny), which was applied in cases where a basic constitutional right was violated. On this basis, the minority held that the arrangement was unconstitutional, since it violated the constitutional right of the citizens and residents of the Unites States to equality and family life, in that the right of fathers to be reunited with their (illegitimate) children was denied, whereas such a right was given to mothers. Justice Marshall wrote:

‘…the statute interferes with the fundamental “freedom of personal choice in matters of marriage and family life” … The right to live together as a family belongs to both the child who seeks to bring in his or her father and the father who seeks the entrance of his child’ (Fiallo v. Bell [190] , at p. 810). See also J. Guendelsberger, ‘Implementing Family Unification Rights in American Immigration Law: Proposed Amendments,’ 25 San Diego L. Rev. 253 (1988)).

In summary, we have seen that the right to family life is not merely a basic right in common law, but a constitutional right enshrined in the right to human dignity.

(b) The right to equality as a part of human dignity

39. The right to equality was always an integral part of our common law. The Basic Law: Human Dignity and Liberty did not include an express provision with regard to equality. In the past the question arose whether it is possible to derive the right to equality from the general right to human dignity. On this question, various opinions were expressed in case law and legal literature (see HCJ 5394/92 Hoppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [62]; CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [63], at p. 201; Nof v. Ministry of Defence [54], at p. 460 {13}; HCJ 726/94 Klal Insurance Co. Ltd v. Minister of Finance [64], at p. 461; HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [65]; HCJ 453/94 Israel Women’s Network v. Government of Israel [66]; HCJ 4541/94 Miller v. Minister of Defence [67]; HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [68], at p. 204; HCJ 1074/93 Attorney-General v. National Labour Court [69]; Local Government Centre v. Knesset [31], at p. 485; HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [39]; see also Y. Karp, ‘Basic Law: Human Dignity and Freedom — A Biography of Power Struggles’, 1 Law and Government, 1992, 323, at pp. 347-351; Sumer, ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ supra; L. Shelef, ‘Two Models for Guaranteeing Human Rights — American Model versus possible Israeli Model,’ 16 Mehkarei Mishpat 105 (5761), at p. 138; Rubinstein & Medina, The Constitutional Law of the State of Israel, supra, at p. 921; Cohn, ‘The Values of a Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty,’ supra; Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ supra, at p. 145; D. Dorner, ‘Between Equality and Human Dignity,’ Shamgar Book (Articles, vol. 1, 2003) 9). This dispute was decided by the Supreme Court in Movement for Quality Government in Israel v. Knesset [51], at para. 40 of my opinion. It was held that the right to human dignity includes the right to equality, in so far as this right is closely and objectively connected with human dignity (see ibid [51], at para. 33). It should be noted that the right to equality is not an ‘implied’ constitutional right: it is not recognized outside the rights expressly provided in the Basic Law. The right to equality is an integral part of the right to human dignity. Recognition of the constitutional aspect of equality derives from the constitutional interpretation of the right to human dignity. This right to human dignity is expressly recognized in the Basic Law. Notwithstanding, not all aspects of equality that would have been included, had it been recognized as an independent right that stands on its own, are included within the framework of human dignity. Only those aspects of equality that are closely and objectively connected to human dignity are included within the framework of the right to human dignity.

40. Does the right of the Israeli spouse to have a family unit in Israel, by virtue of equality with the right of other Israeli couples to have a family unit in Israel, constitute a part of the right of the Israeli spouse to human dignity? The answer is yes. Both the protection of the family unit in Israel, and the protection of the equality of this family unit with the family units of other Israeli couples, fall within the essence of human dignity. The prohibition of discrimination against one spouse with regard to having his family unit in Israel as compared with another spouse is a part of the protection of the human dignity of the spouse who suffers that discrimination.

E.  Does the Citizenship and Entry into Israel Law violate a constitutional right?

(1) The problem

41. The right to human dignity grants every Israeli spouse a constitutional right to have his family life in Israel, thereby enjoying equality with other Israeli spouses. Does the Citizenship and Entry into Israel Law violate this right of the Israeli spouse? The Basic Law: Human Dignity and Liberty provides that ‘One may not violate a person’s dignity in as much as he is a human being’ (s. 2). Only if the Citizenship and Entry into Israel Law violates human dignity does a constitutional question arise in this case. Against this background, the question is whether the right of the Israeli spouse to family life is violated by the provisions of the Citizenship and Entry into Israel Law, and whether this law violates the right of the Israeli spouse to equality. Let us examine each of the questions separately.

(2) The violation of the right to family life

(a) The injury to the Israeli spouse

42. Human dignity as a constitutional right extends to the right of an Israeli to establish a family unit and realize it in Israel. Does the Citizenship and Entry into Israel Law violate this right? Certainly the Citizenship and Entry into Israel Law does not prevent the Israeli spouse from marrying the spouse in the territories. The freedom to marry is maintained. Moreover, usually the Israeli spouse is not prevented from moving to the territories (‘Every person is free to leave Israel:’ s. 6(a) of the Basic Law: Human Dignity and Liberty). Thus he is entitled, of course, to realize his right to have the family unit outside Israel. I assume — without having had all the details submitted to us in this regard — that in most cases the Israeli spouse will receive a permit from the military commander to enter the territories. With regard to the Palestinian authorities, we have not been told that they present any difficulties in this regard. It follows that the main question before us is the question of realizing the life of the family unit in Israel. It concerns s. 2 of the Citizenship and Entry into Israel Law, which states:

‘2.     As long as this law is valid, notwithstanding what is stated in any law including section 7 of the Citizenship Law, the Minister of the Interior shall not grant citizenship under the Citizenship Law to a resident of an area nor shall he give him a licence to reside in Israel under the Entry into Israel Law, and the area commander shall not give a resident as aforesaid a permit to stay in Israel under the security legislation in the area.’

Does this section violate the constitutional right of the Israeli spouse to have a family life and to realize it in Israel?

43. My answer to this question is yes. The right of the spouse to form a family unit is seriously violated if he is not allowed to form this family unit in Israel. The right to have the family unit is the right to realize the family unit in the country of the Israeli spouse. That is where his home is, that is where the rest of his family is, that is where his community is. That is where his historical, cultural and social roots are. The family unit does not exist in a vacuum. It lives in a specific time and place. The law violates this right. Indeed, it is the right of the Israeli spouse that his family should live with him in Israel; it is his right to plant the family roots in the soil of his country; it is his right that his child will grow up, be educated and become an Israeli in Israel. In Stamka v. Minister of Interior [24] the Supreme Court did not say to Israel Stamka: ‘Why are you complaining? Your right to have a family unit with your non-Jewish wife can be realized in the country of the wife.’ The court recognized the right of ‘family members to live together in the place of their choice’ (ibid. [24], at p. 787). That is how a civilized state behaves. This right is violated by the Citizenship and Entry into Israel Law. Indeed, s. 2 of the Citizenship and Entry into Israel Law violates the right of the Israeli spouse to realize his family life in Israel. When the foreign spouse is in the territories, he is prevented from entering Israel. The area commander is not authorized to give the spouse a permit to stay in Israel. The Minister of the Interior is not authorized to give him a licence to enter Israel. None go out and none come in. The family unit is injured.

(b) The injury to the Israeli minor

44. A similar injury befalls the child of the Israeli spouse, in so far as he is himself an Israeli (i.e., that his Israeli parent is a citizen or resident, and the minor lives with him). This minor cannot live with his second parent in Israel. He must decide to remain with his Israeli parent in Israel or to go to his other parent in the territories. This is a heartrending decision according to everyone, and it seriously injures the Israeli minor. It also injures the Israeli parent. If the minor is not Israeli and he is living with one of his parents in the territories, the Citizenship and Entry into Israel Law recognizes (see s. 3A of the law) the possibility of giving him — but not the parent with whom the minor lives in the territories — a permit to enter and a licence to stay in Israel (while distinguishing between minors up to the age of 14 and minors over the age of 14). Even in this case a heartrending decision must be made, which is based on the assumption that the family unit does not live together in Israel.

45. Thus we see that the right of the Israeli spouse and the Israeli child to realize family life in Israel with the foreign spouse is violated. Their right to dignity is violated. In view of these violations caused by the Citizenship and Entry into Israel Law to the human dignity of the Israeli spouse, we must turn to the second stage of constitutional scrutiny, which is the stage of the limitations clause. Before we do so, let us consider whether the Citizenship and Entry into Israel Law violates an additional aspect of human dignity, namely the right of the Israeli spouse to equality. Let us turn now to examine this question.

(3) The violation of the right to equality

(a) The nature of the violation

46. Human dignity as a constitutional right also extends to the right of the Israeli spouse to equality. Does the Citizenship and Entry into Israel Law violate this aspect of human dignity? My answer to this question is yes. The law violates the ability of Israelis who marry spouses who are Palestinians living in the territories to realize their right to family life in Israel. Who are these Israelis? The vast majority of the Israelis who marry Palestinians living in the territories are Arabs who are citizens or residents of Israel. The focus of the violation caused by the law is therefore Israeli Arabs. Admittedly, Israelis who are not Arabs are also not allowed to live in Israel together with Palestinian spouses who are residents of the territories. But the number of these is negligible. The conclusion is that the Citizenship and Entry into Israel Law de facto restricts the right of Israeli Arabs, and only Israeli Arabs, to realize their right to family life. The number of these cases is many thousands. From the figures given to us it appears that between 1993-2001, before the government adopted the new policy (on 15 February 2002) and before the Citizenship and Entry into Israel Law was originally enacted (on 6 August 2003), more than sixteen thousand applications for family reunifications with Arab spouses from the territories were granted in the sense that the spouses from the territories received permits to stay or licences to live in Israel. This is a significant percentage of all the Arab spouses who married in Israel in those years. My conclusion is, therefore, that the Citizenship and Entry into Israel Law results in depriving thousands of Arabs — and only Arabs — who are citizens of Israel of the possibility of realizing their right to family life. A law that has this result is a discriminatory law. A law that causes an injury that focuses almost exclusively on the Arab citizens of Israel violates equality.

(b) Prohibited discrimination or permitted distinction

47. Against this argument, the State raises two lines of defence. The first line of the State’s defence is the argument that the difference in the outcome between the Jewish Israeli couple and the Arab Israeli couple is not prohibited discrimination but a permitted distinction. This argument is based on the classic (Aristotelian) definition of discrimination. According to this, prohibited discrimination is treating equals differently and treating persons who are different equally (see HCJ 678/88 Kefar Veradim v. Minister of Finance [70], at p. 507). According to this approach, equality is explained on the basis of a conception of relevance. This was discussed by Justice S. Agranat:

‘In this context, the concept of “equality” therefore means “relevant equality,” and it requires, with regard to the purpose under discussion, “equality of treatment” for those persons in this state. By contrast, it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality, just as it will be discrimination if it derives from their being in a state of inequality that is not relevant to the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [71], at p. 35).

According to this approach, equality does not require identical treatment. Not every distinction constitutes discrimination. ‘Equality between persons who are not equal is sometimes merely an absurdity’ (Justice T. Or in Avitan v. Israel Land Administration [37], at p. 299). Sometimes, ‘in order to achieve equality, one must act by treating people differently’ (HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [72], at p. 11 {30}); ‘discrimination is, of course, a distinction between persons or between matters for irrelevant reasons’ (Justice M. Cheshin in HCJ 6051/95 Recanat v. National Labour Court [73], at p. 311). Indeed, ‘the principle of equality does not rule out different laws for different people. The principle of equality demands that the existence of a law that makes distinctions is justified by the type and nature of the matter. The principle of equality assumes the existence of objective reasons that justify a difference’ (HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [74], at p. 236; see also El-Al Israel Airlines Ltd v. Danielowitz [65], at p. 779 {519}).

48. Against the background of this classic definition of equality, the state argues that the law’s violation only of the right of Israeli Arab spouses to family life is based on a relevant difference. This difference is that only the Arab Israeli spouses wish to bring into Israel spouses who constitute a security risk, when they request to bring into Israel their Arab spouses from the territories. According to the State, ‘there is an objective justification that is based on the professional assessment of the security establishment concerning the risk to Israeli citizens and residents in view of the patterns of how residents of the territories have become residents in Israel by virtue of marriage during the active armed conflict (para. 56 of the closing arguments of February 2006).

49. Indeed, the law would support the state if the Citizenship and Entry into Israel Law provided that an Israeli spouse (whether Jewish or Arab) is not entitled to realize family life in Israel where the foreign spouse presents a security risk. In such a case, a difference would be created, de facto, between the Jewish-Israeli spouses (whose right to realize married life would not be violated by the law) and the Arab Israeli spouses (who would be prevented from realizing their married life in Israel with their Arab spouses from the territories who constitute a security risk). Notwithstanding, this difference would be relevant to achieving the purpose underlying the arrangement.

50. The provisions of the Citizenship and Entry into Israel Law say otherwise. The law does not prohibit the entry into Israel of a spouse who presents a danger to security. The law prohibits the entry into Israel of every Palestinian spouse from the territories, whether he presents a security danger or not. The State did not argue before us that of the sixteen thousand spouses from the territories who entered Israel in order to realize family life in Israel, all or most or even a significant number constitute a security risk. The State argued before us that the number of spouses who constitute a security risk and who are known to the State is small. It is clear, therefore, that even according to the State’s argument, most of the spouses from the territories, whose entry into Israel is being requested by their Israeli spouses, do not constitute a security risk. The distinction on which the Citizenship and Entry into Israel Law is based is therefore not the distinction between the Israeli spouses who wish to bring into Israel foreign spouses that constitute a security risk and Israeli spouses who wish to bring into Israel foreign spouses who do not constitute a security risk. Such a distinction — even if in practice it leads to an outcome that distinguishes between Jewish Israeli spouses and Arab Israeli spouses — is relevant, and its consequences do not involve a violation of equality (discrimination). But the Citizenship and Entry into Israel Law is based on a different distinction, and that is the distinction between foreign spouses of Israelis who are Palestinian residents of the territories, and foreign spouses of Israelis who are not. This distinction is not based on the security risk presented by the Palestinian spouse from the area, since even if there is no information with regard to the risk that he presents, and even were it proved de facto that he presents no danger, his entry into Israel is prohibited. My conclusion is, therefore, that the serious violation of the realization of the right of Israeli Arab spouses — and them alone — caused by the Citizenship and Entry into Israel Law is not based on a relevant distinction.

(c) The violation of equality in the absence of an intention to discriminate

51. The state’s second line of defence is the argument that the purpose of the law was not to discriminate between Jewish-Israeli spouses and Arab-Israeli spouses. The purpose of the law is merely a security one. It was not designed to create a difference between Jewish-Israeli spouses and Arab-Israeli spouses. This argument cannot stand. We accept that the purpose of the Citizenship and Entry into Israel Law is a security one, and that it does not conceal any intention to discriminate against the Arab-Israeli spouse as compared with the Jewish-Israeli spouse. Notwithstanding, the absence of an intention to discriminate has no effect on the existence of the discrimination. Indeed, it is an established case law principle with regard to the rules of equality that the violation of equality (or discrimination) is not examined merely in accordance with the purpose of the allegedly discriminatory norm. According to the law accepted in Israel, the violation of equality (or discrimination) is examined also according to the unintended impact resulting from it (see Nevo v. National Labour Court [33], at p. 759 {149}; El-Al Israel Airlines Ltd v. Danielowitz [65], at p. 759 {487}). A golden thread that runs through the case law of the Supreme Court is the outlook that ‘discrimination is wrong even when there is no intention to discriminate’ (Justice E. Mazza in Israel Women’s Network v. Government of Israel [66], at 524 {450}); ‘the principle of equality looks to the outcome; no matter how pure and innocent a person’s intention, if the outcome resulting from his action is a discriminatory outcome, his act will be declared void ab initio’ (Justice M. Cheshin in Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654; see also Nof v. Ministry of Defence [54], at p. 463 {19}; Miller v. Minister of Defence [67], at p. 116 {200}); ‘the question is not merely what is the motivation of the decision-makers; the question is also what is the outcome of the decision. The decision is improper, not only when the motivation is to violate equality, but also when there is another motivation, but equality is violated de facto’ (Poraz v. Mayor of Tel-Aviv-Jaffa [32], at p. 333). I discussed in one case, where I said:

‘The existence or absence of discrimination is determined, inter alia, in accordance with the effect that a piece of legislation achieves de facto… Therefore a law whose wording is “neutral” may be discriminatory if its effect is discriminatory. Indeed, discrimination may be unintentional… Even if the purpose of a legal norm is not to create discrimination, if discrimination is created de facto, the norm is tainted with discrimination’ (HCJ 1000/92 Bavli v. Great Rabbinical Court [75], at pp. 241-242; see also Kadan v. Israel Land Administration [38], at p. 279).

In Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41] I added:

‘… prohibited discrimination may also occur without any discriminatory intention or motive on the part of the persons creating the discriminatory norm. Where discrimination is concerned, the discriminatory outcome is sufficient. When the implementation of the norm created by the authority, which may have been formulated without any discriminatory intent, leads to a result that is unequal and discriminatory, the norm is likely to be set aside because of the discrimination that taints it. Discrimination is not determined solely according to thought and intention of the creator of the discriminatory norm. It is determined also in accordance with the effect that it has de facto… The test for the existence of discrimination is an objective test that focuses on the outcome of realizing the norm that is under scrutiny. It is not limited to the subjective thinking of the creator of the norm. The question is not whether there is an intention to discriminate against one group or another. The question is what is the final outcome that is created in terms of the social reality’ (ibid. [41], at para. 18 of my opinion).

In the case before us, the impact of the Citizenship and Entry into Israel Law is solely to restrict the right of Arab citizens and residents of Israel to family life. This is a discriminatory outcome. This discrimination is not based on a relevant distinction. If we accept it, ‘we will carry out a serious act of discrimination, and we see no proper purpose for the act’ (per Justice M. Cheshin in Stamka v. Minister of Interior [24], at p. 759; see also the remarks of Justice A. Procaccia in HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [76], at pp. 450-451). The conclusion is that the law violates the constitutional right to equality.

(d) Lawful violation of equality

52. Naturally, the discriminatory result vis-à-vis the Arab-Israeli spouse that is caused by the Citizenship and Entry into Israel Law does not automatically lead to the conclusion that the law is unconstitutional. There are many constitutional violations of rights protected under the Basic Laws. This constitutionality exists notwithstanding the violation of human rights. It becomes possible by satisfying the conditions of the limitations clause. This is the law with regard to all human rights. It is also the law with regard to the right to realize family life in Israel. It is also the law with regard to the right to equality. Not every violation of equality — i.e., not every act of discrimination — is unconstitutional. There are constitutional acts of discrimination. These are those acts of discrimination that satisfy the requirements of the limitations clause. I discussed this in one case:

‘Within the sphere of the right to equality, the sole distinction is no longer between equality or a distinction (which are lawful) and discrimination (which is unlawful). Now we must distinguish between the right of equality and the constitutional possibility of violating this right when the requirements of the limitations clause are satisfied. In such circumstances, the executive act is discriminatory: it does not involve a distinction and it violates equality. Notwithstanding, the discrimination is proper, because it befits the values of the State, it is for a proper purpose, and the violation of equality is not excessive’ (HCJ 3434/96 Hoffnung v. Knesset Speaker [77], at p. 67).

And in another case I added:

‘… the right to equality, like all other human rights, is not an “absolute” right. It is of a “relative” nature. This relativity is reflected in the possibility of violating it lawfully, if the conditions of the limitations clause are satisfied’ (Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41], at para. 22 of my opinion).

Thus we see that the response of the state with regard to the security risk presented by the foreign spouse who wishes to realize his family unit with the Arab-Israeli spouse is a response that is not capable of ridding the Citizenship and Entry into Israel Law of its discriminatory nature. The law violates the right of the Arab-Israeli spouse to equality. Notwithstanding, the state can still make the argument that this violation of equality — as well as the violation of the right of the Israeli spouse to realize his family life in Israel — is constitutional, since it satisfies the requirements of the limitations clause. Nonetheless, we ought to understand the effect and ‘geometric’ position of the state’s argument. Its effect is not to rid the Citizenship and Entry into Israel Law of its discriminatory nature. Its position in the first stage of the constitutional scrutiny is therefore ineffective. Despite this, the state may still make the argument — the validity of which we must examine — that this discrimination is lawful, since it satisfies the requirements of the limitations clause. The proper position of this claim is in the second stage of the constitutional scrutiny. Let us now turn to this scrutiny, both with regard to the violation of the right of the Israeli spouse to realize his family life in Israel, and with regard to the violation of his right to equality.

F. Stages of the constitutional scrutiny: 2. Is the violation of the constitutional right lawful?

(1) The purpose, importance and elements of the limitations clause

(a) The transition from the stage of the violation of the right to the stage of justifying the violation

53. We have reached the conclusion that the Citizenship and Entry into Israel Law violates the human dignity of the Israeli spouses. This violation is two-fold. First, the law violates the right of the Israeli spouse to realize his family life in Israel; second, the law violates the right of the Arab-Israeli spouse to realize his right to family life in Israel by virtue of the principle of equality. This conclusion is serious, but it is not fatal to the validity of the law. It does not follow from it that the Citizenship and Entry into Israel Law is not constitutional. Notwithstanding, the constitutionality of the law is in doubt, since a constitutional human right is violated. Now we must turn to the justification stage. It must be shown that the violation of the constitutional right is lawful. We have found that it is not possible to stop the constitutional scrutiny at the first stage (has a constitutional right been violated?), and we must turn to the second stage of constitutional scrutiny (is the breach of the right lawful?). Indeed, there are many laws that violate constitutional human rights, without being unconstitutional (see Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14], at para. 11 of the judgment). This is because there are constitutional reasons that justify the violation. These reasons are enshrined in the limitations clauses. Some of these clauses are enshrined in the express language of the Basic Law, and some are the product of case law (see Hoffnung v. Knesset Speaker [77], at pp. 70, 75, 76; EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [78], at p. 811; see also the decision in LCA 9041/05 Imrei Hayyim Registered Society v. Wiesel [79]). Moreover, usually the right does not include its own special limitations clause. In such circumstances, that right will be subject to the general limitations clause that provides the conditions for a violation of all the provisions in that Basic Law, whether it is a statutory limitations clause or a judicial limitations clause (see A. Barak, A Judge in a Democracy (2004), at p. 350). But sometimes a specific limitations clause is provided, and this stipulates the conditions for the violation of a specific right or constitutional provision. In these circumstances, the right or constitutional provision is subject to several limitations clauses simultaneously. This is the case because a violation of a right of this kind requires both the conditions of the specific limitations clause and the conditions of the general limitations clause to be satisfied. In the petitions before us, what is relevant is the general limitations clause provided in the Basic Law: Human Dignity and Liberty. Let us now move on to an examination of this.

(b) The general limitations clause in the Basic Law: Human Dignity and Liberty

54. The general limitations clause in the Basic Law: Human Dignity and Liberty is provided in s. 8 of the Basic Law:

‘Violation of rights

8.         The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive, or in accordance with a law as aforesaid by virtue of an express authorization therein.’

Similar provisions exist in comparative law (see s. 1 of the Canadian Charter of Rights and Freedoms; s. 36 of the Constitution of South Africa; art. 29 of the Universal Declaration of Human Rights). A limitations clause has a two-fold purpose: on the one hand, it guarantees that the human rights provided in the Basic Law may only be violated when the conditions provided therein are satisfied. On the other hand, it guarantees that if the conditions provided therein are satisfied, the violation of the human rights provided therein is constitutional (see Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14], at para. 11 of the judgment; HCJ 9333/03 Kaniel v. Government of Israel [80], at p. 17; Gaza Coast Local Council v. Knesset [6], at p. 545).

(c) The centrality of the limitations clause in the constitutional structure

55. The limitations clause is a central element in our constitutional structure (see D.M. Beatty, The Ultimate Rule of Law (2004)). It reflects the idea that the constitutional validity of human rights is based on an overall balance between the rights of the individual and the needs of society as a whole (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 433; Israel Investment Managers Association v. Minister of Finance [8], at p. 384; Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14], at para. 11 of the judgment). ‘It is the foothold on which the constitutional balance between society as a whole and the individual is based’ (Movement for Quality Government in Israel v. Knesset [51], at para. 45 of my opinion). The limitations clause reflects the idea that human rights are not absolute; that they are relative; that it is possible to violate the right of one individual in order to uphold the right of another individual; that it is possible to violate the right of the individual in order to uphold a right belonging to society as a whole. This was discussed by my colleague, Justice A. Procaccia:

‘The limitations clause reflects a balance between the constitutional interests reflected in the basic rights and the needs reflected in the legislation under scrutiny. The basic rights, even though they are supreme rights of a constitutional nature, are not absolute, but they arise from a reality that requires balances to be struck between the duty to uphold important rights of the individual and the need to provide a solution to other worthy interests, whether of an individual or of the public. Finding a harmonious arrangement between all these interests is a condition for a proper social life and for preserving a proper constitutional system… the limitations clause is intended to delineate the boundaries within which primary legislation of the Knesset can be enacted even where it contains a violation of human rights, provided that this violation is found in the proper sphere of the balances between the protection of the right and the need to achieve other important purposes that are involved in violating it’ (LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [81], at p. 405).

Indeed, ‘the existence of human rights assumes the existence of society and the existence of restrictions on the free will of the individual’ (Movement for Quality Government in Israel v. Knesset [51], at para. 45 of my opinion).

56. The Basic Law: Human Dignity and Liberty gives a constitutional status to several rights. They are defined in broad terms. Their wording is open. The scope of the application of each one of the rights is not unlimited. The boundaries of each right will be determined in accordance with its constitutional interpretation. This interpretation will determine the boundary between the various rights. It will also determine the areas where several constitutional rights apply and the relationship between them. A change in the scope of application of the constitutional rights requires a constitutional change. It is possible to do this only by means of a Basic Law (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 407; HCJ 4676/94 Meatreal Ltd v. Knesset [82], at p. 27; HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [83], at pp. 755-756; HCJ 1384/98 Avni v. Prime Minister [84]). In all of these the limitations clause has no application. It does not determine the scope of the constitutional rights. Its role is different. It constitutes a part of the Basic Laws themselves, and its status is constitutional. It is intended to uphold the constitutional validity of ordinary legislation that violates constitutional human rights. It is a constitutional umbrella that provides constitutional protection to ‘ordinary’ pieces of legislation that violate human rights. Indeed, the role of the limitations clause is not to be found in the realm of the scope of the constitutional right. The limitations clause does not give constitutional validity to ordinary legislation that seeks to change the scope of the constitutional right. Ordinary legislation cannot determine that a certain matter does not fall within the scope of the constitutional right. The limitations clause acts in a different sphere. Its field of operations is that of ordinary law (as opposed to constitutional law). Ordinary law cannot change human rights. Notwithstanding, this law includes a comprehensive set of laws that are created by the organs of the State. These laws sometimes realize human rights, and in doing so they violate other rights. Sometimes they are intended to achieve the interests of society as a whole, and in doing so they violate the rights of the individual. The limitations clause is intended to give constitutional validity to violations caused by the ordinary law to constitutional human rights. Thus it also determines the extent of the realization of constitutional human rights. Indeed, the role of the limitations clause is to determine the validity of ordinary legislation that violates human rights. The sphere of activity of the limitations clause is the scope of the constitutional right and the limits of its application. The activity of the limitations clause is the realization of the constitutional right by means of the ordinary laws and the degree to which it is protected.

57. The limitations clause is an integral part of the Basic Law: Human Dignity and Liberty. The human right and the constitutionality of the violation of that right are derived from the Basic Law itself. Both the human rights and the limitations clause should be interpreted in accordance with the basic principles and basic purposes of the Basic Law (ss. 1 and 1A of the Basic Law). I discussed this in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], where I said:

‘The constitutional right and its lawful violation derive from a common source… both the constitutional right and the limitation on it are subject to the basic principle on which the Basic Law: Human Dignity and Liberty (s. 1) and its purposes (ss. 1A and 2) are built’ (ibid. [7], at p. 433).

Indeed, human rights and the possibility of violating them derive from the same source. They reflect the same values. Admittedly, human rights are not absolute. It is possible to restrict their realization. But there are limits to the restriction of the realization of human rights (see HCJ 164/97 Conterm Ltd v. Minister of Finance [85], at p. 347 {71}; Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [14], at para. 11; Gaza Coast Local Council v. Knesset [6], at p. 545). These limits are enshrined in the limitations clause.

58. The restrictions on the realization of constitutional human rights are of various kinds. One of the accepted and well-known kinds is national security and public safety. These are public interests that justify legislation that contains restrictions on human rights. ‘Indeed, security is a fundamental value in our society. Without security, it is not possible to protect human rights…’ (Justice D. Dorner in HCJ 5627/02 Saif v. Government Press Office [86], at p. 76 {197}). I discussed this in one case:

‘A constitution is not a recipe for suicide, and civil rights are not a platform for national destruction… civil rights derive nourishment from the existence of the State, and they should not become a means of bringing about its destruction’ (EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [87], at p. 310 {161}).

And in another case I said:

‘There is no alternative — in a freedom and security seeking democracy — to balancing liberty and dignity against security. Human rights must not become a tool for denying public and national security. We require a balance — a delicate and difficult balance — between the liberty and dignity of the individual and national security and public security’ (CrimFH 7048/97 A v. Minister of Defence [88], at 724; see also Ajuri v. IDF Commander in West Bank [1], at p. 383 {120}).

Indeed, ‘human rights are not a prescription for national destruction’ (Conterm Ltd v. Minister of Finance [85], at p. 347 {71}). ‘The needs of society and its national goals may allow a violation of human rights’ (Gaza Coast Local Council v. Knesset [6], at para. 59). It is possible to violate the right of an Arab-Israeli spouse to realize his family life in Israel, and it is possible to discriminate against him if security needs justify this. For this purpose, the law containing the violation must satisfy the conditions of the limitations clause. Let us now turn to examine these conditions.

(d) The conditions of the limitations clause

59. The limitations clause provides four conditions which must all be satisfied in order to allow a constitutional violation of a human right provided in the Basic Law: Human Dignity and Liberty. The four conditions are: (a) the violation of human rights should be enshrined ‘in a law… or in accordance with a law… by virtue of an express authorization therein;’ (b) the violating law should be one that ‘befits the values of the State of Israel;’ (c) the violating law should be ‘intended for a proper purpose;’ (d) the law should violate the constitutional human right ‘to an extent that is not excessive.’ Everyone agrees that the first condition is satisfied in the petitions before us. We have not heard any argument with regard to the second condition, and I will leave it undecided. Aspects of it will be considered within the framework of the third (‘proper purpose’) and fourth (‘to an extent that is not excessive’) conditions. These two conditions are interrelated. One provides the proper purpose, The other provides the proper means of achieving it. As long as we do not know what the purpose is and as long as it has not been established that the purpose is a proper one, we cannot know what are the proper means of realizing it. Let us now turn to each of these two conditions, and let us begin with ‘a proper purpose.’

(2) ‘Proper purpose’

(a) Determining the ‘purpose’

60. This condition of the limitations clause focuses on the purpose whose realization justifies a violation of the constitutional right. Therefore it is necessary to identify the ‘purpose’ of the legislation. It is also necessary to determine whether this ‘purpose’ is a ‘proper’ one. These actions are governed by normative criteria. They sometimes raise significant difficulties. Thus, for example, sometimes the question arises as to how to examine the purpose of a law that has several purposes. In this regard, it has been held that one should focus on the dominant purpose (see Menahem v. Minister of Transport [11], at p. 264). Serious problems also arise with regard to determining the level of abstraction of the purpose, where the law has several purposes at different levels of abstraction. Questions also arise with regard to the criteria for determining the purpose. The question is whether the purpose of a piece of legislation is only its subjective purpose, which focuses on the motive that underlies the legislation; or perhaps the ‘purpose’ of the legislation is only the objective purpose, which focuses on the purpose at the time of deciding the question of constitutionality; or perhaps the ‘purpose’ is determined — as it is with regard to the interpretation of legislation – in accordance with both its objective and subjective purpose together (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 435). These questions become more intense when a significant period of time has passed between the date of the legislation and the date of determining the constitutionality. The petitions before us do not require us to provide an answer to these questions, if only because of the short time that has passed between the date of enacting the Citizenship and Entry into Israel Law and the date of determining its constitutionality.

(b) The ‘proper’ purpose

61. A law that violates a constitutional human right must be enacted for a ‘proper purpose.’ A purpose may be proper in various contexts. With regard to the limitations clause, whether a purpose is proper is examined within the context of the violation of human rights. I discussed this in one case where I said:

‘Examining the question whether the purpose is “proper” is done within the context of the violation of the human right that is protected in the Basic Law. The question that must be answered is whether it is possible to justify the violation of human rights with the proper purpose of the legislation… it follows that the legislation that violates human rights will satisfy the requirement concerning a “proper purpose” if the purpose of that legislation provides a sufficient justification for that violation of human rights’ (Gaza Coast Local Council v. Knesset [6], at para. 63 of the majority opinion).

(c) Characteristics of the proper purpose

62. What are the characteristics of the proper purpose? It has been held that the purpose of a law that violates human dignity is proper if it is intended to realize social purposes that are consistent with the values of the state as a whole, and that display sensitivity to the place of human rights in the overall social system (see Movement for Quality Government in Israel v. Knesset [51], at paras. 51 and 52 of my opinion, and also United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 434; HCJ 5016/96 Horev v. Minister of Transport [89], at p. 42 {194}; Oron v. Knesset Speaker [10], at p. 662; HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [90], at p. 100; Menahem v. Minister of Transport [11], at p. 264; Gaza Coast Local Council v. Knesset [6], at p. 801 per Justice E. Levy).

(d) The need for realizing the purpose

63. To what degree must the purpose need to be realized for it to be ‘proper’? The answer to this question varies in accordance with the nature of the right that is violated and the extent of the violation thereof. ‘The more important the right that is violated, and the more serious the violation of the right, the stronger must be the public interest in order to justify the violation’ (per Justice I. Zamir in Tzemah v. Minister of Defence [9], at p. 273 {672}; see also Menahem v. Minister of Transport [11], at p. 258; Horev v. Minister of Transport [89], at p. 52 {205}). When the violation is of a central right — such as a violation of human dignity — the purpose of the violating law will justify the violation if the purpose seeks to realize a major social goal, or an urgent social need. It is possible that violations of less central rights will justify a lower level of need.

(3) ‘To an extent that is not excessive’

(a) Proportionality of the violation

64. The requirement that the purpose of the violating law should be a ‘proper’ one focuses on the purpose of the legislation that violates the constitutional human rights. The requirement that the violation of the legislation shall be ‘to an extent that is not excessive’ focuses on the means that the legislator chose. A law that violates a constitutional human right is proportionate only if it maintains a proper relationship between the proper purpose that the law wishes to realize and the means that it adopts to realize that purpose. We are dealing with a ‘dosage test’ (per Justice E. Goldberg in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 574). The main principle that emerges from this condition of proportionality is that ‘the end does not justify the means’ (per Justice T. Or in Oron v. Knesset Speaker [10], at p. 665). ‘Proper purposes do not justify all means’ (Movement for Quality Government in Israel v. Knesset [51], at para. 47 of my opinion). It is not sufficient that the purpose is a ‘proper’ one; the means must also be proper (Movement for Quality Government in Israel v. Knesset [51], at para. 57 of my opinion). A proper means is a proportionate means. A means is proportionate if the law’s violation of the protected right is to an extent that is not excessive. Indeed, the principle of proportionality is ‘intended to prevent an excessive violation of the liberty of the individual. It provides that the executive measure should be determined precisely in order to suit the realization of the purpose. This gives expression to the principle of the rule of law and lawful government’ (HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [91], at p. 12).

(b) Proportionality subtests

65. In Israeli law — following comparative law — an attempt has been made to concretize the requirement of proportionality (for Israeli and comparative sources, see Movement for Quality Government in Israel v. Knesset [51], at para. 57 of my opinion). This concretization ‘is intended to guide constitutional thinking, but not immobilize it’ (Israel Investment Managers Association v. Minister of Finance [8], at p. 385; see also P. Craig, ‘Unreasonableness and Proportionality in UK Law,’ in E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (1999) 85, at p. 99). It has been held that the existence of proportionality is conditional upon satisfying three subtests simultaneously. The borderline between the tests is not precise. Sometimes there is significant overlap between them. The application of the subtests themselves is influenced by the nature of the violated right. ‘All three subtests should… be applied and implemented with a view to the nature of the right whose violation is being considered’ (per Justice D. Dorner in Israel Investment Managers Association v. Minister of Finance [8], at p. 430). The application of the subtests is also affected by the degree of the violation, and the importance of the values and interests that the violating law is intended to realize (see Menahem v. Minister of Transport [11], at p. 280, and also D. Dorner, ‘Proportionality,’ Berinson Book (vol. 2, 2000) 281, at p. 288). ‘In applying the test of proportionality, we should remember that the strength of our scrutiny of the authority on the grounds of proportionality will correspond with the strength of the violated right or the strength of the violation of the right’ (Stamka v. Minister of Interior [24], at p. 777). The three subtests are: the rational connection test (or the appropriateness test); the least harmful measure test (or the necessity test); the proportionate measure test (or the test of proportionality in the narrow sense).

(4) The first subtest: rational connection

(a) The nature of the rational connection

66. The first test is the ‘rational connection test’ or the ‘appropriateness test.’ This requires a rational connection between the proper purpose and the measure chosen. Rationality is not technical. It sometimes requires the proof of causal relationships, which are the basis for the rational connection. With regard to these connections, on the one hand we do not need absolute certainty that the measure will achieve the purpose, but on the other hand we will not be satisfied with a ‘slight and theoretical’ possibility (Saif v. Government Press Office [86], at p. 78 {198}). We require the degree of likelihood that is appropriate, taking into account the nature of the right, the strength of the violation thereof and the public interest that the violation is intended to realize. ‘We do not require absolute certainty that the measure will achieve its purpose. It is sufficient that there is a serious likelihood of achieving the purpose by means of the measure that violates the right. The degree of likelihood required will be determined in accordance with the relative importance of the right that is violated and the purpose of the violation’ (per Justice Dorner in Israel Investment Managers Association v. Minister of Finance [8], at p. 420): thus, for example, in Stamka v. Minister of Interior [24] we considered the policy of the Ministry of the Interior, according to which a foreign spouse was required to leave Israel until the application of the Israeli spouse to regulate the status of the foreign spouse was considered on its merits. The court held that this policy was disproportionate. With regard to the rational connection test, Justice M. Cheshin said:

‘The Ministry of the Interior has not furnished us with any relevant statistics, either with regard to the number of fictitious marriages or with regard to the ratio between these and all the marriages between Israeli citizens and non-Jewish foreigners. Let us assume that we are speaking of a fictitious marriage in one out of every ten cases. Can we find a rational connection between the measure and the purpose? Is it a proper rational connection that nine persons should suffer because of one?’ (ibid. [24], at p. 778).

(b) Finding a basis for the rational connection

67. Sometimes the court requests that the ‘social facts’ (or the ‘constitutional facts’) that indicate the rational connection should be presented to it (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 439, and also A. Lamer, ‘Canada’s Legal Revolution: Judging in the Age of the Charter of Rights,’ 28 Isr. L. Rev. 579 (1994), at p. 581). Often —

‘An examination is required of the social reality that the law is seeking to change. What characterizes these cases is that the assessment of the correspondence or the rational connection lies to a large extent in the realm of predicting the future. These are cases in which there are several variables that can affect the final correspondence between the measure and the purpose and the rational connection between them. The appropriateness or the rational connection are then examined in accordance with the “results test” ’ (Movement for Quality Government in Israel v. Knesset [51], at para. 58 of my opinion).

In many cases it is possible to base the rational connection on experience and common sense. On this basis, it is possible to show that the legislation is not arbitrary, but based on rational considerations. The mere fact that the factual assumptions and social assessments are not realized over the years does not necessarily lead to the conclusion that the measure chosen, when it was chosen, was irrational. Notwithstanding, a measure that was rational at the time of the legislation may become irrational in the course of time.

(5) The second subtest: the least harmful measure

(a) The necessity test

68. The second subtest of the proportionality of the violation is the ‘least harmful measure test’ or ‘the necessity test.’ The assumption is that the first subtest recognizes several measures that satisfy the rational connection between the proper purpose and the measure chosen. Of these measures, the measure that least violates the human right should be chosen. According to this test, it is required that the violating law does not violate the constitutional right more than is necessary in order to achieve the proper purpose (see Menahem v. Minister of Transport [11], at p. 279; HCJ 6226/01 Indor v. Mayor of Jerusalem [92], at p. 164). ‘The legislative measure can be compared to a ladder, which the legislator climbs in order to achieve the legislative purpose. The legislator must stop at the rung on which the legislative purpose is achieved and on which the violation of the human right is the least’ (Israel Investment Managers Association v. Minister of Finance [8], at p. 385; see also United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 414). The obligation to choose the least harmful measure does not amount to the obligation to choose the measure that is absolutely the least harmful. The obligation is to choose, of the reasonable options that are available, the least harmful. One must therefore compare the rational possibilities, and choose the possibility that, in the concrete circumstances, is capable of achieving the proper purposes with a minimal violation of human rights. ‘The Knesset is not required to choose, on any terms and at any price, the measure that allows the achievement of the purpose without violating the right at all or the measure that violates the right to the smallest degree’ (per Justice Dorner in Israel Investment Managers Association v. Minister of Finance [8], at p. 420; Menahem v. Minister of Transport [11], at p. 280; see also R. v. Sharpe [215]). A balance must always be made between the purpose and the objective; the options available must always be considered (see Israel Investment Managers Association v. Minister of Finance [8], at p. 388); the nature of the right being violated must always be considered (see HCJ 490/97 Tenufa Manpower Services and Holdings Ltd v. Minister of Labour and Social Affairs [93], at p. 454; Stamka v. Minister of Interior [24], at p. 782). The degree of the violation must always be considered, as must the purpose that the chosen measure seeks to achieve.

(b) Individual consideration

69. The need to adopt the least harmful measure often prevents the use of a blanket prohibition. The reason for this is that in many cases the use of an individual examination achieves the proper purpose by employing a measure that violates the human right to a lesser degree. This principle is accepted in the case law of the Supreme Court (see Ben-Atiya v. Minister of Education, Culture and Sport [91], at p. 15; Stamka v. Minister of Interior [24], at p. 779). In one case we considered a blanket prohibition against candidates over the age of thirty-five joining the ranks of the police. It was held that this arrangement did not satisfy the requirement of adopting the least harmful measure in the proportionality test. In my opinion I said that:

‘…the employer will find it difficult to satisfy the “least possible harm test” if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve’ (HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Public Security [94], at p. 367 {11}).

In another case, a provision that press cards would not be given to Palestinian journalists was disqualified. In her opinion, Justice D. Dorner said:

‘A refusal to give a press badge without any examination of the individual case, because of the danger inherent in all Palestinian journalists who are residents of Judaea and Samaria — including those entitled to enter and work in Israel — is the most prejudicial measure possible. This measure is strongly prejudicial to the interest of a free press, and could be prevented by individual security checks that are justified in order to mitigate the individual security risk presented by the residents of Judaea and Samaria, in so far as such a risk exists with regard to residents who have successfully undergone the checks required in order to receive permits to enter and work in Israel’ (Saif v. Government Press Office [86], at p. 77 {198}).

Naturally, there may be cases in which the individual consideration will not realize the proper purpose of the law, and a blanket prohibition should be adopted. Notwithstanding, before reaching this conclusion, we must be persuaded, on the basis of proper figures, that there is no alternative to the blanket prohibition. Sometimes the choice of the blanket prohibition results from a failure to determine the form of the individual consideration and not because such a consideration is ineffective. In Stamka v. Minister of Interior [24], Justice M. Cheshin held — with regard to the policy of the Ministry of the Interior that required the foreign spouse who was staying in Israel to leave it for a period until his application for a status in Israel was examined — that:

‘The clear impression is that the weakness in the supervision of the Ministry of the Interior was one of the main factors… for the creation of the new policy; and instead of strengthening the effectiveness of the supervision, the Ministry of the Interior took the easy path of demanding that the foreign spouse leave Israel’ (ibid. [24], at p. 770).

70. A blanket prohibition of a right, which is not based on an individual check, is a measure that raises a suspicion of being disproportionate. This is the case in our law. It is also the case in comparative law (see N. Emiliou, The Principle of Proportionality in European Law: A Comparative Study, 1996, at pp. 30, 99). This is the accepted approach in the European Court of Human Rights. Thus, for example, in Campbell v. United Kingdom [234], it was held that a Scottish regulation that provided a sweeping authority to examine the mail received by prisoners from their lawyers violated the right to privacy set out in art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was held that, for the purpose of realizing the security purpose underlying the regulation, it was sufficient to carry out inspections based on individual concerns. This is also the case in the law of the European Union. The European directive that enshrines the right of citizens of the member states to family reunification (Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States) allows, in certain circumstances, a departure from its provisions, but this is only on the condition that the violation of the right is proportionate and is based on a real and tangible individual threat (art. 27(2)):

‘Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned…

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’

71. United States constitutional law recognizes the requirement of proportionality in the sense of the least harmful measure as a condition for the constitutionality of a violation of a human right. Violations of constitutional human rights (such as freedom of expression, freedom of religion, freedom of movement and the prohibition of discrimination) may be constitutional, provided that they satisfy the requirements of ‘strict scrutiny.’ One of the components of this scrutiny is the requirement that, of the possible ways of achieving the public purpose, the state should choose the measure that leads to the least restrictive violation of the right (see L. Tribe, American Constitutional Law, second edition, 1988, at pp. 1037-1038, 1451-1482; E. Chemerinsky, Constitutional Law, 1997, at p. 532). In interpreting this requirement, the Supreme Court of the United States has held that a condition for satisfying the requirement of the least restrictive measure is that the violation of the human right is based on individualized considerations, and is not based on a blanket prohibition. In the words of Justice O’Connor, strict scrutiny —

‘… at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim’ (Employment Div., Ore. Dept. of Human Res. v. Smith [191], at p. 899; see also Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192].

Thus, for example, Aptheker v. Secretary of State [193] considered a law that was enacted in the United States at the time of the Cuban Missile Crisis and that prohibited members of the Communist Party from holding a passport. This law was explained by the security risk presented by the members of the party. The Supreme Court held that the law was unconstitutional. The court recognized the fact that the purpose for which the law was enacted was a proper one, but it held that the blanket prohibition was unconstitutional. After citing the remarks of Justice Black in Schware v. Board of Bar Examiners [194], at p. 246:

‘Assuming that some members of the Communist Party… had illegal aims and engaged in illegal activities, it cannot automatically be inferred that all members shared their evil purposes or participated in their illegal conduct.’

Justice Goldberg later went on to say:

‘The broad and enveloping prohibition indiscriminately excludes plainly relevant considerations such as the individual’s knowledge, activity, commitment, and purposes in and places for travel. The section therefore is patently not a regulation “narrowly drawn to prevent the supposed evil”… yet here, as elsewhere, precision must be the touchstone of legislation so affecting basic freedoms’ (Aptheker v. Secretary of State [193], at p. 514; see also Sugarman v. Dougall [195] at p. 647; Regents of Univ. of Cal. v. Bakke [196]; City of Richmond v. Carson [197]; Johnson v. City of Cincinnati [198]; Gratz v. Bollinger [199]; Grutter v. Bollinger [200]).

(c) Exceptions to the blanket prohibition

72. Even in cases where there is no alternative measure to a blanket prohibition of rights, the need to choose the least harmful measure may make it necessary to provide a mechanism that will allow exceptions to the blanket prohibition, such as humanitarian exceptions. The reason for this is that even if there is no alternative, for the purpose of achieving the proper purpose, to a blanket restriction of rights, there may be circumstances where, on the one hand, the violation of the right is very severe, and on the other hand, an exceptional protection of the right will not impair the realization of the proper purpose. The creation of a mechanism for exceptions is intended to provide an answer to such circumstances. The exceptions mechanism may reduce the law’s violation of the rights, without impairing the realization of the proper purpose. Therefore, the creation of such a mechanism is required by the second subtest concerning the choice of the least harmful measure. Indeed, just as every person with administrative authority is liable to exercise discretion on a case-by-case basis and to recognize exceptions to rules and fixed guidelines when the circumstances justify this (see Y. Dotan, Administrative Guidelines, 1996, at pp. 157-158; HCJ 278/73 Horeh v. Mayor of Tel-Aviv-Jaffa [95], at pp. 275-276; HCJ 6249/96 Israel Contractors and Builders Federation v. Sasson [96], at pp. 47-48; HCJ 552/04 Guzman v. State of Israel [97], at para. 7 of my opinion), so too is it the duty of the legislature, when it makes an arrangement that results in a sweeping violation of rights, to consider providing an arrangement for exceptional cases that will allow a solution to be found in special cases that justify one.

73. The need to determine exceptions to blanket prohibitions that restrict human rights is also recognized in comparative law. This is the law in Germany. In a case that dealt with the sentence imposed on a woman who had murdered her husband after being abused by him over a long period, it was held that a section in the criminal code that provided a mandatory life sentence for the offence of murder was disproportionate, since it did not leave any room for discretion in the individual case, and it did not permit a lighter sentence in circumstances where justices so required (BVerfGE 6, 389 [239]). Another case considered a law that provided that persons who had been indicted and might escape or pervert the course of justice, and also persons indicted on an offence of murder, would be held under arrest for the duration of their trial. In view of the provisions of this law, a man aged 76, who was suspected of an offence of murder during the Second World War, was arrested even though the suspect presented himself for interrogation on every occasion when he was asked to do so throughout the five years of the police investigation, and there was no real concern that he would escape justice. The court ordered his release. It was held that an exception should be recognized to the law in circumstances where the liberty of the accused was violated without this violation serving any proper purpose (BVerfGE 19, 342 [240]; and see Emiliou, The Principle of Proportionality in European Law: A Comparative Study, supra, at p. 546). The need to recognize exceptions is also recognized in United States constitutional law. It has been held that general laws that restrict a constitutional right are unconstitutional, even if they are intended to realize a proper purpose, if the State does not show why it is not possible to recognize exceptions to the general prohibition in special circumstances. As Chief Justice Roberts said in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192]:

‘RFRA [the Religious Freedom Restoration Act], and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government’s categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person” — the particular claimant whose sincere exercise of religion is being substantially burdened… this Court looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants… The Court explained that the State needed “to show with more particularity how its admittedly strong interest… would be adversely affected by granting an exemption…” (Wisconsin v. Yoder [201], at p. 236)’ (Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192], at para. IIIA).

Thus, in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal [192], it was held that a law that absolutely prohibits the use of drugs is unconstitutional, since it does not include an exemption that allows the use of a particular drug by the members of a religious group who use that drug for the purposes of religious worship. In another case, the United States Supreme Court held that Wisconsin’s compulsory school-attendance law, which did not allow an exemption for a recognized religious sect (the Amish) that wanted to educate its children privately, was unconstitutional (Wisconsin v. Yoder [201]).

(6) The third subtest: proportionality in the narrow sense   

(a) The proportionate measure test

74. The third subtest of the proportionality of the violation is the ‘proportionate measure test’ or the ‘proportionality test in the narrow sense.’ This test examines the proper relationship between the benefit arising from achieving the proper purpose and the violation of the constitutional right. It concerns ‘the benefit arising from the policy as compared with the damage that it brings in its wake’ (per Justice M. Cheshin in Stamka v. Minister of Interior [24], at p. 782). It examines whether there is a ‘proper correspondence between the benefit that the policy creates and the damage that it causes’ (ibid. [24]). This is a balancing test. It gives expression to the concept of reasonableness (see HCJ 6268/00 Kibbutz HaHoterim Agricultural Cooperative Society v. Israel Land Administration [98], at p. 668; Indor v. Mayor of Jerusalem [92], at p. 164; HCJ 6893/05 Levy v. Government of Israel [99], at p. 890). It requires a contrast between conflicting values and interests and a balance between them according to their weight. I discussed this in Beit Sourik Village Council v. Government of Israel [2]:

‘This subtest examines the benefit as compared with the damage… According to it, a decision by an administrative authority must strike a reasonable balance between the needs of the public and the damage to the individual. The purpose of the examination is to consider whether the seriousness of the harm to the individual and the reasons that justify it stand in due proportion to one another. This assessment is made against the background of the general normative structure of the legal system…’ (ibid., at p. 850 {309-310}; see also Marabeh v. Prime Minister of Israel [5], at para. 110 of my opinion).

This principled balancing between the benefit arising from realizing the proper purpose and the degree of the violation of the right of the individual is not new in Israel. It has been accepted in the case law of the Supreme Court since the founding of the state (see A. Barak, The Judge in a Democracy, 2000, at p. 262). By means of this, a balance should be struck between the extent of the violation of the right and the extent to which the public interest is advanced. With regard to the right, we must take into account the nature of that right, and the scope of the violation thereof. The more basic the right that is being violated, and the more severe the violation thereof, the greater the weight that will be required of the considerations that justify that violation. With regard to the public interest, we must take into account the importance of the interest, and the degree of benefit arising from it by means of the violation of human rights. The more important the public interest, the greater the justification of a more serious violation of human rights (see J. Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality,’ 21 MULR 8 (1997)).

(b) The nature of the test

75. When operating the third subtest, we assume that the purpose which the law that violates the constitutional human right wishes to achieve is a ‘proper’ one. We also assume that the means chosen by the law are suitable (according to the rationality test) for achieving the proper purpose. We further assume that it has not been proved that there are measures that are capable of realizing the proper purpose while violating human rights to a smaller degree. In this normative situation, the limitations clause demands that the violation caused to the human right by the arrangements in the law will be proportionate to the benefit achieved by the realization of the proper purpose. Whereas the rational connection test and the least harmful measure test are essentially determined against the background of the proper purpose, and are derived from the need to realize it, the test of proportionality (in the narrow sense) examines whether the realization of this proper purpose is commensurate with the violation of the human right. ‘The relationship between the measure and the purpose must be proportionate, i.e., it must not be out of due proportion’ (I. Zamir, ‘Israeli Administrative Law as Compared with German Administrative Law,’ 2 Mishpat uMimshal 109 (1994), at p. 131). A proper purpose, a rational connection between it and the provisions of the law and the minimization of the violation of human rights that is capable of realizing the proper purposes are essential conditions for the constitutionality of the violation of human rights. But they are not sufficient in themselves. A constitutional regime that wishes to maintain a system of human rights cannot be satisfied only with these. It determines a threshold of protection for human rights that the legislature may not cross. It demands that the realization of the proper purpose, through rational measures that make use of the lowest level for realizing the purpose, will not lead to a disproportionate violation of human rights. In the words of Chief Justice McLachlin in R. v. Sharpe [215]:

‘The final proportionality assessment takes all the elements identified and measured under the heads of Parliament’s objective, rational connection and minimal impairment, and balances them to determine whether the state has proven on a balance of probabilities that its restriction on a fundamental Charter right is demonstrably justifiable in a free and democratic society’ (R. v. Sharpe [215], at p. 99).

This subtest therefore provides a value test that is based on a balance between conflicting values and interests (see Alexy, A Theory of Constitutional Law, at p. 66). It reflects the approach that there are violations of human rights that are so serious that a law cannot be allowed to commit them, even if the purpose of the law is a proper one, its provisions are rational and there is no reasonable alternative that violates them to a lesser degree. The assessment of the balance between the extent of the violation of the human right and the strength of the public interest that violates the right is made against a background of all the values of the legal system.

(c) Beit Sourik Village Council v. Government of Israel

76. The case of Beit Sourik Village Council v. Government of Israel [2] demonstrates the nature of the test of proportionality (in the narrow sense). The construction of the separation fence in the area of the village of Beit Sourik was determined to be a proper security purpose. A rational connection was proved between the construction of the fence in that place and the achievement of the security purpose. It was held that there was no other route that would harm human rights less but would still achieve the proper purpose in full. Notwithstanding this, it was decided that the route of the fence was unlawful. This was because the security purpose achieved by the route of the fence that was determined was not commensurate with the serious violation of the human rights of the residents of Beit Sourik. We held in that case that ‘a proportionate correlation between the degree of harm to the local inhabitants and the security benefit arising from the construction of the separation fence with the route determined by the military commander does not exist’ (ibid. [2], at p. 850 {310}). We pointed out that we had been shown alternative routes that would provide security for Israel, albeit to a lesser degree than the route that the military commander chose. These alternative routes would violate the human rights of the local inhabitants to a far smaller degree. Against this background we held:

‘The real question before us is whether the security benefit obtained by accepting the position of the military commander… is proportionate to the additional injury resulting from his position… Our answer to this question is that the military commander’s choice of the route for the separation fence is disproportionate. The difference between the security benefits required by the military commander’s approach and the security benefits of the alternate route is very small in comparison to the large difference between a fence that separates the local inhabitants from their lands and a fence that does not create such a separation or that creates a separation which is small and can be tolerated’ (ibid. [2], at pp. 851-852 {311}).

Indeed, in Beit Sourik Village Council v. Government of Israel [2] a proper (security) purpose was the basis for the separation fence; there was a rational connection between it and the achievement of the security purpose; no alternative route was found that realized the security purpose in full. Notwithstanding, the route was disqualified because its violation of the rights of the local inhabitants was disproportionate. We pointed to an alternative route, which allowed security to be achieved to a lesser degree than the proper purpose required to be achieved in full, but which harmed the local inhabitants far less. We said that this correlation — which provided slightly less security and much more protection of rights — was proportionate.

(7) The margin of proportionality and judicial review

(a) The margin of proportionality

77. The proportionality test, with its three subtests, is not a precise test. There is sometimes a significant overlap between the subtests. Within each of these, there is room for discretion. The subtests do not always lead to one and the same conclusion (see Menahem v. Minister of Transport [11], at p. 280). They are not sufficiently precise as to allow such unambiguity. Several solutions may sometimes be adopted in order to satisfy proportionality. Sometimes the case is a borderline one (see Ben-Atiya v. Minister of Education, Culture and Sport [91], at p. 13). A margin of proportionality is created (similar to the margin of reasonableness). Any choice of a measure or a combination of measures within the margin satisfies the requirements of the limitations clause. The legislature has room to manoeuvre within the margin. The choice is subject to its discretion (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 438; Local Government Centre v. Knesset [31], at p. 496; Tenufa Manpower Services and Holdings Ltd v. Minister of Labour and Social Affairs [93]; AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [100], at p. 815; Gaza Coast Local Council v. Knesset [6], at pp. 550, 812; Movement for Quality Government in Israel v. Knesset [51], at para. 61 of my opinion).

(b) Judicial review

78. What is the place and role of judicial review? It protects the limits of the margin of proportionality. It has the role of protecting the constitutional human right so that it is not violated by measures that depart from the margin of proportionality. This gives expression to the principle of the separation of powers. The legislature determines the measures that are to be taken in order to realize social objectives. That is its role. The judiciary examines whether these measures violate the human right excessively. That is its role. One power does not enter the sphere of the other power. The court does not decide for the legislature the purposes that it should realize and the measures that it should choose. These are questions of national policy within the province of the legislature. The court examines whether the purposes and the measures that were chosen by the legislature and that violate a constitutional human right satisfy the limitations that the Basic Law placed on the legislative power of the legislature. I discussed this in one case, where I said:

‘The requirement of proportionality establishes a flexible test. Sometimes it is possible to point to several solutions that satisfy its requirements. In these circumstances, the judge should recognize the constitutionality of the law. Indeed, the basic premise is that the role of legislation was entrusted to the legislature. It is the faithful representative of the people who are sovereign. The national responsibility for enacting laws that will realize a proper purpose through proportionate measures rests, according to the principle of the separation of powers, with the legislature. It has the tools to identify the proper purpose and to choose the proportionate measure. The court does not aim to replace the discretion of the legislature with its own discretion. The court does not put itself in the shoes of the legislature. It does not ask itself what are the measures that it would have chosen had it been a member of the legislature. The court exercises judicial review. It examines the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective, justified. The question is whether it is constitutional… What is therefore required is an act of comparing the ends with the means. In this comparison, we must recognize the legislature’s room to manoeuvre or the “margin of appreciation” given to it, which allows it to exercise its discretion in choosing the (proper) purpose and the means (whose violation of human rights is not excessive) that lie on the edge of the margin of appreciation. Indeed, we must adopt a flexible approach that recognizes the difficulties inherent in the legislature’s choice, the influence of this choice on the public and the legislature’s institutional advantage’ (Israel Investment Managers Association v. Minister of Finance [8], at pp. 386-387).

Thus we see that determining the national policy and formulating it into legislation is the role of the legislature. The scrutiny of the constitutionality of the legislation, in so far as it violates the human rights in the Basic Law is the role of the court. It realizes this role with great caution. It will act ‘with judicial discipline, caution and restraint’ (per Justice D. Beinisch in Menahem v. Minister of Transport [11], at p. 263). The judge should treat the law with respect (see Local Government Centre v. Knesset [31], at p. 496). He must ensure respect for the Basic Laws, by virtue of which the law was enacted, and the human dignity which is protected by them. Indeed, the tension is not between respect for the law and human dignity. Respect for the law means that the provisions of the Basic Law concerning human dignity and the possibilities of violating them are equally respected.

G.    Does the Citizenship and Entry into Israel Law satisfy the conditions of the limitations clause?

(1) Is the purpose of the law a proper one?

(a) The purpose of the Citizenship and Entry into Israel Law

79. What is the purpose of the Citizenship and Entry into Israel Law? Opinions are divided on this question in the petition before us. Some of the petitioners and the fourth respondent (the ‘Jewish Majority in Israel’ Society) think that the purpose of the law is not merely a security purpose but also a ‘demographic’ one. According to them, the law is intended to restrict the increase of the Arab population in Israel by means of marriage to residents of the territories. The respondents, however, argued before us that the purpose of the law is merely a security one. I am of the opinion that the respondents are correct. In my opinion, the purpose of the Citizenship and Entry into Israel Law is a security one and its purpose is to reduce, in so far as possible, the security risk from the foreign spouses in Israel. The purpose of the law is not based on demographic considerations. This conclusion is based on the legislative history and the content of the provisions of the law. Indeed, the legislation was based on the security concern with regard to the involvement in terror activity of Palestinian spouses, who hold an Israeli identity card as a result of ‘family reunifications’ with Israeli spouses. The purpose of the law is to reduce this risk in so far as possible. This purpose arises from the explanatory notes to the draft law:

‘Since the armed conflict broke out between Israel and the Palestinians, which led inter alia to dozens of suicide attacks being carried out in Israel, a trend can be seen of a growing involvement of Palestinians who were originally residents of the territories and who have an Israeli identity card as a result of family reunifications with persons with Israeli citizenship or residency, by means of an abuse of their status in Israel that allows them free movement between the areas of the Palestinian Authority and Israel. Therefore, and in accordance with a decision of the government… it is proposed to restrict the possibility of giving residents of the territories citizenship under the Citizenship Law, including by way of family reunification, and the possibility of giving the aforesaid residents licences to live in Israel under the Entry into Israel Law or permits to stay in Israel under the security legislation in the territories’ (draft Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (Draft Laws 31, 2003, at p. 482).

This purpose also arises from the remarks of the Minister of the Interior, who presented the draft law at the first reading (see the minutes of the Knesset session on 17 June 2003). This was repeated by the Chairman of the Knesset Interior and Environmental Affairs Committee, who presented the draft law at the second and third readings (see the minutes of the Knesset session on 31 July 2003). A similar conclusion emerges from a study of the remarks made by Knesset members during the debate on the draft law. Admittedly, from time to time during the legislative process a claim was made that the law was being used by the state as a cover for advancing a ‘demographic purpose’ of restricting the increase of the Arab population in Israel. Government representatives denied this claim. In the arguments before us, the state repeatedly denied, most emphatically, that there was any ‘demographic purpose’ underlying the law. We were presented with details of 26 Palestinian spouses, who benefited from family reunifications and were involved in terror attacks. It was made clear to us that the information that was placed before the government and the Knesset was entirely of a security nature.

80. We can also see the security purpose of the Citizenship and Entry into Israel Law from its provisions. Thus, for example, the law is temporary (a ‘temporary provision’). It does not purport to formulate a new long-term demographic policy. It was designed for the needs of the present. It can be seen from the language of the law and the nature of its provisions that it is based on a security necessity and not on a clear socio-political outlook. The amendments made to the law when its validity was extended in 2005 also indicate the security purpose of the law. Thus, for example, power was given to the Minister of the Interior to approve an application of a spouse from the territories to receive a permit to stay in Israel, and thereby to avoid a separation from the Israeli spouse, if the foreign spouse is a male resident of the territories above the age of 35 or the foreign spouse is a female resident of the territories above the age of 25. This arrangement derives in its entirety from security considerations. It is based on a security assessment that the security risk presented by men over 35 and women over 25 is significantly lower than the risk presented by residents of the territories who do not meet the age criterion.

81. A doubt did arise in our minds with regard to the security purpose of the Citizenship and Entry into Israel Law in view of section 3B(2) of the law, which allows the entry of residents of the territories into Israel for work purposes. The petitioners argue that this section shows that the purpose of the law is not a security one at all, since there is also a security risk from the entry of workers into Israel. The petitioners’ conclusion is that this section indicates the demographic purpose of the law. According to them, the purpose of the law is to prevent the immigration of residents of the territories into Israel for the purpose of family reunifications. The state’s response is that giving citizenship or residency rights to Palestinians, who have an Israeli identity card, constitutes a security threat of a special and distinct kind, which does not merely involve coming into Israel. In view of the fact that the length of the period during which they can stay in Israel is unlimited, and that they have full freedom of movement both in Israel and between Israel and the territories (and this freedom of movement is not given to people holding temporary permits), there is a greater concern that they will take part in terror activity (see para. 180 of the respondents’ closing arguments of December 2003). This response allayed our concerns. We have been persuaded that the distinction between the entry of workers by virtue of temporary permits and the entry of residents of the territories for the purpose of family reunifications is based on security concerns, and therefore it does not imply another purpose.

(b) Are the characteristics of the purpose proper ones?

82. Do the characteristics of the security purpose that underlies the Citizenship and Entry into Israel Law justify a violation of the right of the Israeli-Arab spouse to realize family life in Israel and equality? My answer is yes. The Citizenship and Entry into Israel Law is intended to guarantee security for Israel by reducing, in so far as possible, the security risk presented by Palestinian spouses who live together with their Israeli spouses. It is intended to protect the lives of everyone present in Israel. It is intended to prevent attacks on human life. These are proper purposes. They are intended to protect national security and thereby they protect human life, dignity and liberty. Indeed, just as without rights there is no security, so too without security there are no rights. We are dealing with a delicate balance between security and human rights. As we have seen, ‘there is no alternative — in a freedom and security seeking democracy — to balancing liberty and dignity against security’ (CrimFH 7048/97 A v. Minister of Defence [88], at 741). In order that this balance of ‘liberty and dignity against security’ will take place, we must recognize the legitimacy of liberty and dignity on the one hand, and security on the other. This legitimacy of both sides of the balance is what lies at the heart of the outlook of defensive democracy (see EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [101], at p. 399; Malka v. State of Israel [15], at para. 16, and also A. Sajo (ed.) Militant Democracy, 2004). Democracy’s defensiveness does not deprive it of its democratic nature. Its defensiveness is what protects its democratic nature. This is because of the proper balance that is found between security and human dignity and liberty. Indeed, the purpose of the Citizenship and Entry into Israel Law is a proper one, since it is intended to guarantee security that is intended to preserve human life and security.

(c) Is the extent of the need for realizing the purpose a proper one?

83. Does the violation of the right to realize family life in Israel of the Arab-Israeli spouse, and the resultant violation of his right to equality, constitute a major social objective? Is this an urgent social necessity? My answer to these questions is yes. Terror afflicts the inhabitants of Israel. The murder of innocents and the wounding of many others characterize these acts of terror. Taking steps that reduce the risk of this terror in so far as possible is a major social objective. It is an urgent social need. So it follows that the requirement of the limitations clause that the purpose of the law should be a ‘proper’ one is satisfied. Is this proper purpose achieved proportionately? This is the main question presented by the petitions before us.

(2) Proportionality: is there a rational connection between the purpose of the law and the measures chosen by it?

(a) The blanket prohibition satisfies the required rational connection

84. The purpose of the Citizenship and Entry into Israel Law is a security one. The aim is to reduce the security risk presented by a spouse from the territories who lives permanently in Israel within the framework of family reunification. In the past, several cases (26 in number) have been revealed in which terror organizations abused the status of spouses who were originally residents of the territories and who, when they became Israeli residents or citizens, were entitled to move freely in Israel. In order to prevent this risk, a prohibition was imposed against the entry of foreign spouses into Israel. Does there exist a rational connection between the purpose of the law (reducing the risk presented by the foreign spouse who comes to live in Israel) and the purpose of the law (reducing the risk presented by the foreign spouse who comes to live in Israel) and the measures that were determined (preventing their entry into Israel)? In my opinion, the answer is yes. The prohibition against the entry of the foreign spouses into Israel eliminates the risk that they present. Someone who is not in Israel cannot bring a terrorist into Israel to carry out his ‘designs.’ The blanket prohibition satisfies, in the petitions before us, the existence of the rational connection required under the limitations clause.

(b) The rational connection and temporary stays in Israel

85. The petitioners concentrated their main arguments concerning the question of the rational connection on the provisions of the law that authorizes the commander in the territories to give a permit to stay temporarily in Israel. Section 3B of the law provides:

‘Additional permits

3B. Notwithstanding the provisions of section 2, the area commander may give a permit to stay in Israel for the following purposes:

 

(1) medical treatment;

 

(2) work in Israel;

 

(3) a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.’

According to the petitioners, many thousands of residents in the territories receive work permits in Israel. If these are allowed to enter — so the petitioners claim — why is the entry of spouses from the territories prohibited? If the workers from the area do not constitute a security risk, why do the spouses from the territories constitute a security risk? If it is possible to overcome the risk presented by the workers coming from the territories by a security check of the individual (see s. 3D), why is it not possible to overcome the risk presented by the foreign spouse by such a security check?

86. These arguments do not raise any real question with regard to the rational connection between the prohibition that the law imposes on the entry of spouses from the territories and the purpose of the law. The fact that it possible to realize the purpose of the law by adopting additional measures that are not adopted does not necessarily indicate that the measure that was adopted is not rational. The condition of rationality does not demand that all the possible measures for achieving the purpose are exhausted. Refraining from adopting certain measures — where failing to adopt them does not affect the effectiveness of the measures that were adopted — does not make the measures that were adopted irrational. The requirement of rationality does not offer a choice merely between exhausting all the possible measures or refraining from adopting any measures. A rational choice can satisfy itself with adopting several measures, and not adopting other measures. The Supreme Court of the United States rightly said — with regard to the rational connection test — that:

‘It is no requirement… that all evils of the same genus be eradicated or none at all’ (Railway Express Agency v. New York [202], at p. 110).

The margin of appreciation gives the legislature the possibility of choosing from among various different measures, and the fact that it departs from one of them does not always oblige it, from a rational viewpoint, to choose another. The legislature may, therefore, determine that in order to achieve the security purpose it will adopt the measure of a prohibition of family reunification, and at the same time determine that in order to achieve other purposes, such as those connected with the Israeli national economy or the conditions of life in the territories, it will not prohibit the entry of workers from the territories. As long as realization of the one purpose does not affect the realization of another purpose, we see no problem, from the viewpoint of the requirement of rationality, in adopting this policy.

(3) Proportionality: was the least harmful measure adopted?

(a) The conflicting arguments

87. The proper purpose of the Citizenship and Entry into Israel Law is to reduce the security risk presented by the spouse from the territories who has received a permit to live in Israel or Israeli citizenship. The measure adopted by the law is the prohibition of the entry into Israel of the foreign spouses. The petitioners claim that there is another measure, which realizes the security purpose and violates the human dignity of the Israeli spouse less. This is the measure of individual security checks. If such a check is sufficient for a wife aged 25, it should be sufficient also for a wife aged 24; if it is sufficient for workers from the territories who come into Israel each year in their tens of thousands, it should be sufficient also for those several thousand foreign spouses who wish to enter Israel every year, and if it is necessary to make these individual checks more stringent, that may be done, provided that the blanket prohibition is stopped. Administrative measures may also be adopted, such as methods of identifying the foreign spouses in Israel. In any case, there is no arrangement that guarantees consideration for special cases on a humanitarian basis. To this the State responds that the individual check does not reduce the security risk to the required degree, since sometimes the risk is created years after the spouse enters Israel. The various means of identification suggested are insufficient. Moreover, an individual check is impractical in a time of war, since significant difficulties prevent the investigators from entering the areas of the war in order to make the security check. The respondents say that even a wife aged 25 presents a security risk, but research show that the older the spouse, the smaller the security risk. The State is prepared to take upon itself this reduced risk, but nothing more.

(b) The individual check in the scrutiny of the Citizenship and Entry into Israel Law

88. Is the individual check, as the petitioners claim, the least harmful measure to the right of the Israeli spouse? Naturally, if the sole comparison that us taken into account is between the blanket prohibition and the individual check, it is clear that the harm caused by the blanket prohibition to the Israeli spouse is more severe than the harm caused by the individual check. On the scale of violations of the rights of the Israeli spouse, the individual check is located on a lower level than the blanket prohibition. But this comparison between the two levels is not the examination that is required at this stage of the constitutional scrutiny. The question is not whether the individual check violates the rights of the Israeli spouse less than the blanket prohibition. The question is whether it is possible to achieve the purpose of the law by use of a less harmful measure. If the less harmful measure achieves the proper purpose to a lesser degree, it is not the measure that the legislature is obliged to adopt. The requirement of choosing the least harmful measure applies to the measures that achieve the purpose of the law. So it follows that at this stage of constitutional scrutiny, the question is not whether the individual check violates the right of the Israeli spouse less than the blanket prohibition. The question is whether the individual check achieves the purpose of the Citizenship and Entry into Israel Law to the same degree as the blanket prohibition. If the answer is yes — it does achieve the purpose to the same degree — then the legislature should choose this measure. But if the individual check does not achieve the purpose of the law, the legislature is not obliged to choose this measure. It must choose the measure that realizes this purpose and that violates the right of the Israeli spouse to a lesser degree.

89. We must return, therefore, to the proper purpose of the Citizenship and Entry into Israel Law. We have seen that the purpose of the law is a security one and not a demographic one. What is its security purpose? In this respect, we have seen that the purpose is to reduce, in so far as possible, the security risk presented by the foreign spouses coming to live in Israel. Against the background of this conception of the purpose, do the blanket prohibition and the individual check achieve the purpose to an equal degree? In this regard, we should compare the blanket prohibition, as it exists today, and the most comprehensive individual checks that can be made. But no matter how effective these can be, they cannot equal the additional security that the blanket prohibition provides. It follows that in view of the central value of human life that the law wishes to protect, it is clear that the blanket prohibition will always be more effective — from the viewpoint of achieving the goal of reducing the security risk as much as possible — than the individual check. Our conclusion is, therefore, that in the circumstances of the case before us, the individual check does not realize the legislative purpose to the same degree as the blanket prohibition. There is no obligation, therefore, within the framework of the least harmful measure, to stop at this level, and the legislature was entitled to choose the blanket prohibition that it chose.

90. It is of course possible to argue that the goal that we discussed — to reduce as much as possible the security risk presented by the spouse — is not the objective of the law, and that this objective is to reduce the security risk to some extent, and not as much as possible. According to this line of argument, the permit to stay in Israel given to the resident of the territories whose age is over 35 (for a man) or over 25 (for a woman) (s. 3 of the law) indicates that the purpose of the law was not to reduce the security risk as much as possible, and that the law was satisfied with a lesser reduction than that. It is also possible to point to the permit that is given to stay in Israel for work purposes. To this and similar arguments the state, in our opinion, provided a satisfactory answer. It pointed to the reduced security risk presented when the spouses are older, and also the reduced risk from the residents of the territories who work in Israel. We accept this reasoning. In the opinion of the state, the main risk is presented by young spouses staying in Israel on a permanent basis. This is a security assessment which we must assume as a basis for our decision (see Beit Sourik Village Council v. Government of Israel [2], at p. 842 {300-301}, and the references cited there). It may be argued that reducing the security risk as much as possible is not a ‘proper’ purpose; it is not sufficiently sensitive to human rights. The answer to this argument is that a desire to achieve security as much as possible — security that is intended to protect human life — cannot be regarded as an improper purpose. Notwithstanding, there is still a basis to examine whether this proper purpose is proportionate, since it does not take into account, to a proportionate extent, the violation of human rights. ‘The geometric place’ for examining this argument is not within the framework of the question whether the purpose is a ‘proper’ one, but within the framework of the question whether the means chosen is proportionate (in the narrow sense). Let us turn now to this question.

(4) Proportionality: was the chosen measure proportionate (in the narrow sense)?

(a) Is the move from an individual check to a blanket prohibition proportionate?

91. We have reached the decisive stage in the constitutional scrutiny of the petitions before us. The question is whether the blanket prohibition is proportionate (in the narrow sense)? Is the correlation between the benefit derived from achieving the proper purpose of the law (to reduce as much as possible the risk from the foreign spouses in Israel) and the damage to the human rights caused by it (a violation of the human dignity of the Israeli spouse) a proportionate one? The criterion we must adopt is a value one. We must balance between conflicting values and interests, against a background of the values of the Israeli legal system. We should note that the question before us is not the security of Israeli residents or protecting the dignity of the Israeli spouses. The question is not life or quality of life. The question before us is much more limited. It is this: is the additional security obtained by the policy change from the most stringent individual check of the foreign spouse that is possible under the law to a blanket prohibition of the spouse’s entry into Israel proportionate to the additional violation of the human dignity of the Israeli spouses caused as a result of this policy change?

92. My answer is that the additional security that the blanket prohibition achieves is not proportionate to the additional damage caused to the family life and equality of the Israeli spouses. Admittedly, the blanket prohibition does provide additional security; but it is achieved at too great a price. Admittedly, the chance of increasing security by means of a blanket prohibition is not ‘slight and theoretical.’ Notwithstanding, in comparison to the severe violation of human dignity, it is disproportionate. This was well expressed by Rubinstein and Medina when they said that ‘the measure adopted is clearly not “proportionate,” mainly because of its blanket nature’ (Rubinstein and Medina, The Constitutional Law of the State of Israel, supra, at p. 1100). In the same vein, Davidov, Yovel, Saban and Reichman said:

‘The violations and strictures that are compounded in the new law result in a severe violation, and maybe even a mortal violation, of rights that are close to the “nucleus” of human dignity, without a proper justification based on the conduct and concrete danger presented by the persons injured by the law. In such circumstances, it is difficult to see how any proportionate relationship exists between the serious violation inherent in the law and the hypothetical purpose that the law is intended to achieve. In these circumstances, when the ability of the law to achieve its purpose is uncertain, whereas the violation is certain and serious, the gap between the benefit and the violation in the new law is disproportionate. If there is one exceptional case in which the test of proportionality in the narrow sense is clearly required — this would appear to be that case’ (G. Davidov, Y. Yovel, I. Saban, A. Reichman, ‘State or Family? The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003,’ 8 Mishpat uMimshal, vol. 2, 643 (2005), at p. 679).

Admittedly, the amendments made to the Citizenship and Entry into Israel Law prior to the renewal of its validity somewhat reduced the scope of the disproportionality. Nonetheless, these amendments — as well as the temporary nature of the law — do not change the lack of proportionality to a significant degree. Thus, for example, we were told that s. 3 of the law, with regard to permits for a resident of the territories older than 35 (for a man) or 25 (for a woman) in order to prevent their separation from the Israeli spouses, reduces the number of injured spouses by approximately 20%. The significance of this is that the vast majority of the Israeli spouses who married spouses from the territories continue to be injured even after the amendments that were recently made.

(b) Return to first principles

93. Examination of the test of proportionality (in the narrow sense) returns us to first principles that are the foundation of our constitutional democracy and the human rights that are enjoyed by Israelis. These principles are that the end does not justify the means; that security is not above all else; that the proper purpose of increasing security does not justify serious harm to the lives of many thousands of Israeli citizens. Our democracy is characterized by the fact that it imposes limits on the ability to violate human rights; that it is based on the recognition that surrounding the individual there is a wall protecting his rights, which cannot be breached even by the majority. This is how the court has acted in many different cases. Thus, for example, adopting physical measures (‘torture’) would without doubt increase security. But we held that our democracy was not prepared to adopt them, even at the price of a certain harm to security (see HCJ 5100/94 Public Committee Against Torture v. Government of Israel [102]). Similarly, determining the route of the separation fence in the place decided by the military commander in Beit Sourik Village Council v. Government of Israel [2] would have increased security. But we held that the additional security was not commensurate with the serious harm to the lives of the Palestinians. Removing the family members of suicide bombers from their place of residence and moving them to other places (‘assigned residence’) would increase security in the territories, but it is inconsistent with the character of Israel as a ‘democratic freedom-seeking and liberty-seeking state’ (Ajuri v. IDF Commander in West Bank [1], at p. 372 {105}). We must adopt this path also in the case before us. The additional security achieved by abandoning the individual check and changing over to a blanket prohibition involves such a serious violation of the family life and equality of many thousands of Israeli citizens that it is a disproportionate change. Democracy does not act in this way. Democracy does not impose a blanket prohibition and thereby separate its citizens from their spouses, not does it prevent them from having a family life; democracy does not impose a blanket prohibition and thereby give its citizens the option of living in it without their spouse or leaving the state in order to live a proper family life; democracy does not impose a blanket prohibition and thereby separate parents from their children; democracy does not impose a blanket prohibition and thereby discriminate between its citizens with regard to the realization of their family life. Indeed, democracy concedes a certain amount of additional security in order to achieve an incomparably larger addition to family life and equality. This is how democracy acts in times of peace and calm. This is how democracy acts in times of war and terror. It is precisely in these difficult times that the power of democracy is revealed (W. J. Brennan, ‘The Quest to Develop a Jurisprudence in Times of security Crises,’ 18 Israel Yearbook of Human Rights 11 (1988)). Precisely in the difficult situations in which Israel finds itself today, Israeli democracy is put to the test.

(c) Increasing the effectiveness of the individual check

94. Naturally, everything should be done to increase the effectiveness of the individual checks. Therefore we recognize the constitutionality of the provision of section 3D of the Citizenship and Entry into Israel Law. According to this provision, no permit will be given if it is determined in accordance with a security opinion that ‘the resident of the area or his family member are likely to constitute a security risk to the State of Israel.’ Moreover, the security checks must be treated with great seriousness. Therefore if it is not possible to carry them out because of the security position in one part of the territories or another, the individual check will be postponed until the check becomes possible. If it is necessary to allow the identification of the foreign spouses in Israel as persons who came from the territories, this should be allowed until they reach the age at which the danger presented by them is reduced. There are also grounds for considering additional measures. The severity of these, even if it would in normal circumstance be considered great, cannot compare to the permanent violation of family life and the violation of equality. At the same time, the team carrying out the checks should be increased in a reasonable manner. If this involves a reasonable financial investment, it must be made. ‘The protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden’ (Barak, Legal Interpretation: Constitutional Interpretation, supra, at p. 528). ‘When we are concerned with a claim to exercise a basic right… the relative weight of the budgetary considerations cannot be great’ (Justice E. Mazza in Miller v. Minister of Defence [67], at p. 113 {197}); see also the remarks of Justice D. Dorner there at p. 144 {240}). This was well expressed by Justice I. Zamir:

‘Society is judged, inter alia, according to the relative weight it affords to personal liberty. That weight should be expressed not just in lofty declarations nor just in legal literature, but also in the budget ledger. Protecting human rights generally has a cost. Society should be prepared to pay a reasonable price for protecting human rights’ (Tzemah v. Minister of Defence [9], at p. 281 {683}, and see the references cited there).

This is the case generally, and also in times of war and emergency. Indeed, ‘a society that wants both security and liberty must pay the price’ (Marab v. IDF Commander in Judaea and Samaria [3], at p. 384 {217}).

(d) The exception

95. In view of our position with regard to the disproportionality of the blanket prohibition, we do not need to examine exceptions to the blanket prohibition. We will say only that their absence from the law greatly highlights the disproportionality (in the narrow sense) of the blanket prohibition. Why is it not possible to allow a permit to enter Israel in individual cases where there are humanitarian reasons of great weight? In this context, the remarks of President M. Shamgar concerning the reunification of families between foreigners from outside the territories and spouses in the territories should be cited. The President wrote:

‘The respondent’s aforesaid policy and mode of operation includes the weighing of each and every case in accordance with its circumstances, and each case will also be reconsidered if there are unusual humanitarian circumstances’ (HCJ 13/86 Shahin v. IDF Commander in Judaea and Samaria [103], at p. 216).

(e) Turning to questions concerning the consequences of the unconstitutionality

96. Our conclusion is, therefore, that the provisions of the Citizenship and Entry into Israel Law violate the right of human dignity set out in the Basic Law: Human Dignity and Liberty. We have also held that this violation does not satisfy the provisions of the limitations clause. In so far as the proportionality of the violation is concerned, the disproportionality is reflected in the fact that the law provides a disproportionate relationship between the additional protection of security when changing over from the previous arrangement, which provided for an individual examination, and the additional violation to human dignity that the changeover to the blanket prohibition brings in its wake. In view of our conclusion, the question arises as to what is the consequence of this unconstitutionality. Let us now turn to consider this question.

H. Stages of the constitutional scrutiny: (3) The relief or remedy

97. The final stage in the constitutional scrutiny is the stage of the relief or remedy. We have reached the conclusion that a constitutional right enshrined in a Basic Law has been violated. We have determined that this violation does not satisfy the conditions of the limitations clause. Now we must determine the consequences of the unconstitutionality. The determination that the law unlawfully violates a constitutional right does not in itself mean that the law should be declared void, or that it should be declared void immediately. The court has discretion with regard to the proper relief in this situation (see Israel Investment Managers Association v. Minister of Finance [8], at pp. 413-414; the remarks of Vice-President E. Mazza in HCJ 9098/01 Ganis v. Ministry of Building and Housing [104]). This discretion extends both to the actual declaration that the law is void and to the date on which the voidance comes into effect. The court is not liable to order the voidance of the law in its entirety. It may order the law to be split, so that those provisions of the law that suffer from a constitutional defect are declared void, while the other provisions remain valid. This should be done when the remaining provisions have an independent reason, and the split does not lead to undermining of the purpose of the law (see Barak, Constitutional Interpretation, at pp. 736-737). The court is also entitled to order the date on which the voidance comes into effect to be deferred. This suspension of the declaration of voidance is essential where voiding the law on an immediate basis may result in serious harm to the public interest, and also in order to allow the legislature a suitable period of time to determine an alternative arrangement which will satisfies the demands of constitutionality (see Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41], at para. 27; Israel Investment Managers Association v. Minister of Finance [8], at p. 416; Tzemah v. Minister of Defence [9], at p. 284 {686-687}). The proper relief in circumstances of this kind is therefore to suspend the declaration of voidance (in this regard, see Y. Mersel, ‘Suspending the Declaration of Voidance,’ 9 Mishpat uMimshal 39 (2006)).

98. In our case, my opinion is that there is no alternative to determining that the Citizenship and Entry into Israel Law is void in its entirety. Section 2 of the law is the provision that creates the prohibited violation of the right. Prima facie, declaring s. 2 void would be sufficient, and the remaining sections could be left as they are. But the remaining sections of the law are merely exceptions to the blanket prohibition set out in s. 2. Therefore, in the absence of s. 2, the Citizenship and Entry into Israel Law is devoid of all content. What point is there to an exception when the rule is void? The conclusion is that the law should be declared void in its entirety.

99. Should the legislator be given time to examine the position that results from the voidance of the law, and to consider making an alternative arrangement, by way of a deferral of the date on which it commences? The answer to this question is yes. Determining an alternative arrangement in the sensitive matter before us requires a thorough reassessment of a range of factors with wide-ranging implications. A fitting period of time should be allowed for determining an alternative arrangement. Had the Citizenship and Entry into Israel Law not provided a date on which it ceases to be valid, I would say that the voidance of the law should be suspended for a period of six months. Since the validity of the law expires on 16 July 2006, the declaration of voidance should be suspended until that date. If the government and the Knesset require a limited amount of time, and it seeks, for this purpose, to re-enact the Citizenship and Entry into Israel Law without any change, then I determine that our decision is suspended for six months from the date on which the law comes into effect.

Comments on the opinion of the vice-president, Justice M. Cheshin

100. I have, of course, studied the opinion of my colleague, the vice-president, Justice M. Cheshin. In many respects we are in agreement. Indeed, I accept that every state, including the State of Israel, may determine for itself an immigration policy. Within this framework, it is entitled to restrict the entry of foreigners (i.e., persons who are not citizens or immigrants under the Law of Return) into its territory. The state is not obliged to allow foreigners to enter it, to settle in it and to become citizens of it. The key to entering the state is held by the state. Foreigners have no right to open the door. This is the case with regard to foreigners who have no connection with Israeli citizens. This is the case with regard to foreigners who are married to Israeli citizens and to their children. All of them need to act in accordance with the Citizenship Law, 5712-1952, and in accordance with the Entry into Israel Law, 5712-1952. According to these laws, the foreign spouse has no right to enter Israel, to settle in it or to become a citizen of it, other than by virtue of ordinary legislation. This immigration legislation can restrict entry into Israel, determine general quotas and impose other restrictions that are recognized in civilized countries.

101. My opinion is limited to the viewpoint of the Israeli spouse, who wishes to realize his family life with his foreign spouse or with their joint child in Israel. Here too I do not claim that the Israeli spouse has the power to compel the state to open its gates to the foreign spouse, to allow him to enter Israel, to recognize his residence in it or to grant him Israeli citizenship. As can be seen from my opinion, the state is entitled to enact laws, like the Entry into Israel Law, or the Citizenship Law, which restrict the right of Israeli spouses to a family reunification with their foreign spouses. By virtue of this provision, thousands of foreign spouses from the territories have been prevented from entering or staying in Israel. This leads to my self-evident approach that the Knesset is authorized to enact the Entry into Israel Law, which restricts the entry of spouses from the territories. Indeed, had the Entry into Israel Law provided that the entry of a foreign spouse could be prevented as a result of an individual check with regard to the security danger that he presents, which satisfies the requirements of the limitations clause, I would see no constitutional problem with that law.

102. What, therefore, is the difference of opinion in this case between my colleague’s position and my position? At the basis of the difference of opinion lies the question whether the Israeli spouse has a super-legislative constitutional right to realize his family life in Israel with his foreign spouse and their joint child. My colleague is of the opinion that the Israeli spouse does not have such a constitutional right. Consequently my colleague is of the opinion that legislation that violates the realization of this family life in Israel does not need to satisfy the conditions of the limitations clause, since a constitutional right has not been violated. By contrast, I am of the opinion that the Basic Law: Human Dignity and Liberty does give the Israel spouse this right, as a part of his human dignity. In order to prevent the realization of the right, the requirements of the limitations clause must be satisfied. In my opinion, the provisions of the Citizenship and Entry into Israel Law do not satisfy the conditions of proportionality in the limitations clause. My colleague is of the opinion that had he needed to resort to the provisions of the limitations clause, the Citizenship and Entry into Israel Law would satisfy its conditions. A second difference of opinion between us concerns the violation of equality. My colleague is of the opinion that the right of the Arab-Israeli spouse is not violated, since the Citizenship and Entry into Israel Law is based on a permitted distinction. By contrast, I am of the opinion that this law is based on a prohibited distinction. It should be emphasized that my opinion is not that the key for the foreign spouse to enter the state is in the hands of the Israeli spouse. My position does not lead to the conclusion that ‘recognizing that the state has a constitutional obligation to allow the entry of foreign family members can only mean a transfer of sovereignty to each and every individual citizen’ (para. 55 of my colleague’s opinion). Certainly my position does not grant ‘an automatic right of immigration to anyone who marries one of the citizens or residents of the state’ (ibid.), nor does it therefore lead to the conclusion that ‘every citizen holds the right to allow immigration into the state, without the supervision of the state’ (ibid.). My position leads merely to the conclusion that a recognition of the constitutional right of an Israeli spouse to family reunification with the foreign spouse imposes on the state — which has the ability to determine immigration policy in accordance with its policy and has the power to supervise its policy – the obligation to enact a law that satisfies the requirements of the limitations clause. That was the position before the enactment of the Citizenship and Entry into Israel Law and that will be the position after the necessary amendments are made to this law. Did the state, before the enactment of the Citizenship and Entry into Israel Law, transfer sovereignty to each and every individual citizen? Did the state, before the enactment of this law, give an automatic right of immigration to anyone who married one of the citizens or residents of the state? Did every citizen previously have a right to allow immigration into the state, without the supervision of the state? Where was the Entry into Israel Law until now? And what happened, until now, to the Citizenship Law? Indeed, according to my approach, the key to entering the state remains with the state. It has the power to determine the criteria for immigration, and also to deny it utterly. All that it is required to do is that when it uses this key — in so far as this violates a constitutional right of an Israeli spouse — it should be used in a manner that is consistent with the values of the State of Israel, for a proper purpose and not excessively. No more and no less.

103. My colleague’s position — which rules out the application of the limitations clause in this case — is based on his interpretation of the constitutional right to human dignity. The premise of my colleague and myself in this regard is the same. We both agree that human dignity gives rise to ‘the right of an Israeli citizen to live with the members of his family in Israel, and the duty of the state to the citizen to allow him to realize his right to live with the members of his family in Israel’ (para. 47 of my colleague’s opinion). Therefore, if both of the spouses are Israeli, their right to realize family life in Israel is derived from the human dignity of each of them (para. 48 of my colleague’s opinion). But what is the law when one of the spouses is Israeli and the other is foreign? Here our ways part. According to my position, the human dignity of the Israeli spouse is to live together with his spouse — whether Israeli or foreign — and their children in Israel. According to my colleague’s position, there is a material difference with regard to human dignity between the case where the second spouse is also Israeli and the case where the second spouse is not Israeli. There are two considerations that underlie this approach of his: one is the strength of the constitutional right to have family life in Israel. According to my colleague’s approach, the right to family life lies at the very nucleus of human dignity, whereas the right to bring the foreign spouse to Israel in order to realize family life here lies on the margin or periphery (paras. 59 and 61 of my colleague’s opinion). The other is the public interest in the obligation of the state to all of its citizens to determine the character and identity of the framework of communal life (para. 49 of my colleague’s opinion), and the character of the state (para. 54). In my colleague’s opinion, ‘we ought to allow the public interest to have its say from the beginning, when the scope of the basic right is determined’ (para. 56 of my colleague’s opinion). In my opinion, these considerations of my colleague should not be accepted, and they are incapable of denying the Israeli spouse of his right — a right derived from human dignity that may, of course, be restricted when the conditions of the limitations clause are satisfied — to realize family life with the foreign spouse in Israel. I will discuss this approach of mine in brief, and I will begin with my colleague’s ‘strength’ argument.

104. In my opinion, the right of the Israeli spouse to realize his family life with the foreign spouse in Israel lies at the very nucleus of the right to family dignity. Let us always remember that human dignity is the dignity of ‘man as a human being’ (s. 2 of the Basic Law: Human Dignity and Liberty). If the realization of family life in Israel is part of the nucleus of human dignity when both of the spouses are Israeli, then the realization of family life in Israel is part of the nucleus of human dignity when only one of the spouses is Israeli. From the viewpoint of the Israeli spouse, how is the case where the other spouse is Israeli different from the case where the other spouse is foreign? Human dignity — the nucleus of human dignity — is identical in both cases. In both cases, if the spouses do not live together (in Israel or outside Israel), they are unable to realize their family life. But this is not all; even if the right of the Israeli spouse to realize his family life with the foreign spouse in Israel lies on the margin or the periphery of the right to human dignity, it is still part of the human right, and it cannot be violated without satisfying the conditions of the limitations clause. Indeed, I am of the opinion that making a distinction between a violation of the nucleus of the right (which is subject to the limitations clause) and a violation of its periphery (which lies beyond the scope of the right and therefore is not subject to the limitations clause) violates the constitutional protection of human rights. This distinction excludes the marginal or peripheral cases from the scope of constitutional protection, and it thereby drains human rights of a significant part of its content, namely the marginal or peripheral cases.

105. My colleague holds that taking into account the public interest in determining immigration policy excludes from the constitutional right to family life the right of the Israeli spouse to realize his family life with the foreign spouse in Israel. In my opinion, taking the public interest into account — no matter how important it may be — must be done within the framework of examining the conditions of the limitations clause (the second stage of the constitutional scrutiny) and not within the framework of determining the scope of the constitutional right itself (the first stage of the constitutional scrutiny). This is the case with regard to the right to family life and it is also the case with regard to every other constitutional right (see Alexy, A Theory of Constitutional Law, supra, at p. 196; R. Dworkin, Taking Rights Seriously, 1977, at p. 90; C.S. Nino, The Ethics of Human Rights, 1991, at p. 29). The methodology adopted by my colleague will eventually reduce the constitutional protection given to human rights to a significant degree. It is likely to lead, for example, to an approach that taking into account the public interest, such as national security or public safety, with regard to the right to freedom of expression, should find its place in determining the scope of freedom of expression and not it determining the constitutional possibility of violating it. Changing the ‘place’ of the public interest is not a mere technical or methodological matter. It is a matter with deep implications for human rights in Israel. It involves a drastic reduction in the scope of human rights. Indeed, the system adopted by this court, according to which the place of the public interest lies within the framework of the limitations clause, may give constitutional protection to a law that violates a constitutional human right, while protecting the scope of the human right. By contrast, the role of the public interest within the framework of determining the scope of the human right, as my colleague holds, is likely to reduce the right itself. According to my colleague’s methodology, balances whose proper place is in the limitations clause — when examining the values of the State of Israel, the proper purpose of the legislation and its proportionality — are made within the framework of determining the scope of the right itself, by imposing the burden on someone whose right has been violated. Thus this approach departs from a whole host of decisions, in which it has been held that taking account of the public interest finds its place in the stage of examining the violation of the right (such as freedom of expression) and not in the stage of determining the scope of the right (see HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [105]; CrimA 2831/95 Alba v. State of Israel [106], at pp. 303, 316; F. Schauer, Free Speech: A Philosophical Enquiry (1982)). This opens up a new constitutional path that raises questions concerning the various balancing formulae that should be used and their relationship to the balancing formulae in the limitations clause.

106. What is more, this approach amounts to ‘an undermining of the constitutional balance’ (CrimA 4424/98 Silgado v. State of Israel [107], at p. 550); it involves a dilution of the constitutional protection of human rights in Israel. It leads us, in my colleague’s words, to place in ‘doubt whether the Basic Laws were originally intended to give basic rights to the individual while directly influencing the other individuals in the state and the image of society’ (para. 62 of my colleague’s opinion; see also para. 39 of my colleague’s opinion). But in my opinion there is no doubt in this regard. Basic human rights in Israel exist and are recognized precisely where they are capable of directly influencing ‘the other individuals in the state and the image of society.’ It is precisely then that we need them most in order to protect our values as a Jewish and democratic society. Our role as judges, at this stage of our national life, is to recognize in full the scope of human rights, while giving full strength to the power of the limitations clause to allow a violation of those rights, when necessary, without restricting their scope.

107. It should be noted that I do not hold that basic rights should be extended in every direction. I hold that they should be given a purposive interpretation. This interpretation is neither a restrictive nor an expansive one. It is an interpretation that reflects the way in which Israeli society understands the nature of human rights, according to their constitutional structure and according to the constitutional principles provided in the Basic Law, all of which while taking into account what is valuable and essential and rejecting what is temporary and fleeting (see Efrat v. Director of Population Registry, Ministry of Interior [20], at p. 780; Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518; Commitment to Peace and Social Justice Society v. Minister of Finance [49]). Moreover, I do not believe that giving a purposive interpretation to basic rights, while taking into account the public interest within the framework of the limitations clause, constitutes a violation of the principle of the separation of powers. There is nothing in the principle of the separation of powers to the effect that the court should give a restrictive interpretation to human rights, in order to limit the scope of judicial review of the constitutionality of a law. There is nothing in the principle of the separation of powers that leads to the conclusion that judicial review of the constitutionality of the law violates the separation of powers. On the contrary, this review protects the limits of the power of the various executive organs and protects human rights. This is also the function of the separation of powers. Finally, I do not think that my colleague’s approach leads to ‘a more comprehensive and careful scrutiny of legislation’ (para. 42 of his opinion). On the contrary, the more the public interest is taken into account within the framework of determining the scope of the right, the smaller will be the role of the limitations clause, and the smaller will be the possibility of a comprehensive and careful scrutiny of legislation. Instead of focusing on the violating law, the analysis will focus on the violated right. Instead of a requirement that the legislature should enact laws that satisfy the limitations clause, there will be a requirement that the court should reduce the scope of human rights.

108. This position of mine with regard to the scope of a constitutional right (such as human dignity) and the restrictions on it (in the conditions of the limitations clause) applies both in times of peace and calm and in times of war and terror. The armed conflict between Israel and the Palestinians in the territories does not change the scope of the human rights belonging to Israeli citizens. Our right to human dignity, privacy, property and freedom of occupation did not change when Hamas won the recent elections in the territories. Basic rights do not change according to the winds of peace or war that blow through our region. Taking the security position into account — which is of course essential and requisite — should be done within the framework of the limitations clause. For this reason, I accept my colleague’s approach that ‘even those who support the position that the Israeli citizen should have a right — a constitutional right or a legal right — to have his foreign family member enter Israel and reside in it will agree that reasons of national security and public security should qualify the right of the individual to have his family member enter the country and reside in it’ (para. 77 of his opinion). Notwithstanding, it should be re-emphasized that the expression ‘will qualify the right of the individual’ does not mean that his constitutional right as determined in the Basic Laws has been changed and reduced. The meaning of this expression is that the realization of the right and the protection given to it in legislation has been restricted for reasons of national security and public security, as required in the limitations clause. When these pass — and we all aspire to this — no change will occur to the constitutional right itself. It will remain as it was. The change will occur to the possibility of realizing it. Therefore I agree with my colleague’s approach that ‘a time of war is not the same as a time of peace’ (para. 82 of his opinion), and that ‘things which are appropriate in a time of peace cannot be maintained in a time of war’ (ibid.). Nonetheless, this change should find its full expression within the framework of the limitations clause. It should affect the realization of the right. This change is not capable of affecting the existence of the right and the scope of its application. Therefore, we cannot agree with his conclusion ‘that in times of war there arise — or you may say, there awaken — considerations and interests that are unique to this time, considerations and interests that can restrict the spheres of application of the rights of the individual’ (ibid.). The unique considerations and interests in times of war must act within the framework of the limitations clause, and within the framework of the constitutional right itself. They do not restrict ‘spheres of application of the rights of the individual.’ They restrict the possibility of realizing them.

109. Assuming that the Citizenship and Entry into Israel Law violates the constitutional right, is this violation proportionate? My colleague and I agree that the first two conditions of proportionality — the rational connection test and the least harmful measure test — are satisfied in our case. The difference of opinion between us concerns the third subtest (the test of proportionality in the narrow sense, or the ‘value test,’ as my colleague calls it). Even with regard to this subtest, we both agree that the blanket prohibition provided in the Citizenship and Entry into Israel Law provides more security to the citizens and residents of the State than the individual check. The framework of the doubts is therefore this: is there a proper proportion between the additional security obtained by changing over from the individual check (which was used in the past) to the blanket prohibition (which was introduced by the Citizenship and Entry into Israel Law) and the additional violation of the human dignity of the Israeli spouses caused by this change? My colleague’s reply is that ‘the additional security — security for life — that the blanket prohibition gives us as compared with the individual check that is limited in its ability [is] proper’ (para. 122). By contrast, I am of the opinion that the additional security provided by the blanket prohibition is not proportionate in comparison with the additional damage caused to the family life and equality of the Israeli spouses.

110. My colleague puts on one pan of the scales life itself. ‘We are concerned with life. Life and death. It is the right of the residents of the state to live. To live in security. This right of the individual to life and security is of great strength. It has chief place in the kingdom of rights of the individual, and it is clear that its great weight is capable of determining decisively the balance between damage and benefit’ (para. 120 of his opinion). Against this he places on the other pan the right to have family life (ibid.). Indeed, I accept that if we weigh life against quality of life — life will prevail. But is this the proper comparison? Had we posed the question in this way — life against quality of life — we would certainly have held that we are permitted, and perhaps even obliged, to torture a terrorist who constitutes a ‘ticking bomb’ in order to prevent harm to life; that we are permitted, and perhaps even obliged, to reassign the place of residence of an innocent family member of a terrorist in order to persuade him to refrain from terror and to prevent an injury to life; that the security fence should be placed where the military commander wished to place it, since thereby the lives of the citizens of the state are protected, and any harm to the local population, whatever its scope may be as long as it does not harm life itself, cannot be compared to the harm to the lives of the citizens of the state. But this is not how we decided either with regard to torture, or with regard to assigned residence or with regard to the harm caused by the separation fence to the fabric of the lives of the local residents (see, respectively, Public Committee Against Torture v. Government of Israel [102]; Ajuri v. IDF Commander in West Bank [1]; Beit Sourik Village Council v. Government of Israel [2]). In those cases and in many others we always put human life at the top of our concerns. We were sensitive to terror and its consequences in our decisions. Indeed, human life is dear to us all; and our sensitivity to terror attacks is as strong as in the past. We made the decisions that we made because we do not weigh life against the quality of life. In doing so, life always takes precedence and the result is to refrain from any act that endangers human life. Society cannot operate in this way, either in times of peace (such as with regard to road accident victims) or in times of war (such as with regard to victims of enemy attacks). The proper way of posing the question is by means of the level of the risks and the likelihood that they will occur, and their effect on the life of society as a whole. The questions that should be asked in our case are questions of probability. The question is what is the probability that human life will be harmed if we continue the individual check as compared with the likelihood that human life will be harmed if we change over to a blanket prohibition, and whether this additional likelihood is comparable to the certainty of the increase caused thereby to the violation of the rights of spouses who are citizens of the state.

111. Now that we have begun discussing the issue of risk, we must declare openly that democracy and human rights cannot be maintained without taking risks. Professor Sajo rightly said that ‘liberty is about higher risk-taking’ (A. Sajo (ed)., Militant Democracy (2004), at p. 217). Indeed, every democracy is required to balance the need to preserve and protect the life and safety of citizens against the need to preserve and protect human rights. This ‘balance’ simply means that in order to protect human rights we are required to take risks that may lead to innocent people being hurt. A society that wishes to protect its democratic values and that wishes to have a democratic system of government even in times of terror and war cannot prefer the right to life in every case where it conflicts with the preservation of human rights. A democratic society is required to carry out the complex work of balancing between the conflicting values. This balance, by its very nature, includes elements of risk and elements of probability (see, in this regard, C.R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (2005), at pp. 204-223; J. Waldron, ‘Security and Liberty: The Image of Balance,’ The Journal of Political Philosophy, vol. 11 (2003), at pp. 191-210; M. Freeman, ‘Order, Rights and Threats: Terrorism and Global Justice,’ in Human Rights in the War on Terror (R. Wilson, ed., 2005), at pp. 37-56). Naturally, we must not take any unreasonable risks. Democracy should not commit suicide in order to protect the human rights of its citizens. Democracy should protect itself and fight for its existence and its values. But this protection and this war should be carried out in a manner that does not deprive us of our democratic nature.

112. In this perception, the comparison in our opinion is not between life and family life. The comparison is between the risk to life and the likelihood that the right to life will be violated as compared with the certainty of the violation of family life. In my opinion, the additional security caused by changing from an individual check to a blanket prohibition of the entry of husbands up to the age of 35 and wives up to the age of 25 cannot be compared to the additional damage to the Israeli spouses as a result of the violation of their right to family life. Indeed, if an individual check is proper, from the viewpoint of the risks that should be taken in our defensive democracy, when the husband reaches 35 and the wife reaches 25, why does it become improper, from the viewpoint of the risks, when they have not yet reached these ages? This question is asked mainly against the background of the state’s position, which it repeatedly stated before us and which my colleague discussed in his opinion, that the concern is with regard to a change in the position of the foreign spouse after entering Israel. My colleague asks: ‘who therefore is so wise that he does not suspect that a resident of the territories may become associated with a terror organization after receiving Israeli documentation? (para. 111 of his opinion). Indeed, the suspicion certainly exists. As the years pass, this concern may even increase. And yet, notwithstanding this concern, the state decided — rightly, in my opinion — that this concern is insufficiently serious in order to reject an individual check and in order to necessitate a blanket prohibition for husbands aged 35 or more and wives aged 25 or more. The same is true of the transition provisions included in the Citizenship and Entry into Israel Law, which my colleague discusses (in para. 123 of his opinion). These provisions provide that the Minister of the Interior or the military commander in the territories may give licences to live and permits to stay in Israel to residents of the territories who filed their application for family reunifications before 15 May 2002, subject to an individual check of the risk presented by him. My colleague calculates the number of those persons who may benefit from the transition provisions at approximately 16,000. So we see that with regard to these thousands the state remains satisfied to carry out individual checks, notwithstanding the risk involved therein. The violation that would be caused by applying the law retroactively appears to the state — and rightly so — too serious a violation of the rights, which ought to be avoided even at the price of the security risk involved therein. The same is true of residents of the territories who enter Israel for work purposes. Also with regard to them the state is satisfied to carry out an individual check, notwithstanding the risk inherent in this. The needs of Israeli society for the work of these people seems to the state — and in my opinion, rightly — to be creating a risk that should be taken. Against the background of all of these, it is difficult, very difficult, to give such great weight to the risk that arises from holding an individual check, which is right and proper for spouses over the age of 35 (for husbands) and over the age of 25 (for wives), for spouses who submitted their request before the effective date, and for workers from the territories, precisely in the case of the other foreign spouses who wish to enter Israel. Once again, were we to place before us human life only, we would be obliged to reach the conclusion that whatever the age of the foreign spouses, a blanket prohibition should be applied to them; we would also be liable to determine that family reunifications should not be allowed, irrespective of the question of when the application was filed; we would also be liable to determine that workers should not be allowed at all to enter from the territories. But this is not what the Citizenship and Entry into Israel Law provides. If the state is prepared to take the risks to human life that its policy — which refrains from a blanket prohibition and is satisfied with an individual check — causes with regard to spouses over the ages of 35 and 25, and if the state was prepared to take the risks of giving entry permits to spouses who filed their application before the effective date, and if the state was prepared to take the risks in allowing workers from the territories to enter Israel and is satisfied with an individual check, it is a sign that the risk presented by being satisfied with an individual check is not so large that it can justify the serious violation to the family life of the Israeli spouses.

113. Naturally, everything should be done in order to increase the effectiveness of the individual check. In this regard, the Citizenship and Entry into Israel Law contains provisions with regard to the individual check of those persons to whom the blanket prohibition does not apply (s. 3D of the law). It is possible, of course, to exercise these provisions with regard to everyone who undergoes an individual check. It is also possible to propose additional measures that can be taken. Thus, for example, it is possible to give weight to the fact that the Israeli spouse applied originally to the respondents and asked that an individual check should be made. Of course, if de facto there is no real possibility of receiving relevant information from an individual check of a foreign spouse because of the security position, there is no alternative to deferring the decision concerning him until the individual check becomes possible. Where fighting is taking place checks are not carried out; where there is no possibility, because of the security conditions, of making a check, it should be deferred until the conditions change. All of these will be determined in accordance with the conditions of the time and place; they will be governed by a blanket prohibition. Therefore, with regard to those spouses for whom the individual check is possible, it should be made. In such situations the disproportionality of the blanket prohibition stands out. Why should the Israeli spouse not be allowed to have a family life in Israel with the foreign spouse, when a reasonable check shows that the foreign spouse does not constitute a security risk at the time of the check, and there exists little risk that this will change in the future? Even if the burden of proof is placed, in this regard, on the Israeli spouse, why should he be deprived of the possibility of proving that the burden has been discharged?

Conclusion

114. The decision in these petitions is difficult. ‘We are members of Israeli society. Although we sometimes find ourselves in an ivory tower, that tower is in the heart of Jerusalem, which has on more than one occasion suffered from ruthless terror. We are aware of the killing and destruction that the terror against the state and its citizens brings in its wake. Like every other Israeli, we too recognize the need to protect the state and its citizens against the serious harm of terror. We are aware that, in the short term, this judgment of ours will not make the state’s struggle against those that attack it any easier. But we are judges. When we sit in judgment, we ourselves are being judged’ (Beit Sourik Village Council v. Government of Israel [2], at p. 861 {323}). As judges, we know that we must find a proper balance between human rights and security. ‘In this balance, human rights cannot receive complete protection, as if there were no terror, and state security cannot receive complete protection, as if there were no human rights. A delicate and sensitive balance is required. This is the price of democracy. It is expensive, but worthwhile. It strengthens the state. It provides a reason for its struggle’ (Ajuri v. IDF Commander in West Bank [1], at p. 383 {120}). We discussed this in Public Committee Against Torture v. Government of Israel [102], which concerned the use of violence in order to save human life from a terrorist who was alleged to be a ‘ticking bomb.’ These remarks are also apposite in this case:

‘We are aware that this decision does not make it easier to deal with that reality. This is the destiny of a democracy — it does not see all means as acceptable, and the ways of her enemies are not always open to it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of the individual constitute important components in its understanding of security. At the end of the day, they strengthen her spirit and this strength allows it to overcome its difficulties’ (ibid. [102], at p. 845 {605}).

Were my opinion accepted, the result would be that the Citizenship and Entry into Israel Law is void. The declaration of the law’s voidance is suspended until 16 July 2006.

 

 

Vice-President Emeritus M. Cheshin

When I received the opinion of my colleague, President Barak, I put my hand in his and allowed him to lead me along his path. So we followed paths that were paved with basic principles, we ascended mountains with summits of basic rights, we transversed doctrines, we descended into specific rules of law, and on our way we were continually accompanied by justice, truth, integrity and common sense. Towards the end of the journey, we boarded a ship and we reached an island in the middle of the ocean. We disembarked, and on the pier a dignified person greeted us.

‘Welcome,’ the man welcomed us with a kind expression.

‘Greetings,’ we replied, and added: ‘We are from Israel, from the Supreme Court of Israel. And who are you, sir?’ we asked.

‘My name is Thomas, Thomas More, also known as Thomas Morus.’

‘Very pleased to meet you. And what is this place?’ we asked.

‘You are in the state of Utopia,’ the man replied, and added: ‘The state of Utopia was established according to a plan that I outlined in a book that I wrote, which has the same name as the state, Utopia. By the way,’ the man added, ‘the word Utopia is from Greek, and it means “nowhere”.’

‘Interesting, very interesting,’ we said, ‘And as persons of the law, let us also ask you this: what is the legal system in Utopia? Is it similar to the legal system in Israel?’ (Our assumption was, of course, that this wise man knew the Israeli legal system).

Mr More immediately answered: ‘I am sorry, but there are vast differences between the two legal systems, and it will be a long time before Israel reaches the level of Utopia. At this time, you are fighting for your lives, for the existence of the state, for the ability of the Jewish people to have a communal and national life like all peoples. The laws of Utopia — in the position you find yourselves in at present — are not for you. Not yet. Take care of yourselves, do the best you can, and live.’ Thus spoke the man, and he said no more.

Then I awoke, and it was a dream.

* * *

The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (‘the law’ or ‘the Citizenship and Entry into Israel Law’) tells us that, subject to various exceptions — which are extensive — Israeli citizenship shall not be given to a resident of Judaea, Samaria or the Gaza Strip (the territories), nor shall a licence to live in Israel be given to such a person. The law does not apply to the residents of Israeli towns in the territories. On this occasion, we are concerned with the question whether the law satisfies — or does not satisfy — the constitutionality tests set out in the Basic Law: Human Dignity and Liberty.

2.    I have read carefully the opinion of my colleague, President Barak. The opinion is broad in scope and excellently presented, from beginning to end. I read it, but I was unable to agree. My path in the law is, in its essence, different from my colleague’s path. My thinking is different from my colleague’s thinking.

First of all, I believe that the State of Israel — like any country in the world — is entitled to restrict by law the immigration of foreigners into Israel, including the spouses of Israeli citizens. I do not accept that the citizens of the State have a constitutional right — i.e., a right by virtue of which it is possible to declare a statute of the Knesset void — that their foreign spouses may immigrate into Israel by virtue of marriage. Admittedly, I too, like my colleague the president, recognize the lofty status of the right to marriage and family life, but a disagreement divides us with regard to the secondary rights that derive from that right. Unlike my colleague, I doubt whether the right to marriage and family life implies a constitutional duty that is imposed on the state to allow foreign citizens who married citizens of the state to enter Israel.

Secondly, in times of war the state — any state — may refuse entry to citizens of an enemy of the state, even if they are married to citizens of the state. The State of Israel, as we all know, is at war — or at least a quasi-war — which is cruel and hard, against the Palestinian Authority and the terror organizations that act from within it. The residents of the Palestinian territories are de facto enemy nationals, and as such they are a group that presents a risk to the citizens and residents of Israel. The state is therefore entitled, in order to protect its citizens and residents, to enact a law that prohibits the entry of residents of the territories — enemy nationals — into the state, as long as the state of war or quasi-war continues. The basic right to marriage and family life is a basic right that we all recognize as a right derived from human dignity. But I doubt whether it implies, in itself, a duty imposed on the state to allow the entry into Israel of enemy nationals merely because they married persons who are residents or citizens of Israel. This is an enemy that is sponsoring a prolonged and murderous attack against the state and its residents. Here we will also find the answer to the claim of discrimination, since a distinction made by the law — a distinction that concerns the residents of the territories and not the citizens of the state — is a permitted distinction between the citizens of the state who married foreign citizens that are enemy nationals and citizens of the state who married foreign citizens that are not enemy nationals.

Third, even had I agreed with my colleague’s approach with regard to the constitutional status of the right to family life with persons who are foreign to the state, I still would not agree with his conclusion that the test of proportionality (‘in its narrow sense’) undermines the law and dooms it to destruction. Unlike my colleague, I am of the opinion that the advantage and benefit that the Citizenship and Entry into Israel Law contributes to the security and the lives of Israeli residents overrides the violation that the law inflicts on some of the citizens of Israel who have married — or who intend to marry — residents of the territories and who wish to live with their spouse in Israel. Indeed, when we place on one side of the scales the right of the citizens of Israel to life and security and on the other the right of some of the citizens of Israel to marry residents of the territories and live in Israel, the first side has greater weight. This should be the law where security is undermined to a significant degree, when life is in constant risk. And we all know that when we speak of risks to life and preserving life, we are not speaking metaphorically. It is life that we are seeking to protect, and no less. So when the Knesset — the supreme body in Israeli democracy — decided that the provisions of the Citizenship and Entry into Israel Law, a temporary law that is qualified with considerable restrictions, constitutes an effective and proper tool for protecting the lives of the citizens of the state and for the war against the serious risks to life and security, I find it difficult to accept that from the viewpoint of Israeli society the law commits the sin of disproportionality.

3.    The Citizenship and Entry into Israel Law is a law that was enacted against a difficult security background in which the State of Israel finds itself. Against this difficult background, since we know from past experience that some of the residents of the territories — residents who by virtue of their marriage were given Israeli citizenship, with permits to move freely within Israel and between the areas of the Palestinian Authority and Israel — aided the terror attacks of suicide bombers that plague Israel, our opinion is that the petitioners are not entitled to the voidance of the law. We should always remember: Israel is not Utopia. Israel finds itself in a difficult armed conflict with the Palestinians. An authority against a state. One collective against another. And this armed conflict has become like a war. Not like the War of Independence; not like the Six Day War; not like the Yom Kippur War. But it is a war nevertheless. And a state that finds itself in a state of war with another state usually prohibits — and is entitled to prohibit — the entry of the residents of the enemy state into its territory. This is also the case here. As to the relationship between the state and its residents and citizens, its internal relations, the state is entitled, in order to protect its citizens and its residents, to forbid the residents of the area that is waging an armed conflict with it — to forbid the residents of the ‘enemy state’ — to enter Israel.

4.    When it became clear that some of the residents of the territories who live in Israel were involved in the activity of suicide bombers who came from the Palestinian Authority, and when it became clear to the security establishment that they were unable to distinguish with a reasonable level of accuracy between the residents of the territories who are likely to aid terror and the residents of the territories who are not likely to aid terror, even if only for the reason that the terror organizations seek the help of those residents after they receive the coveted Israeli documentation, we are of the opinion that the arrangement provided by the Knesset in the Citizenship and Entry into Israel Law — a law whose validity is limited in time and whose application is qualified by reservations — according to which Palestinian residents from the territories, in the age groups stated in the law, will not be given citizenship or a licence to live in Israel, is a constitutional and proportionate law.

5.    We all know that the provisions of the law harm some of the citizens of Israel who wish to marry Palestinian spouses and live with them in Israel. As human beings, we can only identify with the pain of those innocent persons whose right to have a family life in Israel has been violated. But there are two sides to the coin. Thus, as long as the Palestinian-Israeli armed conflict continues, as long as the Palestinian terror continues to strike Israel and Israelis indiscriminately, as long as the security services find it difficult to distinguish between those who aid our enemies and those who do not aid our enemies, the right of the few to have a family life in Israel should yield to the right of all the residents of Israel to life and security. Indeed, it is the right — more, it is the duty — of a state, of every state, to protect its residents against those who wish to harm them, and from this it can be derived that the state may prevent the immigration of enemy nationals into it — even if they are merely the spouses of Israeli citizens — while it is waging an armed conflict with that enemy.

Concerning the armed struggle that the Palestinians are waging against Israel and Israelis

6.    In September 2000, a murderous terror onslaught began to afflict the State of Israel and its residents. Its origins were in the territories of Judaea, Samaria and the Gaza Strip. The onslaught is planned and executed almost entirely by Palestinians who are residents of the territories. The armed struggle of the Palestinians against the State of Israel and its residents has not stopped, and while we write this judgment the citizens of Israel continue to live under the threat of the murderous terror that is directed against them. We already know that we are speaking of one of the most serious onslaughts that we have undergone. Tens of thousands of terror attacks originating in the territories have struck children, the elderly, women and men indiscriminately and mercilessly. The vast majority of these are innocent citizens who are engaged in their normal day-to-day activities. This has led to the death of more than one thousand Israelis and the wounding of thousands more. Much property has been damaged and destroyed. The economy of the State of Israel has been seriously undermined. Daily life in the country has been disrupted. Many citizens have become fearful of everyday occurrences, such as travelling on buses, visiting shopping malls and eating out in restaurants. In the eyes of the world Israel is pictured as a country afflicted with terror that should not be visited.

7.    Let us briefly mention the facts that can be called ‘plain facts,’ but in truth they are stained and discoloured with much blood. Since September 2000 the Palestinian have carried out 26,448 terror attacks, in which they have murdered 1,080 Israeli citizens and wounded 7,416 citizens. The number of terror attacks includes all the terror attacks that were carried out in Israel and the territories, and it includes various types of enemy terror activity, such as huge explosions with many victims inside Israel, shooting attacks in the territories and the firing of Kassam rockets and light firearms into Israel. For our purpose, we will focus on the attacks that are carried out inside Israel, i.e., attacks whose execution usually requires the help of persons who live legally in Israel and are able to avoid obstacles that Israel places in the path of terrorists who come from the territories. Inside the State of Israel — literally in the home — the Palestinians have carried out 1,596 terror attacks, including 148 suicide attacks. 626 Israeli citizens were murdered near their homes, while they were sitting in restaurants, travelling on buses, shopping at malls or waiting to cross a pedestrian crossing with small children. 6,446 Israelis — men and women, children and the elderly — have been wounded, some with very serious injuries that will leave them scarred all their lives. In the suicide attacks alone the Palestinians have murdered 505 Israelis and wounded thousands. This is the reality in which we live. These are the results of the war that the Palestinians are waging against us. And at this time we do not know what tomorrow will bring.

8.    To protect the residents of the state, Israel is fighting terror to its utmost. But this war is not simple at all. It is also not like previous wars, those wars which shaped the norms of war accepted in international law. The Palestinian war of terror is not carried out by an organized army wearing uniforms, nor is it waged on the battlefield. This is a war of terrorists who do not wear a tag to distinguish themselves from the other inhabitants of the territories and who direct their attacks against civilians who are going about their daily lives. The terrorists hide and mingle among the Palestinian population so that it is impossible to know who is an innocent Palestinian resident, who is a terrorist and who is a Palestinian resident who is likely to aid terror. This hiding of the terror organizations among the civilian population is not a coincidence. The terrorists hide deliberately among the civilian population, and they sometimes make use of the innocent population as ‘human shields’ against the operations of the IDF. Moreover, the terrorists are given support and assistance by parts of the civilian population. Indeed, not only do the inhabitants of the territories do nothing to stop the terror, but many of them even support it and assist it. A large number of terrorists receive the encouragement and assistance of those around them and their families. Many regard the perpetration of acts of terror and aiding terror as a means of ensuring the future livelihood of the family. Others act because of threats, and they aid the terror organizations out of a fear that if they do not do so they or their families will disappear. The Palestinian Authority itself also does not do enough to subdue terror, and in several cases it has been found that the Palestinian Authority or persons who were members in its agencies aided acts of terror or took part in them directly. This support is, inter alia, a result of the extreme and rabid incitement that calls for acts of violence to be carried out against Israel and its residents. This incitement has continued for many years, and it is clear that it has penetrated all sectors of Palestinian society. This court has been called on in the past to consider the difficult and complex security reality in which we find ourselves. Let us cite remarks made by President Barak three and a half years ago (on 3 September 2002) in Ajuri v. IDF Commander in West Bank [1], at p. 358 {87}:

‘Israel’s fight is complex. The Palestinians use, inter alia, guided human bombs. These suicide bombers reach every place where Israelis are to be found (within the boundaries of the State of Israel and in the Jewish villages in Judaea and Samaria and the Gaza Strip). They sew destruction and spill blood in the cities and towns. Indeed, the forces fighting against Israel are terrorists; they are not members of a regular army; they do not wear uniforms; they hide among the civilian Palestinian population in the territories, including in holy sites; they are supported by part of the civilian population, and by their families and relatives.’

In another case, the court considered the attitude prevailing in Palestinian society and the encouragement given by some of the Palestinian population to the war of the terror organizations against the State of Israel (CrimA 2131/03 Saadi v. State of Israel (unreported), per Justice Levy):

‘… It is sufficient to point to the large number of attacks that have been perpetrated and the many others that were prevented, and it is especially appropriate to point to the exultations and joy following the killing of Jews, and the “days of feasting” announced by the families of those who are declared to be “martyrs” after their families are told of the death of their sons. In my opinion, these are capable of clarifying to what extent the population of the territories occupied by Israel encourage the suicide bombers, and we can therefore understand the growing number of persons who are prepared to act as “live bombs.” In this situation, the need to search for deterrents in order to reduce the cycle of killing is an existential need that knows no parallel…’

Someone who has not seen a mother praising her son who killed himself as a ‘live bomb’ in order to murder Israelis — and who among us has not seen these scenes of horror on the television screen — has never seen anything surreal in his life. Such are the enemies of Israel.

9.    We received clear and explicit evidence of the prevailing attitude of the Palestinian public in the elections that took place in the Palestinian Authority on 25 January 2006. In these elections the Hamas organization won a majority of the seats in the Palestinian parliament, and as a result of this win it also formed the government of the Authority. I think that there is no need to expand on the nature of the Hamas organization that, already on 22 June 1989, seventeen years ago, was declared by the government of Israel to be a terror organization, in accordance with the definition of this term in the Prevention of Terror Ordinance, 5708-1948. Hamas is a murderous terror organization, one of the most extreme and dangerous of the terror organizations, whose declared and clear purpose is to fight a war of Jihad that will wipe Israel off the face of the earth. The beliefs of the Hamas organization can be learned from the organization’s charter, which gives clear expression to the ideology that governs it. This charter, which is the basic constitution of Hamas, reveals an extreme outlook that calls for an uncompromising war of Jihad against Israel and Zionism. The Hamas organization regards itself as a link in a holy war against the Zionist invasion, and it calls upon the whole Moslem nation, and especially the Palestinian people, to take a part in this war which will lead to the destruction of the State of Israel. The charter of the Hamas organization numbers many pages, and we will cite (from the translation which the state submitted for our study) only some of the main points in brief. At the beginning of the charter, there is the following quote that is attributed to Hassan Albana, the founder of the Moslem Brotherhood movement in Egypt:

‘Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it.’

This is the beginning of the charter and this is the evil and cruel spirit that permeates it.

Further on, the Hamas charter states that ‘Palestine is land belonging to the Islamic Wakf,’ and in consequence of this ‘it is forbidden to relinquish it or any part of it or to concede it or any part of it.’ Since the Hamas organization rules out any solution that involves conceding Palestinian lands — i.e., rules out any solution that does not involve the destruction of the State of Israel — the charter states openly and expressly that the Hamas organization rules out any peaceful solution whatsoever, since a peaceful solution means a concession of holy Palestinian lands. Hamas believes that the one and only solution to the ‘theft of Palestine by the Jews’ is a solution of war: not merely any war, but a holy Islamic war that will wipe the State of Israel off the face of the earth. In this spirit, the Hamas organization calls upon Moslems in general and Palestinians in particular to join the ranks of the Jihad warriors (the Mujadeen) in their war on Israel, and it also calls upon Islamic religious scholars to disseminate the spirit of Jihad and nurture Islamic consciousness among the whole people (paras. 14 and 15 of the charter):

‘… The freeing [of Palestine] is a personal obligation on every Moslem wherever he is. It is [solely] on this basis that one should address the problem [of Palestine], and every Moslem should understand this well.

…

When the enemies steal a part of Moslem lands, the Jihad becomes a personal duty of every Moslem. With regard to dealing with the theft of Palestine by the Jews, there is no alternative to raising the banner of Jihad, something which requires the spreading of Moslem consciousness among the masses on a local, Arab and Moslem level, and there is no alternative to spreading the spirit of Jihad among the [Islamic] nation, fighting the enemies and joining the warriors of the Jihad [the Mujadeen].’

It should be stated that further on the charter levels against Israel and the Jews serious and fantastic anti-Semitic accusations, including the accusation that ‘they were behind the French Revolution, the Communist Revolution and most of the revolutions of which we have heard and of which we hear in various places’; it is the Jews who caused the First World War which was intended to destroy the Ottoman Caliphate; the Jews have set up secret organizations throughout the world and they control them; the Jews set up the United Nations — which replaced the League of Nations — in order that they might control the world; the Jews use money and resources in order to control the world and to ensure the foundation and existence of the State of Israel (para. 22 of the charter). Indeed, the Protocols of the Elders of Zion have worthy progeny.

10. These, then, are the beliefs of the Hamas organization, these are its purposes, and to our sorrow Hamas has acted and continue to act in order to realize its beliefs and purposes. Since it was founded, Hamas has fought a cruel and murderous war of terror against Israel and it strikes Israeli citizens without mercy. Hundreds have been killed and thousands have been wounded in suicide attacks inspired by the organization, and this modus operandi has spread to other Palestinian organizations and from them to Moslem organizations throughout the world. Much blood has been spilt, and Hamas continues on its path.

11. And yet, despite its extreme positions, Hamas has benefited and the Palestinian public elected it to lead them. The Palestinian public elected the Hamas organization to power, and as a result of this election Hamas has formed a government in the Palestinian Authority. Hamas members hold office as the prime minister and as ministers in the government, they control the Authority’s budget and they decide its policy. Members of the Hamas organization are the Authority’s spokesmen, they control the media and they implement their policy vis-à-vis the world and the State of Israel. The Hamas organization and the Palestinian Authority — at least the organs of government in the Palestinian Authority — have become one.

12. An armed conflict has been taking place between Israel and the Palestinians for many years. This conflict has reaped a heavy price on both sides, and we have seen the massive scale of the harm caused to Israel and its inhabitants. The Palestinian public plays an active part in the armed conflict. Among the Palestinian public there is enmity to Israel and Israelis. Large parts of the Palestinian public — including also persons who are members of the organs of the Palestinian Authority — support the armed struggle against Israel and actively participate in it. The terror organizations and their operatives are well placed in all parts of Palestinian society and they receive its assistance, at least by its silence and failure to prevent terror operations. The Palestinian public chose the Hamas terror organization to rule it, and we know what are the character and the beliefs of the party that controls the Palestinian Authority. All of these are facts that are not in dispute, and the conclusion that follows from them is that the Palestinian Authority is a political entity that is hostile to Israel. It follows from this that the residents of the territories — Judaea, Samaria and the Gaza Strip — are enemy nationals. Admittedly, between Israel and the Palestinian Authority there is a complex and intricate relationship which is not merely a relationship of war, and it is clear that many of the residents of the territories do not take part in terror and even denounce it. But we are concerned with the rule, and when we are speaking of the rule — in the Palestinian Authority and the Palestinian public — the picture that we obtain is a picture of hostility and enmity. The Palestinian Authority is hostile to Israel. From the places under its control, and with its knowledge — possibly even on its initiative and with its encouragement — an armed struggle is being waged against Israel and its residents, and human bombs from the territories sew death and destruction in Israel. The relationship of Israel and the Authority is similar to the relationship between states that are at war with one another.

The security background to the enactment of the Citizenship and Entry into Israel Law

13. The State of Israel and the security forces have done all they can to defeat the wave of terror that has overwhelmed the state, and they have adopted wide-ranging measures, some of which have led, regrettably and as an inevitable consequence, to harm to the Palestinian population. Thus, inter alia, military operations have been conducted, some on a large scale, in the territories under the control of the Palestinian Authority. These operations involved infantry, heavy weapons — tanks and armoured personnel carriers — helicopter gunships and airplanes. The army entered Palestinian towns and villages, engaged in fierce fighting there and arrested many suspects. The army imposed curfews and sieges in various areas and several cities in Judaea and Samaria. Roadblocks were set up on highways and roads in the territories. The State of Israel initiated a policy of targeted attacks — on the land and from the air — and in several cases it accidentally caused harm to the civilian population among whom the terrorists who were being targeted by the operation were hiding. Alongside these military operations, when it was found that they did not provide a satisfactory solution to the terror onslaught, the State of Israel began building the security fence, which was intended to be a physical barrier that would prevent terrorists from entering the State of Israel.

14. Almost all of the military activities of the State of Israel were attacked in the court, on the grounds that they harm citizens who are not involved in terror, but the opinion of the court was consistent and clear: it is the right of the State to protect itself and its residents against the terror onslaught, and this is true even at the price of the accidental and unintentional harm to a civilian population that does not wish to harm the State of Israel. The right to life and existence — the life and existence of the residents of Israel, the life and existence of the state — therefore overrode other important rights, and the voice of the court was heard loud and clear. See, for example, Beit Sourik Village Council v. Government of Israel [2]; Marabeh v. Prime Minister of Israel [5]; Marab v. IDF Commander in Judaea and Samaria [3]; Centre for Defence of the Individual v. IDF Commander in West Bank [4]; HCJ 8172/02 Ibrahim v. IDF Commander in West Bank [108]; HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza [109]; HCJ 1730/96 Sabiah v. IDF Commander in Judaea and Samaria [110]. Those cases admittedly concerned the activity of the state in an area held under belligerent occupation, and thus they were different from the case before us. At the same time, we can learn from those cases how to balance rights, which we are also required to do in this case, when on the one side there are rights of the individual and on the other said there is the duty of the state to prevent terror activities and to protect the lives of the residents of the state.

15. Notwithstanding all the activities and efforts of the state of Israel, the terror onslaught was not stopped, and whenever a method of reducing the ability of the terrorists to harm Israel was found, the terror organizations made great efforts to overcome that method. This is what happened after the building of the security fence. The terror organizations encountered a method of defence that they found difficult to overcome, and in order to avoid it they began to avail themselves of residents of the territories who had undergone processes of ‘family reunifications’ and were given permits to enter Israel and move around in it freely. ‘The Israeli identity cards that were given to residents of the territories [as a result of marriage to citizens or residents of Israel] allowed them free movement between the areas of the Authority and Israel, and made them the preferred group of terror organizations for carrying out hostile activity in general, and inside Israel in particular’ (explanatory notes to the draft Citizenship and Entry into Israel (Temporary Provision) Law (Amendment) 5765-2005, Hatzaot Hok (Draft Laws), 5765, at p. 624). Thus a new reality was created ‘in which there is increasing involvement in the conflict on the part of Palestinians who were originally residents of the territories and who have Israeli identity cards as a result of the process of family reunification with persons having Israeli citizenship or residency, and who abused their status in Israel for the sake of involvement in terror activity, including aiding the perpetration of suicide attacks’ (ibid.).

The law and the security reasons underlying it

16. The residents of the territories who have documents that permit them to stay in Israel have therefore become a target for recruitment by the terror organizations because of their ability to aid in the perpetration of terror attacks in Israel. And indeed, the security forces of Israel have found that the efforts of the terror organizations have borne fruit, and that the involvement of the residents of the territories carrying Israeli identity cards in terror activity has increased. We should further point out that on more than one occasion the terror organizations contacted a resident of the territories after he passed all the required checks — including a check of the lack of a security risk — and he received a permit to stay in Israel. In other words, when he received the permit, the resident of the territories had no connection whatsoever with the terror organizations and therefore the security establishment did not find that he presented a security danger, but after receiving the documentation the terror organizations recruited him into their ranks to aid in terror activity.

17. Against the background of this difficult security reality, the government of Israel decided, on 12 May 2002, to determine a general policy with regard to the ‘treatment of illegal aliens and the policy of family reunifications with regard to the residents of the Palestinian Authority and foreigners of Palestinian origin’ (decision no. 1813). The government set out rules and principles for that new policy, adding that until a new policy was formulated, no residents of the territories would be entitled to documentation that allowed them to stay in Israel, including licences to live in Israel by virtue of the Entry into Israel Law, 5712-1952. In the language of the decision: ‘No new applications of residents of the Palestinian Authority to receive a status of resident or any other status will be accepted; an application that has been filed will not be approved, and the foreign spouse will be required to stay outside Israel until the decision is made.’

18. The government’s decision and the policy that the decision was intended to put into effect were enshrined in the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003. This is the law whose constitutionality (after its amendment) is the subject of the case before us. The law restricted, subject to certain exceptions, the right of residents of the territories to receive Israeli documentation that will permit them to stay in Israel, and according to section 2:

‘Restriction on citizenship and residency in Israel

2.  As long as this law is valid, notwithstanding what is stated in any law including section 7 of the Citizenship Law, the Minister of the Interior shall not grant citizenship under the Citizenship Law to a resident of an area nor shall he give him a licence to reside in Israel under the Entry into Israel Law, and the area commander shall not give a resident as aforesaid a permit to stay in Israel under the security legislation in the area.’

19. As we have explained above, the reasons for this law are security ones, and we are also told this in the explanatory notes to the draft Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (Hatzaot Hok (Draft Laws), 5763, at p. 482):

‘Since the armed conflict broke out between Israel and the Palestinians, which led inter alia to dozens of suicide attacks being carried out in Israel, a trend can be seen of an increasing involvement in this conflict on the part of Palestinians who were originally residents of the territories who carry an Israeli identity card as a result of family reunifications with persons with Israeli citizenship or residency, by means of an abuse of their status in Israel that allows them freedom of movement between the areas of the Palestinian Authority and Israel.

Therefore, and in accordance with decision no. 1813 of the government… it is proposed to restrict the possibility of giving residents of the territories citizenship under the Citizenship Law, including by way of family reunifications, and the possibility of giving the aforesaid residents licences to live in Israel under the Entry into Israel Law or permits to stay in Israel under the security legislation in the territories.’

At the same time, on the basis of the assumption that the security reasons that led to the enactment of the law may change as time passes, it was decided that the law would be enacted in the format of a ‘temporary provision’ for a year, and that at the end of that year, after the ramifications of the temporary provision and the security position were examined, the government would be entitled, with the approval of the Knesset, to extend the validity of the law for an additional period that would not exceed an additional year, and so on. See Hatzaot Hok (Draft Laws), 5763, at p. 483. According to the wording of s. 5 of the law (as it was at the time of its enactment):

‘Validity

5.  This law shall remain valid until a year has passed from the date of its publication, but the government may, with the approval of the Knesset, extend its validity in an order, from time to time, for a period that shall not exceed one year each time.’

Extending the validity of the law and reducing its personal application

20. The law was enacted on 6 August 2003, and according to s. 5 it was valid until 5 August 2004. But the government exercised its power in s. 5 of the law, and with the approval of the Knesset it extended the validity of the law three times, for three short periods: once until 5 February 2005, a second time until 31 May 2005 and a third time until 31 August 2005. During this period, there was no change in the professional assessment of the security establishment that the terror organizations were doing their best to recruit to their ranks residents of the territories who held Israeli documentation by virtue of marriage to Israeli citizens. Moreover, it was found that the temporary provisions served the purpose for which it was intended, and that it was an effective tool in reducing terror and preventing security risks to the residents of the state. At the same time, the government considered the remarks that were made by the court within the framework of the hearings in petitions filed against the constitutionality of the law, namely that it should address the violation caused by the law to the rights of Israeli citizens who married residents of the territories, and that it should consider whether it was possible to balance the security purpose and the violation of those rights in a more lenient manner.

21. The government addressed the security considerations, the danger to public security and the violation of the rights of citizens, and after it weighed the conflicting interests against one another, it decided to recommend to the Knesset that it extend the validity of the law, and at the same time amend it in two respects: one, by broadening the group that might be entitled to licences to live in Israel, and two, by giving the Minister of the Interior discretion to give a permit to stay in Israel to groups that according to the security forces posed a (relatively) smaller potential security risk. This broadening of the exceptions to the law, so the government thought, would give a proper expression to the considerations of proportionality provided in statute and in case law, and it would therefore reduce the violation caused by the law to Israelis citizens without significantly prejudicing the security purpose. In the government’s opinion, the amendment of the law will lead to a reduction of approximately a third of the number of cases to which the law originally applied. We can see the reasons that formed a basis for the amendment and the nature of the amendment from the explanatory notes to the Citizenship and Entry into Israel (Temporary Provision) Law (Amendment) 5765-2005 (Hatzaot Hok (Draft Laws) 5765, at p. 624):

‘The professional position of the security establishment is that there has been no change in the security reality that was the basis for the enactment of the temporary provision, in so far as concerns the intention of the terror organizations to carry out major attacks, as much as possible, inside the State of Israel, and in so far as concerns the potential for exploiting the aforesaid population in carrying out these attacks, and even now attempts to carry out such attacks are continuing all the time.

It was also found that as the building of the separation fence progressed, members of the Palestinian population that hold an Israeli identity card became a higher priority for the terror organizations as aforesaid.

… The professional assessment of the security establishment is that the temporary provision is an effective tool for reducing the free passage of residents of the territories between the areas controlled by the Authority and Israel, and for preventing the potential for a serious security risk on the part of that population.

It is therefore proposed that the validity of the temporary provision should be extended for an additional period.

Notwithstanding, in accordance with decision no. 2265 of the government… and in view of the remarks of the High Court of Justice in petitions that were filed with regard to the temporary provision [the petitions that are before us], it is proposed that alongside the extension of its validity, the temporary provision should be amended so that the exceptions to the application of the restrictions therein should be broadened. This broadening of the exceptions should be made with regard to population groups who, according to the assessment of the security authorities, are of a reduced security risk potential, so that the purpose of the temporary measure is achieved, on the one hand, and we ensure that this purpose is achieved in a more proportionate manner, on the other.’

22. The Knesset debated the draft law and finally the draft was formulated into an amendment of the law that was published in Reshumot on 1 August 2005. We will not expand upon all the amendments that were made to the law, but we will recall once again that notwithstanding the general prohibition provided in s. 2 of the law, the Minister of the Interior was authorized, at his discretion and subject to the fulfilment of certain conditions, to give approval for residents of the territories to live in Israel. Thus, for example, it was provided, inter alia, in s. 3 of the law that notwithstanding the prohibition provided in s. 2 of the law — the prohibition against granting a resident of the territories citizenship or a licence to live in Israel — the Minister of the Interior may, at his discretion, approve an application of a resident of the territories to be given a permit to stay in Israel, if the age of the applicant is over 35 for a man or over 25 for a woman, provided that it is done in order to prevent a separation of spouses who are legally in Israel. This more lenient approach was adopted after the security establishment found that the expected risks from these age groups were (relatively) low. It was also determined (in s. 3A) that in order to prevent the separation of a minor from his custodial parent who is lawfully in Israel, the prohibition in the law shall not apply to a minor of up to 14 years of age, and that with the approval of the Minister of the Interior and the military commander, the stay in Israel of a minor who is a resident of the territories and who is up to 14 years of age will be allowed, here too in order to prevent his separation from his custodial parent. It should be emphasized that the provisions of section 3A of the law only concern minors who are residents of the territories, were not born in Israel and wish to join their custodial parent who lives in Israel. A minor who was born in Israel to a citizen or resident of Israel is entitled to receive the status of his parent, according to the provisions of s. 4A(1) of the Citizenship Law, 5712-1952, and r. 12 of the Entry into Israel Regulations, 5734-1974. It was also provided — in s. 3B of the law — that the military commander may give a permit to stay in Israel (for our purposes, to a resident of the territories who is a parent of a minor) ‘for a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.’ At the same time, in order not to harm the main purpose of the law — the security purpose — it was provided expressly (in s. 3D) that notwithstanding the concessions added to the law, no approval would be given for the stay in Israel of a resident of the territories if the security establishment thinks that he or a member of his family may constitute a security risk to the state. Let us look at the current wording of the law — at the main changes and concessions made in the amendment — against the background of the general prohibition in s. 2 of the law:

‘Restriction on citizenship and residency in Israel

2.  As long as this law is valid, notwithstanding what is stated in any law including section 7 of the Citizenship Law, the Minister of the Interior shall not grant citizenship under the Citizenship Law to a resident of an area nor shall he give him a licence to reside in Israel under the Entry into Israel Law, and the area commander shall not give a resident as aforesaid a permit to stay in Israel under the security legislation in the area.

Permit for spouses

3.  Notwithstanding the provisions of section 2, the Minister of the Interior may, at his discretion, approve an application of a resident of the area to receive a permit to stay in Israel from the area commander —

 

(1) with regard to a male resident of an area whose age exceeds 35 years — in order to prevent his separation from his spouse who lives lawfully in Israel;

 

(2) with regard to a female resident of an area whose age exceeds 25 years — in order to prevent her separation from her spouse who lives lawfully in Israel.

Permit for children

3A. Notwithstanding the provisions of section 2, the Minister of the Interior, at his discretion, may —

 

(1) give a minor under the age of 14 years, who is a resident of an area, a licence to live in Israel in order to prevent his separation from his custodial parent who lives lawfully in Israel;

 

(2) approve an application to obtain a permit to live in Israel from the area commander for a minor under the age of 14 years, who is a resident of the area, in order to prevent his separation from his custodial parent who lives lawfully in Israel, provided that such a permit shall not be extended if the minor does not live permanently in Israel.

Additional permits

3B. Notwithstanding the provisions of section 2, the area commander may give a permit to stay in Israel for the following purposes:

 

(1) medical treatment;

 

(2) work in Israel;

 

(3) a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.

Special
permit

3C. Notwithstanding the provisions of section 2, the Minister of the Interior may grant citizenship or give a licence to live in Israel to a resident of an area, and the area commander may give a resident of an area a permit to stay in Israel, if they are persuaded that the resident of the area identifies with the State of Israel and its goals and that he or a member of his family made a real contribution to promoting security, the economy or another important interest of the State, or that the granting of citizenship, giving the licence to live in Israel or giving the permit to stay in Israel, as applicable, are a special interest of the State; in this paragraph, ‘family member’ — spouse, parent, child.

Security impediment

3D. A permit to stay in Israel shall not be given to a resident of an area under section 3, 3A(2), 3B(2) and (3) and 4(2), if the Minister of the Interior or the area commander, as applicable, determines, in accordance with an opinion from the competent security authorities, that the resident of the area or his family member are likely to constitute a security risk to the State of Israel; in this section, ‘family member’ — spouse, parent, child, brother, sister and their spouses.

The law therefore restricted itself to the residents of the territories aged between 14 and 35 for men and between 14 and 25 for women. The meaning of this is — so the explanatory notes to the draft law state (ibid., at p. 625) — that ‘adding the proposed qualifications… can restore approximately 28.5% of all the applications for family reunifications to the list of those applications that can be processed…’. The law also restricted (in s. 3A) the harm to the children of Israeli citizens and residents, by making it possible for minors who are residents of the territories to be reunited with the custodial parent who lives in Israel. Nonetheless, the foreign parent, who is a resident of the territories, is neither able nor entitled to receive a status by virtue of his being a parent of a child who lives in Israel. It is also provided, in the spirit of proportionality, that the law will remain valid until the second of Nissan, 5766 (31 March 2006), but the government may, with the approval of the Knesset, extend its validity in an order, for a period that shall not exceed one year each time (s. 5).

The Citizenship and Entry into Israel Law — interim summary

23. This, then, is the law that the Knesset enacted, and its purpose is to restrict the ability of Palestinians who are residents of the territories to come to live inside Israel as long as the armed conflict continues between the State of Israel and the Palestinian Authority and its inhabitants. The law, we should emphasize, does not speak of Israeli citizens and it does not address the rights of Israeli citizens. At the same time, there is no doubt that the law directly affects the rights and status of all citizens of Israel; some citizens whose spouses are residents of the territories cannot live with their Palestinian family members in Israel, whereas all the residents of Israel enjoy, presumably, a reduction in terror.

24. Everyone will agree that the purpose of the law is a security purpose, a purpose of protecting the lives and security of the residents of Israel — all the residents of Israel — against Palestinian terror. The background to the enactment of the law is also clear. An armed struggle is taking place between Israel and the Palestinian entity in which the Palestinian public is playing an active role. Some of the inhabitants of the territories who received permits to stay in Israel by virtue of their marriage to citizens or residents of Israel aided acts of terror in Israel. The security establishment is of the opinion that they cannot distinguish between an inhabitant of the territories who regards himself as belonging to the terror organizations and his neighbour who does not regard himself as belonging to the terror organizations. The terror organizations are making efforts to recruit persons who have already passed the security checks and have received permits to stay in Israel. An additional investment of resources cannot prevent the security risks to the residents of the state. Therefore, in order to protect the lives and security of the residents of the state, it was decided not to give permits to stay in Israel to anyone who is included in the population groups that past experience has shown to constitute a high risk (relatively speaking) of becoming involved in terror. At the same time, it became possible to give permits to stay in Israel to those groups that are not regarded as dangerous (relatively speaking).

25. The prohibition in the law is a prohibition that is limited in time and by several qualifications, and its purpose is to provide a solution to specific security risks that were revealed within the framework of the armed struggle that the Palestinians are conducting against Israel. The professional assessment of the security establishment with regard to the security risks has not changed, and they have also found that the law is an effective tool for reducing those risks. The government and the Knesset addressed the violation that the law causes to some citizens of the state who wish to live in Israel with their Palestinian family members, but they thought that in the prevailing security reality this violation was a necessity. Nonetheless, the government and the Knesset — at their discretion — acted in order to reduce the violation caused by the law. The government and the Knesset therefore reached a formula that balances, in their opinion, the various considerations in a proportionate manner, and this led to the format of the law.

A synopsis of the arguments of the petitioners and our brief response

26. The following is a synopsis of the petitioners’ arguments: the Citizenship and Entry into Israel Law violates the right to marriage and family life of Israeli citizens, men and women, who have married residents of the territories, since it prevents them from having a proper family life in Israel. If this is not enough, the violation of these rights of Israeli citizens is tainted also with inequality, since it mainly concerns Arab Israelis who marry persons from the territories. Both the violation of family life and the violation of equality each amount to a violation of the dignity of Arab Israeli citizens who are married to residents of the territories, and it follows that they are contrary to the value of human dignity in the Basic Law: Human Dignity and Liberty. As to the criteria in the limitations clause, the petitioners’ claim is that the violations are not intended for a proper purpose, and in this respect they hint that the security purpose argued by the state was only intended for the purposes of legal argument, whereas the real purpose of the law is the demographic purpose. The petitioners also claim that the violation of their rights is not proportionate — in all aspects of the requirement of proportionality — since it seriously harms thousands of citizens whereas in practice only several dozen cases have been uncovered in which residents of the territories who received Israeli documentation aided terror.

27. We do not accept the petitioners’ claims, with regard to the content and scope of the violated right, the purpose of the law and the proportionality of the violation. Our brief and simple response is that as long as an armed conflict — a state of quasi-war — continues between Israel and the Palestinians, as long as Palestinian terror continues to strike Israel and murder Israelis, the state does not have any legal duty (to its citizens) to allow residents of the territories who married citizens of the state to enter and stay in Israel. The residents of the territories are enemy nationals. Their loyalty is to the Palestinian side. There are many ties that bind them to the Palestinian Authority. And in a time of war, they are presumed to be a risk group to Israel and its citizens. We agree, of course, that not all the residents of the territories wish to harm the State of Israel, but the general trend, the prevailing wind, is directed by the leadership, and its philosophy is that the name of Israel should be obliterated from among the nations. If this does not suffice, then in view of the fact that it is not possible to distinguish between those persons who constitute a security risk to the residents of the state and those who do not, I find it difficult to understand how the state can be rendered liable to take a risk and permit the entry into Israel of the former together with the latter.

Immigration into Israel — in general and as a result of marriage and family reunification

28. Let us first consider the question of the right to marriage and to have a family life in Israel, where we are speaking of a marriage between someone who is an Israeli citizen and someone who is not an Israeli citizen. We shall first address this issue on the level of ordinary legislation and afterwards discuss it on the level of the Basic Laws. We are not speaking of the right to marriage and have a family life between spouses who are both Israeli citizens.

29. The law in Israel is that someone who is not an Israeli citizen or an immigrant under the Law of Return does not have a right to enter Israel or to live here unless he receives a permit from the authorities. As it has been said elsewhere: ‘A person who is not an Israeli citizen or an immigrant under the Law of Return does not have a right to enter Israel or a right to stay in it without permission’ (HCJ 482/71 Clark v. Minister of Interior [111], at p. 117). This is the law concerning an unmarried foreigner and this is the law concerning a foreigner who is married to an Israeli citizen. The starting point for the interpretive voyage is therefore this: that the law of the state does not give the foreign spouse of an Israeli citizen a right to enter Israel, to live in it permanently or to become a citizen of the state by virtue of marriage. It is admittedly true that Israel recognizes – in principle — the right of the individual to marry and to have a family life. It follows from this that the state will permit — in general — the foreign spouses of Israeli citizens to enter and live in Israel, and thus it will enable Israeli citizens to realize their right to marry and to establish a family in Israel. At the same time, notwithstanding the recognition of the right to marry and to family life, the state has refused to grant the individual a constitutional and express right to ‘family reunification’ in Israel. Moreover, where there is a concern of harm to public interests, which include a concern as to security risks, the entry of the foreign family member into Israel will not be allowed, whatever his family status. We extensively discussed all of this and more in Stamka v. Minister of Interior [24], at p. 787:

‘The State of Israel recognizes the right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel. Israel is committed to protect the family unit in accordance with international conventions… and although these conventions do not stipulate one policy or another with regard to family unifications, Israel has recognized — and continues to recognize — its duty to provide protection to the family unit also by giving permits for family unifications. Thus Israel has joined the most enlightened nations that recognize — subject to qualifications of national security, public safety and public welfare — the right of family members to live together in the place of their choice.’

 We should note and emphasize: the recognition that it is right and proper to give protection to the family unit is subject to ‘qualifications of national security, public safety and public welfare.’ These qualifications are required by the very nature of the subject under discussion, but since they were stated, we saw fit to mention them. All of this is relevant to the claim concerning the duty of the state not to prevent the individual from establishing and maintaining in Israel a family unit as he chooses.

With regard to the right — or absence of a right — of a foreign spouse to enter and stay in Israel, see also HCJ 754/83 Rankin v. Minister of Interior [112], at p. 116; HCJ 4156/01 Dimitrov v. Minister of Interior [113], at p. 293; HCJ 2527/03 Assid v. Minister of Interior [114], at p. 143; cf. also cases concerning children and parents: HCJ 758/88 Kendall v. Minister of Interior [115]; HCJ 1689/94 Harari v. Minister of Interior [116]; HCJ 9778/04 Alwan v. State of Israel [117]; Dimitrov v. Minister of Interior [113], at p. 293.

30. The decision of the legislature not to give a right of entry and residence in Israel, even to the foreign family members of Israeli citizens, was a deliberate choice — a choice made with considered purpose. Thus, for example, we find that in the early days of the state, a possibility was considered of stating in the law that a foreign national who married an Israeli citizen would become an Israeli by virtue of marriage (s. 6 of the draft Citizenship Law, 5712-1951; Hatzaot Hok (Draft Laws) 5712, at p. 22). This proposal was rejected. By contrast, where the legislature wanted to give a foreign national or members of his family a right to immigrate to Israel, the legislature knew how to do so expressly. This is the effect of the Law of Return, 5710-1950, which gives every Jew, as such, and his family members, a right to immigrate to Israel, and in consequence to be given Israeli citizenship. This right that was given to the family members of a Jew who is entitled to immigrate to Israel was not given to the spouses of local residents, whether Jews or non-Jews. Their cases were made subject to the discretion of the Minister of the Interior, and they are subject to the same law as all other foreign nationals. See and cf. Stamka v. Minister of Interior [24], at pp. 757-760. The entry and stay in Israel of foreign spouses who married Israeli citizens is therefore subject to the discretion of the Minister of the Interior, according to the policy that he has formulated and subject to statute and the rules of administrative law. See Kendall v. Minister of Interior [115]; HCJ 282/88 Awad v. Prime Minister [118], at p. 434; HCJ 100/85 Ben-Israel v. State of Israel [119], at p. 47; cf. HCJ 740/87 Bentley v. Minister of Interior [120], at p. 444. If this is the case with regard to entering and staying in Israel, it is certainly the case that the foreign spouse does not have a right to Israeli citizenship by virtue of marriage. Admittedly, the foreign spouses of Israeli citizens have been accorded a certain degree of leniency in terms of the conditions that allow them to become Israeli citizens — see s. 7 of the Citizenship Law, 5712-1952 — but everyone agrees that the spouses do not have a substantive right to receive citizenship. As stated in Stamka v. Minister of Interior [24], at p. 766:

‘A foreigner who marries an Israeli citizen does not acquire — by virtue of his marriage — a right to become a citizen, and the Minister of the Interior has the power to grant or not to grant the application for citizenship submitted to him by that foreign spouse.’

See also Rankin v. Minister of Interior [112], at p. 116; Dimitrov v. Minister of Interior [113], at pp. 292-293.

31. Marriage to an Israeli citizen does not, therefore, automatically grant a right to the foreign spouse to be an Israeli citizen. The Minister of the Interior has the power to decide whether to grant the citizenship application of the foreign spouse of an Israeli citizen, and no one will argue that the foreign spouse, as well as the Israeli spouse, has a right that the Minister of the Interior should grant his application. Even the leniency to which the foreign spouse is treated in accordance with s. 7 of the Citizenship Law does not derogate from the power of the Minister of the Interior — from his power and his duty — to consider whether to grant the citizenship application or to refuse it. Moreover, s. 7 of the Citizenship Law also does not restrict the scope of the discretion of the Minister of the Interior, and it has been held in the past that, notwithstanding this provision, the Minister of the Interior is authorized to determine a policy that will make the granting of the foreign spouse’s application for citizenship conditional on the fulfilment of some of the conditions provided in s. 5(a) of the law. See HCJ 576/97 Scharf v. Minister of the Interior [121].

32. We should also mention in this context that it is a case law rule that a foreigner is not entitled to receive a status in Israel by virtue of his minor child, if he does not request in the same breath to be part of a family unit in Israel with the Israeli spouse. The court held in those cases that, notwithstanding the strength of the connection between parents and their children, a parent does not have a right to ‘family reunification’ with his child in Israel merely because he is a parent, if he is not a part of a family unit with the Israeli spouse. The following was stated by President Barak in Dimitrov v. Minister of Interior [113], at p. 294:

‘… The petitioner does not base his claim for the status of a permanent resident on the bond of marriage. His claim is that he is entitled to this right because of his minor daughter, who is an Israeli citizen. Even though the three-member family unit has broken up, his relationship with his daughter is a good and warm one, and he wants this relationship not to be harmed. Is this a valid argument?

The respondent’s position is that only in exceptional cases, in which there are extraordinary humanitarian circumstances, does the fact that a foreigner is the parent of a minor who is an Israeli citizen justify his being given a status of a permanent resident (see Harari v. Minister of Interior [116]). In the respondent’s opinion, these special circumstances do not exist in the case before us. Notwithstanding, the respondent is prepared to allow the petitioner, if he so wishes, “generous” visiting visas in order that he may visit his daughter from time to time. Is this consideration lawful? In my opinion, the answer is yes. Already in Kendall v. Minister of Interior [115] it was held that “the place of a minor is with his parents. Where they live, there he should live, and not vice versa. A minor is dependent on his parents, and parents are not dependent on him” (ibid., at p. 518). Therefore, in principle, the citizenship of the daughter is insufficient to grant a status of a permanent resident to her foreign parent, but there may of course be humanitarian cases that will require a departure from this principle. I am satisfied that in the case before us these special circumstances do not exist.’

This case law rule that was made with regard to parents of minors who live in Israel is stricter than the rule made with regard to spouses. Indeed, in both cases the foreign spouse (in the one case) or parent (in the other case) does not have a recognized right to enter Israel by virtue of their family connections in Israel. At the same time, whereas with regard to spouses a policy allowing the foreign spouse, as a rule, to enter Israel has been approved — subject to criminal and security checks — in the case of a foreign parent a policy was adopted that does not allow (subject to exceptional humanitarian cases) the parent to receive any status in Israel. See also Kendall v. Minister of Interior [115], at p. 518; HCJFH 8916/02 Dimitrov v. Minister of Interior [122]; Alwan v. State of Israel [117]; HCJ 6708/04 Badar v. Minister of Interior [123]; HCJ 8986/04 Riash v. Minister of Interior [124]; HCJ 8030/03 Samuilov v. Minister of Interior [125]. With regard to family reunifications between parents and foreign children who are not minors, see Harari v. Minister of Interior [116]; HCJ 3403/97 Ankin v. Minister of Interior [126].

33. A summary of what has been said up to this point is therefore that the law in Israel does not give the foreign (non-Jewish) spouse of an Israeli citizen, nor a parent of a minor living in Israel, a right to enter Israel, to live in Israel or to be an Israel citizen. The power to permit entry into Israel or residency in Israel, or to grant Israeli citizenship, is held by the state authorities, and these should act in accordance with their power and their discretion, in accordance with the laws of the state and subject to principles and doctrines that prevail in administrative law. The case law of the Supreme Court is one of these. Indeed, on several occasions the court has ordered the state authorities to grant an application that was submitted to it with regard to entering Israel or receiving a permit to live in Israel, but in all these cases no one cast any doubt on the provisions of the law, and the intervention of the court was restricted to the discretion of the competent authority. Against this background, the provisions of the Citizenship and Entry into Israel Law should be understood and analyzed. This law informs us that, notwithstanding powers that were given to the Minister of the Interior, first in the Citizenship Law, with regard to citizenship, and again in the Entry into Israel Law, with regard to entry into Israel and living in it, the minister does not have power to grant residents of the territories citizenship nor does he have power to allow them to live in Israel. The law therefore does not rule out an express legal right that is given to Israeli citizens or their foreign spouses. All it does is to reduce the powers of the Minister of the Interior under the Citizenship Law and under the Entry into Israel Law. The two are not the same. The question that should now be asked is whether the legislature was permitted in this way to reduce the scope of the discretion of the Minister of the Interior? This question, as phrased above, raises us to the level of the Basic Laws, and we will address the Basic Laws below.

Immigration by virtue of marriage and establishing a family — the constitutional right — general

34. The Israeli legislature did not give Israeli citizens a right in statute that their foreign family members may enter Israel, live in it and become Israeli citizens. But have Israeli citizens acquired this right from another source, namely the value of human dignity in the Basic Law: Human Dignity and Liberty? The petitioners’ argument, in brief and in general, is that the right of the individual to marriage and family life derives from the value of human dignity in the Basic Law, and in consequence of this the state has a duty to permit the foreign family members of an Israeli citizen to live with him in Israel. Moreover they also claim that the provision of the law concerning ‘residents of the territories’ is a provision that discriminates against the Arab citizens of the state and it violates equality between the citizens of the state, since only Arab citizens (except in a handful of cases) marry residents of the territories. Since the duty of treating the citizens of the state with equality is also derived from human dignity, it follows that the provision of the law that relates solely to residents of the territories also seriously violates human dignity. This implies that the law, which relates only to ‘residents of the territories,’ is afflicted by two maladies that seriously violate human dignity: first, it violates the right of Israeli citizens to family life, and second, it violates equality between Israeli citizens. The conclusion that follows from all of the above is, according to the petitioners’ argument, that the law should be declared void because it seriously undermines the Basic Law: Human Dignity and Liberty.

35. The arguments of the petitioners are weighty arguments. They are arguments that come from the depths of the hearts of Arab citizens of the state who married residents of the territories and wish to live with their spouses in Israel. Let us translate these arguments into our language, the language of the law, and the question that presents itself to us in all of its force is this: does the state have a duty under the Basic Law: Human Dignity and Liberty — or, to be more precise, by virtue of the value of human dignity in the Basic Law — to allow the foreign spouses of Israeli citizens, whether Jewish or non-Jewish, to immigrate into Israel, to establish their permanent place of residence in Israel. Note that we are not talking of the limitations clause and the balances required by the conflict between human dignity and interests that conflict with it. We are speaking now of the scope of human dignity in the Basic Law: Human Dignity and Liberty in principle. Alternatively, even if we say that the value of human dignity gives an Israeli citizen a right that his foreign spouse can make his permanent home in Israel, an additional question is whether he retains this right even in times of war and armed conflict, or whether this right of the citizen is limited by the power of the state not to allow ‘enemy nationals’ to enter Israel and live here permanently. Here too, we should emphasize, we are speaking of the scope of the right to dignity in principle.

36. This question concerning the scope of human dignity in its aspect of the right to marry and to have a regular family life in Israel can be divided into two sub-questions, that should be asked sequentially: the first sub-question is whether the right to marry and to have a regular family life falls within the scope of human dignity within the meaning thereof in the Basic Law: Human Dignity and Liberty. If the answer to this sub-question is no, the matter ends and there is no need to ask the second sub-question. But if the answer to the first sub-question is yes, then we must ask the second sub-question, which is whether the concept of human dignity implies not only a right to marry and to have a regular family life but also an inherent right of an Israeli citizen not merely to marry a foreign spouse but in addition to establish the permanent residence of the couple specifically in Israel. In this context, the question also arises as to whether a minor, who is a citizen or a resident and lives in Israel with his Israeli parent, has an inherent right that a status is given in Israel also to his foreign parent. At a later stage, we will also ask whether the value of human dignity gives an Israeli citizen who married a resident of an entity that is at war with Israel a right to live with his Israeli spouse, and similarly whether it gives a minor, who lives in Israel with his Israeli parent, a right to bring to Israel his foreign parent who is a resident of an entity that is at war with Israel. Let us consider these questions separately, in order, but first we should make a few remarks on the limits of the scope of basic rights — constitutional rights — in Israeli law, including establishing the boundaries of rights that derive from the value of human dignity in the Basic Law: Human Dignity and Liberty.

On determining the scope of basic rights and rights deriving therefrom

37. Determining the scope of application of the basic rights and the relationship between the basic rights inter se and between them and other interests that seek to limit them from within or to restrict them from without, by applying the limitations clause, is not an easy task at all. My colleague President Barak argues for extending the scope of the basic rights, since he thinks that the place for restricting those rights is in the limitations clause (see A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994), at p. 385). Thereby, of course, my colleague reduces the scope of the power of the legislature. Personally, I am not at all sure that public interests that seek to limit, detract from or violate basic rights should always — or even usually — find their place only in the limitations clause as opposed to the determination of the scope of the basic right in principle.

38. First of all, before we consider the relationship and balance between rights and interests, we ought to be aware that a determination that a certain right is a constitutional right means that it is a right that derives its force and strength from the Basic Law: Human Dignity and Liberty. The concept of a constitutional right tells us that it is a right superior to statute, a right that the legislature — as a legislator — does not have the right and power to violate other than in accordance with an exception that was permitted in the constitution itself, which in Israel should be in the Basic Law itself. For this purpose, there is no need to consider the question whether all the Basic Laws are really a constitution. It is sufficient for our purposes that everyone agrees that the rights in the Basic Law before us, the Basic Law: Human Dignity and Liberty, have been substantially entrenched against the intervention of the Knesset. See United Mizrahi Bank Ltd v. Migdal Cooperative Village [7]. Thus, when we decide that a certain right has taken on the form of a constitutional right — or of a basic right — it is as if we are saying to the legislature: take care and keep away. This sphere is a constitutional sphere. So when we extend the scope of the basic rights — as my colleague the president wishes to do — we necessarily restrict the scope of the legislature’s power and we prevent it, subject to the conditions set out in the limitations clause, from enacting laws that violate the arrangement provided in the constitution in that sphere. Is it right that we should restrict the power of the legislature in this way? In this respect, we should distinguish some rights from others. Indeed, there are rights and values — universal rights and values — by which the power of the legislature should be restricted. Such, for example, are the values of equality and personal liberty. But an excessive expansion of the basic meaning of the rights, and applying constitutional protection to all the derivative rights, means a restriction of the power of the Knesset that was elected to enact laws. Thus, the more we extend the scope of the basic laws, the more we restrict the power of the Knesset to enact laws. Justice Zamir rightly pointed out that:

‘The Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation were not intended to make the statutes of the Knesset easy prey for anyone who was not pleased by a statute. A statute of the Knesset retains its position of dignity: the statute still reflects the will of the sovereign, which is the people, and therefore the statute is what leads the people, including the court… human dignity should not replace the dignity of statute’ (Local Government Centre v. Knesset [31], at p. 496).

See also Hoffnung v. Knesset Speaker [77], at pp. 67-68, and the disagreements that arose in Silgado v. State of Israel [107].

39. Admittedly, in countries where there is a formal constitution the constitutive authority is entitled and authorized to include in the constitution specific arrangements that grant rights that in general we will find it difficult to call ‘basic rights.’ These constitutional arrangements do not concern universal basic values — values that everyone agrees ought to override an ordinary statute — and their purpose is to regulate life in the country in a specific manner, according to its special (and changing) needs. The normative status of these constitutional arrangements is the same as that of all other constitutional arrangements: the law of the state will be overridden by them and the power of the legislature will not stand up against them. At the same time — and for this reason that they do not reflect universal basic values — those arrangements may be cancelled or changed when times change and the needs of the state change. We can illustrate our remarks by means of two of the arrangements in the United States constitution: one is the constitutional prohibition introduced in 1919 (in the Eighteenth Amendment to the Constitution) against the manufacture, sale, or transportation of intoxicating liquors within the territory of the United States (known as ‘Prohibition’). It is doubtful whether this prohibition reflected universal basic values; it was perhaps correct and desirable in its time, but when the need ceased, the prohibition was also repealed (in 1933, in the Twenty-First Amendment to the Constitution). The other arrangement is found in the constitutional right of the individual to bear arms (the Second Amendment to the Constitution in 1791). This arrangement has its origin in years past, when the young state required an armed militia to ensure its independence. This constitutional arrangement is a specific and unique arrangement, and it is doubtful whether there is a similar arrangement in the constitutions of other countries of the world. On the contrary, most countries — including Israel — actually forbid their citizens to bear arms. See and cf. United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 516.

Until now we have spoken of formal constitutions and countries where they have established formal constitutions. Now we turn to countries — such as Israel — where there is no formal and detailed constitution. In such countries, the basic rights of the individual are derived from the basic values themselves, and naturally they are restricted to basic values and do not extend to specific arrangements that are not universal, but might find their way into formal constitutions. In other words, where there is no formal constitution, the court, which is the competent organ for reviewing the constitutionality of statutes, has only the basic values themselves to rely upon, and it does not have power to ‘establish’ specific arrangements, i.e., to give arrangements that do not reflect universal basic rights a normative status of a constitution. In Israel, we have not had the fortune to have a constitutive authority establish for us constitutional arrangements, and although some basic rights have been given a special normative status in the Basic Laws, it is doubtful whether we are competent to derive from those rights — and in our case, from the right to human dignity — specific rights that will also enjoy the normative protection of the Basic Laws. The court does not have the power to give a normative status of a basic right — a right that enjoys the normative protection of a Basic Law — to specific rights which by their very nature do not have a normative status of a ‘constitution,’ unless the constitutive authority in the state included them expressly in the constitution of the state.

40. We are now concerned with the interpretation of the concept of human dignity in the Basic Law: Human Dignity and Liberty — with the interpretation of the concept and determining its scope of application. The constitution of the state — for our current purposes, human dignity in the Basic Law: Human Dignity and Liberty — constitutes a fundamental norm for coexistence in Israel of its citizens and residents. A necessary conclusion is that in determining the scope of a basic right, we must survey our environment panoramically, and when determining the boundaries of a basic right it is our obligation to take note not merely of the individual who has rights but, at least, of his close environment and the social and other ramifications that are implied by giving the right a greater or lesser scope. Indeed, a basic right — every basic right — does not exist in a vacuum. The basic rights exist within a human society, among human beings, and are supposed to express the recognition of human dignity, the autonomy of free will, the freedom of a person to shape his life as he wishes in the society in which he lives. Man is a social creature, and his existence, development and advancement are all dependent on the existence of a human society in which there is a minimum of order, security and safety. A basic right affects its surroundings and is affected by its surroundings. Determining the scope of its application is a function of its internal strength and those wide-ranging influences. It would not be right, in my opinion, to channel the question of those influences merely into the limitations clause and the issue of the violation of the basic right. There are strong forces that are capable of affecting the determination of the boundaries of the basic right in principle, and every interest ought to find its proper place.

41. Stretching basic rights in every direction — up, down and to the sides — while referring the interests that are capable of affecting their boundaries to the limitations clause is likely to have a detrimental effect on constitutional debate, and this is likely to lead eventually to a reduction in the constitutional protection of human rights. But we seek to create a balanced and proper constitutional process that is intended to prevent contempt for the constitutional debate. This was discussed by Justice Zamir in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at pp. 470-471, when he considered the question of the scope of property rights:

‘… I want to be very careful not to make rigid determinations on the question of what is property and what is a violation of property. Does the Basic Law give protection against any new law that adversely affects, even indirectly, the value of the property or pecuniary income? For example, does the protection of property extend also to restrictions that the law imposes on employment contracts, such as a provision concerning a minimum wage, or to requirements in property relations between spouses, such as a provision concerning a liability for maintenance? If everything that adversely affects the value of a person’s property, including any kind of pecuniary liability, is a violation of property rights, it will be found that the laws that violate property rights are innumerable; the court may founder in its efforts to examine the constitutionality of every such law, in case, inter alia, it violates property rights excessively; and the legislature will find it difficult to carry out its role properly. The more the scope of property rights as a constitutional right is widened, so it is to be feared that the strength of the protection of those rights will be weakened. Of such a case it may be said: the higher you aim, the lower you fall.’

See also the remarks made by Prof. Hogg, as cited by President Shamgar in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 330 (the emphases were supplied by President Shamgar):

‘The reason that generosity should give way, rather than the stringent standard of justification, concerns the policy-making role of the courts. If the scope of the guaranteed right is wide, and the standard of justification is relaxed, then a large number of Charter challenges will come before the courts and will fall to be determined under section 1. Since section 1 requires that the policy of the legislation be balanced against the policy of the Charter, and since it is difficult to devise meaningful standards to constrain the balancing process, judicial review will become even more pervasive, even more policy-laden, and even more unpredictable than it is now. While some judges will welcome such extensive powers, most judges will be concerned to stem the wasteful floods of litigation, to limit the occasions when they have to review the policy choices of legislative bodies, and to introduce meaningful rules to the process of Charter review. These purposes can be accomplished only by restricting the scope of Charter rights’ (P.W. Hogg, ‘Interpreting the Charter of Rights: Generosity and Justification,’ 28 Osgoode Hall L.J. (1990) 817, at pp. 819-820).

42. The public interest — that interest that seeks to restrict or violate a basic right — is in fact a collection of interests, which are different in their nature and different in their strength, and it is not right and proper that we should speak of the public interest as if we are speaking of one composite interest. We must closely examine and inspect each strand of those interests that together make up the general public interest, and we should treat it according to its measure. See and cf. CFH 7325/95 Yediot Aharonot Ltd v. Kraus [127], at p. 78.

Interspersing the strands of the collective public interest — according to the strength of the relevant strand — between the task of determining the boundaries of a basic right and the limitations clause is consistent with the principle of the separation of powers and the decentralization of power, since it is capable of leading to a more comprehensive and careful scrutiny of legislation. We should recall the remarks uttered by this court only recently in Gaza Coast Local Council v. Knesset [6], at p. 553:

‘… When declaring a statute void because of unconstitutionality, we are concerned with the voidance of legislation enacted by a body that was elected by the people. This results in the approach that a clear and substantial violation of a constitutional human right is required in order for a statute to be unconstitutional (see Hoffnung v. Knesset Speaker [77], at p. 68); this leads to the approach that a “permanent” law is not the same as a “temporary” law when scrutinizing the constitutionality of the law (see Klal Insurance Co. Ltd v. Minister of Finance [64], at p. 486; Local Government Centre v. Knesset [31], at p. 494; HCJ 24/01 Ressler v. Knesset [128]). Indeed, with regard to the constitutional scrutiny “… the less, the better”.’

43. It follows that when we are about to scrutinize the scope of the application of a basic right, we are obliged to cast a glance from side to side, above and below. Concentrating our gaze on the individual tree, while ignoring the forest around it, is tantamount to ignoring reality. By protecting the individual tree we may harm the forest, and thus we unintentionally harm the tree itself, since the tree exists only within the limits of the forest. We should emphasize that this scrutiny should be made — if only in part — at the source of the right, when the basic right comes into existence and is shaped. The reason for this is that extending the right ab initio into remote areas — areas for which it may not be intended — will inevitably lead to its restriction at the stage of the limitations clause. This process, as we have said, may lead to contempt for the constitutional debate.

44. In the process of shaping and moulding a basic right, when establishing its boundaries and determining the scope of its application, we must distinguish between the nucleus of the right and the area close to the nucleus, on the one hand, and other parts that are more remote from the nucleus, on the other; between ripples of water that are close to the place where the stone struck the water and ripples of water that are further away and become weaker as they go (see and cf. Y. Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ supra, at p. 136); between the right’s centre of gravity and areas that are remoter from the centre of gravity. The closer we find ourselves to the nucleus, the centre of gravity, or to the area close by it, so the strength of the protected values will be greater, and the further we move away from the nucleus, from the centre of gravity, so the strength of the right will be weaker, and the strength of other interests that also compete in the arena of the law — public interests and interests of other individuals — will become (relatively) stronger. When we realize this, we will also realize that the protection afforded to the centre, to the nucleus, is not the same as the protection afforded to the areas that are remoter from the nucleus. And sometimes the area being scrutinized is so remote — remote nor merely in physical terms but remote in that it is subject to the influence of other considerations and interests — that it is possible that we will reach the conclusion that those areas do not fall within the gravitational pull of the right at all.

45. Thus, both in general and also when examining the scope of the application of human dignity, we ought to scrutinize the nature of the protected values carefully to see whether they are central values or marginal ones.

The right to marriage and to have a family life as a constitutional right

46. We all agree — how could we do otherwise? — that a person, any person, has a right to marry and to have a family life. The covenant between a man and a woman, family life, was created before the state existed and before rights and obligations came into the world. First came the creation of man, and man means both men and women. ‘And God created man in His image, in the image of God He created him, male and female He created them’ (Genesis 1, 27 [245]). Thus Adam and Eve were created. A man needs a woman and a woman needs a man; ‘Wherefore a man shall leave his father and his mother and cling to his wife, and they shall be one flesh’ (Genesis 2, 24 [245]). Thus a covenant is made between a man and a woman, and when children are born the extended family comes into existence. In the course of all this, love develops. Thus, in so far as the family is concerned, the state found it ready made and extended its protection to what nature had dictated to us. Society and the state sanctified the covenant of the man and the woman in marriage, and thus the right to marriage and to have a family life came into existence. Philosophers and thinkers may say what they wish; in the final analysis — or to be precise, in the initial analysis — the existence of the family comes from God above, from nature, from man’s genetic makeup, from the very existence of life. Such is the relationship between a man and a woman and such is the relationship between parents and their children. And as we have said elsewhere (CFH 7015/94 Attorney-General v. A [23], at p. 102):

‘It is the law of nature that a mother and father naturally have custody of their child, raise him, love him and provide for his needs until he grows up and becomes a man. This is the instinct for existence and survival inside us… “the blood ties,” the primeval yearning of a mother for her child — and it is shared by man, beast and fowl. … This tie is stronger than any other, and it goes beyond society, religion and state. The conditions of place and time — they and the persons involved — will determine the timing of the separation of children from their parents, but the starting position remains as it was. The law of the state did not create the rights of parents vis-à-vis their children and vis-à-vis the whole world. The law of the state found this ready made; it proposes to protect an innate instinct within us, and it turns an “interest” of parents into a “right” under the law — the rights of parents to have custody of their children.’

It is important to make these remarks, since they may act as our guide in determining the boundaries of human dignity.

47. The right to marry and to have a family life, including the right of a minor to be with his parents, is the basis for the existence of society. The family unit is the basic unit of human society, and society and the state are built on it. It is not surprising, therefore, that the right to a family life has been recognized in the international community as a basic right. This is also the law in Israel. See and cf. Stamka v. Minister of Interior [24], at p. 787; A. Rubinstein, ‘The Right to Marriage,’ 3 Tel-Aviv University Law Review (Iyyunei Mishpat) (1973) 433; see also art. 16(1) of the Universal Declaration of Human Rights, 1948; art. 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; art. 2.23 of the International Covenant on Civil and Political Rights, 1966. Even though this right, the right to marry and to have a family life, has not been expressly included among the basic rights that have been expressly recognized in the Basic Laws, we will all agree — agree and declare — that it is derived from the highest right of all, from human dignity. The right to marry and to have a family life implies, from the context, ‘the right of an Israeli citizen to live with the members of his family in Israel, and the duty of the state to the citizen to allow him to realize his right to live with the members of his family in Israel’ (Stamka v. Minister of Interior [24], ibid.). This is the position with regard to the right to marry and the fundamental right of the Israeli citizen to live with his family in Israel.

Immigration by virtue of the right to marry and to family life as a constitutional right

48. Now we turn to the second sub-question, which derives from the first sub-question. Does the basic right of an Israeli citizen to have a normal family life in Israel — a basic right derived from human dignity — concern only Israeli citizens and permanent Israeli residents, inter se, or perhaps we should say that it extends also to a spouse who is a foreign citizen or resident and who has married an Israeli citizen and wishes to immigrate into Israel and live with him on a permanent basis? An Israeli citizen enters into a bond of marriage with a spouse who is not an Israeli citizen or resident. Does the Israeli citizen have a right in the Basic Law that the foreign spouse should be given the right to immigrate into Israel and to live here on a permanent basis? An additional question in this respect is whether the right to dignity of a minor who is living in Israel extends also to his foreign parent who wishes to immigrate to Israel to be with him? And since the right of a citizen — a right in a Basic Law — implies a duty of the state towards him, we must ask whether the human dignity of an Israeli citizen obliges the state, as a constitutional obligation, to allow the foreign spouse to immigrate into Israel, and whether the human dignity of a minor who lives in Israel obliges the state to allow his foreign parent to immigrate into Israel? We must ask these questions in general, and also in particular — as in our case — when the foreign spouse or parent is a resident of an entity that is involved in an armed conflict with the State of Israel.

49. My colleague President Barak is of the opinion that the right to have a family life in Israel is a constitutional right of the Israeli citizen even if the spouse is a foreigner. In his words (in para. 34 of his opinion):

‘… the constitutional right to establish a family unit means the right to establish the family unit in Israel. Indeed, the Israeli spouse has a constitutional right, which is derived from human dignity, to live with his foreign spouse in Israel and to raise his children in Israel. The constitutional right of a spouse to realize his family unit is, first and foremost, his right to do so in his own country. The right of an Israeli to family life means his right to realize it in Israel.’

I find this normative determination problematic. I understand my colleague’s thinking in his desire to apply the value of human dignity to its derivatives — in our case, to the right of the Israeli citizen to have his family life in Israel even if his spouse is a foreigner — as extensively as possible, and to restrict the rights only by means of the limitations clause. But it seems to me that when we scrutinize the whole picture, we must address both sides of the coin. We are obliged to examine not only the rights of the individual — the citizen of the state — vis-à-vis the state, i.e., the duties of the state vis-à-vis the individual. We are obliged, at the same time, to examine the duties of the state to all of its individuals, or if your prefer, we are obliged to examine closely what obligation the recognition of the right of the individual citizen places on all the residents and citizens of the state, on the other individuals for whom the state is a framework for living together. This all-embracing examination will show, in my opinion, that a broad application of the basic right as my colleague proposes may seriously harm other individuals to such an extent that it is doubtful whether it is right and proper to impose on the state an obligation on the level of a basic right. If this is the case with regard to an individual citizen, it is certainly the case with regard to the impending immigration of tens of thousands of foreigners — in our case, tens of thousands of enemy nationals — who married Israeli citizens while Israel has been engaged in an armed struggle against that enemy.

50. The premise is — we discussed this in our remarks above — that a state, any state, is not obliged to allow foreigners to enter it, and certainly it is not liable to allow foreigners to become permanent or temporary residents in it. We derive this from the supreme principle of the sovereignty of the state, a principle from which we derive the right of the state to determine who may enter it and who may become its citizens or receive a right to live in it. This has also been held on several occasions in Israel. ‘A state, any state, is authorized and entitled to determine which foreigners may enter it and which foreigners may stay in it’ (HCJ 4370/01 Lipka v. Minister of Interior [129], at p. 930); ‘in principle, the state does not owe any duty whatsoever to foreigners who wish to become residents in its territory’ (Conterm Ltd v. Minister of Finance [85], at p. 381 {120}); ‘this gives expression to the principle — which is accepted in modern democratic countries — that the state has broad discretion to prevent foreigners from taking up residence in it. The foreigner does not have a right to come to Israel either as a tourist or as a resident’ (Dimitrov v. Minister of Interior [113], at p. 293). Cf. also Kendall v. Minister of Interior [115], at p. 520; HCJ 1031/93 Pesaro (Goldstein) v. Minister of Interior [130], at p. 705. See also Clark v. Minister of Interior [111], at p. 117 (per Justice Berinson):

‘As a rule, every country reserves for itself the right to prevent foreign persons from entering it or to remove them from its territory when they are no longer wanted, for one reason or another, and even without any reason…’

Incidentally, in Clark v. Minister of Interior [111] Justice Berinson reviewed the decisions of the courts in England and the United States, and he cited a judgment of the Supreme Court of the United States in Knauff v. Shaughnessy [203], in which a decision of the immigration authorities not to allow a foreign woman who married a soldier during the period of his service in the Second World War to enter the United States was upheld.

51. This principle is a basic principle in the law of the countries of the world. Every state has the natural right — a right deriving from the sovereignty of the state over its territory — to determine who will be its citizens and who will be entitled to enter it. See, for example, Halsbury’s Laws of England, vol. 18 (fourth edition, 1977), at para. 1726:

‘In customary international law a state is free to refuse the admission of aliens to its territory, or to annex whatever conditions it pleases to their entry.’

See also the judgment of the European Court of Human Rights in Abdulaziz Cabales and Balkandali v. U.K. [235]:

‘As a matter of well established international law and subject to its treaty obligations a state has the right to control the entry of non-nationals into its territory.’

In this spirit, the countries of the world, including Israel, have adopted a rule that it is the natural right of every sovereign nation to determine the identity of the persons who may enter it and become its residents. This is what was held by the Supreme Court of the United States, as long ago as 1892, in Ekiu v. United States [204], at p. 659:

‘It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.’

Indeed, even today no foreign citizen has a right — and certainly not a constitutional right — to enter and stay in the United States, even if he is a family member of a United States citizen:

‘An alien has no constitutional right to enter, or to stay in, the United States’ (3B American Jurisprudence 2d, Aliens and Citizens, § 2291).

See also, for example, Knauff v. Shaughnessy [203], Fiallo v. Bell [190]; Landon v. Plasencia [205].

This has also been held by the Court of Appeal in England, when it ruled that a foreigner may not enter the country except in accordance with the laws of the country. In the words of Lord Denning in R. v. Governor of Pentonville Prison [225], at p. 747:

‘… no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason…’

52. A foreigner, therefore, is not entitled to enter the state, and certainly not to immigrate to it, unless it is in accordance with the laws of the state, and many countries of the world have indeed enacted strict immigration laws that place before someone who wishes to immigrate conditions and restrictions that are based on the needs of the state and its policy from time to time. Thus, for example, we find arrangements that distinguish between candidates for immigration on the basis of economic position, profession, age, family status, state of health, biography, etc.. Ethnic origin, nationality and country of origin have also been used to distinguish between candidates for immigration, and it has also been found that many countries even stipulate a quota that restricts the number of persons immigrating to it. The arrangements are unique to each country, and they change from time to time in accordance with the spirit of the times and the needs of the state. With regard to the position in the United States, see, for example, 3A Am. Jur. 2d, Aliens and Citizens, §1:

‘The history of the immigration laws of the United States is one of evolution from no restrictions to extremely narrow qualitative restrictions, to additional qualitative restrictions, and later to more extensive qualitative restrictions, including ethnic ones, and eventually to quantitative restrictions.’

For changes that have occurred over the years in the attitude of European countries to immigration in general, and to immigration for reasons of marriage in particular, see, for example: S. Castles et al., Migration and Integration as Challenges to European Society, Assessment of Research Reports Carried Out for European Commission Targeted Socio-Economic Research (TSER) Programme (Oxford, 2003); Family Reunification Evaluation Project (Final Report, The European Commission: Targeted Socio-Economic Research, Brussels, 2004), at pp. 21–22. These articles are also mentioned in the article of Prof. Amnon Rubinstein and Liav Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ 48 HaPraklit (2006) 315, at pp. 330 (note 54), 341 (note 108).

53. So we see that a state may impose restrictions on immigration into it in accordance with the immigration policy that it deems fit and appropriate for its needs, without taking into account the concerns and wishes of the foreign nationals who wish to immigrate to it. All of this is the case with regard to the foreign relations of the state, vis-à-vis other countries and vis-à-vis persons who are not its citizens or residents. But what about the relations of the state vis-à-vis its own citizens and residents? Does the state also have the power to restrict the entry of foreigners into the state in its internal relations, even if the foreigners concerned are family members of citizens and residents? The answer to the question is yes. The rule of state prerogative is valid with regard to the immigration of foreign citizens or residents, even if they are family members of its citizens or residents. A state is entitled to refuse to allow the foreign family members of its citizens to enter the state, and certainly to refuse to allow them to immigrate to it, and a citizen of the state is not entitled to demand that the state permits his foreign family members to immigrate into the state other than in accordance with the laws of the state. Indeed, although international law recognizes the right of the individual to marriage and family life, it does not recognize the right of the individual to realize this right specifically in his country of citizenship. In other words, the right of the individual to marriage and to family life does not necessarily imply a constitutional right to ‘family reunifications’ in the state. The prevailing legal position in this sphere was recently considered by Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra, at p. 340. In their words:

‘The rules of international law also do not give rise to a right to immigrate for the purposes of marriage. International law admittedly recognizes the importance of the right to establish a family, as well as the importance of the right of a family not to separated by deportation, but there is no express and concrete right in international law that creates a positive duty that a state should allow immigration into its territory for the purpose of marriage, even in times of peace’ (emphasis in the original).

A similar conclusion was reached by the Supreme Court in Shahin v. IDF Commander in Judaea and Samaria [103], which considered a similar case to ours. Cf. Y. Dinstein, ‘Family Reunifications in the Occupied Territories,’ 13 Tel-Aviv University Law Review (Iyyunei Mishpat) (1989) 221, at p. 223. See also, for example, the research published by the European Union in 2004 with regard to the legal arrangements prevailing in the European Union until the year 2004: Family Reunification Evaluation Project (Final Report, The European Commission: Targeted Socio-Economic Research, Brussels, 2004), at p. 22:

‘Although international documents endorse family rights, none of the declarations establishes an explicit right to family reunification. Likewise, although the Convention on the Rights of the Child demands that applications by a child or parents to enter or leave the State for the purpose of family reunification be handled in a “positive, humane and expeditious manner… there is no specification that the provision provides the basis for legal claims to family reunification … The second area of international law, which may be conflictual with the principle of universal family reunification, refers to the precedence of State sovereignty.’

Incidentally, following the rule in international law, the European Union enacted a directive in 2004, in which some of the states of the Union took upon themselves the obligation to enact internal — qualified — arrangements according to which the foreign spouses of residents would be allowed to immigrate into the state. Before the directive existed, the spouses had no such right other than under the internal law of each individual state.

54. A state is made up of its residents. The residents of the state are the persons who shape the image of the society, and the ‘state’ serves as a framework for the society and its residents. The entry of a foreign national into the state as a permanent resident thereof means a change of the status quo ante in the relationship of the citizens and residents inter se. Accepting a resident or a new citizen into Israeli society makes his status equal to that of the residents and citizens of the state, and in this way the image of the society and the state changes. Where we are speaking of an individual resident or citizen, the change is infinitesimal. But this is not the case with a massive incursion of foreign residents and citizens whose joint influence on the state may significantly change its image. Giving an individual a right to bring with him to Israel a foreign spouse is therefore capable of changing the image of society, and the question that arises is whether it is right and proper that we should entrust to each and every citizen and resident of the state a constitutional key that makes the doors of the state wide open to foreigners. The basic rights of the individual are, mainly, rights vis-à-vis the state; if we recognize a constitutional right of a citizen, of every citizen, to bring to Israel, as he wishes, a foreign spouse or parent, we will find that the recognition of the innate right of a citizen to have a family life with foreigners in Israel does not merely determine the right of the Israeli citizen. In the very same breath, it limits and restricts the rights of other citizens whose opinion has not been heard. In this regard I say that it would appear that the human dignity of Israeli citizens — of all Israeli citizens — demands that each citizen is not given a free hand, on the level of a constitutional right, to change the social status quo ante by bringing foreigners to Israel, even as spouses. The ‘state’ is the authorized spokesperson of Israeli citizens and residents, and it would appear that even a state would not be prepared to open up its borders by entrusting to every citizen the key that opens the gates of the state, even for the immigration of a spouse or parent into the state. The power to determine who will be the citizens and residents of the state is entrusted to the laws of the state, and it is the state that will decide who will be entitled to immigrate into it.

55. Moreover, the state has a duty to maintain a balanced immigration policy, a policy that befits the needs of the state and its basic values. The state may not discharge this duty by transferring to its citizens the power to determine who will immigrate into it. Someone who wishes to immigrate into the state must apply to the organs of the state and not to one of its citizens, and it is the organs of the state who will decide the application. Recognizing that the state has a constitutional obligation to allow the entry of foreign family members can only mean a transfer of sovereignty to each and every individual citizen, and this inevitably harms the ability of the state to formulate its policy and respect its heritage. In other words, giving an automatic right of immigration to anyone who marries one of the citizens or residents of the state means that every citizen holds the right to allow immigration into the state, without the supervision of the state, and it is clear that no government in the world will allow not only the functioning but even the sovereignty of the state itself to be harmed in this way. See, for example, A. John, Family Reunification for Migrants and Refugees: a Forgotten Human Right? (2004), at p. 10:

‘No Government wished to find itself shackled to a precise and enforceable standard of family reunification rights that would impede on the State’s sovereign right to control who entered and settled on its territory.’

It is not surprising that the author of this research reaches the conclusion that, notwithstanding all the rights in the law, including the right to family life, the countries of the world have consistently refused to recognize the existence of a right to family reunifications on the grounds of marriage, since this right violates the sovereignty of the state and its power to determine who will immigrate into it (ibid., at p. 6):

‘… in all the international instruments adopted, States have opposed any recognition of a right to family reunification that might be considered to substantially curb States’ sovereign right to control who may enter or settle in its territory.’

56. Indeed, a state — any state — will not agree to give its individuals, or any one of them, a basic right to change the status quo ante in the society and the state. Even states that recognize an express constitutional right to marriage and to family life will find it difficult to permit free immigration by virtue of this right, and indeed it has been found that many of these states ‘… repudiate the principle that marriage itself (or its breakdown) results in an automatic change in the citizenship of the spouses’ (Rankin v. Minister of Interior [112], at p. 116). Moreover, even when they grant a right of immigration for family reasons, the countries of the world have tended to restrict this right by imposing restrictions on the realization of the right. Every state has its own arrangement: an arrangement that suits its basic values, the immigration policy it determined and its economic and political needs, and no one arrangement is identical to another. At the same time, there are general lines of similarity between the arrangements. Thus, for example, it has been found that many states impose age restrictions on immigration for reasons of marriage, and they allow the foreign spouse to immigrate into the state only if one or both of the spouses have reached a minimum age. When there are no means of subsistence — sometimes for a lengthy period — the immigration of the foreign spouse into the state will not be allowed. Some states require the foreign spouse to have various ties with the state absorbing them. Receiving citizenship in the state absorbing them usually requires a lengthy stay in the absorbing state, requirements of knowing the language of the absorbing state, being familiar with its culture and heritage and taking an oath of allegiance to the state. Not infrequently the foreign spouse is also required to waive his original citizenship as a condition for receiving his new citizenship. For a comprehensive survey of the requirements imposed in the countries of the world, see: Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra. Thus, for example, Rubinstein and Orgad tell us at the beginning of chapter 3 of their work (at p. 328):

‘In recent years, the trend in European countries is to make the conditions for immigration on the basis of marriage stricter. In a significant number of countries, laws have been enacted in recent years to restrict the possibility of immigrating for the purpose of marriage. Thus, for example, the economic conditions required of the spouses who wish to immigrate for the purposes of marriage have been made stricter, basic cultural requirements (such as learning a language) that the immigrating spouse must satisfy before he immigrates have been introduced, restrictions on the age for immigration have been imposed, ties have been required with the state to which the spouses wish to immigrate and the burden for proving the genuine nature of the marriage has been made stricter. The European Court of Human Rights has usually given its approval to the stringent legislation that has come before it.’

Indeed, it may be argued that all these restrictions should be examined within the framework of applying the limitations clause, but we say that this subject-matter is extremely sensitive, and in the case of a fundamental public interest, such as the interest that underlies the issue before us, we ought to allow the public interest to have its say at the outset, when determining the scope of the basic right. This is the panoramic view to which we refer, a view that allows us to see the individual and the society in which he lives as integral parts of one whole.

57. In summary let us therefore say this: the countries of the world do not recognize in general the existence of an absolute right, a basic right that the citizen has to have a foreign spouse immigrate into the state. The right of the spouse to enter the state is a right that may be given by virtue of laws determined on the basis of the needs of the state; the laws of the state may restrict the right and even deny it entirely, and where there is no right the entry of the foreign spouse into the state, and certainly his immigration to it, will not be allowed.

The struggle and the balance

58. Against the background of all the rights and interests that compete against one another, this is a struggle of giants. On one side there is the right of the state not to allow foreigners to enter its territory, and on the other side is the right of the citizen — a basic right, a constitutional right derived from human dignity — to live together with his family members in Israel. The question that arises is what is the law where an Israeli citizen wishes to have a family life in Israel with his foreign spouse or parent — a spouse or parent who is neither a citizen nor a resident of Israel? Does the basic right to have a family life in Israel also apply to a couple where one of them is a foreigner, or perhaps we should say that the basic right applies only to a couple where both of them are Israeli citizens or residents? Does the basic right to family life in Israel apply also to minors who live in Israel with the Israeli parent and wish that the foreign parent should also be given a status? Note than the question being asked here merely concerns the scope of the basic right of human dignity. Thus, even if we determine that human dignity does not imply a basic right of the citizen to have a family life in Israel with a foreigner, our consideration of the citizen’s rights will not have ended, since it is possible that the citizen has an ordinary right that is not a basic right.

59. In our case, the question before us now is whether the Citizenship and Entry into Israel Law violates a constitutional basic right of Israeli citizens. My colleague President Barak holds that the value of human dignity, as expressed in the Basic Law: Human Dignity and Liberty, gives rise to a constitutional right to have a family life in Israel, even where one of the spouses is a foreigner, even where a foreign parent wishes to receive a status by virtue of his child (which, as aforesaid, is completely contrary to the case law rule that prevailed hitherto), and that the provisions of the law violate this constitutional right. But there may be persons who claim that this scrutiny of the right to have a family life in Israel — a scrutiny that focuses solely on an Israeli citizen and his family life in Israel — is not complete. This is because, in order to examine the scope of the right of an Israeli citizen to have a family life in Israel with a foreigner, we must examine closely the following two values and weigh the one against the other: one value is the strength of the right to have a family life in Israel as derived from the values which the right seeks to express in the law. There are many sides to the right to family life, and as we have said in our remarks above, the protection of the nucleus of the right is different from the protection of the periphery of the right. The other value is that we must examine whether recognition of a constitutional right as proposed violates other values or interests; and if it violates other values or interests, is the strength of those values or interests on the level of a basic right — a strength that is capable of defining boundaries for the basic right — or should they be located only in the second stage of the scrutiny, when examining the conditions of the limitations clause?

60. I placed all the values and considerations into one pot, and my conclusion is that the value of human dignity — in principle — does not give an Israeli citizen a constitutional right to bring a foreign spouse into Israel. This conclusion is implied equally by an examination of the strength of the right to have a family life, by the conflicting values and interests and by the conflict between the aforesaid right with the aforesaid values and interests.

61. With regard to the strength of the constitutional right to have a family life, I do not nor shall I deny the constitutional right of an Israeli citizen to have a family life. This right, as we have noted, is required by nature, and it is right and proper for the law to encompass the natural instinct in man and protect it in statute. In the words of the Roman poet Horace (Quintus Horatius Flaccus, Epistles 1, 10: naturam expelles furca, tamen usque recurret (‘you expel nature with a pitchfork, but it always comes back’). But the strength of this constitutional right, which is derived from the value of human dignity, becomes weaker the further we distance ourselves from the nucleus and approach the periphery. We are not concerned now with the nucleus, with the right of a person to marry. We are not concerned with the essence, with the right of a person to establish a family and to live together with that family. We are concerned with an addition to all of these, with the question of the right of an Israeli citizen to bring with him to Israel a foreign spouse, and by so doing to change the status quo ante of Israeli society. This right, no matter how much it may be a desirable right, is not necessarily a part of the nucleus and we may not necessarily recognize it as a constitutional right.

62. But the values and interests that conflict with the argument concerning the constitutional right of the citizen to bring a foreign spouse to live in Israel are fundamental. The conflicting values and interests are found in the prerogative of the state to decide from time to time the immigration policy that it deems appropriate, a policy that can shape the image of the state and the image of the society in it. This prerogative of the state has a constitutional status, and it therefore is capable of affecting the scope of the right to have a family life. This prerogative of the state is not required — nor should it be required — to bow its head and enter the constitutional debate within the framework of the limitations clause. Its place is on the first page of the constitution, when the values and the basic rights of the individual are being shaped. The strength of this interest in our case is so strong that it can affect the scope of application of the right to have a family life. In other words, the strong and decisive interest of the state in protecting the identity of society in Israel is capable of overriding — and, it should be emphasized, on the constitutional level, as opposed to the legislative level — the strength of the right to family life in so far as the immigration of a foreign spouse into Israel is concerned. The state, it should be recalled, is merely a collection of individuals and groups that live together, and the meaning of this for our purposes is that the state’s prerogative constitutes an expression of the protection that the citizens of Israel need. A constitution is created, first and foremost, for the people of the land and to regulate life for the residents and citizens of the land inter se. The constitution of the United States is for the people of the United States, the German constitution is for Germans and the Basic Laws in Israel are for Israelis and for regulating relations between them and the state and among them inter se. But when a foreign element comes into the system — in our case, a foreign spouse — I doubt whether the Basic Laws were originally intended to give basic rights to the individual while directly influencing the other individuals in the state and the image of society. I very much doubt it.

63. Moreover, let us be mindful and not forget: immigration arrangements, by their very nature, are specific arrangements; they are arrangements that change from time to time in accordance with the needs of the state (see supra, at para. 39). Even if these arrangements are included in the constitutions of various states, nothing in the fact that they are placed in the constitution can change their nature and substance as specific arrangements. And since they are such, we will have difficulty in finding an analogy between the arrangements of one constitution and the arrangements in another constitution, and between the arrangements of a foreign country and Israeli law. As President Shamgar said in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 329:

‘But it should be understood that the consideration of other constitutions and their implementation is merely comparative. Every constitution reflects in the protection of rights that are granted therein the social order of priorities that is unique to it and the outlooks that have been adopted by its society. It need not be added that there is also a whole range of political considerations that accompanies the formulation of a constitution. Thus, for example, in Canada it was decided not to include a prohibition against the violation of property in the Charter of Rights.’

Take the case of Ruritania, a country in the centre of Europe. Its inhabitants are growing old and it wishes to stimulate the life cycle in the country and revive its economy. Such a country will tend to encourage immigration, and naturally it will also extend the right of immigration to family members. After some time, when Ruritania finds that immigrants who came into it have changed the image of the state — and possibly even threaten the hegemony of the original citizens — Ruritania may change the law and stop immigration, even for family reasons. But Zenda, the neighbour of Ruritania, is different. The population density in Zenda is high, the birth rate is high, and naturally it will tend to limit immigration, including immigration for family reasons.

64. The same criteria apply to the question whether a minor living in Israel with his Israeli parent has the right to bring to Israel his foreign parent. I cannot accept that the minor has an inherent constitutional right to this, namely a right that imposes a duty on the state to allow into Israel a foreigner merely because of his family ties. We have seen that an Israeli citizen cannot impose on the state a duty to allow a foreigner to enter it, and certainly he does not have the power to grant the foreigner a status under the law. The same applies to a minor who lives in Israel with his Israeli parent; he cannot impose such a duty on the state. It is in the interest of the state and its individuals that the state should be the one to decide who will enter it, who will join Israeli society and what will be the image of this society. This interest is sufficiently great and strong to qualify the interest in recognizing a constitutional right to bring a foreign parent to Israel.

65. I will add to this that the harm caused by the Citizenship and Entry into Israel Law to children is limited. We should recall that the law, in s. 3A, provided a special exception for the cases of children, as follows:

‘Permit for children

3A. Notwithstanding the provisions of section 2, the Minister of the Interior, at his discretion, may —

 

(1) give a minor under the age of 14 years, who is a resident of an area, a licence to live in Israel in order to prevent his separation from his custodial parent who lives lawfully in Israel;

 

(2) approve an application to obtain a permit to live in Israel from the area commander for a minor under the age of 14 years, who is a resident of the area, in order to prevent his separation from his custodial parent who lives lawfully in Israel, provided that such a permit shall not be extended if the minor does not live permanently in Israel.’

Thus we see, according to s. 3A(1) of the law, that minors up to the age of 14 are entitled to receive a status in Israel in order to prevent their separation from a custodial parent who lawfully lives in Israel. In other words, the right of these minors to live with the custodial parent is not harmed at all. With regard to minors over the age of 14, these can, according to s. 3A(2), receive a permit to stay in Israel in order to prevent their separation from the custodial parent. Such a permit will be extended only if the minor lives permanently in Israel.

This is the case with regard to the right of children to live with the custodial parent in Israel. This arrangement is satisfactory, and the legislature did well to provide an exception that allows children to stay if only with one of their parents in Israel. It should be admitted that the Citizenship and Entry into Israel Law in its original version harmed children considerably by preventing them from living with the custodial parent in Israel. But after the law was amended by adding the arrangement in s. 3A, the position has improved greatly, both with regard to minors under the age of 14 and minors above the age of 14. According to the law in its current form, I see no proper justification to declare it void in this respect.

66. With regard to the interest of a minor who is living with his custodial parent in Israel to have his foreign parent also live with him in Israel, and, in consequence, the interest of the foreign parent to live with his minor child and with his family members in Israel — these are interests that my colleague the president addresses. I too agree with my colleague’s position that the separation of the foreign parent from the minor is not desirable, but I am of the opinion that even in this case the minor does not have a protected basic right that his foreign parent will live in Israel merely because he is his parent. In this case, the immigration considerations that we have discussed make themselves heard — and they do so loudly — and the first of these is the right of the state to decide who will be its residents and citizens (to these considerations we will also add below considerations of a special kind — considerations of the state in a time of war). This was the approach of case law in Israel even in times of peace. Before the Citizenship and Entry into Israel Law was enacted, a foreign parent was not entitled to receive a status in Israel by virtue of his minor child who lived in Israel. In the words of President Barak in Dimitrov v. Minister of Interior [113]: ‘… in principle, the citizenship of the daughter is insufficient to grant a status of a permanent resident to her foreign parent…’ (ibid., at p. 294; for additional references, see para. 32 above). We should also add that s. 3B(3) of the Citizenship and Entry into Israel Law provides that the area commander may give a resident of the territories a permit to stay in Israel ‘for a temporary purpose, provided that the permit to stay for the aforesaid purpose shall be given for a cumulative period that does not exceed six months.’ It is possible and right to interpret this provision of statute as granting power to the area commander to allow the entry of the foreign parent into Israel to visit his minor child temporarily. We should also remember that the restriction is temporary — until the parent reaches the age mentioned in the law, which is 25 for a woman and 35 for a man, at which age it will be possible to give the parent a permit to enter Israel.

67. This, then, is the position: the harm to minors living in Israel with the custodial parent is currently limited in comparison to the law which prevailed before the enactment of the amendment to the Citizenship and Entry into Israel Law. The law does not apply at all to a child who was born in Israel to an Israeli parent, since such a child receives the same status as his Israeli parent. In addition, the law allows a minor who is a resident of the territories and was not born in Israel to live in Israel with his Israeli parent (s. 3A of the law). With regard to the foreign parent, who is a resident of the territories, it is true that he is not entitled to enter Israel. Has any constitutional right of the minor who lives in Israel with his custodial parent been violated as a result? The answer to this must be no, both because the violation is (relatively) limited and because of the very powerful interest that conflicts with it. In any case, we do not know from where a minor acquired a basic right that his foreign parent will follow him and also obtain a right to live in Israel.

Comments regarding the scope of application of the constitutional right to family life

68. Before I consider the question whether an Israeli citizen has a constitutional right — a basic right — to bring to Israel his foreign spouse, a national of an enemy entity, in a time of war, I would like to make two comments that concern the remarks made by my colleague the president with regard to the constitutional right of an Israeli citizen to bring his foreign spouse into Israel. One comment concerns remarks which I made in Stamka v. Minister of Interior [24]. The other comment concerns reliance on constitutional arrangements in foreign countries.

a.     Concerning remarks that I made in Stamka v. Minister of Interior

69. My colleague the president did me the honour of citing — twice, in para. 27 and in para 34 of his opinion — remarks that I made in Stamka v. Minister of Interior [24], at p. 787, in which I said:

‘The State of Israel recognizes the right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel. Israel is committed to protect the family unit in accordance with international conventions… and although these conventions do not stipulate one policy or another with regard to family reunifications, Israel has recognized — and continues to recognize — its duty to provide protection to the family unit also by giving permits for family reunifications. Thus Israel has joined the most enlightened nations that recognize — subject to qualifications of national security, public safety and public welfare — the right of family members to live together in the place of their choice.’

After citing these remarks (in para. 34 of his opinion), my colleague the president goes on to make the following remarks: ‘Indeed, the constitutional right of the Israeli spouse — a right that derives from the nucleus of human dignity as a constitutional right — is “to live together in the place of their choice”.’ I do not retract the remarks that I made, but I do not think that it is possible to deduce from them that an Israeli citizen has a constitutional right that his foreign spouse can enter Israel and take up residence in it.

First, the continuation of the remarks that I wrote (ibid.) should be read. They state:

‘This is the case here too. The respondents recognize the right of spouses — an Israeli citizen and someone who is not an Israeli citizen — who were genuinely married to live together in Israel, and the right of the foreigner to an arrangement at the end of which he will receive a permanent status in Israel: permanent residency and citizenship. What then is the complaint? It concerns the length of that “staged arrangement” and the inflexibility of the arrangement.’

The explanation of this is that when I spoke about the ‘right of the citizen to choose for himself a spouse and to establish with that spouse a family in Israel’ — and certainly when I spoke of ‘the right of the foreigner to an arrangement’ — I was describing a policy that is practised by the state. Indeed, I regarded this policy as a proper policy, but I did nothing more than describe the legal position that prevailed at that time. I should add that this policy — in so far as I am aware — has not changed in principle. The policy is still in force, except with regard to residents of the territories. The question is merely whether the change that took place in the policy with regard to residents of the territories is a lawful change.

 Second, and this is the main point, the judgment in Stamka v. Minister of Interior [24] was written on 4 May 1999. The serious armed conflict between the Palestinian Authority and Israel — which is a quasi-war — began more than a year later, in September 2000, and it utterly changed the relationship between the Palestinian Authority and Israel. We have discussed above the difficult position of Israel since the armed conflict broke out, and nothing needs to be added. Against this background, the Knesset enacted the Citizenship and Entry into Israel Law, as it sought to protect the residents and citizens of Israel against those who seek to harm it. The Mejellah, in its wisdom, taught us (in s. 39) that: ‘It cannot be denied that, when the times change, the laws also change with them.’ This is what happened in our case. The times changed — and they changed radically — and therefore it was decided to make a change in policy.

Third, my remarks are qualified automatically by ‘qualifications of national security, public safety and public welfare.’ With regard to these qualifications there is no need to add anything except for this, that they are inherent to the subject-matter and their existence would not be in doubt even had they not been written expressly.

70. We therefore return to the beginning, and the question is whether there is any flaw or defect in the Citizenship and Entry into Israel Law. My answer to this question is, as aforesaid, no.

b.     The interpretation of a constitution and arrangements from comparative law

71. In his opinion, my colleague President Barak surveys legal arrangements that are practised in various countries around the world, including the European Union, and his conclusion is that ‘the right to family life is… a constitutional right enshrined in the right to human dignity’ (para. 38 of his opinion). I am prepared to accept that this is the law in the legal systems of those countries mentioned in my colleague’s opinion, just as I accept that the right of a person in Israel to have a normal family life is a right that derives from human dignity. This is what we are taught by natural law, and the state merely embraces what is already there by wrapping natural law in the garb of law and constitution. But we are speaking of the creation and existence of the family unit between members of the state and within the framework of the state. This is not the case when a citizen of the state wishes to marry a foreign national and establish a family unit in the state. This kind of situation gives rise to the question of immigration in all its force, including immigration by virtue of the right to marry and to establish a family, and this issue is special and unique to each country, and what is more, it changes from time to time. Constitutional and legislative arrangements that are in force within the territory of a state are, admittedly, derived from basic values that a state wishes to foster in its midst, but to the same degree they are also built on the needs of the state and the reality of life with which it is required to contend. It is not surprising, therefore that the case law of the court in every country is context-dependent on the positive normative arrangement adopted in the constitution of the state, the prevailing law, basic principles and the reality of life. From a factual viewpoint, the use of comparative law in our case — like in every case — must be made sensitively and carefully, after thorough examination as to whether the legal arrangements practised in one country or another are compatible with the law in Israel and the reality of life with which we contend. This was discussed by my colleague President Barak with regard to legislative and constitutional arrangements concerning the environment, and I will cite some of his remarks that are apt also in our case (Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 514):

‘In comparative law there is much discussion of the environment. Many laws addressing the environment have been enacted in many countries… sometimes the environment has been given a constitutional status. In a large number of constitutions, a constitutional right to have a suitable environment has been recognized…’

And further on (at pp. 515-516):

‘This comparative law — whether in the international sphere or in the national sphere — is of great importance… Nonetheless, each country has its own problems. Even if the basic considerations are similar, the balance between them reflects the uniqueness of every society and what characterizes its legal arrangements… Indeed, this is the power and these are the limits of comparative law. Its power lies in extending the interpretational horizon and field of vision. Its power lies in guiding the interpreter with regard to the normative potential inherent in the legal system… Its limits lie in the uniqueness of every legal system, its institutions, the ideology that characterizes it and the manner in which it deals with the individual and society. Indeed, comparative law is like an experienced friend. It is desirable to hear his good advice, but this should not replace one’s own decision.’

See also LCrimA 8472/01 Maharshak v. State of Israel [131], at p. 474:

‘… It is a burden that is imposed on us to take care not to follow foreign legal systems blindly, and especially to know how to distinguish between principles and doctrines and ways of thinking and techniques for arriving at a solution, from which it is possible to derive inspiration and wisdom, and between details and specific solutions which we should ignore. Indeed, comparative law is capable of extending one’s thinking, enriching knowledge and wisdom, freeing us from provincialism, but at the same time we should not forget that we are dealing with our own system and our own country, and we should avoid the imitation of assimilation and self-deprecation.’

72. We should remember that we are Israeli judges, we judge in Israel and we dwell among our people. Although in general it is proper for us to take a look at foreign legal systems, to learn and to receive inspiration, we should always remember that normative arrangements that were created and exist in other places were created and exist against a background of a reality that prevails in those countries and that exist within legal systems that give expression to that reality, and therefore we should not follow blindly — in the manner of assimilation and self-deprecation — normative arrangements that are practised in those places. This is true both of legislation and of the constitution. As President Shamgar told us in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 329:

‘But it should be understood that the consideration of other constitutions and their implementation is merely comparative. Every constitution reflects in the protections of rights that are granted therein the social order of priorities that is unique to it and the outlooks that have been adopted in its society. It need not be added that there is also a whole range of political considerations that accompanies the formulation of a constitution. Thus, for example, in Canada it was decided not to include a prohibition against the violation of property in the Charter of Rights.’

The more a normative arrangement is influenced by the reality and the specific needs of the country where it prevails, the harder it will be to learn from it and to make an analogy between it and the State of Israel in which we live. This is true in general and it is also true in this case. The attitude of each state to immigration arrangements — including immigration arrangements by virtue of the right to marry and to family life — originates not only in the legal system and its characteristics in each different place but also, mainly, in the reality with which the state is required to contend. It is therefore not surprising that the countries of the world have adopted and continue to adopt, each for itself, arrangements that are suited to its needs from time to time, and moreover they tend to change from time to time the immigration arrangements prevailing in them according to the reality — a changing reality — with which the state is required to contend. See the remarks that we cited above (in para. 52) with regard to the position prevailing in the United States and changes in immigration arrangements in that country.

73. With regard to us, we doubt whether among all those countries, from which my colleague the president seeks to derive an analogy, there is another country that is contending with a reality similar to the reality with which Israel is contending. Of the many differences between Israel and all those countries — whether considered individually or all together — we should remember most of all that extremely hostility exists between the Palestinian Authority and Israel; the declared intention of the body that controls the Palestinian Authority — Hamas — to destroy Israel and to wipe its name off the face of the earth; the sad fact that our time is a time of armed conflict — a time of quasi-war — between us and the Palestinian Authority. We should add to the organization that controls the Palestinian Authority the fact that the population in the territory of the Palestinian Authority, in general, is hostile and inimical to Israel, and I think that we can be cured of the need to derive an analogy from the legal systems of other countries whose position and geo-political status is more different than similar to the position and geo-political status of the State of Israel. Is there any other country that is being asked to allow in its territory the establishment of a family unit in which one of its members is an enemy national? On all of this, and more besides, see Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra.

74. For our purposes, we should say that even were we to adopt general basic principles that guide the paths of cultured countries of the world, we would have difficulty following specific arrangements that were chosen by the various countries, whether within the territory of the European Union or in any other place. The status and way of life of those countries, and especially the security position in them, are so different from the status of Israel, its way of life and the security position that prevails in our country that an analogy from the legal systems practised there — legal systems that reflect what is happening in those countries — is out of place.

Interim remark

75. Hitherto we have considered the question whether Israeli law gives an Israeli citizen — or does not give him — a constitutional right, a basic right, to bring to Israel his foreign family member for permanent residence or even for temporary residence. Our answer to the question was, as we have explained, that he does not. Let us now turn to discuss an additional matter that arises in our case, which is whether the Israeli citizen has a constitutional right to bring to Israel his foreign family member when that family member is a resident of a hostile entity that is involved in an armed conflict with Israel.

Immigration in times of war

76. Does the constitutional right to family life, a right that is derived from the value of human dignity, imply an innate right of the citizens and residents of Israel to bring to Israel their foreign family member (a spouse or parent) who is a resident of a hostile entity that is involved in an armed conflict with the State of Israel? My answer to the question is no. In this case too I think that the strength of the right to family life is confronted by another strong and very powerful interest: the lives and security of the citizens and residents of Israel and the security and stability of the State. These latter interests are capable of preventing, in my opinion, a recognition of the existence of a constitutional right in times of war to allow the entry of a resident of an enemy state into the territory of the State of Israel. The balance is between the right of individuals to family life and the right of others to life. In this context, we find apt the remarks that were made with regard to the way in which Canadian legislation concerning the war on terror should be scrutinized as legislation whose purpose is to protect all liberties:

‘The configurative analysis of the Bill in terms of national security versus civil liberties may be as misleading as it is inappropriate in its framing of the issues. It appears to suggest — however inadvertently — that those who are against the legislation are the true civil libertarians, while those in favour of it are somehow indifferent to, if not insensitive to, civil liberties. The point is that there are good civil libertarians on both sides of the issue — and the civil libertarian issue should be considered on the merits and not as a function of the labeling of one’s positions as being for or against the legislation.

The better approach from a conceptual and foundational point of view is to regard the legislation as human security legislation, which seeks to protect both national security — or the security of democracy if not democracy itself — and civil liberties. As the United Nations puts it, terrorism constitutes a fundamental assault on human rights and, as such, a threat to international peace and security, while counter-terrorism law involves the protection of the most fundamental of rights, the right to life, liberty, and the security of the person, as well as the collective right to peace’ (I. Cotler, ‘Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy,’ in The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (R.J. Daniels, P. Macklen and K. Roach, eds., 2001) 111, at pp. 112-113).

77. I believe that even those who support the position that the Israeli citizen should have a right — a constitutional right or a legal right — to have his foreign family member enter Israel and reside in it will agree that reasons of national security and public security should qualify the right of the individual to have his family member enter the country and reside in it. Thus, if the state authorities discover that a foreign national presents a specific security risk to national security and public security, that foreign national will not be allowed to enter Israel, whatever his family status may be. See, for example, Stamka v. Minister of Interior [24], at pp. 787-788; HCJ 2208/02 Salama v. Minister of Interior [132]; AAA 9993/03 Hamdan v. Government of Israel [133]; HCJ 2455/95 Dragma v. Minister of Interior [134]; HCJ 7206/96 Mansour v. Minister of Interior [135]. Cf. s. 2(b)(3) of the Law of Return. Cf. also HCJ 1227/98 Malevsky v. Minister of Interior [136]; HCJ 442/71 Lansky v. Minister of Interior [137]. This is the law where the foreign national himself is suspected of being dangerous to national security, and it is also the law where the foreign national is associated with persons who endanger public safety and may influence him. See, for example, HCJ 7061/05 A v. Minister of Interior [138]:

‘Someone who wishes to obtain permanent residency in Israel cannot be associated with persons active in hostile activity and terror. Residency in Israel and an association with such persons is a contradiction in terms…’

78. This natural and simple rule, that a foreign national who presents a risk to national security will not be allowed to enter the state, leads almost automatically to the conclusion that in times of war hostile nationals will not be allowed to enter the state, since they are presumed to endanger national security and public security. Indeed, it will not be difficult to understand and realize that a foreign family member who is not an Israeli citizen has strong ties with his family and his place of birth, and that these ties are not severed even if the person leaves his home and comes to live in Israel. This feeling of loyalty of a person to his people and his place of birth is a natural feeling, a feeling of great strength, and it is much stronger where a person leaves behind him — and this is the usual case — parents, brothers, sisters, other family members, friends and companions. And so, when the two peoples — the people of the family member’s place of birth and the people among whom he now lives — become involved in an armed conflict with one another, a person is likely to be required to decide where his loyalties lie and whom he will aid. Often he will support his place of birth and seek to assist it in one way or another. The risk and the danger will increase greatly in a case where the family member has left behind him family members and friends who may be subject to harm and threats from the regime in his place of birth or from gangs in that country. The risk and the danger will increase even more where the person belongs to a people that seeks to destroy the state that absorbed him and that is waging against it a bloody struggle that has continued for many years.

79. The premise in international law is that in times of war the citizens of the warring states become hostile to one another, and that every citizen will regard himself as loyal to his country and place of birth and hostile to the enemies of his place of birth. It is natural, therefore, that a state that is in a situation of conflict may determine special arrangements concerning enemy nationals, including, of course, an arrangement that prevents them from entering its territory. See J.G. Ku, ‘Customary International Law in State Courts,’ 42 Va. J. Int’l L. (2001) 265, at p. 322:

‘Because the declaration of war between sovereigns transforms every individual subject and citizen of those sovereign nations into enemies, the traditional law of nations naturally require that enemy aliens be accorded different legal status than alien subjects hailing from friendly powers. In particular, the treatise writers found that the law of nations imposed severe restrictions on the nature of the contacts between subjects of sovereigns at war with each other.’

80. In our times — unlike in the past — we no longer make formal declarations of war; and wars — again, unlike in the past — are not necessarily between states. But the rules and principles that were intended to protect the citizens and residents of the state are valid and logical even where an armed conflict is being waged not between states, but between a state and an entity, like the Palestinian Authority, which is not a state. In such circumstances, and in other similar ones, the presumption of hostility exists in full strength. See and cf. E. Gross, The Struggle of Democracy against Terror — Legal and Moral Aspects (2004), at pp. 70 et seq.; Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra, at p. 317, and see the references cited there.

81. On the basis of this logical deduction, a deduction that is common to all human beings and to all human peoples, it has been determined in international law that when there is a dispute between nations, a nation may prohibit the nationals of the foreign nation, as such, from entering or immigrating to it. The reason for this is that because of the strong and special ties that they have to their place of birth, people and family members, enemy nationals, as such, constitute a special risk group. Admittedly, not all enemy nationals are actually enemies, but in the heat of an armed conflict there arises a quasi-presumption that enemy nationals — all enemy nationals — are enemies of the state, and the state has no legal duty to rebut the presumption and distinguish between an enemy national who is likely to endanger the state and its residents and an enemy national who is unlikely to endanger the state and its residents. There is a presumption that enemy nationals, because they are enemy nationals, are the enemies of the state and that they endanger the safety and the security of the public in the state that is at war with their state; and the state is entitled — and is even obliged by virtue of its duty to protect its citizens and residents — to refuse the application of enemy nationals to immigrate to its territory. This rule, a rule in times of war and conflict, is valid also with regard to the case of persons who wish to immigrate by virtue of the right to marry and raise a family, since even these are likely to endanger the security of the state and the security of the residents of the state. See Rubinstein and Orgad, ‘Human Rights, National Security and the Jewish Majority — the Case of Immigration for the Purpose of Marriage,’ supra, at pp. 320-321:

‘The accepted norm of not allowing enemy nationals to enter in times of war or in times of armed conflict applies also to immigration for the purposes of marriage (marriage migration). International law and the relevant conventions impose various duties on the state with regard to family reunifications. Thus, for example, a state that is a party to an armed conflict is required to facilitate meetings of families that were compelled to separate during the fighting (even though the duty is to assist the renewal of the connection and, in so far as possible, family meetings, there is however no duty to allow family reunifications or to allow immigration for the purposes of marriage). A state that is a party to an armed conflict is also required to make an effort in order not to separate existing families during the armed conflict. But the state has no legal or moral duty in international law to allow immigration for the purposes of marriage from state A to state B, as long as the two states are involved in an armed conflict, and even when they are completely at peace.’

82. We tend to the outlook — which we have explained in detail above — that the state has no constitutional or legal obligation to allow family reunifications in its territory. But even if in times of peace the state is accustomed to allow foreign family members of its citizens to immigrate into the state (see Stamka v. Minister of Interior [24]), the state may in times of war suspend this practice and prevent the entry of foreign family members who are enemy nationals notwithstanding the harm to the individual who married an enemy national or to a minor who lives with his Israeli parent only. A time of war is not the same as a time of peace. Although we all know that ‘even when the trumpets of war sound, the rule of law will make its voice heard’ (Sabiah v. IDF Commander in Judaea and Samaria [110], at p. 369), we also know that things which are appropriate in a time of peace cannot be maintained in a time of war. In the words of the wisest of men (Ecclesiastes 3, 1; 3, 8 [246]) ‘For everything there is a time and for every desire there is an occasion under the heavens… A time to love and a time to hate, a time of war and a time of peace.’ I agree with my colleague the president that the state does not have two systems of law, one for times of calm and one for times of war. The basic rights of the individual are alive and well even in times of security risks. At the same time, we cannot deny ‘that in times of war there arise — or you may say, there awaken — considerations and interests that are unique to this time, considerations and interests that can restrict the spheres of application of the rights of the individual,’ or at least stop their realization (the limitations clause). We cannot deny that in times of war a state may restrict the individual in the realization of his rights, provided that this restriction is done for a proper purpose — i.e., in order to maintain public interests of great weight — for a restricted period and to a degree that is not excessive. Cf. s. 12 of the Basic Law: Human Dignity and Liberty. This (at least) is the case before us.

83. Human rights stand firm, with their full force, even in times of war and emergency, but the situation of war and emergency can affect the restrictions that can be placed on their realization. The question is one of dosage; the dosage in times of peace is not the same as the dosage in times of war. In times of peace, the right will blossom and spread its scent all across the land. But this is not the case in times of war or in times when security risks are constantly lying in wait for the residents of the state.

Let us remember that rights that are given to the individual in a democracy will not exist if there is no state or there is no life for the citizen. We are accustomed to exalting — and rightly so — the basic rights of the individual, human dignity, the principle of equality and with them other basic values on which our legal system prides itself. These rights and principles are of supreme importance. They are exalted above all else. Without them we would have no democracy worthy of the name. But the very existence of the state and the right of the individual to life are more exalted and important than all of these. Without a state, the rights of the individual would have no existence, and the basic rights of the individual must not become a spade to be used for undermining the existence of the state. Cf. Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [101], at pp. 388, 390; Neiman v. Chairman of Elections Committee for Eleventh Knesset [87]. Such is the existence of the state and the risks to the life of its citizens. ‘Without security, it is not possible to protect human rights’ (per Justice D. Dorner in Saif v. Government Press Office [86], at p. 77 {197}). Therefore, ‘human rights should not become a spade for denying public and national security’ (CrimFH 7048/97 A v. Minister of Defence [88], at p. 741). Safeguarding the lives and security of the public may necessitate a certain erosion of the rights of the individual — some might say, may justify a restriction of the scope of application of rights, and at least necessitate a suspension of the realization of the rights of the individual — and this erosion, if it is done proportionately, is a permitted violation in our constitutional system. In the words of my colleague President Barak, in Conterm Ltd v. Minister of Finance [85], at p. 347 {71}:

‘We cannot protect human rights without infringing on human rights. A democracy is not characterized by the fact that it never violates human rights. Human rights are not a recipe for national destruction.’

84. The state has a duty to its citizens and its residents — and this is a duty of the first order — to protect their lives and security, even at the price of violating the right of some citizens to realize, within the territory of the state, their right to family life with their spouses who are enemy nationals. In a time of armed conflict a sovereign state is therefore not required to allow enemy nationals to immigrate, even if they have first-degree family members in the state. The concern, and it is a reasonable concern, is that at the crucial moment the enemy nationals will be loyal to their people and place of birth, and at the least they will be subject to various pressures — because of family and other ties — to help the enemy. This is sufficient to create a presumption that all enemy nationals are dangerous and to justify a prohibition against their entering the state. This is the rule, and it has its logic and reasons. We should add in this context that rules formulated in international law usually concern individual and exceptional cases, because naturally the citizens of enemy states do not marry each other, and in times of armed conflict they do not immigrate in their thousands from their state to the enemy state. Our case, we should remember, is completely different, since we are talking of residents of the territories who wish to immigrate to Israel in their thousands. And when we are considering the case of thousands of immigrants — and not merely a few immigrants — those concerns that gave rise to the accepted norm in international law are automatically magnified.

85. So we see that here too we are confronted by rights and interests that conflict with one another: on one side there is the right of the state not to allow residents of an enemy state to enter its territory in times of war, and on the other side there is the right of the citizen — a basic right, a constitutional right derived from human dignity — that he will be allowed to live together with his family members and to have a normal family life in Israel. The question is whether the basic right to have a family life in Israel also applies to family members when one of them is a resident of a hostile entity that is involved in an armed conflict with the State of Israel? In order to answer this question, we ought to consider closely these two values and weigh them against one other (see also para. 59, supra): the one is the strength of the right to have a family life in Israel as derived from the values that the right is supposed to express in the law; the other is the strength of the conflicting value, which in our case is the lives of citizens and residents and national security. When we place these conflicting values before us, we must clarify and weigh up to what extent the right to family life as aforesaid detracts from the values of life and security, and vice versa: to what extent do the values of life and security detract from family life. In this case, we say that recognizing the right of the citizen to include a right to bring into Israel, in a time of war, a family member who is an enemy national causes harm in two ways: first, it violates the right of the organized society in Israel to decide who will live in Israel and who will be its citizens and residents, i.e., it impairs the ability of the state to determine its identity and character; second, it harms — or at least it is likely to harm — national security.

86. Once again I placed all the values and considerations into one pot, and my conclusion is that the value of human dignity — in principle — does not give rise to a constitutional right to realize in Israel a marriage with a foreign spouse, or to bring a foreign parent into Israel, when that spouse or parent is a national of a state that is in a state of war — or a state of quasi-war — with Israel. This conclusion is implied both by an examination of the strength of the right to have a family life, and by the values and interests of the state and its residents to life and security, as well as by the conflict between the former and the latter.

As we have already said (see para. 61 above), I do not nor shall I dispute the constitutional right of an Israeli citizen to have a family life. But here too the main issue is the values and interests that conflict with the argument concerning the constitutional right of the citizen to have a family member live in Israel when that family member is a national of an entity that is involved in an armed conflict with the State of Israel (cf. para. 62, supra). We are speaking of a concern that hostile parties will enter Israel, and the state is asking us to allow it to prevent the entry of Palestinians who wish to live here. The strength of this interest is so strong in my opinion that it is capable of influencing, ab initio, the scope of the application of the right to have a family life in Israel. The state, we should recall, is merely the organization of society to live together, and the meaning of this for our purposes is that the state’s prerogative is merely an expression of the protection that Israeli citizens require even in times of peace, but particularly in times of war.

Indeed, we should not ignore the conflicting interests and values, both those of the state and those of its individuals. Human rights live and endure also in times of war, but there is no doubt that a change occurs in the process of balancing them against the interests that conflict with them, with regard to the value of human dignity, personal autonomy and human liberty. The war harms everyone: soldiers on the battlefield and citizens on the home front. The economy of the state is harmed. The realization of social goals are postponed to a later date. And when the reality changes, the balance may also change. Indeed, the nucleus of the rights will not change. The piccolo will continue to pipe its clear notes. But the remoter we are from the nucleus and the more we approach the periphery — and in our case we are speaking of the right of the citizen to bring a foreign national to live in Israel in a time of war — so the influence and strength of other elements and values will increase.

87. In summary, in times of war Israeli citizens and residents do not have a constitutional right to bring into Israel a family member who is a citizen of an entity that is involved in an armed conflict or war with the State of Israel.

Immigration by virtue of marriage and the right to family life — interim summary

88. The conclusion that we arrive at is therefore this, that the right of the individual to family life does not imply a constitutional or legal obligation that is imposed on the state to allow the foreign family member of the individual (a spouse or parent) to immigrate into the territory of the state. Such immigration — if and to the extent that it is allowed — will be allowed if the state so wishes, and in accordance with its laws. The state has no obligation to allow immigration for reasons of marriage — except in accordance with its laws — and the state may impose restrictions on immigrations into its territory for the purpose of marriage. If this is the case in general, it is certainly the case in times of war, when the persons who wish to immigrate into the state are enemy nationals.

The question of the violation of equality — the right (and duty) of a state to restrict the immigration of enemy nationals in times of war

89. We all agree (for how could we not?) that the Citizenship and Entry into Israel Law mainly harms the Arab citizens of the state. It is true that the law does not address Israeli citizens at all, and therefore it does not distinguish between Jews and Arabs, but it is also true that de facto it is Arab Israeli citizens who are harmed by the law, since it is only they — with the exception of isolated cases — who find a spouse among the residents of the territories. From the viewpoint of the end result, there is no equality between the Arab citizens of the state and the Jewish citizens of the state. Cf. Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654; Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41]. Does this inequality in the end result have any legal significance?

90. Everyone agrees that an immigration restriction should be applied democratically and equally. The state should not discriminate against one population group by preventing their foreign spouses from immigrating into the state, while at the same time allowing the foreign spouses of another population group to immigrate into it. We discussed this in Stamka v. Minister of Interior [24], where we explained that the principle of equality demands that the laws of immigration by virtue of marriage should be applied equally to Jews and non-Jews (ibid., at pp. 758-759):

‘… We do not find any justification for preferring a Jew who lives securely in his land to someone who is not a Jew, such that the former should be able to acquire citizenship for a non-Jewish spouse whereas the latter cannot. Although we agree, wholeheartedly, with the right possessed by every Jew, as such, to immigrate to Israel, with his family, we shall find it difficult to agree to a greater right being given to a Jew who is a citizen of Israel — to him, but not to the Israeli citizen who is not Jewish — to be entitled to citizenship for a non-Jew who became his spouse while he is a citizen of Israel. When we recognize the right of a Jewish citizen of Israel to obtain citizenship for his non-Jewish spouse, but at the same time we deny this right to the non-Jewish citizen, we commit a serious act of discrimination, and we have found no proper purpose in this.’

The meaning is that the citizens of Israel, whether Jews or non-Jews, have not acquired a right that their foreign spouses can immigrate into Israel. In this, they are different from Jews who are not citizens of Israel, who are entitled to have their family members immigrate to Israel (s. 4A of the Law of Return), and the absence of the right will apply equally to Jews and non-Jews. If a right is given to Israelis to have their foreign spouses immigrate to Israel, this right should be given equally to all Israelis, to Jews and non-Jews alike. Once we realize this, the question that we must ask now is whether the Citizenship and Entry into Israel Law is a law that discriminates against Arab Israelis, and whether for this reason it should be declared void as a law that violates the principle of equality. We will now consider this claim.

91. It is well known that not every inequality leads to the voidance of a legal norm, and certainly it does not lead to the voidance of a law of the Knesset. Not every distinction between persons is an improper distinction. The same is true of a violation of human dignity. A distinction that is based on relevant considerations does not violate human dignity nor does it violate the right to equality. In other words, the right to equality does not apply to every distinction but only to prohibited distinctions. Not every different treatment is discriminatory treatment. Discrimination is, it is well known, a distinction between persons or between matters for reasons that are irrelevant, but when there is a difference that is relevant, the authority may, and sometimes must, treat the persons or the matters differently. This was elucidated by President Agranat: ‘…it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality…’ (Boronovski v. Chief Rabbis [71], at p. 35). It follows from this, so President Barak told us, that: ‘In order to establish a claim of discrimination that allegedly constitutes a violation of the constitutional right to equality, one must point to the existence of an unjustified discrimination in the offending law. Discrimination between groups that is based on a relevant difference does not in itself constitute discrimination’ (HCJ 5304/02 Israel Victims of Work Accidents and Widows of Victims of Work Accidents Association v. State of Israel [139], at 141). See also: Kefar Veradim v. Minister of Finance [70], at pp. 507-508; El-Al Israel Airlines Ltd v. Danielowitz [65], at p. 761 {489}; Recanat v. National Labour Court [73], at p. 312; HCJ 6845/00 Niv v. National Labour Court [140], at p. 680. And as we have said elsewhere (Local Government Centre v. Knesset [31], at p. 502), the concept of equality — the concept of substantive equality — is a concept that is synonymous with justice and fairness; and discrimination between equals (from a substantive point of view) means an act of injustice and unfairness.

92. In our case, are Arab Israeli citizens discriminated against in comparison with Israelis who are not Arabs? Does the Citizenship and Entry into Israel Law discriminate improperly between Arab Israeli citizens and non-Arab Israeli citizens? Our answer is no. The Citizenship and Entry into Israel Law was enacted against the background of the armed conflict and state of war between Israel and the Palestinians, and therefore there is a proper and permitted distinction between persons who married foreigners, who are Palestinian ‘enemy nationals’ that are presumed to constitute a potential security risk to the residents of the state, and persons who married foreigners who are not ‘hostile nationals.’ Moreover, in times of war the state — every state in the world — may categorically prevent the immigration of enemy nationals into its territory out of a concern that their loyalty will be given to their place of birth — i.e., to the enemy — and not to the state that absorbs them. Even if in times of peace the state is accustomed to allow foreign spouses of citizens of the state to immigrate to it, in times of war the state may suspend this practice, at least in so far as concerns foreign spouses who are enemy nationals. Admittedly a citizen of the state who married an enemy national will be hurt by the state’s decision, and it is possible that he will even feel discriminated against in comparison to his neighbours who married foreign citizens who are not enemy nationals and their spouses are permitted to come to Israel. But can we seriously say that someone who married an enemy national has been discriminated against? With regard to our case we will say that as long as the armed conflict between Israel and the Palestinians continues, the state is entitled to prevent the immigration of Palestinians who are residents of the territories to Israel. This ban does indeed harm a minority group of which the vast majority are Arabs, but this harm derives from the marriage to enemy nationals who are likely to endanger the public in Israel and not from the fact that they are Arabs. The decisive factor is national security and the lives of the residents of the state, and this factor outweighs the others.

93. After realizing all of the above, we reject the claim of discrimination that the petitioners raised before us.

Immigration by virtue of the right to marry and raise a family and the principle of equality — summary

94. The right to marry and raise a family, and likewise the right to equality, are both rights that do not imply that the state has any duty — neither a constitutional duty nor a legal duty — to allow immigration to Israel by virtue of marriage. The individual — every individual — does not have a right that his foreign spouse will be allowed to immigrate to Israel. This is the law in times of peace and it is certainly the law in times of war, when the persons wishing to immigrate are members of an enemy people that is involved in an armed conflict with the state and its citizens. Israel does not therefore have any duty to allow residents of the territories who married Israeli citizens to enter Israel, and Israeli citizens who married residents of the territories do not have a constitutional right — a right that is allegedly capable of causing the voidance of a law of the Knesset — to have their foreign spouses immigrate to Israel. Admittedly, the Citizenship and Entry into Israel Law harms some of the citizens of Israel, the vast majority of whom are Arabs, that married residents of the territories and wish to realize their right to family life in Israel. But this harm is a necessary evil brought about by reality, the security reality in which we find ourselves. The State of Israel is entitled to prevent the entry of enemy nationals into its territory during an armed conflict, and in a time of war it does not have a legal obligation to allow immigration to Israel for the purpose of marriage and as a result of marriage. The citizen of the state does not have a right that in a time of war the state should allow his foreign spouse who is an enemy national to immigrate to Israel. And even if in times of peace the citizen of the state has a right vis-à-vis the state that it should allow his foreign spouse to immigrate to Israel, the state is entitled to suspend this right in a time of war.

95. Our opinion is therefore this, that the Knesset had the power to enact the Citizenship and Entry into Israel Law in its amended form. There remains, prima facie, a question as to whether it was right to enact a blanket provision of law that applies to a whole group of the population within certain ages, without any distinction between the individuals in the group, or whether the enactment of the blanket provision undermines the validity of the law, like a law that is contrary to principles in the Basic Law: Human Dignity and Liberty. The answer to this question is somewhat complex. As we have seen in our remarks above, it is possible to classify the relationship between Israel and the Palestinian Authority in two ways: one, as a relationship of armed conflict that is equivalent, for our purposes, to a state of war, and two, alternatively, or maybe additionally, as a relationship that creates serious security risks to the residents of Israel on the part of the Palestinian Authority or terror groups that operate from within it.

96. It would appear that in so far as we are speaking of the armed conflict — which is tantamount, in our opinion, to a state of war — the blanket prohibition on the entry of a certain population group into Israel may well be required by the state of the conflict. And if a blanket prohibition of the entry of enemy nationals is a proper and lawful prohibition, at a time of war or armed conflict, then a partial prohibition as we find in the law is certainly proper and lawful. The same is true according to the alternative classification, according to which the relationship between the Palestinian Authority and Israel creates serious risks to the lives of Israeli residents. This is especially the case when the security services are unable to distinguish between immigrants who constitute a danger to security and immigrants who do not constitute a danger to security.

97. In summary, the Citizenship and Entry into Israel Law harms Arab citizens of the State of Israel who wish to marry spouses who are residents of the territories, but this harm does not amount to a constitutional violation of a provision of the Basic Law: Human Dignity and Liberty. This is the case with regard to the constitutional right to family life, which is a right that does not extend to the request of an Israeli citizen to bring his foreign spouse to Israel, and this is also the case with regard to the constitutional right to equality, which is not violated since the effect of the law on Arab citizens and residents is based on relevant considerations at this time, a time of war. Now that we have said what we have said, our voyage is complete. Nonetheless, in order to avoid doubt, and on the basis of the assumption that the Citizenship and Entry into Israel Law does violate a basic right of the citizen, I would like to go on to consider whether that violation satisfies the tests of the limitations clause.

The Citizenship and Entry into Israel Law — purpose and proportionality

98. The premise for our deliberations from this point will be that the purpose underlying the Citizenship and Entry into Israel Law, and I am speaking here only of the purpose, is a proper purpose. The question is merely whether the measure determined by the law to achieve the purpose is a proper and proportionate measure. The purpose of the law is to protect the security and lives of Israeli citizens, and it is clear that this purpose is a proper purpose that befits the values of the State of Israel as a Jewish and democratic state. The State of Israel is required to contend with terror, and it is entitled — or rather it is obliged — to adopt measures that will protect the lives and security of the residents of the state. The state is entitled therefore to prevent the terror organizations from exploiting the basic rights of the individual — which in our case means the right to marry and to family life, and, in consequence, the right to live in Israel — in order to make it easier to commit acts of terror against the citizens of Israel. Everyone accepts, therefore, that in principle the state is entitled to adopt proper measures in order to prevent the foreign spouse of an Israeli citizen from coming into Israel where there is a concern that such a person will be involved in terror activity or will assist terror. The question that is being asked is simply whether the state was entitled, within the framework of the law, to impose a blanket prohibition on the residents of the area, who married Israeli citizens and are of a certain age, against entering Israel and living in it.

The limitations clause — values of the state and purpose of the law

99. Assuming that the Citizenship and Entry into Israel Law violates one of the basic rights given to the citizen in the Basic Law: Human Dignity and Liberty — although I personally doubt that this is true in our case — the question that must be asked is whether that violation satisfies the test of the limitations clause and passes it safely, or whether the violation fails the test of the limitations clause and in consequence the law is doomed — in whole or in part — to be declared void. Let us recall what the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty says:

‘Violation of rights

8.  The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose and to an extent that is not excessive, or in accordance with a law as aforesaid by virtue of an express authorization therein.’

We are speaking of a law of the Knesset that the petitioners are seeking to have declared void, and in this respect the limitations clause provides us with several tests: the law must befit the values of the State of Israel; the law must be intended for a proper purpose; and the violation of the basic right must be to an extent that is not excessive. The petitioners raised no argument before us with regard to the first condition (the law must befit the values of the state of Israel). With regard to the condition of the proper purpose, my colleague President Barak considered this in detail, and his conclusion is that the law satisfies this requirement. I agree with my colleague’s remarks and I will find it hard to add anything to them. It is clear that the purpose of protecting the security and life of residents and citizens of the state is a proper purpose.

The limitations clause: proportionality

100. There remains one more hurdle for the Citizenship and Entry into Israel Law to overcome, and that is the proportionality hurdle; or in the language of the law, the violation of the basic right must be ‘to an extent that is not excessive.’ This test, as distinct from the first two tests, places on the agenda the measure that the law chose for achieving the proper purpose, and the question is whether this measure is a ‘proportionate’ measure. The test of proportionality is divided, as is well known, into three subtests, and now we will consider these tests one by one. See also: Ben-Atiya v. Minister of Education, Culture and Sport [91]; HCJ 6971/98 Paritzky v. Government of Israel [141], at p. 779; Oron v. Knesset Speaker [10], at p. 665; Stamka v. Minister of Interior [24], at pp. 776-778. Since my colleague the president went into detail in his analysis of these tests, we will be brief although we too could have gone into detail.

The first subtest — making the measure correspond to the purpose

101. Does the blanket prohibition against the entry of residents of the territories of certain ages into Israel constitute a proper measure for realizing the purpose of the law? Does this prohibition rationally serve the security purpose that underlies the law? My colleague the president says that the answer to this question is yes. This is also my opinion. The purpose of the law is to prevent terror organizations from receiving aid from residents of the territories who hold Israeli documentation, which allows them to enter Israel and to move freely in Israel. The following was stated in the explanatory notes to the draft Citizenship and Entry into Israel (Temporary Provision) Law (Amendment), 5765-2005 (Hatzaot Hok (Draft Laws) 624):

‘The temporary provision was enacted... in view of the security reality since the beginning of the armed conflict between Israel and the Palestinians, in which we have seen increasing involvement in this conflict of Palestinians that were originally residents of the territories, who have Israeli identity cards as a result of family reunification processes with persons who have Israeli citizenship or residency, and who abused their position in Israel in order to become involved in terror activity, including aiding the perpetration of suicide attacks.

The Israeli identity cards that were given to the residents of the territories as aforesaid allowed them free movement between the territories of the Palestinian Authority and Israel, and they made them a preferred target group of terror organizations for perpetrating hostile activity in general, and inside the territory of the State of Israel in particular.’

Because of their ability and readiness to aid the perpetration of terror attacks inside Israel, the residents of the territories who hold Israeli documentation became a recruitment target for the terror organizations, and the security establishment in Israel did indeed find that the efforts of the terror organizations were successful and that the involvement of residents of the territories who have Israeli identity cards in terror activities increased. We will consider this matter further in our remarks below.

Thus, when it was discovered that the residents of the territories who have Israeli identity cards by virtue of family ties were involved in terror by means of their abusing their right to move freely within Israel and between the territories and Israel; that the involvement of these persons in terror was increasing along with the progress in building the security fence which constitutes a physical obstacle to terrorists who wish to harm Israel; that the terror organizations are making great efforts to recruit into their ranks residents of the territories who have Israeli documentation, and it is possible that they also threaten the family members who are left behind; and that it is impossible to predict who will become involved in terror; it was also discovered that the restriction that the state imposed in the law on entering Israel served the purpose of the law in a rational and direct manner. Thus, the following was stated in the explanatory notes to the draft Citizenship and Entry into Israel (Temporary Provision) Law (Amendment), 5765-2005 (Hatzaot Hok (Draft Laws) 624):

‘… The professional assessment of the security establishment is that the temporary provision is an effective tool for reducing the free passage of residents of the territories between the areas controlled by the Authority and Israel, and for preventing the potential for a serious security risk on the part of that population.’

102. In paras. 85 and 86 of his opinion, my colleague the president examines the effect of the temporary permits to stay in Israel which the law allows — mainly for the purposes of employment — on the blanket prohibition against certain age groups staying and living in Israel, and his conclusion is that these permits do not sever the rational connection between the purpose of the law and the prohibitions therein. I accept my colleague’s conclusion. Indeed, the case of an employee who enters Israel for a limited time and subject to restrictions cannot be compared to the situation of a person who has an identity card that permits him to move freely, without hindrance, from the areas of the territories to Israel and within Israel itself.

 103. The first test of proportionality — the rational connection test — is therefore satisfied in full: the measure chosen to implement the purpose of the law corresponds from a rational viewpoint with the purpose of the law.

The second subtest — the least harmful measure

104. According to this test, the measure determined by the law, which violates a constitutional human right, is a proper measure if it is not possible to achieve the purpose of the legislation by adopting another measure that violates the human right to a lesser degree. Here we must make a clarification: when applying the second test of proportionality, the law is not compelled to choose absolutely the least harmful measure. Were we to say otherwise, then we would allow the court to dictate to the legislature which measure to choose, and in this way we would be undermining the discretion of the legislature and seriously violating the principle of the separation of powers and the decentralization of power. Moreover, in a case of this kind, the court is likely to undermine the effective implementation of the purpose of the law. The concept of proportionality for our purposes here means that the law chose a measure that falls within the spectrum of measures whose violation of a human right corresponds appropriately to the purpose of the law. The remarks of Justice Beinisch in Menahem v. Minister of Transport [11], at p. 80, are apposite to our case. She said:

‘The requirement that the legislature should choose a measure that violates the constitutional right to an extent that is not excessive in order to achieve the purpose of the law does not mean that the legislature must always choose the lowest level at the bottom of the ladder. Such a determination would make things too difficult for the legislature, which would not be able to penetrate the barrier of judicial review... There may be cases where the choice of an alternative measure that violates the constitutional right a little less is likely to lead to a significant reduction in the extent of realizing the purpose or in the extent of the benefit that will accrue from it, and therefore it will not be right to compel the legislature to adopt this measure. As a result, this court has recognized a “constitutional room to manoeuvre” which is also called the “margin of appreciation.” The limits of the constitutional room to manoeuvre are determined by the court in each case on its merits and in accordance with its circumstances, while taking into account the nature of the right that is violated and the strength of the violation thereof in relation to the nature and character of the competing rights or interests.’

See also Israel Investment Managers Association v. Minister of Finance [8], at pp. 387-389.

105. The question in our case is whether it was possible or it was not possible to achieve the purpose of preventing attacks carried out with the assistance of family members who are residents of the territories, by means of a lesser violation of the right to family life. We are mainly speaking of the creation of a mechanism of an individual check for every resident of the territories who is a spouse or parent of an Israeli citizen, instead of imposing a blanket prohibition on all the residents of the territories who are of certain ages. My colleague the president reached the conclusion that the provisions of the law satisfy the second test of proportionality, because in his words ‘… in the circumstances of the case before us, the individual check does not realize the legislative purpose to the same degree as the blanket prohibition. There is no obligation, therefore, within the framework of the least harmful measure, to stop at this level, and the legislature was entitled to choose the blanket prohibition that it chose’ (para. 89 of his opinion). Let us further point out already at this stage, by jumping ahead to some extent, that when he discusses the third test of proportionality — the benefit-damage test — my colleague reaches the conclusion that the violation engendered by the blanket prohibition is greater than the benefit that it causes; that the advantage that the law generates is significantly less than the damage that it inflicts on the right of the citizen; and consequently, the state ought to have adopted an arrangement of an individual check while increasing its effectiveness in so far as possible (paras. 91-94 of his opinion).

106. I too am of the opinion that the Citizenship and Entry into Israel Law passes the second test of proportionality, and I will add nothing to the remarks of my colleague the president. The main disagreements between my colleague and me are restricted to the third subtest of the test of proportionality — the test of benefit as compared with damage — and we will now turn to this subtest.

The third subtest — the value subtest — benefit versus damage

107. Before we enter the arena to discuss and debate rights and duties, we would like to make an introductory remark concerning nomenclature: there are three subtests in the test of proportionality, and for reasons that I do not understand the third subtest is called by the name of the test of proportionality ‘in the narrow sense.’ This name is a mystery to me. The test of proportionality ‘in the narrow sense’ is, in my opinion, actually the second subtest, since it is a test whose beginning, middle and end all concern proportionality (see United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 437). But the third subtest before us, the test in which we place on each pan of the scales the values that conflict with one another, the benefit values against the damage values, ought to be called the test of proportionality ‘in the value sense.’ This test is concerned with values, and therefore it should be given that name. See and cf. United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at pp. 345-347; I. Zamir, ‘Israeli Administrative Law as Compared with German Administrative Law,’ supra, at pp. 131-132.

108. In the first two subtests, my colleague President Barak and I went hand in hand, and our conclusions were similar. But this is not the case with the third subtest, a test that concerns the proper relationship or the correlation between the benefit that the law engenders and the extent of the violation of the right of the individual. My colleague does agree that the provisions of the Citizenship and Entry into Israel Law contribute to public security, but his opinion is that the violation of the right of Israeli citizens who wish to marry residents of the territories and live with them in Israel is greater and outweighs the benefit. In his words (at para. 92 of his opinion): ‘Admittedly, the blanket prohibition does provide additional security; but it is achieved at too great a price. Admittedly, the chance of increasing security by means of a blanket prohibition is not “slight and theoretical.” Notwithstanding, in comparison to the severe violation of human dignity, it is disproportionate.’ In consequence, my colleague wishes to compel the state to carry out an individual check of the spouses from the territories, a check which is supposed to reduce the violation of the rights of the citizen and reach a proportionate balance between public security and the violation of the rights. Cf. Beit Sourik Village Council v. Government of Israel [2], at pp. 840, 850-852 {297-298, 309-312}.

109. At this point I will part from my colleague and take my own path. In my opinion, an individual check of the persons included in those population groups who have a proven potential for endangering security and life may reduce the violation of the ability to have a family life in Israel, but it will not properly guarantee public security, and it will disproportionately violate the security of the individual and the public. It is not merely that there is an inherent difficulty in examining ab initio the positions and beliefs of the resident of the territories, to find out whether he supports our enemies or not; we also cannot ignore a real concern, which has been proved in the past, that the terror organizations will recruit the spouse who is a resident of the territories into its ranks only after he has been given a permit that allows him to enter Israel and to move freely in Israel. The investment of greater resources or more concentrated efforts will also not guarantee the security of Israeli residents, and the meaning of this is that cancelling the blanket prohibition in the law and replacing it with an arrangement of an individual check is likely to lead to quite a high probability of an increase in terror activities in Israel; to the killing and wounding of residents of the state; to a real and tangible weakening of the feeling of stability; and as a result of all of these to the undermining of democracy itself. In the task of balancing between a reduction of the killing, safeguarding life and guaranteeing the stability of the system of government, as compared with the damage caused to some of the citizens of Israel who wish to live with their foreign family members in Israel — and we should remember that the amendment to the law reduced the scope of the violation significantly — the benefit is, in my opinion, greater than the damage.

110. We have spoken at length about the armed conflict between Israel and the Palestinians and about the difficult reality — a difficult security reality — in which we live. We also spoke of the great difficulty that Israel has encountered in its war against the terror organizations, a difficulty that originates, inter alia, in the strong connection between the terror organizations and the Palestinian civilian population. We discussed at length the position of the Palestinian people in this dispute, the attitude of the Palestinian public, the great hostility that many Palestinians feel towards Israel and Israelis and the support of the armed conflict waged by the terror organizations among large parts of the Palestinian public. This support is often expressed by actually taking part in terror activities or aiding terror. The danger to the Israeli public, to its security and to its life is a clear and present danger, and we see evidence of this every day. Whoever lives in Israel today knows this well. The source of the danger, it should be remembered, is not merely the Palestinian Authority but — and perhaps mainly — the terror organizations and the Palestinian public in its entirety. Even if we agree that not all Palestinians wish to harm Israel, in general the Palestinian public and its members are hostile to the State of Israel. In such circumstances, an individual check of every resident of the territories who wishes to immigrate to Israel is an impractical mission — I will go further and say, an impossible mission — and even if at a particular moment it is possible to determine that a specific resident from the territories does not associate himself with the supporters of terror, who can guarantee that tomorrow or the day after, after he has received the much-desired permit, he will not change his opinion and his actions? The state says in this regard (in paras. 25 and 27 of the state’s response dated 7 February 2006) (all the emphases are in the original):

‘The forces fighting the State of Israel are not members of a regular army and they are not necessarily recognized as terror activists by the security forces; a substantial part of the Palestinian civilian population of certain ages are partners in the armed conflict, in one way or another. Because of this, and as has also been explained in detail in the past, it is not possible to predict the involvement in terror (whether it is clandestine involvement or assistance or financial support) of a resident of the Palestinian Authority, who is not recognized by the security establishment as a terror activist.

…

… The involvement of persons that have Israeli documentation since the armed conflict began, with regard to all the characteristics set out above, in aid to terror organizations and in carrying out bloody attacks inside the State of Israel indicates that many of those persons who, in the absence of concrete security intelligence against them, were granted a status in Israel by the state within the framework of applications for family reunifications, associated themselves with the Palestinian cause at one stage or another, after they entered Israel, and aided or committed murderous terror attacks.’

111. Against the background of these facts — facts that constitute a basis for our consideration and deliberation — the limitations of the individual check arise as if with a will of their own, and we discover that the security establishment has no real capacity to identify who are those residents of the territories who are likely to endanger the security of the public in Israel. Thus, for example, it is clear that the security services have difficulty in collecting intelligence — whether favourable or unfavourable — about residents of the territories who live in enemy territory. Moreover, terrorists do their best to recruit residents of the territories who have Israeli documentation, whether by means of ideological persuasion, whether by economic means or whether by putting pressure on their family members who live in the territories. Who therefore is so wise that he does not suspect that a resident of the territories may become associated with a terror organization after receiving Israeli documentation? It is clear that the security services are unable to carry out a continuous and uninterrupted check of all the residents of the territories who have received a permit to stay in Israel. In their arguments, the state explained at length the reasons that make the individual check impracticable, and we will quote some of its arguments (para. 28 of the response dated 7 February 2006; see also para. 16 of the closing arguments dated 16 December 2003):

‘The reasons that underlie the limitations of the individual check on the part of the security establishment are as follows:

a.  Intelligence gaps — in the circumstances of time and place, obviously the security establishment has intelligence gaps with regard to the activity of the residents of the territories, especially those who live in areas A and B. In these circumstances, the fact that there is no unfavourable security intelligence about a particular resident does not indicate that this person is not involved in prohibited security activity, and it cannot rule out the possibility that the lack of intelligence is a result of intelligence gaps that exist today.

b.  The risk to the security of the State of Israel can be created and realized at any time, without prior warning, since someone on behalf of whom an application for a family reunification in Israel is submitted lives in a place where terror organizations operate without hindrance, and so too do his family members and his close friends. The terror organizations can therefore, without any difficulty and at any time, make contact with a person who is requesting a status in Israel and/or with his family members or his social circle, and persuade them, either in an amicable manner or by threats, to cooperate with them. Therefore a current examination of every applicant — even were it practicable — would not be able to rule out the existence of the risk arising from giving permanent entry permits into Israel.

c.  The risk comes from anyone who can enter Israel permanently by means of Israeli documentation that makes it possible also to stay in Israel overnight, and to move lawfully throughout the state — since the general closure was tightened, and the difficulty in entering Israel was increased, the terror organizations are seeking every possible way that will help them carry out terror activities inside Israel.

     The terror organizations regard the holders of Israeli documentation and especially persons who have a strong connection to the Palestinian Authority as an attractive and very important asset, from their point of view, for aiding the terror organizations within the framework of the armed struggle. This is because of the continued existence of a strong connection with the close family and childhood friends in the territories, the continuing identification with the Palestinian cause, the extensive accessibility to the territories and to the State of Israel simultaneously, and the ability to exert pressure through the close family which is left in the territories to obtain the cooperation of the former resident of the territories. It need not be said in this context that the professional assessment of the security establishment is that in order to establish a “separation barrier” or in other words a “barrier area” or a “border area,” as well as constructing a “Jerusalem bypass road,” there may be serious future implications, in this respect, since these will increase even more the attractiveness of persons who receive the status in Israel for the various terror organizations, because of the difficulty in crossing into Israel and/or sending terrorists and weapons from the territories into Israel.

d.  The past is no indication of the future — the fact that someone was permitted in the past to enter Israel and/or that there is no current concrete security intelligence about him, cannot, in itself, predict that he does not present a future risk to national security, whether because of his identification with the armed struggle being carried out today by the Palestinian side, of which he is a part himself, or because of the fact that he cannot withstand threats against him and his close family that live in the territories that are made by the terror organizations.

     Thus, for example, it is possible to bring examples from recent months of participants in terror activity who were not regarded as persons likely to become involved in terror activity… In addition, from the viewpoint of the terror organizations, there is a preference for using someone with regard to whom the terror organization thinks that Israel has no adverse intelligence.’

112. The concerns raised by the state in its arguments are not unfounded. As we said in our remarks above, past experience has proved that residents of the territories who received a permit to stay in Israel by virtue of family ties have indeed associated themselves with terror organizations, and have made use of the permits which allowed them to move freely from the territories to Israel and within Israeli itself to carry out terror acts in Israel. In its arguments before us, the state included figures of known cases, and it appears that at least twenty-six residents of the territories — men and women, who receive a permit to stay in Israel by virtue of family ties were involved in terror or were known from intelligence sources to be involved in terror. The involvement of these residents in terror began, or at least became known to the state, only after those residents received the Israeli documentation (see para. 31 of the state’s response dated 7 February 2006):

‘Twenty-six residents of the territories who received a status in Israel as a result of a process of family reunification were involved in carrying out murderous terror attacks in Israel… Another forty-two residents of the territories who are in the process of the staged process were found, according to intelligence information, to be involved in terror activity… In all these cases, those persons received a status in Israel without it being possible to predict the security risk that they presented… obtaining a status in Israel is what allowed these residents of the territories to act as an essential link in carrying out murderous attacks that led to the deaths of dozens of innocent citizens.’

113. This is the reality in which we live. Regrettably, it has been found that residents of the territories who have a permit to stay in Israel aided terror and that their substantial aid claimed the lives of dozens of residents of the state. ‘Because of their free movement within the State of Israel and by virtue of their good knowledge of the terrain, these residents of the territories are an essential component in the infrastructure of terror and in planning and perpetrating attacks’ (para. 24 of the response dated 7 February 2006). ‘Some of the residents of the territories, who received a status in Israel by virtue of family reunifications, were involved in the perpetration of suicide attacks, whether by carrying them out themselves or by aiding them. Others were involved in carrying out car bomb attacks, kidnappings, assassinations and detonating explosive charges’ (para. 37 of the response dated 6 November 2005). ‘Their essential involvement… in the perpetration of suicide attacks led to very serious harm to national security and the safety of Israel’s citizens’ (para. 30 of the response dated 7 February 2006). Indeed, residents of the territories who have Israeli documentation by virtue of marriage were involved in at least twenty-five major attacks and attempted attacks in Israel (para. 24 of the response dated 7 February 2006), in which at least forty-five Israelis were killed and at least one hundred and twenty-four were injured (para. 17 of the closing arguments dated 16 December 2003).

114. Thus we see that the damage to the security of Israel and the security of its residents is great, and preventing that damage is not possible by means of an individual check of each of the residents of the territories who wishes to immigrate to Israel. At the same time, it is precisely the method adopted by the law that has been proved effective, in that it averts the threat presented by those population groups that according to past experience are most likely to endanger the security of the public in Israel. In other words, the measure chosen to realize the legislative purpose has proved itself by its results. It has been proved that the law, in its present format, is an effective tool for reducing security risks, increasing stability and preventing damage to the system of government itself. As we saw in the remarks cited above from the explanatory notes to Citizenship and Entry into Israel (Temporary Provision) Law (Amendment), 5765-2005 (Hatzaot Hok (Draft Laws) 624):

‘… The professional assessment of the security establishment is that the temporary provision is an effective tool for reducing the free passage of residents of the territories between the areas controlled by the Authority and Israel, and for preventing the potential for a serious security risk on the part of that population.’

115. There are some who claim that the blanket prohibition in the Citizenship and Entry into Israel Law constitutes a collective injury to all the Arab population in Israel because of the crimes of a few whose place of residence was in the past within the territories and who today live in Israel. We agree, of course, that a collective injury has a serious and injurious result, and a democracy ought to refrain from adopting it. But I think that there are cases where we cannot avoid it. Sometimes, the harm caused by a few persons is so evil and extreme that it may justify collective restrictions; this is especially the case where it is not possible to identify and locate those few who wish to cause harm, and the harm that can be anticipated from those people is very serious and dangerous. Indeed, the preventative measures required are commensurate with the estimated harm. With regard to our case we will say that the cumulative harm anticipated from terror attacks is very serious and destructive: people are murdered, many others are injured and hurt and the feeling of stability which is essential to the existence of a society in general and a democracy in particular is undermined. It is to be regretted that these circumstances are likely to make it necessary — in times of war like the present time — to impose restrictions that are capable of harming some of the collective of Arab Israeli citizens.

116. The benefit of the Citizenship and Entry into Israel Law in its present format has been clearly proved. The significant superiority of the blanket prohibition over the individual check has also been proved. But together with the benefit that the law engenders, there is the harm to those citizens of the state who wish to bring to Israel their family members who are residents of the territories. We do not take this harm lightly, but I have difficulty in accepting the position of my colleague the president that the weight of this harm is greater than the weight of the benefit engendered by the law in its present format. First, let us recall that in order to reduce the harm to Israeli citizens the state reduced the prohibition provided in the original law, by applying it only to population groups who were shown by past experience to present (relatively) high security risks. Thus men over the age of 35 and women over the age of 25 were excluded from the prohibition, as well as minors under the age of 14. The possibility of giving minors over the age of 14 a permit to stay in Israel was increased. In addition, a possibility was provided to give a permit to stay in Israel for temporary purposes. The figures that underlie the determination of the age limits in the law were discussed by the state in para. 37 of its response dated 6 November 2005:

‘The assessment of the security establishment is that approximately 90% of those involved in terror attacks are between the ages of 16 and 35, and also that approximately 97% of the suicide bombers are of those ages. Twenty-two residents of the territories who received a status in Israel as a result of family reunifications and who were involved in terror attacks against Israeli targets were between the ages of 18 and 35. With regard to women, the vast majority of those involved in terror attacks are between the ages of 17 and 30. It should be pointed out that in the year 2004, 36 women were involved in terror attacks as aforesaid, a number that constitutes a significant increase in comparison to the years 2002 and 2003.

It is well known that minors are also involved in the armed conflict between the Palestinians and the State of Israel. In recent years, more than 30 minors between the ages of 12 and 15 were involved in terror attacks. Of these ten minors were involved in suicide attacks. Nonetheless, it should be noted that 24 of the minors who were involved in terror attacks were between the ages of 14 and 15, seven of them between the ages of 13 and 14, and two of them were between the ages of 12 and 13.’

117. The effect of the prohibition in the law was therefore reduced to those population groups who constitute, according to the assessment of the security establishment, a relatively high potential for being security risks. Within those population groups who have a high risk potential, it is impossible to predict who will constitute and who will not constitute a risk to the state, and for this reason a blanket prohibition was imposed on all the members of those age groups mentioned in the law. At the same time, population groups that do not usually present a risk to security were excluded from the prohibition, subject to specific risks to national security (s. 3E of the law). This reduction of the blanket prohibition — so we are told by the state — is likely to reduce the scope of the population injured by the law by nearly 30 per cent, and as stated in the Citizenship and Entry into Israel (Temporary Provision) Law (Amendment), 5765-2005 ((Hatzaot Hok (Draft Laws) 624), at p. 625:

‘… adding the proposed qualifications to the restrictions in the temporary provision can restore approximately 28.5% of all the applications for family reunifications of residents of the territories to the list of those applications that can be processed…’

The petitioners seek in their arguments to challenge this percentage presented by the state, and to replace it with an amount of 12.3% of the applicants. This percentage is deduced by the petitioners from general statistics concerning the average marriage age in Moslem society. Without more substantiated figures, we find it difficult to accept the position of the petitioners and prefer it to the position of the state. Moreover, even if we accepted the position of the petitioners with regard to the amount by which the harm caused by the law has been reduced, we would still be unable to accept their claim that the harm caused by the (amended) law is greater than its benefit.

118. We should also address the fact that the Citizenship and Entry into Israel Law was enacted in the format of a temporary provision whose validity was determined for one year, and that it is possible to extend it, from time to time, for a period that does not exceed a year each time. This temporary nature of the law has importance. Our case law has established a rule that ‘a “permanent” law is not the same as a “temporary” law when engaging in a constitutional scrutiny of the law’ (Gaza Coast Local Council v. Knesset [6], at p. 553), and the less we declare temporary laws void, the better. See and cf. Klal Insurance Co. Ltd v. Minister of Finance [64], at p. 486; Ressler v. Knesset [128]. The reasons for this rule are pertinent in the case before us. Security reasons are reasons that change from time to time, and determining that a law is a temporary law means a reduction in the harm caused by it merely to the areas where security reasons so demand. Moreover, this temporary nature of the law requires the government and the Knesset to consider the provisions of the law and the consequences of applying them on a frequent basis, and to continue to balance from time to time the rights that have been violated against the security needs of the state.

119. The changes made in the amendment law of 5765-2005 significantly reduced the harm to the right of Israeli citizens, but my colleague President Barak is of the opinion that ‘… these amendments — as well as the temporary nature of the law — do not change the lack of proportionality to a significant degree’ (para. 92 of his opinion). The reason for this is that ‘… the vast majority of the Israeli spouses who married spouses from the territories continue to be injured even after the amendments that were recently made’ (ibid.). My opinion is different. When striking a balance as required by the third subtest in the test of proportionality — a balance between the benefit and the damage — we are required to examine, first and foremost, whether the legislature struck a reasonable balance between the needs of the individuals in the whole public and the harm to the individual. In other words, is the balance struck by the law between the conflicting interests such an improper balance that it calls upon the court to intervene in an act of legislation?

Here — like in the second subtest — the legislature has room to manoeuvre, which can be called a ‘margin of proportionality’ or a ‘margin of legislative manoeuvre,’ in which it may ‘choose, at its discretion, between a (proper) purpose and (proportionate) measures’ (Gaza Coast Local Council v. Knesset [6], at p. 551). Moreover, ‘the court will intervene only when the measure chosen significantly deviates from the boundaries of the margin, and it is clearly disproportionate’ (Menahem v. Minister of Transport [11], at p. 280). ‘We should also remember that the court will not rush to intervene and declare void a provision of statute enacted by the legislature. Even if we find that there is a preferable solution to the one chosen by the legislature, the court will not intervene unless the legislature deviated from the margin of proportionality’ (HCJ 4915/00 Communications and Productions Network Co. (1992) Ltd v. Government of Israel [142], at p. 466). The court does not replace the discretion of the legislator with its own discretion, and it does not become involved in the choice and examination of measures that were unacceptable to the legislature. The role of the court is to identity the boundaries of the scope of operation given to the legislature — under the constitution or the Basic Laws — and to examine whether a measure chosen by the legislature falls within this margin. In determining the boundaries of that scope of operation given to the legislature, the court will examine the strength of the conflicting rights and interests — rights and interests that give life to the law, on the one hand, and rights that are violated by the law, on the other — and also the circumstances and interests that are involved in the case under review. As it has been said: ‘In applying the principle of proportionality we should remember… [therefore] that the degree of strictness with the authority will be commensurate with the strength of the violated right or the strength of the violation of the right’ (Stamka v. Minister of Interior [24], at p. 777). See further HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd v. Minister of Labour and Social Affairs [143], at p. 452; Israel Investment Managers Association v. Minister of Finance [8], at pp. 387-389; Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [100], at pp. 812-813.

120. In our case, we are speaking of the right to have a family life, and it is a right of great strength and strong radiation (Stamka v. Minister of Interior [24], at p. 782). Conflicting with this powerful right, there is a right that is also of great strength, namely the right of all the residents of Israel to life and security. In truth, arguments concerning ‘life’ and ‘security’ do not override others as if by magic, and we are obliged to examine and check them thoroughly and closely. But past experience has shown that we are really speaking about life, that we are concerned with life. Life and death. It is the right of the residents of the state to live. To live in security. This right of the individual to life and security is of great strength. It has chief place in the kingdom of rights of the individual, and it is clear that its great weight is capable of determining the balance between damage and benefit decisively. This right to life, which is the purpose of the legislation, is capable of telling us that the scope for making the balancing will be quite broad.

121. Moreover, we should remember that we are not speaking of a violation of the essence of the right to marry and to have family life. The citizens of the state may marry residents of the territories as they see fit. No one has deprived them of that right. No one has even deprived them of living together with their family members and children. The right to marry and have a family life in the narrow and main sense has not been violated, and a person who wishes to live with his wife and children can do so. But at this time — a time of war — for reasons of public security, the realization of the right inside the State of Israel has been restricted. The spouses can realize their right to marry and establish a family in a place that does not present any danger to the residents and citizens of Israel. They can and may realize their right to family life in Israel if they are included in the age groups permitted in the law, but they cannot have a family life in Israel if they are included in the age groups that present a considerable potential risk to the lives and security of Israeli citizens. It is clear that restricting the ability to realize a right to have family life in Israel harms the Israeli citizen, but this harm is a limited harm and it is overridden by the right of Israeli citizens and residents to life and security.

122. The right of some of the citizens of the state to realize their right to marriage and family life in Israel therefore conflicts with the right of all the residents of Israel to life and security. Let us consider the forty-five families who lost their beloved relations; let us also consider the one hundred and twenty-four families who are caring for their injured sons and daughters; let us consider these carefully and ask: is the contribution of the law not a worthy one? Is the additional security — security for life — that the blanket prohibition gives us, as compared with the individual check that is limited in its ability, not proper? Let us remember that figures from the past concern years before the security fence, and we know that the building of the security fence constitutes one of the main incentives for the terror organizations to recruit residents of the territories who hold Israeli documentation — documentation that allows them to move freely within Israeli and between the territories and Israel.

123. It will not be redundant if we mention and emphasize that the Citizenship and Entry into Israel Law — both in its original version and after it was amended — contains transition provisions that were intended to treat with some leniency those residents of the territories who began the process of obtaining a status in Israel before the law was enacted and before decision no. 1813 (of 12 May 2002) that preceded the law was made by the government. In the language of s. 4 of the law (as it is today):

‘Transition provisions

4.  Notwithstanding the provisions of this law —

 

(1) the Minister of the Interior or the area commander, as applicable, may extend the validity of a licence to live in Israel or of a permit to stay in Israel, which were held by a resident of an area prior to the commencement of this law, while taking into account, inter alia, the existence of a security impediment as stated in section 3D;

 

(2) The area commander may give a permit for a temporary stay in Israel to a resident of an area who filed an application to become a citizen under the Citizenship Law or an application for a licence to live in Israel under the Entry into Israel Law, before the first of Sivan 5762 (12 May 2002) and with regard to which, on the date of commencement of this law, no decision had been made, provided that a resident as aforesaid shall not be given citizenship, under the provisions of this paragraph, nor shall he be given a licence for temporary residency or permanent residency, under the Entry into Israel Law.

These transition provisions are capable of reducing the harm caused by the law to some Israeli citizens who married residents of the territories before the government decision, in reliance on the policy that preceded it. Thus, for example, an Israeli citizen whose spouse, a resident of the territories, was given a status in Israel before the decision of the government, will continue to live in Israel with his foreign spouse despite the provisions of the law (subject to security grounds; subsection (1)). Even his neighbour, an Israeli citizen who married a resident of the territories who submitted an application to live in Israel before the policy changed, can, in principle, continue to stay in Israel, even though he cannot be granted citizenship in Israel, by virtue of a permanent residency licence or a temporary residency licence (subsection (2)).

In its response of 7 February 2006, the state told us that at the time of the government’s decision (of 15 May 2003) there were 16,007 applications to receive a status in Israel pending. It follows that the transition provisions can resolve, if only partially, the cases of more than sixteen thousand couples, subject, of course, to security considerations. So we see that the transition provisions significantly reduce the harm to Israeli citizens who married before the change in policy and relied on the previous policy. With regard to Israeli citizens who married residents of the territories after the government’s decision or after the enactment of the Citizenship and Entry into Israel Law, they can be presumed to have known that their spouses who are residents of the territories would not be allowed to enter Israel, and their cases are not similar to the cases of persons who married before the law was enacted.

124. My opinion is therefore that the law satisfies the proportionality test in the value sense, just as it satisfies the other two proportionality tests.

Summary

125. The end result is therefore that the Citizenship and Entry into Israel Law is a law that does not contain a defect or flaw, and it follows from this that the petitions should be denied.

Provision for humanitarian cases

126. Notwithstanding the remarks we made above, we would like to add that we were disturbed by the absence of a provision designed for special humanitarian cases. In other words, the law lacks a provision for exceptions where the Minister of the Interior will be allowed — if he finds there is a special humanitarian need and when any suspicion of a security risk has been allayed — to consider granting a permit for a resident of the territories to enter Israel. This omission admittedly is not capable of resulting in the voidance of the law, but I think the state ought to consider adding an exception of this kind to the law, in one form or another. As the court said in Stamka v. Minister of Interior [24], at p. 794: ‘A policy that does not allow for exceptions is like a ball bearing machine without any lubrication oil. Just as the latter will not work and will soon explode, so too will the policy.’

Conclusion

127. My opinion is therefore that the petitions should be denied.

Postscript

128. I have studied carefully the response of my colleague President Barak to my opinion, and I certainly will not surprise anyone by saying that my opinion remains unchanged. In his main opinion my colleague explained his position well, and even if he has now honed and polished various aspects — important aspects — of his outlook, a little here and a little there, the main points remain unchanged. The same is true of the main points on which I built my opinion.

129. The disagreements between my colleague the president and me revolve around the following issues: does an Israeli citizen have a constitutional right — a right deriving from the Basic Law: Human Dignity and Liberty — to live a family life in Israel with his spouse who is not an Israeli, including with their child or children? My colleague is of the opinion that an Israeli citizen derives this right from the constitution. Unlike my colleague, I am of the opinion that this right to family life, in so far as it exists, comes from the law — from the law and not from the constitution. From these different opinions of ours we have each reached our own conclusions, and everything has been said and written at length, perhaps even at greater length than was necessary.

130. The main theoretical disagreements between my colleague and myself concern the scope of application of the concept of human dignity in the Basic Law: Human Dignity and Liberty, and the relationship between this basic right and the provisions of the limitations clause. My colleague wishes to extend the basic rights listed in the Basic Law almost endlessly, while he throws the burden of restraint on the limitations clause, whereas my opinion is that even at the first stage of determining the scope of application of the basic rights, we must take into account fundamental social factors that are capable of affecting the limits of the basic right. Thus we see that my colleague says (in para. 107 of his opinion):

‘I do not hold that basic rights should be extended in every direction. I hold that they should be given a purposive interpretation. This interpretation is neither a restrictive nor an expansive one. It is an interpretation that reflects the way in which Israeli society understands the nature of human rights, according to their constitutional structure and according to the constitutional principles provided in the Basic Law, all of which while taking into account values and essentials, and rejecting what is temporary and fleeting…’

But I will stand up and ask: what is the source of my colleague’s knowledge that the ‘understanding of Israeli society’ is that the Israeli spouse has a constitutional right — and note, a constitutional right, not merely a legal right — to have a family life in Israel with a spouse who is not Israeli, i.e., that it is a constitutional right for Israeli citizens to bring with them spouses from foreign countries and have them settle with them in Israel? You may say that my colleague thinks that this ought to be the case, and since nothing is stated to the contrary, what ought to be is also what is. But I say that fundamental principles, universal principles that are common to all peoples of the world, together with principles that are characteristic of Israel and distinguish it from all other peoples, are capable of determining boundaries also for the right of the individual to have a family life in Israel with a foreign spouse, at least in so far as a constitutional right is concerned. In our time and place, I think that it is proper that this question should be decided, according to the principles of law and the principles of the constitution, by the body that is competent to give Israel a constitution.

 131. With regard to the risks that led the Knesset to enact the Citizenship and Entry into Israel Law: even if we said — and we do say — that the existence of democracy and protecting human rights involve risks, I do not agree, and it is not in my opinion reasonable that I should be asked to agree, that we should take upon ourselves risks to life of such magnitude and with such significant chances of their materialization as in our case. Whoever destroys one life is regarded as if he has destroyed a whole world, and we know that many lives have been lost as a result of risks that the state took upon itself prior to the enactment of the Citizenship and Entry into Israel Law.

My colleague says (in para. 111 of his opinion):

‘A society that wishes to protect its democratic values and that wishes to have a democratic system of government even in times of terror and war cannot prefer the right to life in every case where it conflicts with the preservation of human rights. A democratic society is required to carry out the complex work of balancing between the conflicting values. This balance, by its very nature, includes elements of risk and elements of probability…’

With regard to these remarks of my colleague I would like to say the following: I agree that a democratic society is required to make balances and to consider risks and the probabilities that risks will materialize. But this is exactly what happened in our case, when the Knesset — the legislature — was required to carry out the complex task of balancing between the conflicting values, a balance which took into account risk factors and probability factors, which in the opinion of the security establishment are not at all negligible. The Knesset — the legislature of the State of Israel — therefore struck a balance, as it is authorized to do, between the right to life and other rights, and after it examined risks and probabilities, it reached the formula set out in the law and determined who would be allowed to enter Israel, notwithstanding the risk and probability that residents of the state would be harmed, and who would be prevented from coming into Israel because the probability that he would harm residents was too high. This is what the Knesset decided, and I do not think that we ought to overturn its decision.

Moreover, the ‘right to life’ is so exalted that in the task of balancing and considering risks it has a very great weight. This is certainly the case where the lives of many are at risk, and the harm to life can undermine the feeling of stability and security in Israel. When we weigh the proven risks to life against other rights — in our case the (alleged) right of an Israeli to have a family life in Israel with a foreign spouse — the latter right will prevail only if the violation thereof is a very serious and weighty one while the probability of an injury to life is insignificant. This is not the case here.

132. With regard to fixing a minimum age of 35 for a man and 25 for a woman in order to grant a permit to enter Israel subject to an individual check, my colleague says (in para. 112):

‘Indeed, if an individual check is proper, from the viewpoint of the risks that should be taken in our defensive democracy, when the husband reaches 35 and the wife reaches 25, why does it become improper, from the viewpoint of the risks, when they have not yet reached these ages?’

And further on:

‘…were we to place before us human life only, we would be obliged to reach the conclusion that whatever the age of the foreign spouses, a blanket prohibition should be applied to them; we would also be liable to determine that family reunifications should not be allowed, irrespective of the question of when the application was filed; we would also be liable to determine that workers should not be allowed at all to enter from the territories. But this is not what the Citizenship and Entry into Israel Law provides. If the state was prepared to take the risks to human life which its policy — that refrains from a blanket prohibition and is satisfied with an individual check — causes with regard to spouses over the ages of 35 and 25, and if the state was prepared to take the risks of giving entry permits to spouses who filed their application before the effective date, and if the state was prepared to take the risks in allowing workers from the territories to enter Israel and is satisfied with an individual check, it is a sign that the risk presented by being satisfied with an individual check is not so large that it can justify the serious violation to the family life of the Israeli spouses.’

I dispute this line of argument, since it is always possible to improve the proportionality of the violation with the argument that determining sweeping boundaries makes the violation of the right too broad. Thus, for example, we could ask, in the manner of my colleague: if the state is prepared to take upon itself risks to life by allowing driving at a speed of 90 kilometres per hour, why should it not determine a limit of 91 kph? 92? And so on. The same is true of other matters, such as the statute of limitations, the age of majority, etc.. ‘But this is the nature of times, measures, weights, distances and similar measurable concepts, that in determining their limits the boundaries are somewhat arbitrary. This is well known’ (CrimA 3439/04 Bazak (Bouzaglo) v. Attorney-General [144], at para. 24 of the judgment). Indeed, the determination of measurable concepts is a part of the experience of the law, and the question is merely one of reasonableness in the circumstances of one case or another, and in the case before us, mainly also questions of risks and probabilities. With regard to our case, we have received a thorough explanation as to why the ages of 25 and 35 were chosen for the entry of foreign spouses into Israel, and these matters have been explained at length above (see para. 116 supra). In any case, if the state is prepared to take certain risks on itself, are we to come with an argument and ask why it did not take on itself greater risks? With regard to all this, the Knesset and the government thought, in accordance with the advice of the security service, that Israeli democracy ought to be prepared to take upon itself some risks to human life in order to protect the basic rights of the individual, whereas it should not take upon itself other risks to human life. Does the court — after considering, inter alia, the principle of the separation of powers — have a proper reason for overturning this decision of the law? The answer to this question is, in my opinion, no.

133. Meanwhile I have received the opinions of my colleagues Justice Procaccia and Justice Joubran, and I would like to devote a few remarks to these opinions.

134. My colleagues, each in his own way and style, hint in their opinions that it is possible that the purpose of the law was not a security one, or at least was not only a security one; that at the time of enacting the law, it is possible that the legislature also considered the purpose of demography (see para. 14 of the opinion of Justice Procaccia and para. 24 of the opinion of Justice Joubran). My colleague Justice Joubran does not draw any conclusion from these remarks, whereas my colleague Justice Procaccia is of the opinion that ‘even if there is nothing [in the demographic consideration] to reduce the credibility of the security consideration, it is possible that it reflects to some extent on its weight and strength.’

135. This position of my colleagues was rejected utterly in the opinion of my colleague the president and in my opinion, and even now I have difficulty accepting the position of my colleagues. The draft law, the provisions of the law, the amendments to the law, and in addition to all of these — the arguments of the state before us, all of these point to the fact that the purpose of the laws is a security purpose. The remarks uttered in the Knesset at the time of the enactment of the law cannot change this purpose. Moreover, the demographic issue was not considered at all by us and we were in any event not required to decide it. For what reason, therefore, do my colleagues mention this matter in their opinion? What reason was there for my colleagues to consider the matter in a non-committal way and cast a shadow on our deliberations? And if we did not hear full argument on the question of the demographic factor, how can we know what was the weight of this consideration among all the considerations? Indeed, if one day the Knesset enacts an immigration law which has as one of its purposes the preservation of the Jewish majority in the State of Israel, it is possible that the court will be required to consider in depth the demographic factor. And the court will consider the matter and decide it. But that is not the position in this case, since we were not requested to consider that issue.

136. Moreover, my colleague Justice Procaccia discusses at length the ruling of the Supreme Court of the United States in Korematsu v. United States [185], and after she describes the ruling in that case as a ruling ‘that is considered by many one of the darkest episodes in the constitutional history of western countries,’ she goes on to say that ‘the wind that blows in the background of the constitutional approach that was applied there by the majority opinion is not foreign to the arguments that were heard from the state in the case before us,’ and that ‘we must take care not to make similar mistakes.’ We should remember that the arguments of the state were accepted by me and also by some of my colleagues as well. Human history provides much scope for someone who wishes making comparisons, some of which are appropriate and some inappropriate. But as a court we are obliged to learn from history and to refrain from the mistakes of the past. But in this learning we are required to be somewhat particular to consider the circumstances of each case on its merits, lest we fail to see the truth and the complex reality of life before us. With regard to our case, the distance between that difficult and sad historical episode and our case is a distance of light years, and in this context I accept the position of my colleague Justice Naor. It is sufficient if we mention that Korematsu v. United States [185] concerned the denial of liberty to more than one hundred thousand citizens of the United States without it being proved that they presented any security risks. Our case, we should remember, concerns preventing the entry of foreign nationals when security risks have been proved and many Israeli citizens have been murdered and injured. The difference between the cases is so deafening that there is no need to explain it further.

 

 

Justice D. Beinisch

1.    The decision in the petitions before us is one of the most difficult decisions that have been brought before us in recent years. In their extensive opinions, my colleagues President A. Barak and Vice-President Emeritus M. Cheshin follow different paths in the process of the constitutional scrutiny of the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter: the law or the Citizenship and Entry into Israel Law), and each of them reaches, according to his approach, a different terminus at the end of the journey.

2.    I will say already at the beginning that with regard to the method of the constitutional scrutiny of the law, I do not see any route other than the one outlined and detailed by President Barak in his opinion, with all the stages of this route. In order to clarify my opinion, I will tread again the path of the legal progression as briefly as possible. In the first stage of the constitutional scrutiny, the existence of the right to family life is examined from the viewpoint of the Basic Law: Human Dignity and Liberty. The question that is asked at this stage is whether there indeed exists in our legal system a basic right to family life as a part of the right to human dignity. After we have recognized the existence of the right, which was already recognized in our case law in a series of decisions, we march on to the second stage of the constitutional scrutiny, in which the violation caused by the law, which is the subject of the petition, to the protected right of the Israeli citizen, is scrutinized in accordance with the criteria of the limitations clause.

My conclusion with regard to the outcome that is implied by following this path is that the law, in its present format, with its all-embracing and comprehensive scope, cannot stand because of the disproportionate violation therein of the right to family life and because of the violation of the right to equality.

In reaching the aforesaid legal conclusion, we have not ignored the difficult struggle of the State of Israel against terror that knows no bounds. As judges and as citizens of the state, we live in the very heart of the reality and the difficult experience of terror, and we do not close our eyes to this reality, even for a moment. We wish to protect the democratic values of the State of Israel in the light of the reality with which the state is contending, not by ignoring it.

3.    In the petitions before us, we are required to examine whether the Citizenship and Entry into Israel Law unlawfully violates the right of Israeli citizens who wish to have a family life with a foreign spouse who is a resident of the territories. It should first be said that I agree with the premise of Justice Cheshin in his opinion that every state is entitled to restrict and regulate the laws of immigration into the state and even spouses of citizens of the State of Israel do not have an automatic right to immigrate to Israel and to receive a status by virtue of marriage. It would appear that none of us questions the fact that the key to giving a status to foreigners in Israel is held by the state and not by any of its citizens. Notwithstanding, our case law has already in the past recognized the right of the citizen that his application to be reunited in Israel with his foreign spouse and to have a family life with his spouse will be examined and considered favourably in the absence of any security, criminal or other impediment. I do not see any conflict between the aforesaid premise and the conclusion that we have reached with regard to the constitutionality of the law that has come before us for judicial review. The law is not based on the immigration policy of the State of Israel, nor on its interest and ability to absorb foreigners, but on its security needs alone. The purpose of the law, as made clear to us also in the extensive arguments of counsel for the state, is based on a security need, at this time, to prevent a risk arising, according to the state, from the entry into Israel of residents of the territories, including those with whom their Israeli spouses wish to have a family life. The law is based on a general and blanket assumption that the entry of Palestinian spouses into Israel and the possibility that they will be given a status in Israel presents the state with a security danger. Therefore, the law provides that the entry of spouses from the territories should be prohibited even without an individual check as to whether such a risk exists and even without an examination of the potential risk in a concrete manner. The question before us is, therefore, whether the provisions of the law that were enacted on the basis of this assumption satisfy the test of constitutionality, or whether they involve a disproportionate violation of human rights, which does not satisfy constitutional scrutiny.

4.    In view of the security purpose of the law, it would appear that once again this court is required to consider what is the proper point of balance between the clear security interest of protecting the lives of Israeli citizens and residents and the protection of human rights. An examination of the proper balance between these two poles is a difficult task to which this court has become accustomed throughout the years of its existence. Since the founding of the state, the organs of state and the government have been faced with the need to protect the security of the state and its citizens, a need which sometimes requires a violation of basic human rights in order to provide security and the protection of life. For years our case law has contended with the conflict between these two poles and dealt with it successfully. This tension has increased in recent years for reasons arising from the difficult security position, on the one hand, and from reasons based on the enshrining of basic human rights as constitutional super-legislative rights, on the other. But the strength of the tension cannot exempt us from the need to exercise our judicial review and examine the constitutionality of the law even when the factual position is complex.

Indeed, since September 2000 Israel has been subject to a cruel barrage of terrorism that has claimed a heavy price in blood. This terrorism has not passed by innocent citizens, families, women and children, the elderly and the young, and it has claimed many victims. The horrors of terrorism still endanger human life in Israel and hover like a heavy shadow at all times and in every place. With this fact in mind, we have not flinched from examining and deciding questions concerning the proper balance and deciding the proportionality of measures adopted by Israel in its struggle against terror, including the interrogation methods of the General Security Service, the legality of arrests and conditions of arrest, assigning a place of residence to families of terrorists, building the security fence and many other matters. All our decisions are founded on the basic outlook that human rights exist in times of war as in times of peace. The proper balancing point for protecting them is what moves and changes in times of war and combat.

5.    As stated, an additional difficulty when making our decision derives from the fact that the basic rights are today enshrined in the Basic Law: Human Dignity and Liberty, and our judicial review in the matter before us extends not only to the acts of the government but also to the legislation of the Knesset. The boundaries of this review are of course restricted only to cases where the legislature has violated a right protected in the Basic Law and that is why the question whether the right to have a family life is indeed included among these rights, as a derivative of the right to dignity, is a central one. In exercising the judicial review of the legislation of the Knesset, we are taking into account the proper restraint and caution that we are obliged to adopt with regard to the legislation of the Knesset. Since the law was enacted as a temporary provision, we waited several times to see whether, when the validity of the law expired, its extension or format would be reconsidered, if and when it was renewed. We expected that the legislature would determine a new balancing point, even if it would decide again to leave the law restricting the entry of spouses of Israelis in force. The law was indeed extended, and it was also amended recently on 1 August 2005 in such a way that the approach towards residents of the territories over the age of 35 for men and 25 for women was changed. Unfortunately, the aforesaid amendment was insufficient to spare us the need to exercise our judicial review. The basic format of the law remained as it was before: general, sweeping and without a mechanism for conducting a specific check on an individual basis, and the possibility that the validity of the law would be extended once again was not removed. In these circumstances, the decision was left to us, and now that we have set out the principles that form the framework of our deliberations, we must examine the question requiring a determination while taking these principles into account.

6.    The disagreement between my colleagues concerns, first and foremost, the fundamental question whether the provisions of the Citizenship and Entry into Israel Law violate a protected basic right. As stated, only a determination that this is the case will lead us to proceed along the path of constitutional scrutiny of the law, in accordance with the limitations clause.

It seems to me that there is no real disagreement as to the actual existence of the right to have a family life in its main and limited sense of the basic right of a person to choose his partner in life and realize the existence of the family unit. The question is, of course, whether this right is derived from the right to human dignity. In this respect, we have already adopted in the past the position that the right to marry and have a family life is a basic right of the Israeli citizen which is derived from the right to dignity. Since President Barak set out in his opinion a summary of this position, I would like, merely as a reminder, to refer to Stamka v. Minister of Interior [24] and the remarks made there by Justice Cheshin at page 787 of the judgment, and also to the remarks that I made in State of Israel v. Oren [25], at para. 11 of the judgment, as well as the remarks made in CA 7155/96 A v. Attorney-General [50], at p. 175. As stated, I agree with the comprehensive legal analysis of the president in this matter.

As we see from the president’s opinion, and from the position of our case law until now, even if not all aspects of the right to family are included within the framework of human dignity, the right to realize the autonomy of free will by establishing a family unit in accordance with individual choice and realizing it by living together is derived from human dignity and shared by every Israeli citizen. Thus I accept that the right of an Israeli spouse to establish a family unit is implied also by the implementation of the principle of equality between him and other Israeli couples with regard to whom we have determined in the past that the protection of their right to a family unit is derived from their right to human dignity.

7.    The basic human right to chose a spouse and to establish a family unit with that spouse in our country is a part of his dignity and the essence of his personality, and this right is seriously violated in the provisions of the Citizenship and Entry into Israel Law. The blanket prohibition denies Arab Israeli citizens their right to have a family life in Israel with a resident of the territories, whether the spouse presents a security risk or not. This is the disproportionate violation of human rights. Moreover, the violation is a sweeping violation of a whole population group, without any distinction between its individual members. The persons wishing to marry Palestinians as a rule come from the Arab population in the State of Israel. The law therefore discriminates between the rights of Arab citizens of the state to establish a family unit in Israel with a foreign spouse and the right of other Israelis to establish a family unit with a foreign spouse. Even according to the outlook that regards the value of equality as not being a part of human dignity in all of its aspects, the discrimination that applies to the Arab population in its entirety, merely because they belong to that population group in Israel, is certainly discrimination that is clearly included in the nucleus of human dignity. It should be noted that the existence of the right given to the Israeli citizen to have a family life in Israel does not necessarily give the foreign spouse a right to receive a status in Israel. The right is the right of the Israeli spouse, and the State of Israel may determine in its laws strict criteria for examining the foreign spouse before it grants his request for a status in Israel. It should be emphasized that the examination of the foreign spouse should be carried out by considering the rights of the Israeli spouse, on the one hand, and the public interest adapted to the concrete circumstances that must be decided by the authority, on the other.

8.    It is self-evident that even when we have said that the basic right of Arab citizens of the State of Israel has been violated, by preventing the entry into Israel of their spouses who are residents of the territories, we have not said that the law is unconstitutional. The human right to have a family life, like other rights, is not an absolute right. The determination that there is a violation of a protected basic human right is only the starting point for a deliberation as to the constitutionality of the law, and it is followed by the process of scrutiny in accordance with the limitations clause. In this respect also I accept the scrutiny carried out by President Barak in his opinion and I also accept his conclusion that the violation in the law is disproportionate, according to the third proportionality subtest and for the reasons that he gives.

Indeed, none of us disputes the proper purpose of the law. There is also no doubt that the State of Israel is compelled to take harmful measures in order to protect the lives of its residents against the cruel and unrestrained terror with which it is contending. Similarly, there is without doubt a rational connection between preventing the entry of Palestinians who are residents of the territories into Israel and achieving the purpose of additional security for the residents of the State of Israel. Moreover, there is also no doubt that the blanket prohibition of the entry of Palestinian spouses into Israel is capable of providing additional security to Israeli citizens to a greater extent that a prohibition involving an individual check of person requesting family reunifications which naturally involves taking risks. If, notwithstanding this, I am of the opinion that the taking of risks is an insufficient reason for leaving the blanket prohibition intact, this is because the basic principles of our democratic legal system are built on finding proper balances between the protection of the public interest and the protection of human rights, and the violation of the basic right in the case before us is disproportionate, in view of the character and scope of the risk, as we discovered from the figures submitted to us for this purpose.

9.    The protection of life is, of course, the protection of the most important basic human right. This supreme value gives rise to the important status of the security interest, which we are charged with giving its full weight. This has been the case in the Israeli reality throughout all the years of the state’s existence and this is certainly the case in a time of a war against terror. Regrettably, it appears that the conflict between the value of security and the extent of the violation of human rights in order to maintain security will be with us for many years to come. It is precisely for this reason that we must be careful to balance violations of rights against security needs properly and proportionately. A system of government that is based on democratic values cannot allow itself to adopt measures that will give the citizens of the state absolute security. A reality of absolute security does not exist in Israel or in any other country. Therefore an enlightened and balanced decision is required with regard to the ability of the state to take upon itself certain risks in order to protect human rights.

10. The Citizenship and Entry into Israel Law itself provides a framework of taking risks and it is right that it should do so. Taking such a risk exists for example in s. 3 in the amended wording of the law, which authorized the Minister of the Interior to approve, at his discretion, an application of a resident of the territories to receive a permit to stay in Israel in order to prevent the separation of spouses, when the resident of the area is a man who is more than 35 years of age or a woman who is more than 25 years of age. This is of course taking a certain risk, and therefore even giving such a permit is contingent upon the discretion of the minister and an individual check. This is also the case with regard to entry permits given for the purposes of work or visits. I am also prepared to accept the argument of the state that the level of risk presented by a person with a status in Israel is, as a rule, higher than the level of risk presented by a person who enters Israel with a temporary permit in order to work. But all of these involve, of course, a calculated risk that Israeli society can take upon itself.

11. During the hearing of the petitions, we were given detailed figures that show the existence of a potential risk in giving a possibility to residents of the territories to receive a status in Israel under the Entry into Israel Law or under the Citizenship Law. It should be emphasized that the figures presented to us indicate a very small — negligible — percentage of the spouses who abused their status in Israel in order to become involved in terror activity. These figures do not put us in the position of the need to decide upon a direct conflict between the risk to life and the violation of the right to live in dignity by realizing the right to have a family. When there is a direct confrontation and there is a concrete risk to security and life, the public interest indeed overrides protected human rights, and the same is the case where there is a concrete likelihood of a risk to life. But the aforesaid likelihood must be more concrete that the mere fact that the applicant for the entry permit is a Palestinian who is a resident of the territories. Not carrying out an individual check and determining a blanket prohibition gives too wide a margin to the value of security without properly confronting it with the values and rights that conflict with it. In my opinion, any permit given to a foreigner to enter Israel for family reunification with his Israeli spouse, whether the citizen is Jewish or Arab, is likely to involve a potential risk to some degree. But there are certain levels of risk which Israeli society is prepared to take and with which it is prepared to contend, by adopting security measures. There is no doubt that in the current security situation permitting the entry of residents of the territories for the purpose of family reunifications with their Israeli spouses involves a greater risk than permitting the entry of other foreigners. Therefore, a strict and detailed check must be made of every application submitted by an Israeli to realize his right to have a family life with a resident of the territories. On the other hand, a blanket prohibition against the possibility of entering Israel from the territories that prevents the entry of a spouse of an Israeli citizen, without providing any possibility of an individual check, no matter how strict, does not give proper weight to the correlation between the degree of the security risk and the extent of the violation of human rights, a correlation that is required by the democratic principles of our system.

12. Our life in Israel follows the pattern of the life of a civilized society, which aims to live like a free society that respects human rights and maintains an equality of rights, even in times of emergency and war, which we have endured since the founding of the state. Of this we have been proud all these years. If we do not insist that the image of our society is that of a society that respects the rights of its individuals in times of war, we will pay a heavy price in times of calm.

Every day the citizens of Israel take risks with regard to national security, public order and personal security, albeit to a limited degree. Thus, we conduct ourselves in such a way that we do not violate the rights of suspects and the human rights of persons who may serve as a potential focus for a risk to society without a proper factual and legal basis. This is the secret of the power of Israel as a democracy that seeks to maintain a just society that respects human rights even in difficult conditions. Carrying out an individual check on the scale required in order to consider the application for family reunifications does not constitute a significant and exceptional risk, even though there is a basis to the state’s claim that assembling intelligence and carrying out an individual check, in the conditions that prevail today, is likely to present not a few practical difficulties. It is possible to find solutions to these difficulties and even to take them into account when determining the check procedure. Nonetheless, we cannot dispense with the duty of carrying out checks merely because it is complex and involves effort. There is a price to protecting rights and in the circumstances of our case we are speaking of a proper price.

13. In view of the conclusion that we have reached, according to which the blanket prohibition that was determined in the Citizenship and Entry into Israel Law violates human rights disproportionately and therefore does not satisfy the conditions of constitutionality, we must ask what is the remedy that is required by this determination. There is no doubt that the legislature was aware of the problematic nature of the law and for this reason the law was enacted as a temporary measure and was even amended by introducing various concessions that were intended to make it more flexible, even though we have not found that these concessions allow the law to overcome the constitutional hurdle. The validity of the law will expire soon and therefore I see no need for us to give any relief beyond a declaration that this law in its current format is unconstitutional and therefore void.

We do not know whether the government intends to propose an extension of the law to the legislature. It is clear that should there be new legislation, it should contain a proper balance between the security need and the extent of the permitted violation of the right to have a family life. Within the framework of my opinion, I do not see fit to propose criteria that the legislature should adopt in order to make the new law constitutional. I should also add that I too agree that should the government require a limited period of time, which should not exceed six months, in order to prepare for new legislation in the spirit of our judgment, it will be given a possibility of a limited and single extension of the existing law, which will be like a period of suspension for the law that we have declared to be void.

 

 

Justice S. Joubran

I agree with the opinion of my colleague President A. Barak, according to which the petitions should be granted. Nonetheless, because of the seriousness of the question before us, I would like to add some remarks on this issue, in so far as the scope of the right to family life and the right of equality are concerned, and with regard to the violation to these rights that results from the Citizenship and Entry into Israel Law (Temporary Measure), 5763-2003 (hereafter — ‘the law’).

The right to family life

1.    It is the nature of man, literally the nature of his creation, to seek for himself a partner with whom he will live his life and with whom he will establish his family. This has been the case throughout the ages and this is the case today, notwithstanding many changes that have occurred to human customs and the human family. Both in the past and also today it can be said that ‘it is not good for man to be alone’ (Genesis 2, 18 [245]), and we recognize the strong desire of man to find a ‘help mate’, so that their fate may be joined.

2.    So much has been written about the search of man for his ‘help mate,’ the meaning of the relationship between him and the object of his love, that it may well seem that most of human creativity is devoted to the study of this relationship. It would appear that the remarks of the ancient comic dramatist Aristophanes concerning this relationship, which are quoted by Plato, are apposite:

φίλοι γὰρ γενόμενοι καὶ διαλλαγέντες τῷ θεῷ ἐξευρήσομέν τε καὶ ἐντευξόμεθα τοῖς παιδικοῖς τοῖς ἡμετέροις αὐτῶν, ὁ τῶν νῦν ὀλίγοι ποιοῦσι… λέγω δὲ οὖν ἐγωγε καθ’ ἁπάντων καὶ ἀνδρῶν καὶ γυναικῶν, ὅτι οὗτως ἂν ἡμῶν τὸ γένος εὔδαιμον γένοιτο, εἰ ἐκτελέσαιμεν τὸν ἔρωτα καὶ τῶν παιδικῶν τῶν αὑτοῦ ἕκαστος τύχοι εἰς τὴν ἀρχαίαν ἀπελθὼν φύσιν. εἰ δὲ τοῦτο ἀριστον, ἀναγκαῖον καὶ τῶν νῦν παρόντων τὸ τούτου ἐγγυτάτω ἀριστον εἶναι: τοῦτο δ’ ἐστὶ παιδικῶν τυχεῖν κατὰ νοῦν αὐτῷ πεφυκότων.

‘For if we become friends of the god and are reconciled with him, we shall find and discover our own true beloveds, which few do at present… I am speaking of everyone, both men and women, when I say that our race will be happy, if we achieve love and each our own beloved, thus returning to our original nature. If this is best, the next best is to be as close to it as present circumstances allow: and that is to find a congenial object of our love’ (Plato, Symposium, 193b-193d, translated by the editor).

3.    In searching for a spouse, in living together with him, in creating a family, a person realizes himself, shapes his identity, builds a haven and a shield against the world. It would appear that especially in our turbulent and complex world, there are few choices in which a person realizes his free will as much as a the choice of the person with whom he will share his life.

4.    This nature of man is reflected in the world of law, in the form of establishing the human right to have a family life as a basic right, which is protected against violation. Thus, the Universal Declaration of Human Rights, 1948, declares the family to be the basic unit of society and speaks of the need to protect it:

‘Article 16.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) ….

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’

(Universal Declaration of Human Rights, 1948)

Following on from this declaration, the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, provides as follows:

‘Article 8.

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

(European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950)

Similarly, the International Covenant on Economic, Social and Cultural Rights, 1966, which Israel ratified in 1991, provides:

‘Article 10.

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children…

(International Covenant on Economic, Social and Cultural Rights, 1966)

Thus the countries that are parties to the Convention on the Rights of the Child, 1989, including Israel, declare themselves to be:

‘Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community…’

(Convention on the Rights of the Child, 1989).

Similarly, the International Covenant on Civil and Political Rights, 1966, to which Israel is a signatory, provides the following:

‘Article 23.

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

…’

(International Covenant on Civil and Political Rights, 1966).

5.    We can also learn about the human right to have a family life from the law of other countries, which have recognized the duty of the state to refrain from intervening and harming a person’s family life. Thus, for example, the Supreme Court of the United States declared prohibitions against mixed marriages between whites and blacks, that were provided in the laws of several states, to be void, saying that:

‘The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888)’ (Loving v. Virginia [188]; see also Griswold v. Connecticut [187]).

So too the Court of Appeal in England has said, with regard to a delay in the right of a person under arrest to marry someone who was supposed to be a witness in his trial, that:

‘The right to marry has always been a right recognised by the laws of this country long before the Human Rights Act 1998 came into force. The right of course is also enshrined in art. 12 of the convention’ (R (on the application of the Crown Prosecution Service) v. Registrar General of Births, Deaths and Marriages [226]).

6.    The right to family life is a right that has also been recognized in Israeli law as one of the basic human rights, which the organs of state must refrain from violating without a proper reason. Thus, in a large number of cases, this court has addressed the need to preserve family autonomy and refrain, in so far as possible, from intervening in it. Thus, with regard to the relationship between parents and their children, it was held in CA 232/85 A v. Attorney-General [58], at p. 17, that ‘in the eyes of the court, the basic unit is the natural family’ (and see also CA 7155/96 A v. Attorney-General [50], at p. 175); likewise, with regard to the right to marry and to have a family, my colleague Justice M. Cheshin held in Stamka v. Minister of Interior [24], at p. 782, that:

‘Our case, we should remember, concerns a basic right of the individual — every individual — to marry and establish a family. We need not mention that this right has been recognized in international conventions that are accepted by everyone; see art. 16(1) of the Universal Declaration of Human Rights, 1948; art. 23(2) of the International Covenant on Civil and Political Rights, 1966. For more concerning the right, see A. Rubinstein, ‘The Right to Marry,’ 3 Tel-Aviv University Law Review (Iyyunei Mishpat) (1973) 433; I. Fahrenhorst, ‘Family Law as Shaped by Human Rights,’ 12 T.A. University Studies in Law (1994) 33.’

7.    It would appear that in our time there are few choices in which a person realizes his free will as much as his choice of the person with whom he will share his life, establish his family and raise his children. In choosing a spouse, in entering into a bond of marriage with that spouse, a person expresses his personality and realizes one of the main elements of his personal autonomy. In establishing his family, a person shapes the way in which he lives his life and builds his private world. Therefore, in protecting the right to family life, the law protects the most basic freedom of the citizen to live his life as an autonomous person, who is free to make his choices.

In a similar spirit, the Supreme Court of the United States has held that:

‘When a city undertakes such intrusive regulation of the family… the usual judicial deference to the legislature is inappropriate. “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639 -640 (1974). A host of cases… have consistently acknowledged a “private realm of family life which the state cannot enter.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944).’ (Moore v. East Cleveland [206], at p. 499).

Likewise, the European Court of Human Rights has held, with regard to the application of art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, that:

‘…the Court considers that the decision-making process concerning both the question of the applicant’s expulsion and the question of access did not afford the requisite protection of the applicant’s interests as safeguarded by Article 8. The interference with the applicant’s right under this provision was, therefore, not necessary in a democratic society’ (Ciliz v. Netherlands [232]).

And in the same respect, the Court of Appeals in England has also held that:

‘There is no evidence that the trust ever recognised, much less addressed, the interference with the appellant’s art 8 rights. In none of the documents generated by the trust's consideration of her case can any reference to art 8 be found. Mr Toner claims that what the trust officers were embarked upon in considering Mrs Connor’s case was “in essence” an art 8 exercise. We cannot accept that argument. The consideration of whether an interference with a convention right can be justified involves quite a different approach from an assessment at large of what is best for the person affected.’ (Re Connor, an Application for Judicial Review [227]).

8.    Accordingly, any violation of the right of a person to family life is a violation of his liberty and dignity as a human being, rights that are enshrined in the Basic Law: Human Dignity and Liberty. The significance of this is that the right to family life and marriage should be regarded as a constitutional right that is protected in its entirety by the Basic Law.

9.    Living together under one roof lies at the heart of the constitutional right to family life and marriage. In extensive and consistent case law, not only has this court regarded living together as a central component of family life and marriage, but it has even gone so far as to equate living together with having a conjugal relationship, so that it has held that by realizing the decision to have a relationship of living together, the couple create a bond of ‘recognized partners,’ which even without the formal act of marriage is often capable of serving as an equivalent of the marriage bond itself. As this court said in State of Israel v. Oren [25]:

‘According to case law, the two main components requiring proof in order for persons to be considered recognized partners are living together as man and wife and having a joint household:

“There are two elements here: a conjugal life as man and wife and having a joint household. The first element is made up of intimacy like between a husband and a wife, founded on the same relationship of affection and love, devotion and loyalty, which shows that they have joined their fates together…

The second element is having a joint household. Not merely a joint household for reasons of personal need, convenience, financial viability or an objective arrangement, but a natural consequence of the joint family life, as is the custom and accepted practice between a husband and wife who cling to one another with a joining of fates…” (CA 621/69 Nissim v. Euster [145], at p. 619). See also CA 79/83 Attorney-General v. Shukran [146], at p. 693; CA 6434/00 Danino v. Mena [147], at p. 691).

It should be noted that these remarks were made with regard to the interpretation of the provision in s. 55 of the Inheritance Law, 5725-1965, which does not make use of the concept of “recognized partners,” but addresses the inheritance rights of partners “who live a family life in a joint household but are not married to one another,” but the court made it clear in Nissim v. Euster that there is no practical difference between this definition and the accepted concept of “recognized partners” (ibid., at p. 621).’

This approach concerning the centrality of living together as a part of family life can also be seen in comparative law. Thus, for example, the Constitutional Court of South Africa has said that:

‘A central aspect of marriage is cohabitation, the right (and duty) to live together, and legislation that significantly impairs the ability of spouses to honor that obligation would also constitute a limitation of the right to dignity.’ (Dawood v. The Minister of Home Affairs [242]).

And similarly the Supreme Court of the United States has also held that:

‘Of course, the family is not beyond regulation. See Prince v. Massachusetts, supra, 321 U.S. at 166. But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.’ (Moore v. East Cleveland [206], at p. 499).

10. Thus we see that living together is not merely a characteristic that lies on the periphery of the right to family life but one of the most significant elements of this right, if not the most significant. Consequently, the violation of a person’s ability to live together with his spouse is in fact a violation of the essence of family life; depriving a person of his ability to have a family life in Israel with his spouse is equivalent to denying his right to family life in Israel. This violation goes to the heart of the essence of a human being as a free citizen. Note that we are not speaking of a violation of one of the meanings of the constitutional right to have a family life, but the denial of the entirety of this right, and it should be considered as such (see also Stamka v. Minister of Interior [24], at p. 787; State of Israel v. Oren [25]).

The rights of the child and his parents

11. A basic principle in our law, with regard to the relationship between children and their parents, is that:

‘It is the law of nature that a child grows up in the home of his father and mother: they are the ones who will love him, give him food and drink, educate him and support him until he grows up and becomes a man. This is the right of a father and mother, and this is the right of the child’ (CA 3798/94 A v. B [148], at p. 154 {268}; see also CFH 7015/94 Attorney-General v. A [23], at p. 65).

According to this principle, the raising of a child by his parents reflects simultaneously both the right of the child to grow up in his parents’ home and the right of the parents to be the persons who raise him. This combination of interests embodies the nature of the parent-child relationship within the framework of family life, which the state should protect against any violation, unless it is required in the best interests of the child. As my colleague Justice A. Procaccia said in CFH 6041/02 A v. B [60]:

‘Removing a child from the custody of his parent and transferring him to the welfare authorities or to an institution by its very nature touches on an issue of a constitutional nature that concerns the value of protecting the personal and family autonomy of the child and his parent and the important social value of preserving the natural family bond between parents and children and the complex fabric of rights and duties arising from that parental bond. It concerns the natural right of a child to be in his parents’ custody, to grow up and be educated by them; it concerns the basic rights of a human being to life, dignity, equality, expression and privacy (Universal Declaration of Human Rights, 1948; Convention on the Rights of the Child; CA 6106/92 A v. Attorney-General [149], at p. 836; CFH 7015/94 Attorney-General v. A [23], at p. 100). It concerns the unique rights of children by virtue of the fact that they are children, including the right to grow up in a family and to preserve the connection with their parents (The Commission for Examining Basic Principles concerning the Child and the Law and their Application in Legislation, chaired by Justice Saviona Rotlevy, 2004, ‘General Part,’ at p. 26); it concerns the right of a parent by virtue of his blood relationship to raise and educate his child, as well as to carry out his duties to him by virtue of his being the child’s parent. The rights of children to a connection with their parents, and the rights and duties of parents to their children create a reciprocal set of rights, duties and values that make up the autonomy of the family.’

12. In so far as the best interests of the child are concerned, art. 3(1) of the Convention on the Rights of the Child provides that:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

Article 9(1) of the Convention on the Rights of the Child further provides that:

‘States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child…’

No one disputes that enforcing a separation of a child from his parents constitutes a very serious violation of the rights of the child to grow up with his family and with his parents. This is of course the case as long as the family concerned is a functioning one, where the child is not harmed by being with it. It is perhaps apposite to add remarks made by this court in CFH 7015/94 Attorney-General v. A [23], at p. 102:

‘It is the law of nature that a child should be in the custody of his parents, grow up in his parents’ home, love them and have his needs taken care of by them. This law of nature is also absorbed by the law of the state, and thus an “interest” of children has become a “right” under the law. Parents have a right to raise their children and children have a right to be loved by their parents and to have their needs provided for by them. A right corresponding to a right and rights corresponding to duties (for both parties). The translation of these into the language of the law will be formulated, inter alia, by way of presumptions: it is a presumption under the law that the “best interests” of a child to be in his parents’ home; who can love their children and care for their needs like parents? Thus children will return their love and place their reliance on their parents.’

We are not speaking merely of harm to the ‘best interests of the child,’ but of a violation of a real ‘right,’ which is possessed by the child, to grow up with his family, and the state has a duty to refrain in its actions from violating this right (CA 2266/93 A. v. B [61], at pp. 234-235). By tearing asunder the family unit, by separating the child from one of his parents, there is a serious violation of the rights of the child, a violation that the state is obliged to avoid in so far as possible.

13. The same is true with regard to the right of the parent, who has a natural right, protected by the law, to raise his child with him and not to be separated from him, as long as this does not involve any harm to the best interests of the child. As my colleague Justice M. Cheshin said in CFH 7015/94 Attorney-General v. A [23], at p. 102:

‘It is the law of nature that a mother and father naturally have custody of their child, raise him, love him and provide for his needs until he grows up and becomes a man. This is the instinct for existence and survival inside us — “the blood ties,” the primeval yearning of a mother for her child — and it is shared by man, beast and fowl. “Even jackals offer a breast and feed their young…” (Lamentations 4, 3) (see also CA 549/75 A v. Attorney-General [150], at pp. 462-463). This tie is stronger than any other, and it goes beyond society, religion and state. The conditions of place and time — they and the persons involved — will determine the timing of the separation of children from their parents, but the starting position remains as it was. The law of the state did not create the rights of parents vis-à-vis their children and vis-à-vis the whole world. The law of the state found this ready made; it proposes to protect an innate instinct within us, and it turns an “interest” of parents into a “right” under the law — the rights of parents to have custody of their children. Cf. CA 1212/91 LIBI The Fund for Strengthening Israel’s Defence v. Binstock [151], at p. 723 {390}. It is apt that s. 14 of the Capacity and Guardianship Law provided that “The parents are the natural guardians of their minor children.” Nature is what created this guardianship, whereas the law of the state merely followed nature and absorbed into itself the law of nature.’

14. There is no doubt that separating a parent from his child, separating a child from one of his parents and splitting the family unit involve very serious violations of both the rights of the parents and the rights of their children. These violations are contrary to the basic principles of Israeli law and are inconsistent with the principles of protecting the dignity of parents and children as human beings, to which the State of Israel is committed as a society in the family of civilized peoples.

15. Therefore we must say that preventing the possibility of living together, as a family, violates the constitutional right of the Israeli spouse, parent and child to family life.

The right to equality

16. These serious violations of the right to family life do not stand alone, but are also accompanied by a serious violation of the right of the Arab citizens of the state to equality, since they are the main, if not the only, victims of this law. Between the Arab citizens of Israel and the residents of the territories there are cultural, family, social and other ties, which naturally lead to the fact that most of the Israeli citizens who find spouses among the residents of the territories are Arab citizens of Israel. By preventing the possibility of marrying spouses who are residents of the territories, there is therefore a violation that focuses, first and foremost, on the Arab citizens of the state, and thus a violation of their rights to equality is added to the violation of their right to family life.

17. The importance of the right to equality, as expressing a basic principles in the Israeli legal system, has been recognized in a whole host of cases by this court. The remarks made recently by my colleague President A. Barak in Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [41] are apt in this respect:

‘The principle of equality applies to all spheres of government activity. Notwithstanding, it is of special importance with regard to the duty of the government to treat the Jewish citizens of the state and non-Jewish citizens equally. This duty of equality for all the citizens of the State of Israel, whether Arab or Jewish, is one of the foundations that make the State of Israel a Jewish and democratic state. As I have said elsewhere: “We do not accept the approach that the values of the State of Israel as a Jewish state justify… discrimination by the state between the citizens of the state… The values of the State of Israel as a Jewish and democratic state do not imply at all that the state should act in a manner that discriminates between its citizens. Jews and non-Jews are citizens with equal rights and obligations in the State of Israel” (see Kadan v. Israel Land Administration [38], at pp. 280-281). Moreover, “Not only do the values of the State of Israel as a Jewish state not require discrimination on the basis of religion and race in Israel, but these values themselves prohibit discrimination and require equality between religions and races” (ibid. [38], at p. 281). I added that “the State of Israel is a Jewish state in which there are minorities, including the Arab minority. Each member of the minorities that live in Israel enjoys complete equality of rights” (ibid. [38], at p. 282; see also EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [152], at p. 23)’

(See also El-Al Israel Airlines Ltd v. Danielowitz [65]; Israel Women’s Network v. Government of Israel [66]; Miller v. Minister of Defence [67]; Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [39]).

I will also add the remarks that I made in Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel [41]:

‘… equality, more than any other value, is the common denominator, if not the basis, for all the basic human rights and for all the other values lying at the heart of democracy. Indeed, genuine equality, since it also applies to relations between the individual and the government, is one of the cornerstones of democracy, including the rule of law. It is essential not only for formal democracy, one of whose principles is ‘one man one vote,’ but also for substantive democracy, which seeks to benefit human beings as human beings. It is a central component not only of the formal rule of law, which means equality under the law, but also of the substantive rule of law, which demands that the law itself will further the basic values of a civilized state.’

18. The violation of the right to equality does not occur merely when the discretion of the authority is tainted with improper discriminatory considerations. We are speaking of a right that looks to the outcome, and it is violated whenever an executive act leads to a reality that discriminates between one citizen and another on a prohibited basis (see Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654; Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [39], at p. 176; Poraz v. Mayor of Tel-Aviv-Jaffa [32], at p. 334; Nof v. Ministry of Defence [54], at pp. 464-465 {19-20{).

In our case, the substantial outcome of the law, in practice, distinguishes between some Israeli citizens and other Israeli citizens on the basis of their ethnic origin. The position that is created by the law is a position in which the right of the Arab citizens of Israel to family life is violated in a very significant way, whereas the harm to other citizens of the state is merely theoretical. As stated, many of the marriages of Arab citizens of Israel with foreign residents are made with residents of the territories, because of the cultural ties between the two groups. Consequently, the right of the Arab citizens of the state to marry someone who is not a citizen is seriously violated, whereas this violation does not exist for the rest of the citizens of the state. Similarly, the rights of Arab citizens of the state as parents and children to have a family life are also violated. These violations go to the heart of the law, which, in its effect on the Israeli reality, creates a serious violation of the rights of the Arab citizens of the state to family life, a violation that is caused to them because of their ethnic origin.

The significance of the violation of the rights

19. Now that we have determined that the implementation of the law involves a serious and extreme violation of the constitutional rights of the citizens of the state to family life and equality, rights that are protected by the Basic Law: Human Dignity and Liberty, this law should be confronted with the tests of the ‘limitations clause,’ which is in s. 8 of the Basic Law: Human Dignity and Liberty, according to which ‘The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose and to an extent that is not excessive, or in accordance with a law as aforesaid by virtue of an express authorization therein.’ According to these tests it must be determined whether, despite the violation of the protected rights, the law will remain valid.

20. In this matter also I accept the analysis of my colleague President A. Barak and his determination that the law does not satisfy the test of proportionality (in the narrow sense). I cannot accept in this respect the determination of my colleague, Vice-President Emeritus M. Cheshin, that the various serious violations of the law lead to a difficult, but unavoidable, outcome of the permitted immigration policy of the State of Israel, as it is affected by the needs of the moment and security.

21. Indeed, no one disputes that the purpose of protecting the safety and security of all the residents of the state, which lies at the basis of the law, is an important and proper purpose, particularly in the difficult times in which we live. Likewise no one disputes the prerogative of the state to regulate its immigration laws and to prevent anyone whom it regards as a risk to its security from entering its territory.

Nonetheless, when it seeks to realize these proper purposes, the legislature must take into account the serious harm caused as a result of implementing the law. Notwithstanding the supreme importance of the right of all the citizens of the state to security, even within the framework of realizing this right it is not possible to allow the intolerable harm caused by the law, both in its violation of the right to family life and in its violation of the right to equality.

22. In these circumstances, it is not possible to say that the law, which provides a blanket prohibition against the possibility of Israeli citizens living together with residents of the territories and leaves no ray of hope for citizens of Israel to have a family life if their spouses, children or parents are residents of the territories, satisfies the test of proportionality.

As my colleague Justice M. Cheshin said in Stamka v. Minister of Interior [24], at p. 782:

‘Indeed, the strength of the right and the strong radiation emanating from within it require, almost automatically, that the measure that the Ministry of the Interior chooses will be more lenient and moderate than the harsh and drastic measure that it decided to adopt. We will find it difficult not to conclude that the respondents completely ignored — or attributed only little weight — to these basic rights of the individual to marry and to raise a family. If this may be said with regard to a foreigner, it may certainly be said with regard to the Israeli citizen who is a partner in the marriage’ (see also State of Israel v. Oren [25]).

23. Because of the possibility that some of the residents of the territories who receive Israeli citizenship as a result of their marriage to Israeli citizens will participate in terror activity against Israeli citizens, or will aid activity of this kind, the law provides a blanket prohibition against the possibility of marriage between Israeli citizens and residents of the territories. This involves not only serious and excessive harm to any Israeli citizen who wishes to have a family life together with his spouse, child or parent that is a resident of the territories, but also a generalization of all Arab Israeli citizens as persons with regard to whom there is a concern that they will aid, even indirectly, enemy activity against the State of Israel.

The blanket and discriminatory prohibition of the law, and its failure to include any individual check — no matter how stringent — with regard to the risk presented, in practice or in theory, by the person with whom an Israeli citizen wishes to have a family life, involves a serious violation of the rights of Israeli citizens to family life and equality, which is unacceptable.

24. Moreover, depriving the Minister of the Interior of discretion, ab initio, to examine the possibility whether citizenship should be given to any of the residents of the territories in order to realize the right of an Israeli citizen to family life, by ignoring the specific circumstances of the case, raises the concern whether the security consideration is not the only consideration underlying the enactment of the law and it raises questions with regard to the policy that this law wishes to achieve.

This concern is becomes even greater if we survey the legislative history that led to the enactment of the law, which, whether in a concealed or express manner, associates the law with the government’s demographic policy. Thus, already in the government’s decision of 12 May 2003, which is entitled “Treatment of illegal aliens and family reunification policy with regard to residents of the Palestinian Authority and foreigners of Palestinian origin’ (government decision no. 1813), which formed the basis for enacting the law, the ‘security position’ and the ‘ramifications of immigration processes and the residency of foreigners of Palestinian origin in Israel, including by way of family reunification’ were associated (page 2 of the decision), all of which ‘within the framework of the overall policy on matters concerning foreigners’ (page 1 of the decision). Moreover, the decision goes on to state that ‘the Ministry of the Interior will examine, within the framework of formulating the new policy, possibilities of determining quotas for giving approvals for family reunifications, and it will bring a proposal in this regard before the government’ (page 3 of the decision). It need not be said that the fixing of quotas for approvals of family reunifications has no connection with security considerations, so it is possible to understand this paragraph in the decision as being based merely on demographic considerations. Similarly, throughout the legislation process, it is possible to find remarks made by Knesset members and members of various Knesset committees, from various parties, who address the demographic policy that the law implements (see, for example, the debate in the House on 17 June 2003). Notwithstanding, since I agree with the determination of my colleague President A. Barak, that even the security consideration does not justify such a severe violation of the right to family life and the right to equality, I see no need to discuss this matter.

25. In conclusion, if my opinion is accepted, we will grant the petitions, in the sense that the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, will be declared void, for the reasons of my colleague the president. A state that regards itself as a civilized state cannot accept as a part of its legislation laws that violate basic human values so seriously and so outrageously. It would have been better had the law not been enacted in the first place. Now that it has been enacted, we are unable, as guardians of the values of the State of Israel as a democratic state, to acquiesce in its continued existence on the statute book of the state.

 

 

Justice E. Hayut

1.    The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the Citizenship and Entry into Israel Law) expired on 31 March 2006, but because of the dissolution of the sixteenth Knesset, the validity of this law was extended by three months starting on 17 April 2006 (the date on which the seventeenth Knesset opened). This occurred by virtue of s. 38 of the Basic Law: the Knesset, which provides:

‘All legislation whose validity would expire within the last two months of the term of office of the outgoing Knesset, or within four months after the Knesset decided to dissolve itself, or within the first three months of the term of office of the incoming Knesset, shall remain valid until the aforesaid three months have ended.’

It would have been possible to dismiss the petitioners before us by saying that the days of the law are numbered and they should wait to see what the legislator will do at the end of the extension period. But since my colleagues chose, because of the importance of the matter, to examine carefully the arguments that were raised in the petitions against the Citizenship and Entry into Israel Law, I too have seen fit to consider the merits of the matter. On the merits, the opinion of my colleague President Barak seems to me preferable to the opinion of my colleague Vice-President Emeritus Cheshin.

2.    The Citizenship and Entry into Israel Law, as the state explained in its responses before us, was intended to contend with the risks involved in giving a status of citizenship or residency or a permit to stay in Israel to the residents of the territories as defined in the law. In its original format of 6 August 2003, the law included a blanket prohibition against giving such a status, apart from several limited exceptions. The law was extended three times in this format, and on 1 August 2005, before the period of the third extension ended, it was published in an amended form, in which the prohibition was reduced and was applied mainly to male residents of the territories between the ages of 14 and 35, and female residents of the territories between the ages of 14 and 25. According to the figures presented by the state, the applications submitted by Arab citizens who are residents of Israel for family reunifications with spouses from the territories were almost all blocked by the law in its original format, whereas the law in its amended format blocks approximately 70% of those applications. It can also be seen from the figures presented by the state that Palestinian spouses of Arab citizens who are residents of Israel that received a permit for family reunifications were involved throughout the years in hostile activity on a minimal level only, if at all (26 residents of the territories who received a status in Israel were interrogated on a suspicion of involvement and the permit of 42 additional residents to stay in Israel was not extended because of suspicious intelligence information that was received with regard to them). Against this background, President Barak determined that the prohibition in the Citizenship and Entry into Israel Law does not satisfy the third subtest of the tests of proportionality that are set out in the limitations clause in the Basic Law: Human Dignity and Liberty, since there is no proper correlation between the benefit involved in realizing the purpose underlying the law (protecting the security of Israeli citizens) and the violation of the constitutional rights of the Arab citizens of Israel to equality and to family life in their state. I agree with this determination.

3.    The armed struggle waged by the Palestinian terrorist organizations against the citizens of Israel and its Jewish residents requires a proper response. It requires the adoption of all the measures available to us as a state, in order to contend with the security risks to which the Israeli public is exposed as a result of this terrorist activity. Enacting laws that will provide a response to security needs is one of those measures and this is the purpose of the Citizenship and Entry into Israel Law. From this viewpoint, we are concerned, as President Barak says, with a law that befits the values of the State of Israel and was enacted for a proper purpose. But this is not enough. In order that the Citizenship and Entry into Israel Law will satisfy all of the tests of the limitations clause, we must also consider whether the violation of the constitutional rights of the Arab citizens in the State of Israel to equality and family life that is caused as a result of the restrictions and prohibitions imposed on the residents of the territories in the Citizenship and Entry into Israel Law satisfies the requirement of proportionality.

The fear of terror, like any fear, may be a dangerous guide for the legislature when it wishes to contend with those causing it. It may cause democracy to overstep its bounds and to be misled into determining ‘broad margins’ for security purposes, while improperly and disproportionately violating the human rights of citizens and residents who belong to a minority group in the state. This was discussed by Professor Sunstein in his book, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press, 2005):

‘When public fear is excessive, it is likely to produce unjustified infringements on liberty. In democratic nations in the twentieth century, public fear has led to unjustified imprisonment, unreasonable intrusions from the police, racial and religious discrimination, official abuse and torture, and censorship of speech. In short, fear can lead to human rights violations of the most grotesque kind’ (ibid., at pp. 225-226).

Professor Sunstein also discussed in his book the tendency to impose blanket prohibitions in legislation where the majority of the public is not harmed as a result:

‘If the restrictions are selective, most of the public will not face them, and hence the ordinary political checks on unjustified restrictions are not activated. In these circumstances, public fear of national security risks might well lead to precautions that amount to excessive restrictions on civil liberties. The implication for freedom should be clear. If an external threat registers as such, it is possible that people will focus on the worst-case scenario, without considering its (low) probability. The risk is all the greater when an identifiable subgroup faces the burden of the relevant restrictions. […] if indulging fear is costless, because other people face the relevant burdens, then the mere fact of “risk,” and the mere presence of fear, will seem to provide a justification’ (ibid., at pp. 204-205, 208).

4.    The Citizenship and Entry into Israel Law which is the subject of our deliberation does not include any individual criteria for examining the security danger presented by a resident of the territories, apart from a general criterion of age. In determining such a blanket prohibition against granting a status to the residents of the territories, the law draws wide and blind margins that unjustly and disproportionately harm many thousands of members of the Arab minority that live among us and wish to have a family life with residents of the territories. The right of a person to choose the spouse with whom he wishes to establish a family and also his right to have his home in the country where he lives are in my opinion human rights of the first order. They incorporate the essence of human existence and dignity as a human being and his freedom as an individual in the deepest sense. Notwithstanding, like any other basic right, we are not speaking of absolute rights, and a person as a social creature that lives within a political framework must accept a possible violation of rights as a result of legitimate restrictions that the state is entitled to impose. The legitimacy of these restrictions is examined in accordance with constitutional tests that are set out in our case in the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty.

Imposing restrictions on family reunifications with residents of the territories because of security needs is a necessity and it should not be denigrated. The difficulty in taking risks in matters of security and matters involving human life is clear and obvious and it increases in times of crisis and prolonged danger that necessitate making the security measures more stringent and inflexible. Notwithstanding, security needs, no matter how important, cannot justify blanket collective prohibitions that are deaf to the individual. Democracy in its essence involves taking risks and my colleague Vice-President Emeritus Cheshin also discussed this. He also discussed how ‘the determination of measurable concepts is a part of the experience of the law.’ But in his opinion the prohibitions imposed in the Citizenship and Entry into Israel Law are reasonable and therefore we should not intervene in the work of the government and the Knesset that determined them. My opinion is different. I am of the opinion that an examination of the Citizenship and Entry into Israel Law in accordance with constitutional criteria leads to the conclusion that the prohibitions prescribed in the law do not satisfy the constitutional test since they harm the Israeli Arab minority excessively. In the complex reality in which we live, it is not possible to ignore the fact that the Palestinian residents of the territories have for many years been potential spouses for the Arab citizens of Israel. It should also not be ignored that according to past experience and according to figures presented by the state as set out above, the scope of the harm involved in the blanket prohibition in the Citizenship and Entry into Israel Law is not balanced and does not stand in a proper proportion to the extent of the risk presented to the Israeli public if the residents of the territories receive, after an individual check, a status or a permit to stay in Israel within the framework of family reunification.

5.    One of the main arguments that the respondents raise to justify the blanket prohibition in the Citizenship and Entry into Israel Law is the argument that in many cases the security establishment does not have information with regard to the Palestinian spouses for whom a family reunification is requested. In such circumstances, and in view of the tense security position and the great hostility that prevails between Israel and the Palestinians at this time, there is no alternative, so the respondents argue, to applying an absolute presumption of dangerousness to every Palestinian spouse, at least at the ages that the law sets out in its amendment format. Indeed, against the background of the security reality that we have been compelled to contend with since September 2000 and perhaps even with greater intensity most recently, there is certainly a basis for a presumption of dangerousness that the respondents wish to impose in this matter of family reunifications between Arab citizens of Israel and residents of the territories. Notwithstanding, in order that the fear of terror does not mislead us into overstepping our democratic limits, it is proper that this presumption should be rebuttable within the framework of an individual and specific check that should be allowed in every case, and it is this that the law does not allow. This is the defect that blights the Citizenship and Entry into Israel Law from a constitutional viewpoint — a defect of a lack of proportionality.

6.    The conflict between the basic rights in the case before us touches the most sensitive nerves of Israeli society as a democratic society. But no matter how much we wish to protect the democratic values of the state, we must not say ‘security at any price.’ We must consider the price that we will pay as a society in the long term if the Citizenship and Entry into Israel Law with its blanket prohibitions will continue to find a place on our statute book. One of the main roles of the High Court of Justice, if not the main role, is to protect the constitutional rights of the minority against a disproportionate violation thereof by the majority. Where such a violation finds expression in the provisions of a law of the Knesset, it is the role of the court to point to that violation and declare the provisions to be void, so that the Knesset can act in its wisdom to amend them. The provisions of the Citizenship and Entry into Israel Law suffer, as aforesaid, from such a disproportionate violation. Therefore we are obliged to declare them void, and the Knesset, so it is to be hoped, will act in order to formulate a proper and proportionate statutory arrangement in place of this law.

For these reasons I agree as aforesaid with the opinion of my colleague the president.

 

 

Justice A. Procaccia

1.    I agree with the opinion of my colleague the president together with the constitutional analysis and his conclusions concerning the relief. I agree with the opinion that in the Israeli legal system the right of a person to family life is recognized as a part of human dignity; I also agree that the right of an Israeli spouse to have a family unit in Israel in conditions of equality with other Israeli couples is a part of human dignity. Therefore the right to family in conditions of equality constitutes a protected constitutional right under the Basic Law: Human Dignity and Liberty. The Citizenship and Entry into Israel Law (hereafter — ‘the law’) violates the right of the Israeli spouse to family life, when it does not allow him to realize his right to family life in Israel with his Palestinian spouse from the territories. It is the right of the Israeli spouse that his family — his spouse and children — should live with him in Israel. The Citizenship and Entry into Israel Law, in a discriminatory manner, denies the right of thousands of Arabs, citizens of Israel, to realize their right to family life in Israel; it thereby violates their right to human dignity.

I also agree with the president’s position that the violation caused by the law to the right to family, as a part of human dignity, does not satisfy the principles of the limitations clause in the Basic Law. Even though it is possible to say that the law is intended for a proper purpose, it does not satisfy the tests of proportionality. In this respect, I would like to focus on the test of constitutional proportionality in the narrow sense, in so far as it examines the proper correlation between the benefit accruing from realizing the policy that the law is intended to promote and the damage caused by it to the human right, and in so far as it seeks to make a value balance between the strength of the interest that the law seeks to achieve as compared with the violation of the right of the individual that ensues therefrom.

 I agree also with the outcome reached by the president, his application of the test of proportionality in the narrow sense to the issue before us, and his conclusion that in the proper balance between the violation of the human right of the Israeli spouse to family life in conditions of equality, which arises from the blanket prohibition in the law (subject to certain exceptions in the amendment to the law) against the entry of the Palestinian spouse from the territories within the framework of family reunifications, and the benefit that accrues to the security interest of the Israeli public from such a blanket prohibition, the former prevails over the latter. The reason for this is that the marginal advantage in realizing the security purpose by means of the benefit in the blanket prohibition as compared with the benefit in the individual check of persons applying for family reunifications does not justify the extent of the violation of the constitutional right caused to the Israeli spouses by the blanket denial of the entry of the Palestinian spouses from the territories to be reunited with them. This is because ‘the additional security that the blanket prohibition achieves is not proportionate to the additional damage caused to the family life and equality of the Israeli couples,’ as the president says in his opinion (para. 92).

But I see a need to add some remarks of my own because of a certain difference that exists between the president’s approach and my approach on the question of the initial weight of the security consideration in the equation of the balance between the conflicting values. Whereas the president accepts the security arguments of the state in full, both with regard to the credibility of the security consideration and also with regard to its strength, I have doubts in this regard. Although there is no basis, in my opinion, to deny the security ground entirely, I am not certain that this ground is the only one that really underlies the enactment of the law; moreover, I have objections to the strength of this consideration, with regard to the figures that the state presented and the analysis of these against the background of the policy of the government in related fields. The result that is implied by this is that in the equation of the balance for the purpose of examining the principle of proportionality (in the narrow sense) as it should be presented, the violated human right is on the highest level and its weight is considerable. Opposing this is the conflicting value of security, which in the circumstances of the case is on a low level and its weight is qualified and merely relative. The result of the balance therefore justifies, to an even greater degree, intervention in the sweeping violation of the right of the Israeli spouse to realize family life with his Palestinian spouse. It justifies making the realization of the human right conditional on the results of an individual security check to discover a potential risk in the person who wishes to enter Israel for the purpose of family reunification, and it is even possible that it justifies imposing various means of supervision on a Palestinian spouse whose entry and residence have been permitted, in accordance with criteria that will be determined after taking into account the strength of the security consideration.

Let me explain my reasons.

The constitutional scrutiny

2.    The foundation of the constitutional system in Israel is the protection of human rights. Within the framework of this protection there is the conception that a person’s constitutional rights are not absolute, and sometimes there is no alternative to a violation of them in order to achieve an essential public purpose, or in order to protect a constitutional right of another person. In circumstances where there is a tension between a human right and a conflicting public purpose, it is necessary to balance one against the other properly in order to find the optimal balancing point that will give expression to the proper correlation between the conflicting values, as derived from a constitutional outlook based on the principles of democracy.

‘An “external balance” is therefore needed between the rights of the individual and the needs of the public. Even this balance is a result of the recognition that human rights are not absolute. It follows that the constitutional super-legislative nature of human rights does not lead to the conclusion that human rights are absolute. Super-legislative human rights are always relative rights’ (A. Barak, Legal Interpretation: Constitutional Interpretation, at p. 361).

3.    Within the framework of the constitutional scrutiny of a law that seeks to violate rights of the individual, the tests of the limitations clause serve as an essential tool for the proper balance between the violated right and the public interest, the realization of whose purpose involves a violation of the right. The limitations clause is the focus around which the constitutional balance between the individual and the public, and between individuals inter se, is formulated. It reflects a basic approach whereby the needs of society may even justify a violation of human rights, provided that the violation is for a proper purpose, and it is not disproportionate. This test reflects a balance between basic rights and other important values. It arises from a reality in which there are no absolute truths and no absolute values. It is built on a perspective of the relativity both of human rights and of social values. It is based on the assumption that achieving harmony between the rights of the individual and the needs of the public requires a compromise, and that the nucleus of the compromise is what underlies the harmonious arrangement between all the rights of the individual and the values of society. It is the condition for a civilized society and proper constitutional government.

4.    The requirement of proportionality in the limitations clause is based on the principle of balancing between the violated human right and the conflicting value with which it contends. It involves an examination, inter alia, of whether the benefit achieved from the conflicting value is commensurate with the violation of the human right. The balance is affected by the relative weight of the values; in assessing the weight of the right, one should take into account its nature and its status on the scale of human rights. One should take into account the degree and scope of the violation thereto. With regard to the conflicting public interest, one should consider its importance, its weight and the benefit that accrues from it to society. There is a reciprocal relationship between the weight of the human right and the degree of importance of the conflicting public interest. The weightier the human right and the more severe the violation thereof, the more it is necessary, for the purpose of satisfying the test of proportionality, that the conflicting public interest will be of special importance and essentiality. A violation of a human right will be recognized only where it is essential for realizing a public interest of such strength that it justifies, from a constitutional viewpoint, a proportionate reduction in the right (Levy v. Government of Israel [99], at p. 890; Beit Sourik Village Council v. Government of Israel [2], at p. 850 {309}). According to the tests of the limitations clause, both the violated right and the public interest are examined in accordance with their relative weight, where the basic premise is:

‘The more important the violated right, and the more serious the violation of the right, the stronger the public interest must be in order to justify the violation. A serious violation of an important right, which is merely intended to protect a weak public interest, may be deemed to be a violation that is excessive’ (per Justice I. Zamir in Tzemah v. Minister of Defence [9], at p. 273 {672}).

5.    In the matter before us, the subject of our scrutiny is the balance between the right of the Israeli spouse to realize family life in Israel with the Palestinian spouse from the territories, on terms of equality, and the interest of protecting public safety. This balance is intended to achieve protection of life on the one hand, and the quality and meaning of human life on the other. The balance requires relativity. It cannot be achieved in absolute values. It is built on a probability test that rejects absolute values. The probability assessment of the degree of risk to life is what confronts the human right to family, and in determining the relativity between them we must evaluate the strength of the likelihood of danger to life that is involved in realizing the human right to family. In determining the aforesaid relativity, we will consider, inter alia, the place of this human right on the scale of human rights.

The right to family

6.    The human right to family is one of the fundamentals of human existence. It is hard to describe human rights that are its equal in their importance and strength. It combines within it the right to parenthood and the right of a child to grow up with his natural parents. Together they create the right to the autonomy of the family.

‘These are basic principles: the right to parenthood and the right of a child to grow up with his natural parents are rights that are interconnected and they jointly create the right to the autonomy of the family. These rights are some of the fundamentals of human existence, and it is difficult to describe human rights that are equal to them in their importance and strength’ (LFA 377/05 A v. Biological Parents [21], at para. 6 of my opinion).

Alongside the human right to the protection of life and the sanctity of life, constitutional protection is given to the human right to realize the meaning of life and its raison d’être. The right to family is a raison d’être without which the ability of man to achieve self-fulfilment and self-realization is impaired. Without protection for the right to family, human dignity is violated, the right to personal autonomy is diminished and a person is prevented from sharing his fate with his spouse and children and having a life together with them. Among human rights, the human right to family stands on the highest level. It takes precedence over the right to property, to freedom of occupation and even to privacy and intimacy. It reflects the essence of the human experience and the concretization of realizing one’s identity.

The value of security

7.    In view of the special weight and strength of the right to family given to the individual, a reduction thereof is possible only where it is confronted by a conflicting value of special strength and importance. ‘The degree of importance of the need that is required in order to justify a violation may change in accordance with the nature of the violated right… the purpose is proper if it is intended to realize “an essential need, or an urgent social need, or a major social interest’ (Levy v. Government of Israel [99], at para. 15). The duty of the state to protect the lives of its citizens places the interest of security on the highest level of importance. This interest has two aspects: a social aspect, which casts light on the duty of the state to protect the security of its citizens; and an individual aspect, which casts light on the right of the individual in society to protection for his life. The right to life is a constitutional human right of the first order, and it is placed first in the order of human rights protected in the Basic Law: Human Dignity and Liberty. Notwithstanding, the value of the security of life is not a constant. It has different meanings and strengths in different contexts. Its relative weight changes from case to case according to the degree of probability that the danger to life arising from the relevant specific context will be realized.

8.    In the tension that exists between the value of the security of life and other human rights, including the right to family, the consideration of security takes precedence where there is a certainty or almost certain likelihood that if an action that involves a reduction of a human right is not carried out, then human life will be harmed. The right to life takes precedence over the right to realize the meaning of life, since without life nothing is left. But as a rule, in the balance between security and the human right we are not dealing with absolute values, and usually we do not assume a certainty of harm to life. We are dealing with a probability of the degree of danger, and it is this that we weigh against the violation of the human right.

What is the probability of the danger to human life in the circumstances of permitting the Palestinian spouses to enter Israel to be reunited with their Israeli spouses? Is the probability of danger so high that it justifies a blanket prohibition of the Israeli spouse’s right to family? Or is the likelihood of the danger not on the level that justifies a blanket prohibition, and there is a proportionate response that will be expressed in adopting lesser security measures, which will satisfy the existing level of probability while causing a smaller reduction in the human right?

Burden of proof

9.    The burden of proof with regard to the existence of a likelihood of a security risk to a degree that justifies a reduction of a human right rests with the state (Movement for Quality Government in Israel v. Knesset [51], at paras. 21-22 and 49 of the opinion of President Barak; Barak, Constitutional Interpretation, at p. 477; United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at pp. 428-429; the opinion of Justice I. Zamir in Tzemah v. Minister of Defence [9], at pp. 268-269 {665-666}). The state has the burden of proving that the need to protect the public against a real security risk necessitates a real violation of a human right, and that the public need cannot be addressed without such a violation. It must persuade the court that the probability of the security danger occurring is so high that it requires measures to be taken that violate rights as set out in the legislation that causes the violation. Where the probability of the danger is so high that it almost reaches a certain danger, even the most exalted of constitutional human rights will give way to it. Where the probability that the risk will be realized is low, it is possible that the value of security will not justify any violation of the human right, or it is possible that it will justify a lesser violation.

10. The ‘security need’ argument made by the state has no magical power such that once raised it must be accepted without inquiry and investigation. There were times in the past when the state’s argument concerning a security need was accepted on the face of it, without any examination of its significance or weight. Those times have passed, and for many years now the arguments of the authorities concerning a security need have been examined on their merits by the courts in various contexts. Admittedly, as a rule, the court is cautious in examining the security considerations of the authorities and it does not intervene in them lightly. Notwithstanding, where the implementation of a security policy involves a violation of human rights, the court should examine the reasonableness of the considerations of the authorities and the proportionality of the measures that they wish to implement (Ajuri v. IDF Commander in West Bank [1], at pp. 375-376; HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [153], at p. 810). For the purposes of this examination, the court is sometimes required to look at privileged material ex parte, and to assess the strength of the security risk in accordance with probability criteria concerning the strength of the violation of the rights of the individual as opposed to this probability (see, for example, with regard to administrative detention orders: ADA 8607/04 Fahima v. State of Israel [154], at pp. 263-264; HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [155], at pp. 350, 360-361; with regard to preventing a meeting of a detainee with his lawyer: Marab v. IDF Commander in Judaea and Samaria [3], at pp. 381-382 {212-215}; with regard to protecting the home of the Minister of Defence: HCJ 7862/04 Abu Dahar v. IDF Commander in Judaea and Samaria [156], at paras. 13-14; with regard to assigning the residence of residents of the territories: Ajuri v. IDF Commander in West Bank [1], at pp. 370, 372, 376 {102-103, 105-106, 110-111}; with regard to restriction and supervision orders: HCJ 6358/05 Vaanunu v. Home Front Commander [157]). Sometimes, examining the strength of the security consideration requires examining specific material concerning the person involved; sometimes, when the security policy of the authorities concerns a whole sector of the public, a general examination should be made on the basis of figures that have been presented, by means of criteria for an objective probability analysis. Such is the case before us.

Examining the security consideration in a two-stage process

11. An examination of the weight of the security consideration should be made in a two-stage process. First, we must examine the degree of credibility of the claim concerning ‘security needs.’ We must ascertain whether the security considerations that have been raised are not being used, in reality, as a cloak for other completely different purposes which are really the purposes that underlie the legislation containing the violation of the right. Second, assuming that we find that the security consideration is credible, we must assess, on the basis of the figures presented, what is the strength of the security consideration from the viewpoint of the extent of the probability that the risk underlying it will indeed be realized if the policy involving the violation of the right is not implemented, or if it is not implemented in full. The two-stage process for examining the security consideration is built, therefore, on two strata: examining its credibility in the first stage, and examining its strength in the second stage.

12. This two-stage examination of the state’s argument concerning security needs was made by the court, when it was required to decide upon the constitutionality of the route of the separation fence in Beit Sourik Village Council v. Government of Israel [2] and Marabeh v. Prime Minister of Israel [5] (paras. 62-65 of the judgment). In Beit Sourik Village Council v. Government of Israel [2] the credibility of the security consideration was examined in the first stage in relation to the petitioners’ claim that the real reason for building the fence was not security, as claimed by the state, but a political reason, and its purpose was to annex areas from the West Bank to Israeli territory on the western side of the green line. In this regard, the court held that it was proved that the building of the fence was a result of security considerations, not political ones (Beit Sourik Village Council v. Government of Israel [2], at pp. 830-831 {286-288}; Marabeh v. Prime Minister of Israel [5], at para. 62). It was held that the decision to build the fence did not arise as a political idea for the annexation of territory, but it derived from military-security needs, and as an essential measure for protecting the state and its citizens. In the second stage the court examined the strength of the security-military need to build the fence and the route chosen for it in relation to the degree of the violation of the rights of the local residents involved in realizing this need. Examining this strength of the public interest involves an act of balancing in which the public need is balanced against the violated right, and the court chooses a balancing point that does not attribute an absolute value to either of the competing values, but balances between them in accordance with their relative weight and importance as derived from a constitutional outlook that aims for harmony between the rights of the individual and the needs of the public. A two-stage examination of this kind should be made also in the case before us.

Credibility of the security consideration

13. The state bases the credibility of the security consideration on the general assessments of the security establishment. According to their approach, ‘there is a security need to prevent, at this time, the entry of residents of the territories, as such, into Israel, since the entry of residents of the territories into Israel and their free movement within the State by virtue of the receipt of Israeli documentation is likely to endanger, in a very real way, the safety and security of citizens and residents of the State’ (para. 4 of the respondents’ closing arguments of 16 December 2003); and from a general perspective, ‘giving a permit to stay, for the purpose of becoming a resident of Israel, to a resident of a state or a political entity that is involved in an armed conflict with the State of Israel involves a security risk, since the loyalty and allegiance of that person is likely to be to the state or political entity in conflict with Israel.’ It was also argued that since the armed conflict between Israel and the Palestinian Authority changed at the end of September 2000, hostile Palestinian entities began to make increasing use of Arab citizens of the State of Israel, ‘and especially’ it is alleged ‘of persons who were residents of the territories and received a status in Israel by virtue of the various family reunification processes’ (para. 5 of the closing arguments of the state of 16 December 2003). A synopsis of the state’s security arguments is that, as a rule, enemy nationals that have a double loyalty constitute a security risk when they enter Israel; the residents of the territories who have undergone a process of family reunification are an example of this, and their entry into Israel and their free movement in Israel are likely to aid the armed struggle of the Palestinian side against the residents of the State of Israel; as proof, of the Israeli citizens and residents who aided the armed struggle of the Palestinians, most, according to the state, are residents of the territories who received their status as a result of a process of family reunification.

But there is a difficulty in reconciling the state’s claim that the main security risk comes from Palestinian spouses who have become resident in Israel as a result of family reunifications with the statistical figures that the state itself presented. Since 1994, approximately 130,000 residents of the territories received one status or another in Israel (statement of the Attorney-General Mr Mazuz and the Director of the Population Register at the Ministry of the Interior at the meeting of the Interior and Environmental Affairs Committee of the Knesset on 14 July 2003 (minutes no. 47)). Out of this number of residents, we are told that 26 are undergoing investigation on a suspicion of involvement in terror activity. This contrasts with 247 persons involved in terror activities among Israeli Arabs. Moreover, no figures were presented with regard to possible persons involved in terror activity among the thousands of Palestinian workers who are permitted to enter Israel every day for the purpose of employment. These figures, in themselves, are inconsistent with the statement that the main security risk is presented by residents of the territories who received a status in Israel within the framework of the reunification of families. Notwithstanding, the assumption that there is a security risk of one strength or another from the entry of Palestinian spouses to live in Israel certainly cannot be denied, and it is proved also by the relatively small number of persons being investigated for involvement in terror activity among these residents. But this figure against the background of the other figures casts light upon the strength of the security risk.

14. In examining the credibility of the security consideration, we should also not ignore the fact that at various times during the legislative process of the law and its amendment, the demographic issue was raised and debated against the background of the blanket prohibition against the entry of Palestinian spouses from the territories into Israel. Admittedly, the state, when presenting the law, pointed to the security consideration as a sole consideration. Nonetheless, from the debates in the Knesset it can be seen that the demographic issue hovered over the legislative process the whole time, and was a major issue in the deliberations of the Interior Affairs Committee of the Knesset and the House. There were some members of the Knesset from various parties who thought that the demographic aspect was the main justification for the legislative arrangement that was adopted. There were some, such as Minister Gideon Ezra (Likud, the minister communicating between the government and the Knesset at that time) and Chairman of the Knesset Ruby Rivlin (Likud) who warned against family reunifications as a mechanism that was designed to implement de facto a right of return (see the minutes of session no. 276 of the sixteenth Knesset, on Wednesday, 20 Tammuz 5765 (27 July 2005), at p. 15; the meeting of the Interior Affairs Committee on 29 July 2003). Others, such as Knesset Member Zahava Gal-On (Meretz-Yahad), Chaim Oron (Meretz-Yahad), Nissim Zeev (Shas), Nissan Slomiansky (National Religious Party), Michael Ratzon (Likud) and Ehud Yatom (Likud) expressly mentioned the phenomenon that was given the name of ‘the demographic danger’ in the debate, and they pointed to the purpose of the law as if it was intended to put a stop to this danger also. Against this danger, some of them warned, the state should defend itself (see Proceedings of the Sixteenth Knesset of 23 May 20005, on pp. 3, 10-11; minutes no. 47 of the meeting of the Interior Environmental Affairs Committee of the Knesset of 28 June 2005, on p. 7). The Arab members of the Knesset claimed throughout the legislative proceeding that the purpose of the law was to further a demographic purpose. It is not superfluous to point out that the fourth respondent, which was joined as a party in this proceeding, focused in its arguments on the demographic aspect of the law that is under scrutiny.

The state, within the framework of its arguments, was prepared to declare that even though the security consideration is the only one underlying the law, even if the demographic consideration was a basis for the policy that led to its enactment, it would still be a legitimate consideration that befits the values of the State of Israel as a Jewish and democratic state:

‘Even if the predominant purpose of the law was demographic — which is not the case — this purpose would be consistent with the values of the State of Israel as a Jewish and democratic state…’ (para. 169 of the closing arguments of the state of 16 December 2003).

Since the state, according to its declaration, did not rely on the demographic consideration as a basis for the legislation under scrutiny here, we are not required to place this consideration under constitutional scrutiny. Notwithstanding, the demographic consideration hovered in the background of the legislative process of the law, and it is difficult to escape the impression, despite the denial of the state in this regard, that it had a presence of some weight or other in the process of formulating the blanket prohibition against the entry of Palestinian spouses from the territories into Israel within the framework of family reunifications.

It can therefore be said that the security consideration, whose purpose is to prevent abuse of the process of family reunification in order to increase terrorist activity inside Israel is, in itself, a credible consideration, and it has a basis in the figures that were presented. Notwithstanding, the possibility of the existence of an additional motive in the background to the legislation of the law, even if there is nothing in this to reduce the credibility of the security consideration, may reflect to some extent on its weight and strength.

The strength of the security consideration

15. An examination of the strength of the security consideration should provide an answer to the question whether there is a justification for the blanket prohibition against the entry of Palestinians who are residents of the territories into Israel within the framework of family reunifications. This question is examined not only in accordance with the general assessments presented by the security establishment, but also in accordance with the factual figures that were presented, and the analysis of these with objective probability criteria. I will say already at this stage that in my opinion the figures as presented by the state do not justify a blanket prohibition against the entry of Palestinian spouses into Israel within the framework of family reunifications, which means a sweeping violation of the human rights of Israeli citizens and residents. The state has not succeeded in discharging the burden imposed on it to convince the court that, in the circumstances of the case, the strength of the security risk justifies the serious and sweeping violation of the right to family caused to those residents of Israel who are prevented from being reunited with their spouses. The following are the reasons for this conclusion.

The number of persons among the Palestinian spouses who are suspected of involvement in hostile activity

16. In its closing arguments, the state argues that ‘in attacks carried out with the aid of residents of the territories… 45 Israelis were killed and 124 were injured.’ Accordingly, ‘23 of the residents of the territories, who received a status in Israel as a result of family reunifications, were involved in real aid for hostile activity against the security of the state’ (para. 17 of the closing arguments of the state of 16 December 2003). Out of 148 suicide attacks, in 25 cases residents of the territories who received a status by virtue of family reunifications were involved. In the state’s reply of 7 February 2006, the number of persons being investigated for involvement in terror activity from among the residents of the territories who received a status by virtue of family reunifications was stated to be 26. Similarly, with regard to 42 additional residents of the territories, their permit to stay in Israel was not extended because of ‘intelligence information that indicated their involvement in terror activity or regular contact with terrorists’ (para. 29 of the state’s response of 7 February 2006). Within the framework of those 26 persons that are suspected of involvement, the state presents details of the cases of six persons who hold Israeli identity cards and whose status was obtained within the framework of family reunifications, that are suspected of carrying out attacks or aiding attacks. These specific examples do not disclose what was the nature of the involvement of the six persons in the planning or perpetration of the attacks, and it is impossible to learn from what is written whether they were attacks that were actually carried out or foiled, and what happened to the six persons. With regard to the 20 other persons suspected of involvement in terror activity there is also no information with regard to the outcome of those investigations.

It is not superfluous to point out that since 1994 approximately 130,000 residents of the territories received one status or another in Israel, and, of all of these, 26 as aforesaid are under investigation with regard to involvement in terror activity. In view of the large number of Palestinians from the territories who acquired a status in Israel since 1994, the number of persons interrogated on a suspicion of some involvement or other in aiding terror activity is small, and moreover we do not have any clear information concerning the nature of the collaboration of those involved in the terror activity.

Palestinian workers entering Israel

17. According to the policy of the government, many thousands of Palestinian workers enter Israel from the territories each day. From the notice of the state of 16 December 2003 (para. 180), it transpires that permits are given to approximately 20,000 workers, but this quota changes from time to time in view of the circumstances. The state did not present us with any figures on the question of whether among these workers persons were found to be involved in terror activities. It does not require much convincing to realize that in searching for collaborators for terror activities, there is no special difficulty in using such workers, who enter Israel each day with a permit and return to the territories in the evening. If, as the state claims, the basis for effective aid to terror lies in someone being connected with the territories on the one hand, and his access to Israel on the other, these two elements exist with regard to many thousands of Palestinian workers who come to Israel from the territories each day. We have not found that the security risk involved in the entry of Palestinian workers into Israel each day has led the state to adopt a blanket prohibition against the entry into Israel of the workers, who satisfy economic and employment needs in which the state has an interest.

According to the state, one cannot compare the workers with the spouses since the security risk presented by these groups is completely different. The entry of workers into Israel is conditional upon calm in the security situation, since in times of increased risk, a general closure is imposed on the territories, and the entry permits into Israel are suspended automatically. Moreover, the various supervision measures that are imposed on the workers from the territories allow the security forces to negate, in so far as possible, the ability of the workers to become involved in terror activity. The fact that these workers do not stay the night in Israel helps this supervisory mechanism (para. 180 of the closing arguments of the state of 16 December 2003). By contrast, so it is claimed, Palestinian spouses who are allowed to enter Israel acquire a status here and stay here on a permanent basis. This status gives them a greater weight as potential collaborators for terror. This position is questionable for several reasons.

First, in the absence of figures regarding the number of persons involved in terror activity among Palestinian workers, it is difficult to accept as presented the premise that the risk from the Palestinian spouses who acquired residency in Israel exceeds what is expected from the Palestinian workers. The spouse who is involved in terror can expect a significant loss not only in the criminal sanctions to which he will be sentenced but also in the potential loss of his status in Israel and the ability to live with his family in Israel. The worker, by contrast, risks criminal sanctions and the loss of his place of work and a permit to enter Israel in the future. The risk of losing the status in Israel and the ability to realize family life here without doubt constitutes a deterrent for the spouse, and it is possible that this can explain the relatively small number, over the years, of persons suspected of involvement in terror among the Palestinians who have a status in Israel by virtue of family reunifications.

Second, within the framework of the supervisory measures introduced in order to contend with the potential risk, it is possible to choose appropriate security measures and apply them also to Palestinian spouses who will not only be subject to an individual check before they enter Israel, but will also be subject to the supervision of the authorities when they are living in Israel, in order to make them less accessible and available to the terrorist organizations. Within the framework of the security measures it is also possible to include the cancellation of permits to stay in Israel where there is substantiated information about a risk anticipated from someone who received a permit to stay in Israel by virtue of family reunifications. Proportionate supervisory measures for the Palestinian spouses who wish to live in Israel within the framework of family reunifications can be implemented in a similar manner to those imposed on Palestinian workers, with the appropriate changes. Between a blanket prohibition of entry permits and giving a blanket permit to enter Israel there is a middle ground where it is possible to make stringent individual checks of those persons applying to enter Israel before they do so, and to impose on those whose entry is permitted various supervisory measures on a continuous basis in a manner that is commensurate with the likelihood of the risk.

Persons involved in terror among Israeli citizens

18. We should also not ignore the figures presented by the state, according to which 247 Israeli Arabs, citizens and residents, were found to be involved in terror activity against the Jewish residents of the state (para. 29 of the state’s response of 7 February 2006). Citizens of Israel, both Jews and Arabs, enjoy the same human rights and liberties that are provided by Israel’s constitutional system. The Arab population of Israel is a faithful and peace-seeking sector of the population, even if it contains a small minority that abuses its civil liberties and becomes involved in the struggle of murderous terror. Because of this small minority, it did not occur to anyone to violate the civil rights of the Arab population in Israel, even though according to the figures the number of Arab Israelis involved in terror activity is nine times greater in absolute terms that the involvement of Palestinian spouses who acquired a status by virtue of family reunifications. Just as it would not occur to anyone to assume that the risk anticipated from a small minority of local citizens should result in a sweeping injury of the complete population sector of Israeli Arabs, who are residents and citizens of the state, so too it is difficult to find a justification for a sweeping injury to parts of precisely the same population, the residents and citizens of Israel, when we are speaking of family reunifications with spouses from the territories. The individual check that is intended to locate a potential danger that is anticipated from someone, even if it does not remove the danger entirely, will certainly reduce its probability to such a level that it will deny a constitutional basis for a sweeping injury to the human rights to family life. We ought to achieve a genuine and balanced proportionality between the degree of the remaining security danger after exercising individual supervisory measures and the protection of human rights involved in a selective injury only, where a genuine risk potential is discovered in some person or other.

The strength of the security consideration — conclusions

19. The conclusion that follows from the aforesaid is that the state has not discharged the burden imposed on it to show that the sweeping violation of the constitutional human right satisfies the proportionality test of the limitations clause. The probability of the security risk from the entry of Palestinians into Israel within the framework of family reunifications is not of such a strength that it justifies the imposition of the blanket prohibition by means of a law that prevents family reunifications as a rule, apart from a few exceptions. The blanket prohibition is not commensurate with the strength of the violated human right to family life that is possessed by the Israeli spouse who is a resident or citizen of Israel. From the figures set out above, it is difficult to see a rational policy in the approach of the state to the existing security risk, which treats risk groups that have things in common differently. The state accepts the existence of risks that exceed those anticipated from Palestinian spouses without imposing blanket prohibitions, but at the same time it imposes an almost total denial of family reunifications in a manner that is inconsistent with the relativity of the risk expected from them.

The focus of the law on the population of spouses from the territories is inconsistent with the policy of the state with regard to risk factors that are not smaller, and are perhaps even greater, than those presented by family reunifications. In other contexts, which give rise to significant risks, the state refrains from a sweeping violation. It seeks to spread the risk in as intelligent and proportionate manner as possible. This is not the case with regard to persons applying for family reunifications. This raises the concern that the real purpose of the law is not entirely identical with the alleged security purpose, and that the strength of the security consideration is not as significant as alleged. In view of the aforesaid, the criteria of the law are not consistent with the proper point of balance between the strength of the security interest and the extent of the violation of the human right (Davidov, Yovel, Saban and Reichman, ‘State or Family? The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003,’ 8 Mishpat uMimshal, vol. 2, 643 (2005), at pp. 671-672; J. Tussman & J. tenBroek, ‘The Equal Protection of the Laws,’ 37 Calif. L. Rev. 341 (1949), at pp. 344-353).

20. In the circumstances of this case, in the equation of the balance required for examining the element of proportionality in the limitations clause, the human right of the Israeli spouse is on a higher level than the conflicting security interest. The strength of the security consideration does not justify a blanket prohibition of the right of the Israeli spouse to family life in Israel. Proportionality justifies taking the value of security into account, but only to a relative degree as implied by a consideration of the strength of the risk and the strength of the violated human right. Proportionality justifies only a relative violation of this right, relative to the existence of a concrete danger potential that will be discovered from an individual check, from specific information collected with regard to an individual and from imposing various supervisory measures that will guarantee, in so far as possible, the identification of the danger in time.

Indeed, the proportionality tests lead to the value decision that confronts the question, to what extent may the government of a democratic country violate human rights in the name of the national interest and national security; when do we cross the proper balancing point and give a blanket protection to society, while improperly violating the rights of the individual, and when does the social interest become an absolute value at the expense of the human right, rather than maintaining the proper proportionality between them. The tests of proportionality require a value balance in which the premise is that not every contribution to the general level of security justifies a sweeping violation of human rights. Where a sweeping violation reflects an improper proportion between the likelihood of the security risk and the strength of the violation of the right, a different, more rational and just proportion is required. This proportionality is built on a compromise between the general social value and the rights of the individual that deserve protection.

The sweeping violation

21. We must beware of the lurking danger that is inherent in a sweeping violation of the rights of persons who belong to a particular group by labelling them as a risk without discrimination, and of the concern involved in using the security argument as a ground for a blanket disqualification of a whole sector of the public. There are cases in history in which this happened, and later constitutional thought recognized the mistake in this, a mistake that is clear on the face of it. It is sufficient to mention one example of this from the well-known case of Korematsu v. United States [185], in which United States residents and citizens of Japanese origin, who lived in the United States, were placed in detention camps in their own country, during the Second World War, when the United States was at war with Japan. There were individuals in that population group who were suspected of disloyalty to the state. In consequence, a general sanction of being placed in detention camps was imposed on a whole sector of the public. These sweeping measures were approved by a majority in the United States Supreme Court. The minority thought otherwise.

The justification for adopting these security measures was expressed in the majority opinion of Justice Black in terms that are reminiscent in their main aspects of the arguments of the state before us:

‘We cannot reject as unfounded the judgment of the military authorities and of congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained… It was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground’ (Korematsu v. United States [185], at p. 219).

And further on:

‘There was evidence of disloyalty on the part of some [citizens of Japanese ancestry], the military authorities considered that the need for action was great, and time was short’ (Korematsu v. United States [185], at pp. 223-224).

The minority judges, led by Justice Murphy, discussed the nature of the risk, as well as the need for a rational and proportionate correlation between the nature and scope of the risk and the measures adopted to guard against it:

‘In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporary or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways… no reliable evidence is cited to show that such individuals were generally disloyal…or had otherwise by their behavior furnished reasonable ground for their exclusion as a group’ (Korematsu v. United States [185], at pp. 235-236).

Further on, the minority judges explained the nature of the great danger inherent in sweeping arrangements that involve whole sectors of the public indiscriminately:

‘… to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights… is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow’ (Korematsu v. United States [185], at p. 240).

The ruling of the majority of justices of the United States Supreme Court in the case of Korematsu v. United States [185] is considered by many to be one of the darkest episodes in the constitutional history of western countries (see, for example, E.V. Rostow, ‘The Japanese American Cases – A Disaster,’ 54 Yale. L. J. 489 (1945); L. Braber, ‘Comment: Korematsu’s Ghost: A Post-September 11th Analysis of Race and National Security,’ 47 Villanova L. Rev. 451 (2002)).

The circumstances in that case are completely different from those in our case, but the wind that blows in the background of the constitutional approach that was applied there by the majority opinion is not foreign to the arguments that were heard from the state in the case before us. We must take care not to make similar mistakes. We must refrain from a sweeping injury to a whole sector of the public that lives among us; it is entitled to constitutional protection of its rights; we must protect our security by means of individual scrutiny measures even if this imposes on us an additional burden, and even if this means leaving certain margins of a probability of risk. We will thereby protect not only our lives but also the values by which we live (Saif v. Government Press Office [86], at p. 77 {198}).

Conclusion

22. No one will deny the seriousness of the security situation in which we find ourselves, and the supreme task imposed on the state to protect the lives of its citizens. At the same time, just as we must confront the danger to life and defend ourselves against it, so too we must protect ourselves against the danger of losing security in our values and in the protection of human rights. We must beware the erosion of human rights against the background of security arguments by not maintaining the proper proportion between them. Without insisting on this proportionality, the constitutional approach that protects human rights may be eroded; consequently, cracks may appear in the foundations of our constitution; democratic patterns of life in Israel may be prejudiced and the recognition of human dignity and the right to realize one’s identity may be undermined. We must take care not to be carried away by security arguments like blind persons in the dark, where doing so leads to a violation of a human right. We must examine their credibility and strength in accordance with reliable figures, and assess it in accordance with the tests of logic, common sense and the rules of probability.

In this case, I do not agree with the view that the security need should be adopted to the degree and extent argued by the state. I see a significant gap between the strength of the security consideration as alleged by the state, and the strength of the violation of human rights of the first order which is caused by the law. Therefore I am most strongly of the opinion that the security consideration should yield to the human right. But even so, there is no basis for a balance in absolute values, but in relative values. Therefore, the change from a blanket prohibition (apart from a few exceptions) against the entry of Palestinian spouses into Israel, which is currently enshrined in the law, to a system of individual checks to locate an individual potential danger reflects the proper point of balance. The relative strength of the security consideration ought also to cast light on the measures for individual checks that should be put into operation for the purpose of providing entry permits to persons applying to be reunited with their Israeli spouses, and also on the supervisory methods that should be introduced with regard to Palestinian spouses whose entry is permitted, while they are living in Israel. The relative strength of the security consideration should also cast light on the relevant tests and criteria that should be made a necessity in these matters.

23. I agree with the president’s conclusion concerning the voidance of the law, and the details of the relief proposed by him.

 

 

Justice A. Grunis

1.    I agree on the whole with the opinion of my colleague Vice-President Emeritus M. Cheshin. From this it is clear that my opinion is different from that of my colleague President A. Barak. I will add certain emphases of my own that clarify the disagreements between my opinion and that of my colleague the president.

2.    My colleague the president defines very broadly the constitutional right to family life (as a part of human dignity). He includes within it the right of the Israeli spouse to bring his foreign spouse into Israel, even if he is a national of an enemy state, in order that the couple can have a family life in Israel. After finding that the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the law) violates the constitutional right, the president goes on to examine whether the conditions of the limitations clause are satisfied. The position of my colleague President Barak in the present case is consistent with his approach in other cases, in which a question arose as to the scope of the constitutional right (in general, with regard to the outlook of my colleague the president in this regard, see A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994), at pp. 369-390). This is the case, for example, with regard to the scope of the right of property (s. 3 of the Basic Law: Human Dignity and Liberty) and freedom from imprisonment (s. 5 of the Basic Law: Human Dignity and Liberty). In the first case, the president apparently includes, within the scope of the right of property, every property interest (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 431); HCJ 5578/02 Manor v. Minister of Finance [158]). In the second case, the approach of my colleague the president leads to the result that every new criminal law that includes a penalty of imprisonment, and every case where legislation makes a penalty of imprisonment stricter, violates the basic right (Silgado v. State of Israel [107]). By contrast, my colleague the vice-president emeritus disputes the scope of application of the constitutional right under discussion. In his opinion, the right to family life does not include the right of an Israeli citizen to family reunification with the foreign spouse in Israel, especially not at a time of war or armed conflict with the country of the foreign spouse. The very broad definition of the constitutional right, according to the approach of my colleague the president, leads to the conclusion that many laws will be regarded as violating constitutional rights and will therefore be required to satisfy constitutional scrutiny, i.e., the conditions of the limitations clause. The outcome may be a degradation of constitutional rights. Moreover, a practical problem may arise with regard to the ability of the courts to deal on a daily basis with constitutional claims (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 332 (per President Shamgar), and at pp. 470-471 (per Justice I. Zamir); Israel Investment Managers Association v. Minister of Finance [8], at p. 419 (per Justice D. Dorner)). Even if we accept the broad approach of my colleague the president in so far as the right to family life is concerned, the argument may be raised that in the present case this right conflicts with another constitutional right, the right to life (s. 2 of the Basic Law: Human Dignity and Liberty). Then the question arises whether there is a justification for turning to a scrutiny of the law in accordance with the conditions of the limitations clause, or whether the conflict should be resolved without referring to the limitations clause, and certainly without referring to all of its constituent parts. The response to a conflict between two constitutional rights lies in what is sometimes referred to as a ‘horizontal balance.’ It is possible that within the framework of examining this conflict or contradiction, it will be necessary to refer to the proportionality tests. Of course, that scrutiny will necessarily lead to the restriction of one of the conflicting rights on account of the other. In any event, for the purposes of the present case I am prepared to assume, according to the approach of my colleague the president, that the law violates the Israeli spouse’s constitutional right to family life, because it does not allow him to bring the Palestinian spouse who lives in the territories into Israel.

3.    My two colleagues, the president and the vice-president emeritus, find that the law does not raise any problem with regard to the first three conditions in the limitations clause, namely the requirement that the violation should be made in a statute or in accordance with statute by virtue of an express authorization therein; the requirement that the violating law should befit the values of the State of Israel; and the requirement that the law is intended for a proper purpose. They also agree that the law satisfies the first two subtests of the proportionality test that are included in the limitations clause. Thus, they find that there is a rational connection between the prohibition against the Palestinian spouse entering Israel, which is the measure adopted by the law, and the reduction of the security risk inherent in the entry into Israel of the foreign spouse, which is the purpose of the law. They also find that it is not possible to achieve the purpose of the law by adopting a less harmful measure. The issue in the concrete case before us is the blanket prohibition in the law against the entry into Israel of Palestinian spouses as opposed to an individual check of the foreigners who marry Israelis. An individual check of each person will not achieve the same level of security that will be provided by a blanket prohibition.

4.    The disagreement between my colleagues focuses on the implementation of the third subtest in the test of proportionality. Sometimes this test is referred to as that of proportionality in the narrow sense. This test examines the correlation between the social benefit of the law and the harm caused by the violation of the constitutional right. The President dissects the case with a surgeon’s scalpel, or perhaps we should say with a laser beam, and says that ‘the proper way of posing the question is by means of the level of the risks and the likelihood that they will occur, and their effect on the life of society as a whole’ (para. 110 of his opinion). Further on, the test in the concrete case is presented in the following words: ‘The question is what is the probability that human life will be harmed if we continue the individual check as compared with the likelihood that human life will be harmed if we change over to a blanket prohibition, and whether this additional likelihood is comparable to the certainty of the increase caused thereby to the violation of the rights of spouses who are citizens of the state (ibid.). The answer of my colleague the president is that the additional security is not commensurate with the additional violation of the right of citizens of the state to family life. By contrast, the opinion of my colleague the vice-president emeritus is that since we are dealing with the right to life, it should be given greater weight in relation to the constitutional violation. I disagree with my colleague the president in two respects, both with regard to the presentation of the question as a question of probability and in the implementation of the test.

5.    There is no doubt that presenting the test of proportionality in the narrow sense as a test of probability contributes to the development of the law and our conception of the value conflict underlying the test. The test that the president presents is reminiscent of the well-known test formulated by Judge Learned Hand with regard to the tort of negligence (United States v. Carroll Towing Co. [207]). According to the equation developed by Judge Hand, negligence exists if the expectation of the damage (the amount the damage multiplied by the likelihood of its occurrence) is greater than the cost required to prevent the damage (the aforesaid test was mentioned in CA 5604/94 Hemed v. State of Israel [159], by President A. Barak, at pp. 510-511, and also by Justice E. Rivlin, who pointed to its application in the constitutional context as well, at pp. 517-521); see also A. Porat, ‘Negligence and Interests,’ 24 Tel-Aviv University Law Review (Iyyunei Mishpat) (2001) 275). The presentation of the question that requires a decision as a kind of mathematical equation has a great deal of sophistication and it advances the legal analysis. The use of imagery, such as ‘equation,’ ‘balance,’ ‘weight,’ etc., is common in legal writing. Metaphors help us understand better when we are dealing with abstract concepts. But let us not forget that we are dealing with law, and not mathematics. In any case, in the matter before us it is my opinion that no question of probability arises with regard to injury to human life. The figures that were presented to us show that twenty-six Palestinian spouses who entered Israel lawfully by virtue of the family reunification process were involved in terror attacks. In those attacks, dozens of people were killed and many others were injured. It should be noted that those twenty-six received a permit to enter Israel notwithstanding the security check that they underwent. This means that we have before us proof that the individual security check does not guarantee that it is possible to distinguish fully between those persons who constitute a security risk and others whose entry into Israel does not constitute a risk. On the basis of these figures, I believe that it can be said that there is a certainty that the entry of thousands of additional spouses will lead to harm to human life, even if a security check is carried out with regard to each individual. Of course, there is no way of saying what will be the scope of the harm, and with regard to this question of scope we are not dealing with probability but with a mere guess. The equation is not made up, therefore, of a probability on one side and a certainty on the other, but of two certainties: harm to human life as opposed to harm to family life. It is possible to summarize the approach of my colleague President A. Barak with the expression ‘Where a certainty conflicts with a possibility, the certainty prevails.’ By contrast, according to my approach the situation is one of two certainties, and therefore a different response is required. We should admit that presenting the dilemma in such stark terms is somewhat misleading. There are various situations in which the value of human life conflicts with other values and interests, and notwithstanding this a decision is made, sometimes rationally and sometimes intuitively, to prefer the other value or interest. Thus, for example, there is no argument that a blanket prohibition against travelling by motorized vehicles on the roads and a return to the days of carriages will significantly reduce the number of persons killed and injured in road accidents. Nonetheless, it can be assumed that a proposal to this effect will not be adopted in a modern society.

6.    Even if I accept the approach of my colleague the president according to which the equation has a probability component on one side, I cannot agree with the outcome that he has reached. According to the president, the additional security obtained from the blanket prohibition of the entry of spouses, as compared with the degree of security obtained from an individual check, is not commensurate with the additional damage to the Israeli spouses as a result of the violation of their right to family life (para. 112 of his opinion). Even if I use exactly the same test used by the president, my conclusion is that the additional security obtained from the blanket prohibition justifies the additional violation of family life. In this context it should be noted that disagreements on this point are an example of the situation in which different judges make use of the same verbal formula as a legal test but arrive at different results. The difference in the result derives, inter alia, from the different relative weight given to the conflicting values and from the different quantification of the figures. In mathematical terms, even if we agree upon all the variables of the equation, it is clear that there is no consensus on the ‘numerical values’ that should be attributed to those variables. And in addition to all this, we should mention the problematic nature of relying on probability, namely, estimating the likelihood of the occurrence of uncertain events (in this context, see, inter alia, D. Kahneman et al., Rationality, Fairness, Happiness — A Selection of Articles, M. Bar-Hillel, ed., 2005, especially in chapter 2).

7.    Dealing with concepts such as probability, likelihoods and estimates necessarily raises the question of what is the constitutional margin of appreciation when scrutinizing the law. It would appear that anyone who is familiar with this margin will admit that it is not static with fixed limits. These limits are affected by various factors, including the subject-matter of the law and the degree of expertise of the court in the field (cf. HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [160], at pp. 57-58). Thus, for example, with regard to economic issues we can say that the legislature and the executive have a relatively large margin of appreciation, inter alia because we are concerned with decisions that involve an element of uncertainty and professional considerations that are outside the expertise of the court (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 575 (per Justice Goldberg); Israel Investment Managers Association v. Minister of Finance [8], at pp. 388-389; Menahem v. Minister of Transport [11], at p. 263). The same is true with regard to a security assessment that is dependent on many factors and variables (Gaza Coast Local Council v. Knesset [6], at pp. 572-576). An additional factor that should be taken into account and that may affect the constitutional margin of appreciation is the fear of judicial error. I will now consider this issue.

8.    My colleague the president is of the opinion that ‘a mistake by the judiciary in a time of emergency is more serious than a mistake of the legislature and the executive in a time of emergency. The reason for this is that the mistake of the judiciary will accompany democracy even when the threat of terror has passed, and it will remain in the case law of the court as magnet for the development of new and problematic rulings. This is not the case with mistakes by the other powers. These will be cancelled and usually no-one will remember them’ (para. 21 of his opinion). This implies that a determination that the law is valid and should not be removed from the statute book would be a mistake whose consequences will accompany the state in the future, possibly even after the period of war and terror ends. But we must consider the fear of judicial error from both sides, i.e., not merely from the viewpoint of an error that concerns a determination that the law is constitutional, but also from the viewpoint of an error that concerns the opposite determination — that the law does not satisfy the constitutional test. Indeed, if the petitions before us are denied and it is held that the law remains valid, there will be a violation of the right to family life of an unknown number of Israeli citizens. On the other hand, if the petitions are granted and it is held that the law is not valid, there will be a violation of the right to life and physical and emotional integrity of an unknown number of persons. Since we are dealing with unknowns on both sides of the equation, there is no alternative to taking into account the possibility of error. In my opinion, greater weight should be attributed to a fear of error on the side of the equation containing the right to life. In the words of Dr G. Davidov:

‘When the harm that would be generated by a judicial mistake is especially severe, courts should raise the bar before striking the legislation down’ (G. Davidov, ‘The Paradox of Judicial Deference,’ 12 Nat’l J. Const. L. 133 (2001), at p. 161; see also Irwin Toy Ltd. v. Quebec (Attorney General) [217]).

9.    In the present case, not only is there a fear of error that may cause serious harm, but the error is close to being irreversible. According to the figures provided by the state, over the years thousands of applications for family reunifications were approved in cases where the foreign spouse was a resident of the Palestinian Authority. It follows that until now many thousands of residents of the Palestinian Authority have come to live in Israel lawfully. If it is held that that law is void, it can be expected that many additional thousands will become, at the end of the process, citizens or permanent residents in Israel. Let us imagine that in several years it becomes clear that the court’s declaration that the law is void was an error that caused serious harm. By this I mean that it will be found that the number of foreign spouses who were involved in terror activity is higher than was thought at the time of making the judicial decision. If, heaven forbid, this happens, it will be very difficult to turn the clock back. In other words, even if according to the approach of my colleague the president there will be a justification at that time for a blanket prohibition, it appears that it will be possible to apply it prospectively, whereas applying it to those persons who have already entered Israel lawfully will be very difficult, if not impossible. According to my outlook, since the mistake may cause serious harm and certainly because of the great difficulty in remedying it, such that it is almost irreversible, the law must be left to stand.

10. Even if the current relationship with the Palestinian Authority is not defined as a war, but as a quasi-war (in the language of my colleague Vice-President Emeritus M. Cheshin) or perhaps as an armed conflict between a state and a political entity, it is not possible to ignore the security dangers that are inherent in the entry of thousands of enemy nationals into Israel. We are not speaking of entering Israel for the purpose of employment, which is by nature temporary, and in any case this can be prevented in accordance with the circumstances. The entry of thousands of spouses into Israel, when the purpose is to take up residence in Israel and to receive, at the end of the process, citizenship or permanent residency, requires special consideration, in view of the background of the security position. Who was endowed with such an impressive prophetic ability that he foresaw, at the time of the first intifada, which was an intifada of stones, that we would reach a time when Palestinian suicide bombers would explode themselves in the streets of our cities? Who imagined, not so long ago, that the Hamas movement would come to power in the elections that took place in the Palestinian Authority? These two examples, and it is possible to give many more, indicate the need for great caution and restraint when scrutinizing legislation that is intended to deal with an acute problem, at a time of an armed conflict of the kind that is taking place between Israel and the Palestinian Authority. My colleague the president has repeatedly said that ‘human rights are not a recipe for national suicide’ (for example, Neiman v. Chairman of Elections Committee for Eleventh Knesset [87], at p. 310 {161}; CrimA 6696/96 Kahane v. State of Israel [161], at p. 580; LCA 6709/98 Attorney-General v. Moledet-Gesher-Tzomet List for Elections to Upper Nazareth Local Authority [162], at pp. 360-361; see also Kennedy v. Mendoza-Martinez [208], at pp. 160-161, which is mentioned in HCJ 448/85 Dahar v. Minister of Interior [163], at p. 716). In my opinion, that statement is appropriate in this case.

11. The opinion of my colleague the president abounds, as usual, in citations from all parts of the world and is full of references to many thinkers and scholars. Notwithstanding, my colleague the president does not point to even one example of a country that has allowed the entry of thousands of enemy nationals into its territory for any purpose at a time of war or at a time of an armed struggle. Certainly there is no example of a court that ordered a state to allow the entry of thousands of enemy nationals into its territory. I shall conclude by citing the remarks of Lord Hoffmann (which were admittedly said with regard to an administrative decision and not with regard to the disqualification of a law, but which are apt in our case):

‘… In matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove’ (Secretary of State for the Home Department v. Rehman [228]).

These words of warning ought themselves to be adopted with caution, in case the line is crossed in such a way that the court shrugs off the constitutional role that is placed on its shoulders. Giving excessive weight to security concerns may, indeed, result in a disproportionate violation of human rights. We are dealing with matters that cannot be measured accurately. In the final analysis, the question is one of taking risks. The decision in this case is very difficult, because it is not possible to reconcile the basic values in the concrete case. But since we are called upon to make a decision, we cannot avoid doing so. In my opinion, the risks that will result from disqualifying the law require the court to refrain from declaring it void even if the alternative is a violation of a human right.

12. It is therefore my opinion that the petitions should be denied.

 

 

Justice M. Naor

In my opinion, like that of Vice-President Emeritus M. Cheshin, the petitions should be denied.

Preliminary remarks

1.    In recent years, terror has not only been the exclusive or almost exclusive possession of Israel. The beginning of the current century has been characterized by a terror barrage of great strength at various focal points in the world. On occasions, terror has hit democratic countries without prior warning. The events of September 11 in the United States will not be forgotten quickly. Many countries have taken action, adapted themselves to the new reality that was forced upon them, and within this framework changes have also been made to legislation. Let us mention, without being exhaustive, several examples from around the world: in the United States, the Patriot Act of 2001, or, in its full name, the Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001; in the United Kingdom, the Anti-terrorism, Crime and Security Act, 2001; in Australia, the Security Legislation Amendment (Terrorism) Act, 2002; and in Canada, the Anti-terrorism Act, 2001.

2.    Following the events of September 11, the attitude of the United States to terror and the war on terror changed radically. As a result, many countries have been affected. There are some who believe that terror has led those countries to ‘legislation that is a result of hysteria’ (E. Gross, The Struggle of Democracy against Terror — Legal and Moral Aspects (2004), at p. 679). But, as my colleague the president said, ‘Israel did not need the events of September 11, 2001, in order to formulate its position with regard to terror. We had terror on September 10, 2001, and on many previous occasions, and we had terror on September 12, 2001, and many other occasions since’ (ibid., ‘Introduction by Aharon Barak,’ at p. 25). The Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the law) — whose constitutionality we are now scrutinizing — is a part of a series of measures that Israel has adopted to protect the lives of its residents, whose constitutionality it has scrutinized and is scrutinizing in this court. We have not said, nor will we, whether the legislation that we mentioned would pass the tests of constitutional scrutiny. Legislation that imposes restrictions in relation to the previous position, such as the war on terror legislation, is legislation that is by its very nature ‘ripe’ for judicial review of the constitutionality of the law. A good example of this can be found in the judgment of the House of Lords in A v. Secretary of State for the Home Department [229], in which the violation of the right to liberty did not pass constitutional scrutiny. Indeed, constitutional scrutiny in Israel is exercised equally in times of peace and in times of war. We must be aware, inter alia, of the fact that sometimes, because of the pressure of the times, the response to war or terror may be exaggerated. This was discussed by Lord Hoffmann (ibid. [229], at pp. 86), where he said that with the benefit of hindsight, measures that were adopted in the time of Napoleon and in the two world wars were found to have been cruelly and unnecessarily exercised.

3.    All of us, both those who wish to declare the law void and those who (like me) oppose this, are aware of the warnings provided for us by history. It was not for nothing that my colleague Justice Beinisch said that the decision in the petitions before us are some of the hardest decisions that have been placed before us in recent years. We are making this decision with some unease. Indeed, the armed conflict presents significant challenges especially to the continuing protection of human and civil rights in a society that regards itself under threat and in real danger. The judicial scrutiny that we exercise with regard to the constitutionality of the law in our case, in the middle of an armed conflict between the State of Israel and the terror organizations originating in the areas of the Palestinian Authority, is the same judicial scrutiny that this court exercises with regard to the constitutionality of laws in times of calm and normality. As my colleague the president says, Israeli constitutional law has a consistent approach to human rights in times of relative quiet and in times of increased combat (for a similar position in the constitutional law of the United States, see and cf. Ex parte Milligan [209], at p. 120). At all times we remember that ‘there is no security without law. The rule of law is a component of national security’ (HCJ 428/86 Barzilai v. Government of Israel [164], at p. 622 {104}). At the same time, we remember that ‘a constitution is not a prescription for suicide’ (Neiman v. Chairman of Elections Committee for Eleventh Knesset [87], at p. 311 {162}). The rules of constitutional scrutiny are not absolute rules. Different judges are likely to reach different conclusions. The case before us (and other cases) prove that. My position is, as aforesaid, that there is no basis for declaring the law void. I will now clarify my position.

(1) Constitutional scrutiny — first stage: does the Citizenship and Entry into Israel Law violate a constitutional right

(a) The right to family life

4.    The key question in dispute here is whether the Israeli spouse has a constitutional right, as a part of human dignity, to realize family life with a foreign spouse in Israel? On this question our opinions differ. In my opinion, the Israeli spouse does not have a constitutional right, as a part of human dignity, to realize family life with the foreign spouse particularly in Israel. We are concerned with the interpretation that should be given to human dignity as a constitutional right. Even according to my approach, the right to family life is a constitutional right derived from the constitutional right to human dignity. But it does not include the additional derived right — namely the right to realize family life particularly in Israel. The right to family life is not an independent and express right in the Basic Law: Human Dignity and Liberty, and the additional derived right as aforesaid does not have a close objective connection to human dignity. The interpretation of ‘human dignity’ should not be stretched beyond endurance. In my opinion, it is not possible to determine that there is international recognition of a right of the citizen or the resident — as a constitutional right — to bring his foreign spouse to his country. From comparative law such a recognition of a constitutional right cannot be deduced.

5.    My colleague the president in practice reinterprets art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in accordance with the interpretation that seems to him appropriate. In my opinion, there is great importance to the question whether European countries de facto regard the right to family reunification in the country of the European spouse as a constitutional right. The answer to this question is, in my opinion, no. Thus, for example, the European Court of Human Rights held that art. 8 of the Convention had not been breached in a case where an application of a Dutch citizen (born in Morocco) to receive a permit for his son who was born in Morocco was refused, and it was held that the state should not be held to have a general duty to allow ‘family reunifications’ as aforesaid:

‘Where immigration is concerned, Article 8… cannot be considered to impose on a State a general obligation to respect immigrants’ choice of the country of their matrimonial residence and to authorise family reunion in its territory’ (Ahmut v. The Netherlands [236], at para. 67).

In another case, the European Court of Human Rights discussed how a state should not have a duty imposed upon it to allow ‘family reunifications’ in its territory:

‘As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory … Moreover, where immigration is concerned, Article 8… cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory’ (Gül v. Switzerland [237], at para. 38).

In that case, the European Court of Human Rights discussed the difficulty of defining what are the duties imposed on the state within the framework of art. 8 of the Convention and the right to family life, and it also discussed the need to find a balance within the framework of the article between the interest of the individual and the interest of the community, while holding that the state should be given a ‘margin of appreciation:’

‘The Court reiterates that the essential object of Article 8 (art. 8) is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision (art. 8) do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation’ (ibid. [237]).

In practice, already in Abdulaziz Cabales and Balkandali v. U.K. [235], which was discussed by my colleague the vice-president, the European Court of Human Rights held that art. 8 of the Convention does not oblige a state to allow the foreign spouse into its territory:

‘The duty imposed by Article 8 (art. 8) cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country’ (Abdulaziz, Cabales and Balkandali v. United Kingdom [235], at p. 28).

In the United States also the desire to bring in the foreign spouse does not have constitutional protection and it is not capable of compelling the state to allow family reunifications (‘… Americans have no constitutional right to compel the admission of their families’ (Fiallo v. Bell [190], at p. 807)). What is more, the court in the United States does not intervene anyway in legislation concerning immigration, as it said in that case:

‘At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. “This Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens’ (ibid. [190], at p. 792).

As Rubinstein and Orgad have said: ‘There is no express and concrete right in international law that creates a positive obligation for the state to allow immigration into its territory for the purposes of marriage, even in times of peace’ (A. Rubinstein and L. Orgad, ‘Human Rights, Security of the State and the Jewish Majority: the Case of Immigration for the Purposes of Marriage,’ 48 HaPraklit 315 (2006), at p. 340). Rubinstein and Orgad discuss in their article the work of Arturo John, which was devoted to a survey of this issue in international and European law. They pointed out that ‘the author give examples of how any international document that prima facie grants this possibility immediately qualifies it or provides conditions and restrictions that empty it of content. It is the prerogative of states and within the framework of their sovereignty. It is an ideal and humanitarian aspiration more than a legal duty’ (ibid., at p. 340, note 107). With regard to the European directive of 2004, which is mentioned in the opinion of the president, it is stated that it admittedly increased the possibility of immigrating to the European Union for the purposes of marriage, but at the same time it allowed ‘broad discretion for states to determine conditions and restrictions around this possibility’ (ibid., at p. 332). Rubinstein and Orgad also say that ‘the European Court of Human Rights has given its backing over the years to the right of states to restrict immigration as a result of marriage; its case law reflects an approach according to which sovereign states may manage their immigration policy in accordance with their discretion and by determining various restrictions and conditions’ (ibid., at p. 338). And all of this is even in the absence of an armed conflict or national dispute in the background.

In my opinion, there has been no broad recognition in the countries of the democratic world to the effect that the citizen or resident has a right to bring to his place of residence the other spouse. It is possible that this amounts to an aspiration that may be realized in the future.

6.    In Israel too, the scope of the right to realize family life particularly in Israel, in so far as such a right is recognized, involves a question of the scope of the duty imposed on the state (cf. with regard to the ‘right to social insurance’ and the ‘right to health insurance,’ the remarks of my colleague the president in HCJ 494/03 Physicians for Human Rights v. Minister of Finance [165]). In our case, my colleague the president holds that the state has a duty to allow the foreign spouse to enter and live in Israel together with his Israeli spouse. My opinion, like that of the vice-president, is that the proper interpretation of human dignity imposes a more limited duty on the state. I will now turn to this issue.

7.    When an Israeli citizen wants to marry a foreign national and to establish a family unit in Israel the question of immigration necessarily arises, and this includes the question of immigration by virtue of the right to family life. When the spouses do not live in the same country, the question of the scope of the right to family life and questions from the sphere of immigration law are questions that cannot be separated from one another. My colleague the president wrote in the context of immigration law that ‘the Minister of the Interior is the “doorkeeper” of the state’ (HCJ 8093/03 Artmeyer v. Ministry of Interior [166]), and that ‘the state has broad discretion to prevent foreigners from settling in Israel’ (Dimitrov v. Minister of Interior [113], at p. 293).

8.    The interpretation proposed by my colleague the president with regard to the scope of the right to family, an interpretation that recognizes a constitutional right to realize family right in Israel, has far-reaching consequences. The interpretation will necessarily limit the power of the Minister of the Interior to be a ‘doorkeeper.’ How can the Minister of the Interior be a doorkeeper if the ‘keys to the house’ are in the possession of every citizen?

Indeed, my colleague the president examines the right, and correctly so, from the viewpoint of the Israeli citizen and not from the viewpoint of the foreigner. But the scope of the right as determined by my colleague the president, according to which there exists a right, and a corresponding duty of the state, to allow an Israeli to bring his foreign spouse to Israel creates a ‘collision zone’ between the right to family life (according to the president) and the right of the state to determine who will enter it (which is based on a host of cases, as mentioned by my colleague the vice-president in para. 50 of his opinion). Indeed, ‘the right of states to determine selective and restrictive conditions for immigration is regarded as a part of its sovereignty’ (Rubinstein & Orgad, ‘Human Rights, Security of the State and the Jewish Majority: the Case of Immigration for the Purposes of Marriage,’ supra, at p. 330), and it has been held that ‘a person who wishes to enter a sovereign state must overcome one barrier: the absolute discretion of the immigration authorities in each place to approve or not to approve his entry and to determine the length of his stay in the state’ (Pesaro (Goldstein) v. Minister of Interior [130], at p. 678).

9.    Thus we see, from the determination of the scope of the right by the president, that in the ‘collision zone’ the right to realize family life in Israel necessarily prevails, de facto, over the sovereignty of the state. In my opinion, we must refrain from this collision. If we do not ‘stretch’ the interpretation of ‘human dignity’ as aforesaid, and derive from it the scope of the constitutional right to family life, we will indeed be able to avoid this collision. ‘Human dignity as a constitutional right was not intended to make the other constitutional rights redundant. Not every human right, which is recognized in constitutions concerning human rights, is included in human dignity… We should refrain from extending human dignity in such a way that it will reflect Utopia or it will make specific human rights redundant’ (A. Barak, ‘Human Dignity as a Constitutional Right,’ A Selection of Articles (2000) 417, at p. 437). In a similar vein Justice Zamir said:

‘In case-law since the enactment of the Basic Law: Human Dignity and Liberty, various obiter dicta can be found that see many aspects in the Basic Law. This is particularly so with regard to the right to dignity. The same is true of legal literature. Some see in human dignity the principle of equality, some see in it the freedom of speech, and some see in it other basic rights that are not mentioned in the Basic Law. Someone compiling these statements could receive the impression that human dignity is, seemingly, the whole law in a nutshell, and that it is possible to apply to it the saying of the rabbis: “Study it from every aspect, for everything is in it” ’ (Israel Women’s Network v. Government of Israel [66], at p. 536 {468}; emphases supplied).

10. It should be noted that this scrutiny, which I have considered above, considers the question whether there is in Israel a constitutional human right to bring the foreign spouse to Israel, irrespective of security considerations of the existence of an armed conflict with the country of the foreign national. But it is obvious that even when the state has no duty to allow family unifications, it may adopt a policy that allows it. This is how we have acted in Israel, as described in Stamka v. Minister of Interior [24]. However, the question is not how various states act de facto. The question is whether the state has a duty.

(b) The right to equality

11. The key question in this context is whether the right of the Arab-Israeli spouse to equality has been violated?

The right to equality, in several aspects thereof, is a constitutional right that is included in human dignity (Movement for Quality Government in Israel v. Knesset [51]). It can be said that in our case the right to equality is violated prima facie; a Jewish citizen Moses is allowed to bring to Israel his wife who, for example, is a Romanian national (who is not Jewish and has no independent right to immigrate to Israel by virtue of the Law of Return), whereas an Arab citizen Musa is not allowed to bring to Israel his wife who is a resident of the territories under the age of 25. The result is, prima facie, that Moses and Musa are treated differently, and Musa is discriminated against. Notwithstanding, if it was Musa who married the Romanian national and Moses who married the resident of the territories, the positions would be reversed, and Moses would be the one discriminated against. To this my colleague the president responds that in general and subject to (negligible) exceptions it is Arab citizens who marry women from the territories (and Arab women citizens who marry men from the territories), whereas Jewish citizens do not marry women from the territories. Therefore, according to the end result, there is prima facie discrimination between Moses and Musa and a violation of the right to equality. The end result captivates the attention, but in my opinion there is in the final analysis no discrimination, because of the existence of a relevant difference. A distinction based on relevant reasons does not violate human dignity, since such a distinction does not, in itself, constitute discrimination. In this matter I accept the reasoning of my colleague the vice-president. In my opinion too the distinction on which the law is based is the security risk to citizens and residents of the state in giving a status in Israel to the foreign spouse who is a resident of the territories (as apposed to the foreign spouse who is not a resident of the territories), because of the armed conflict between Israel and the Palestinian Authority, and this distinction is a relevant distinction. This was also discussed by Rubinstein and Orgad, who pointed out that in the circumstances before us ‘… the usual rule that is accepted worldwide according to which a state may prohibit the entry of nationals of an enemy state into its territory’ applies. Similarly, it is said there that:

‘Clearly in practice not every citizen of an enemy state wishes to harm the state that he wants to enter, but it is accepted that the citizens of an enemy state, because of their connections with their state, their duty of loyalty to it and their dependence on its government, and well as those of their families, constitute a risk group that no state is liable to allow into its territory at a time of an active armed conflict between the two states. Serious prohibitions and restrictions — including a prohibition against marriage migration and family reunifications — are imposed on the entry of nationals of unfriendly countries even in the absence of war or combat… Admittedly, the Palestinian Authority is not a state… But it should be regarded, at least, as a “quasi-state” in view of its ability to harm the security of Israel and the lives of its residents on a large scale… When a “state on the way” begins an armed conflict, while it is “on the way” to independence and in the middle of negotiations concerning its establishment, with another state, it is treated, for this purpose, as an enemy state; its nationals, for this purpose, are treated as the nationals of an enemy state’ (ibid., at pp. 317-318; emphases supplied).

12. The distinction is therefore a relevant distinction, and therefore the right to equality has not been violated. Likewise, we are not concerned, as alleged, with discrimination on the basis of origin or race. We are dealing with a relevant difference against a background of foreign nationality, within the framework of the struggle against terror (cf. Macabenta v. Minister for Immigration and Multicultural Affairs [214]). The law does not apply to an ethnic-national group but to the residents of the territories, from which hostile acts are being waged against Israel (Rubinstein & Orgad, ibid., at pp. 323-324). It should be noted that the law does not prevent Arabs who are Israeli citizens from having ‘family reunifications’ with persons who are not residents of the territories. As P. Heymann and J. Kayyem say in their book, Protecting Liberty in an Age of Terror (2005):

‘A distinction based on nationality also has some rational justification in terms of combating terrorism. It is not unreasonable to assume, that, with the possession of a passport from a certain country, the passport holder has a loyalty to that particular country. If such a state is a terrorist-supporting state, or at least tolerant of terrorism against the United States, then people holding its passport are more likely to be supporting terrorist groups’ (at p. 102).

And they go on to say:

‘In light of the danger of emigration for terrorist purposes, we would allow consideration of the original nationality where the newly adopted nation is less than vigorous in opposing terrorism’ (at p. 103).

13. Beyond what is required in this matter, it should be noted that a violation of a constitutional right to family life in Israel (assuming that this exists) is not the same as a violation of a constitutional right to equality. If there is a constitutional right to family life in Israel, it can only be violated in accordance with the limitations clause. If, by contrast, the constitutional right to equality is violated, it is possible to remove the violation by comparing the status of the two groups: the group that is being discriminated against as compared with the comparative group (HCJ 4906/98 Free People Society for Freedom of Religion, Conscience, Education and Culture v. Ministry of Housing [167], at pp. 520-522). For our purposes, if the possibility of family reunifications is cancelled for all citizens and residents of Israel, there will be no further basis for the claim of a violation of equality. Therefore, even if we assume that the law contains a violation of the right to equality, the legislature can recreate equality between the groups in this way.

Interim summary

14. The conclusion that arises from all of the aforesaid is that in my opinion the law does not violate constitutional human rights that are enshrined in the Basic Law: Human Dignity and Liberty.

The scrutiny from this point onward will be based on the assumption that a constitutional human right has been violated. Even on this assumption I am of the opinion that in our case the conditions of the limitations clause have been satisfied. I will now turn to consider the second stage of the constitutional scrutiny.

(2) The constitutional scrutiny — second stage: is the violation of the constitutional right lawful (limitations clause)?

15. In the second stage of the constitutional scrutiny, the main dispute between the president and the vice-president concerns the question whether the violation of the constitutional right satisfies the fourth condition of the limitations clause — ‘to an extent that is not excessive’ (‘the condition of proportionality), and the disagreement focuses on the third sub-condition of proportionality (the test of proportionality in the narrow sense). The President (in para. 109) presented the question in dispute as follows: is the additional security (ob'tained by changing over from the individual check to the blanket prohibition) proportionate to the additional violation of the human right (caused by this change)? According to the president, we are speaking of a question of probability. According to him, we must compare the probability of harm to life with the certainty of harm to family life. He determines that the risk arising from being satisfied with the individual check ‘is not so large’ that it can justify the serious and certain violation of the right to realize family life in Israel. Therefore, the law fails this test, and is disproportionate. This determination also is attractive. But in my opinion, in view of the facts before us, there is no real possibility, as opposed to a theoretical one only, of holding an effective individual check. In this regard, I disagree with the quantification of the strength of the security risk proposed by the president, and therefore I do not accept his conclusion, according to which the individual check achieves ‘slightly less security and much more protection to the rights.’

16. In the background we should constantly remember the painful figures presented by the state, according to which residents of the territories who hold Israeli documentation by virtue of marriage were involved in at least twenty-five major attacks and attempted attacks in which at least forty-five Israelis were killed and at least one hundred and twenty-four were injured (as set out in para. 113 of the opinion of the vice-president). It is well-known that ‘in the centre of human dignity lies the sanctity of human life and liberty’ (Movement for Quality Government in Israel v. Knesset [51], at para. 35 of the president’s opinion; see also HCJ 680/88 Schnitzer v. Chief Military Censor [168], at p. 629 {90}; CrimApp 537/95 Ganimat v. State of Israel [169]; M. Landau, ‘Law and Security,’ Landau Book, vol. 1 (A. Barak and E. Mazuz, eds., 1995), 117, at p. 120; H. Cohn, ‘The Values of a Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty,’ HaPraklit Jubilee Book 9 (5754), at p. 25 (A. Gavrieli and M. Deutch eds., 1993)). We should give the sanctity of life substantial weight, as befits the most exalted of rights.

17. At the same time, the weight of the opposite pan of the scales, which carries the ‘additional violation of human dignity’ is reduced, because the violation of the right to family life (in so far as it exists), even if it is ‘certain’ as the president says, does not exist in my opinion in the nucleus of the right to human dignity, and this should be reflected in the weight of this pan of the scales.

18. I am of the opinion that the disagreements between us on the question of whether the conditions of the limitations clause are satisfied or not lie, to a large extent, in different attitudes to the requirement for an individual check of the residents of the territories with whom the citizens or residents of Israel wish to be reunited. Some of us are of the opinion that such a check will be possible if only the financial resources are allocated for it; others (and I am among them) are persuaded that a real individual check is not possible at this time.

19. I will not deny that the difficulty that arises in these petitions, in my opinion also, is the placing of many persons (the residents of the territories of certain ages) under suspicion of supporting (in practice or at least in potential) terror activities against Israel. It is clear to everyone that this suspicion has no basis with regard to the vast majority of the residents of the territories. The approach of the law is not an individualistic one (someone is suspected of being a terrorist) but a collective one (someone is included in a population group from which terrorists or at least potential terrorists come). This approach, even though its arrows are aimed at foreigners and only indirectly at Israeli residents and citizens, does indeed present a difficulty. It would certainly be preferable, if it were only possible, to carry out an individual check, separate foreigners who do create a security risk from foreigners who do not create such a risk, and allow the entry of the latter.

But the respondents explain to us that it is not possible to ascertain, at this time, details concerning residents of the territories with whom Israelis wish to be united. This is because of the security difficulties, the lack of cooperation of the Palestinian Authority in preventing security dangers, the dependence of the Palestinian population on the mechanisms of the Palestinian Authority and restrictions in the intelligence required by the security establishment in order to determine specifically the level of dangerousness presented by each resident of the territories who wishes to enter Israel. We are not speaking here of a problem of financial cost. We are speaking of an operational inability to obtain information. Notwithstanding this difficulty, within the framework of the amendments to the law, the state took upon itself a significant risk with regard to the relatively older ages. Unlike my colleague the president, I do not think that from this we can deduce that an individual check is possible. The conclusion is that with regard to relatively older ages, the level of risk is lower.

20. In principle, I do not dispute the importance of making an individual check, where this is possible (see and cf. Saif v. Government Press Office [86]; an application for a further hearing was denied in HCJFH 4418/04 Government Press Office v. Saif [170]).

I do not dispute the remarks of my colleague the president that ‘a blanket prohibition of a right, which is not based on an individual check, is a measure that raises a suspicion of being disproportionate’ (para. 70 of the president’s opinion). As a rule I accept that a violation of a basic right will be suspected of being disproportionate if it is made on a sweeping basis rather than on the basis of an individual check. Notwithstanding, and I believe that my colleague agrees on this, there may be cases in which there is no alternative measure of an individual check. In our case, the state has shown substantial reasons to explain why if we require an ‘individual check’ to be carried out (in the absence of the possibility of obtaining information) this will lead to undermining the realization of the purpose of the law, which my colleague defined as a purpose ‘to reduce as much as possible the security risk presented by the spouse’ (para. 90 of his opinion). A substantial reason can sometimes make the measure chosen in the law pass the test of proportionality. As my colleague the president said in another case, with regard to determining a maximum age:

‘Indeed, the employer will find it difficult to satisfy the “smallest possible harm test” if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve’ (Association for Civil Rights in Israel v. Minister of Public Security [94], at p. 367 {11}; also see and cf. Shahin v. IDF Commander in Judaea and Samaria [103], at p. 214).

The substantial reasons in our case are, as aforesaid, that there is no practical possibility of carrying out an effective individual check. Rubinstein and Orgad say that it also is not ‘practical to demand that a state that is involved in an armed conflict should employ measures to collect intelligence in enemy territory (measures that often involve a risk to human life and are an integral part of the conflict itself), in order to deal with administrative applications of residents of those territories who wish to enter the state’ (ibid., at p. 323, note 33).

21. Even my colleague the president does not take the need for security checks lightly. He says (in para. 94 of his opinion) that if it is not possible to carry out the checks in one part of the territories or another ‘the individual check will be postponed until the check becomes possible.’ But the law in any case was enacted as a temporary provision. Indeed, during certain periods while the petitions were pending before us, it appeared that there was a reasonable chance of improving the relations between Israel and the Palestinian Authority. At the time of giving our judgment, this is not the case. It seems to me that the law in its current format as a temporary provision, and the possibility, to which my colleague the president agrees, of postponing the individual decision until the individual check becomes possible (para. 94 of his opinion) achieve, de facto, the same result.

In these circumstances, I agree with the determination of my colleague the vice-president that ‘cancelling the blanket prohibition in the law and replacing it with an arrangement of an individual check is likely to lead to quite a high probability of an increase in terror activities in Israel… In the task of balancing between a reduction of the killing, safeguarding life and guaranteeing the stability of the system of government, as compared with the damage caused to some of the citizens of Israel who wish to live with their foreign family members in Israel — and we should remember that the amendment to the law reduced the scope of the violation significantly — the benefit is, in my opinion, greater than the damage’ (para. 109 of his opinion).

22. At this stage, I feel myself bound to address some of the remarks of my colleague Justice Procaccia.

I accept, as aforesaid, that we should learn from history. In my opinion too, an individual check, when one is possible, is preferable to dealing with generalizations according to which a certain group (residents of the ‘territories’) is likely to produce terrorists or collaborators with terror.

But I am afraid that my colleague Justice Procaccia has gone too far. My colleague in her opinion issues a warning. She recalls the judgment in the case of Korematsu v. United States [185], which is infamous in the history of the American people. My colleague says, admittedly, that ‘the circumstances in that case are completely different from those in our case,’ but she immediately goes on to say that ‘the wind that blows in the background of the constitutional approach that was applied there by the majority opinion is not foreign to the arguments that were heard from the state in the case before us,’ and she warns us that ‘we must take care not to make similar mistakes.’ The outcome implied by these remarks is that in our case we are likely to make a ‘similar’ mistake, i.e., a mistake on the same scale as in Korematsu v. United States [185]. In this respect I think I ought to differ.

 In the case of Korematsu v. United States [185], approximately one hundred and twenty-thousand citizens and residents of the United States, who were of Japanese origin and lived along the Pacific coast (‘the West Coast’) were uprooted from their place of residence and livelihood and were placed in detention camps in the wildernesses of America. Most of them stayed there for more than four years (for a description of the injury to the citizens of the United States of Japanese origin, see A. Gottfeld, ‘The United-States Versus its Citizens of Japanese Origin: the Detention Camps in the United States in the Second World War,’ Introductions to the American Experience (2006) 127, at p. 130); for a description of the historical-legal context in the period of the Second World War, see also E. Gross, ‘Constitution and Emergency: Use of Emergency Powers in American History,’ American Democracy — The Real, the Imaginary and the False (2002, A. Gottfeld, ed.,) 197, at pp. 219-221). The liberty of citizens and residents of the United States of Japanese origin was violated, their dignity was trampled upon and they were robbed of their livelihood. How is it at all possible to compare these injuries to the injury to the Israeli citizen, as such, that at the present time he is not allowed — if his spouse is a resident of the territories between certain ages — ‘family reunification’ in Israel? The cases are light years apart. If we wish to make a comparison, we should ask the following: would Britain, during the Second World War, have allowed the entry of tens of thousands of Germans into Britain for the purpose of marriage with British citizens? Would the United States have allowed the entry of tens of thousands of residents of the Japanese Empire into the United States for the purpose of marriage with citizens of the United States after the attack at Pearl Harbour? Korematsu v. United States [185] considered entirely different questions. Korematsu v. United States [185] made a generalization, and everyone agrees that the treatment of the citizens of the United States of Japanese origin was improper, and that the United States Supreme Court made a mistake in its decision in this regard. But I cannot accept the argument to the effect that every time a generalization is made there must necessarily be a mistake, and not merely any mistake, but a mistake on the scale of the mistake in Korematsu v. United States [185]. Not every generalization is unjustified. This is a matter for judicial discretion.

23. In my opinion, where possible one should avoid generalizations. Indeed, the law implies a generalization that residents of the ‘territories’ of certain ages constitute a risk group and therefore their entry into Israel at this time should be prevented. But, as the state explained in its response, in view of the past, there is today no effective and practical way of isolating the dangerous persons from those who are dangerous by means of an individual check. Therefore, as I have explained, at this time we should not intervene in the generalization that the provisions of the law reflect.

(3) The constitutional scrutiny — third stage: the relief or remedy

24. Since I have reached the conclusion that no constitutional human right has been violated in our case, and even if one had, that violation would satisfy the conditions of the limitations clause, the result is that the law does not suffer from unconstitutionality. There is no basis for moving on to the third stage of constitutional scrutiny, which is the relief or remedy stage. Notwithstanding, I would like to join with the vice-president’s exhortation, in para. 125 of his opinion, that the state should consider, if the validity of the law is extended, adding to the law an exception according to which the Minister of the Interior will be permitted — if he sees a special humanitarian need and if there is no suspicion of a security risk — to consider giving a permit for the entry of a resident of the territories into Israel. I would add that the state should also consider, in my opinion, a significant increase of the age of minors to whom the prohibition in the law will not apply.

Conclusion

25. As stated above, my opinion is that the petitions should be denied.

 

 

Justice Y. Adiel

1.    ‘Voiding primary legislation whose purpose is the defence of national security, in the middle of an armed conflict, is an exceptional act that should be adopted only in exceptional cases requiring this’ (A. Rubinstein and L. Orgad, ‘Human Rights, Security of the State and the Jewish Majority: the Case of Immigration for the Purposes of Marriage,’ 48 HaPraklit 315 (2006), at p. 327, note 43). In the case before us, I am not persuaded that there is a justification for adopting this exceptional step. The following are my reasons.

2.    According to the petitioners, the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the law) violates the constitutional rights to family life and equality.

3.    With regard to the right to family law, in view of the proximity of this right to the nucleus of the right to dignity, its centrality in the realization of the autonomy of the individual to shape his life and the case law of this court which is mentioned in the opinion of the president, I accept that the right of the Israeli spouse to family life in Israel together with his foreign spouse is indeed included within the framework of the right to human dignity within the meaning thereof in the Basic Law: Human Dignity and Liberty (hereafter — the Basic Law). Since the law prevents the realization of this right, it violates the right to dignity under the Basic Law.

4.    On the other hand, I do not think that the law violates the right of the Arab Israeli spouse to equality. Indeed, ‘a violation of the principle of equality… is also discrimination of an Arab because he is an Arab’ (Association for Civil Rights in Israel v. Government of Israel [40], at p. 27). But the refusal to grant a status in Israel to the foreign spouse is not based on the Arab origins of the Israeli spouse (nor on that of the foreign spouse). The logic of this refusal is that the foreign spouse is a resident of a political entity that is in a state of war or quasi-war with Israel, he is a member of a population that is hostile to Israel, and giving a permanent status in Israel to members of that population involves a real security risk to the Israeli public. Against this background, there is a relevant difference (see Israel Women’s Network v. Minister of Labour and Social Affairs [35], at p. 654), which justifies the distinction between Israelis (who are admittedly usually Arabs) that want their spouses who are residents of the territories to be allowed to enter Israel and to be given a status here, and Israelis who do not want this. This was addressed by Rubinstein and Orgad in their aforesaid article:

‘Preventing the entry of nationals of an enemy state or nationals of a hostile state is likely in many cases to harm legitimate and important interests of the citizens of the state that imposes the prohibition — whether we are speaking of the desire to create a bond of marriage and whether we are talking of other personal and economic relationships. This violation is likely to be more serious when it specifically affects certain groups of citizens. In most cases, the hostile state is not merely a national state, but it is often a neighbouring state. For this reason it is not at all uncommon that when a conflict is being waged between the two states. there are in the territory of one or both of them a population of citizens that has an ethno-cultural connection with the other state… In this situation, preventing the entry of nationals of the hostile state naturally injures the members of that group more than other groups. But this fact does not disqualify the prohibition against the entry of enemy nationals — a prohibition whose purpose is to protect the security of all the citizens of the state, whatever their origin — and it cannot be considered to be improper discrimination against the members of that group on account of their origin; this is a necessary and unavoidable consequence of a dispute between two national states and the principle of self-defence’ (ibid., at pp. 325-326).

5.    Notwithstanding the law’s violation of the right of the Israeli spouse to family life in Israel with the spouse who is a resident of the territories, I do not think that this violation is unconstitutional. This is because the law satisfies the conditions of the limitations clause in the Basic Law. In the disagreement that has arisen in this context between the justices of the panel concerning proportionality (in the narrow sense), which concerns the question of whether the contribution of the law in promoting the security purpose underlying it is commensurate with the injury arising from it to the Israeli spouses who wish to establish a family life with their spouses who are residents of the territories, my opinion is like that of Vice-President Emeritus Cheshin.

6.    This position derives from the bloody conflict that has been taking place for several years between Israel and the Palestinian Authority, and the professional assessment of the security forces, against this background, that the permanent entry of residents of the territories into Israel and their free movement inside Israel that is facilitated by the receipt of Israeli documentation may endanger the safety and security of the citizens and residents of the state to a greater degree. This assessment is based, inter alia, on the nature of the conflict that is characterized by the deep involvement of the civilian Palestinian population, the fact that residents of the territories who received a status in Israel are an important component in the terror infrastructure and in the planning and perpetration of attacks, and the fact that these residents have become ‘a preferred population of terror organizations for the perpetration of hostile activity in general, and inside the State of Israel in particular’ (explanatory notes to the draft Citizenship and Entry into Israel Law (Temporary Provision) (Amendment), 5765-2005). This court also held in the past that the terror organizations ‘are supported by part of the civilian population, and by their families and relatives’ (Ajuri v. IDF Commander in West Bank [1], at p. 358 {87}). This assessment is supported by the existence of the de facto involvement of Palestinians that were residents of the territories who received a status in Israel as a result of the family reunification process, and abused this status in order to perpetrate or aid in the perpetration of terror attacks in which dozens of Israelis were killed. This involvement does not necessarily represent the entire risk to public security involved in giving a permanent status in Israel to residents of the territories. As can be seen from the explanatory notes to the draft law, the weight of this involvement may increase in the future as the building of the separation fence progresses. The professional position of the security establishment also holds that a specific check of the risk is not sufficiently effective at this time, and in the circumstances of the case, there exists no alternative that can be considered an effective measure for eliminating the aforesaid danger. These assessments of the security establishment were not disproved by the petitioners, and in accordance with the rules that we have adopted they should be given great weight (see Beit Sourik Village Council v. Government of Israel [2], at pp. 844-845 {301-303}; HCJ 258/79 Amira v. Minister of Defence [171], at pp. 92-93). Moreover, these assessments have been adopted by the legislature.

In this context, great weight should also be attributed to the ‘international norm according to which no state is accustomed to allow into its territory persons who have connections with the side fighting against it in a time of an armed conflict,’ a norm that applies also to immigration for the purposes of marriage (Rubinstein and Orgad, supra, at pp. 316 and 320).

At the same time, we should take into account the fact that we are speaking of a temporary law (Gaza Coast Local Council v. Knesset [6], at p. 553), and the qualifications that were recently added to the law, which have reduced the injury and allowed a status to be given in Israel to population groups who present a smaller security risk.

 In view of all the considerations above, and in view of the degree of caution and self-restraint that the court should adopt when it considers the voidance of primary legislation (see Menahem v. Minister of Transport [11], at p. 263), I am of the opinion that the law satisfies the proportionality test provided in the limitations clause of the Basic Law (with its three subtests), and there are no grounds for declaring it void.

7.    Therefore I agree with the conclusion of the Vice-President Emeritus, Justice M. Cheshin, that the petitions should be denied. I also join in my colleague’s recommendation that the state should consider including in the law an exception that allows, in special humanitarian cases and in the absence of any suspicion of a security risk, giving a status in Israel.

 

 

Justice E. Rivlin

My colleague, President A. Barak, wishes to conclude his opinion with a determination that the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003 (hereafter — the Citizenship and Entry into Israel Law) is void. There is no need today for this declaration.

‘This law’ — as the Citizenship and Entry into Israel Law states — ‘shall remain valid until the second of Nissan 5766 (31 March 2006)’ (with a fixed extension because of the elections that took place). This sunset provision in the law provides that it will be void when it expires. We have no further need to make an order to this effect. And if I do not end my opinion here, it is for the following two reasons: first, I assume that those who agree with the position of my colleague the president are of the opinion that if we do not do so now, we shall need to consider the constitutionality of the law if and when it is extended. Second, and no less important, I cannot avoid addressing the fundamental positions expressed by my colleague President A. Barak on the one hand, and my colleague Vice-President M. Cheshin on the other. This is because the approach adopted by each of them is different — each in different senses — from my approach.

As I shall clarify below, the first question, the automatic expiry of the law, is not unrelated to the other, the fundamental question of the constitutionality of the law. A consideration of one also has implications for the other.

2.    My colleagues, who saw a need to resort to constitutional judicial scrutiny, were of the opinion, I assume, that ‘what has been is what will be’ (Ecclesiastes 1, 9). There is no assurance of this. Admittedly the law was extended in the past by the Knesset for limited periods, but from time to time important changes were made to it. Moreover the Knesset that enacted the Citizenship and Entry into Israel Law and extended its validity has been dissolved, and a new and different Knesset has replaced it. The government that initiated the law no longer exists and a new government has been formed in its stead. The parties that made up the previous government have changed almost unrecognizably. For all these reasons, constitutional review of the law, in so far as it is prospective, necessarily addresses a law that has not been enacted, a law whose provisions can hardly be predicted today. ‘What has been’ is not (necessarily) ‘what will be’ — if there will be anything at all.

3.    The question of intervention here highlights the issue of judicial authority: judicial authority is limited to the questions in dispute. Indeed the court, when necessary, goes beyond its traditional and natural role of deciding a concrete dispute between litigants, and it is required to address ethical questions that underlie the substantive rule of law and whose implications extend beyond the specific case of those litigants. It is the duty of the court to protect the basic rights of the individual and of the whole public against a violation thereof by the executive and legislative branches. Moreover, constitutional judicial review is an essential tool for ensuring the protection of the substantive rule of law. Democracy is not merely the rule of law in its formal sense. Democracy is also substance. Its values, including dignity, liberty and the other human rights are its soul.

 But even when the judge is required to depart from the nucleus of his authority and to make a contribution to the substantive rule of law, he does not remove his judge’s gown. This gown is not the garb of power. It brings with it an advantage and limitations. Its advantage is that it isolates its wearer from foreign influences and it maintains his independence. But the gown also has a price. Its limitations are limitations that its wearer takes upon himself voluntarily, for his power lies in these too. The judge limits himself with rules. In his decisions he only addresses what the parties brought before him. He restricts himself to concrete questions of real substance on which a decision is essential. He does not give advisory opinions (see Rescue Army v. Municipal Court of Los Angeles [210]) nor does he decide questions that have not yet arisen or questions that are no longer relevant.

The court is required to adhere to these rules especially when it is empowered with the most drastic measure that it possesses, which is reserved for cases where it has no alternative — the measure of declaring a law passed by the legislature to be void. Indeed, in the United States the court has developed a series of rules that help it to refrain from considering constitutional questions that fall within its purview, when there is no need to do this. This was discussed by Justice Brandeis in Ashwander v. Tennessee Valley Authority [211]; see also United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at pp. 349-350; HCJ 5503/94 Segal v. Knesset Speaker [172], at pp. 548-550; HCJ 3267/97 Rubinstein v. Minister of Defence [173], at p. 524 {194-195}; Ganis v. Ministry of Building and Housing [104]). Only where it is strictly necessary to consider such questions — so the court thought there — should the judge consider them. In the words of President Barak, ‘it is our judicial approach not to decide a question of the validity of a statute unless it is essential for the purpose of deciding the case’ (Israel Investment Managers Association v. Minister of Finance [8]).

4.    The court in Canada, like other common law courts, has formulated rules of standing that must be satisfied prior to its intervention (Canadian Council of Churches v. Canada [217]). These rules are considered there not merely as the floodgates that prevent an inundation of litigation but also as a means of conserving judicial resources and as a framework for limiting judicial intervention. A traditional view of the status of the courts leads the courts in Canada to insist upon the procedural structure that allows only the consideration of concrete constitutional disputes. Notwithstanding, the court in Canada does allow, in certain circumstances, a departure from the rules of standing in cases where significant and critical questions arise (for a comprehensive survey of the rules of standing in Canadian law, see T.A. Cromwell, Locus Standi (Toronto, 1986)).

The rule that does not permit the consideration of ‘theoretical’ questions is also applied in the courts of Canada with exceptions similar to those formulated in the United States. The considerations that the court takes into account, when it decides whether to consider a ‘theoretical’ question, concern the procedural framework in which the proceeding is conducted, the nature of the relationship between the judiciary and the legislature and the question whether it will be possible to consider the question in the future when a concrete question arises (New Brunswick (Minister of Health and Community Services) v. G [218]). The exceptions to this principle are implied by the very logic of the rule. Thus, for example, the likelihood that the improper legislation will have a deleterious effect in the future on the petitioner, or others in the group that he represents, and that this recurrence will adopt a form that prevents judicial review in the future, may justify constitutional review (Note, ‘The Mootness Doctrine in the Supreme Court,’ 88 Harv. L. Rev. 373 (1974-5), at p. 378). A tangible example of this occurred in Roe v. Wade [212], where the court was required to consider the constitutionality of a statute that provided that performing an abortion constitutes a criminal offence. There the nature of the dispute required a decision despite the fact that it had become moot; the length of pregnancy is a factor that may naturally prevent any concrete and practical clarification of a question in dispute, so that there is no alternative to holding an ‘academic’ consideration of the matter after the event. The appeal in that case was originally filed in 1970 and it was only decided in 1973. This is an example of a recurring dispute that cannot be decided in real time.

5.    Some of these ‘filter’ rules have not been adopted in Israeli law; we have relaxed the rules of standing for a litigant in constitutional matters, and the question of ‘justiciability’ has been answered in Israel in our own way. Notwithstanding, we do not usually consider ‘theoretical’ questions that have become moot or that do not yet require a decision. We do not consider these questions before they become relevant or after they have ceased to be so. We consider them at their proper time. A change in circumstances that occurs after the filing of a petition to declare a law void may affect whether we decide to consider the petition. A significant change, and certainly the expiry of the law, after the petition is filed and before the judicial decision, may make the decision redundant.

The rule that the court will not consider a petition if the question it raises has become moot was discussed by President A. Barak in HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures [174]:

‘The basic rule is that in general the court will not consider a petition, even if it was relevant, from the moment that it becomes theoretical (Tzemah v. Minister of Defence [9], at p. 250 {640}. This rule also applies to petitions that raise important and fundamental legal questions. When the late Mr Overkovitz died, this petition became moot. Admittedly we sometimes consider theoretical petitions despite the aforesaid rule. This will occur especially in a case where “from a practical viewpoint the court cannot make a decision… except when it is presented as a general question that is unrelated to a specific case” (ibid., at p. 250 {641}; see also HCJ 73/85 Kach Faction v. Knesset Speaker [175], at pp. 145-146). But the case before us is not of this kind.’

 The rule, and the exceptions thereto, were also discussed by Justice M. Naor with respect to an appeal concerning the interpretation of a law that became theoretical after the appeal was filed. This is what she said in CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) [176]:

‘The rule is that the court does not consider matters that have become academic and theoretical. This is the rule in civil matters: CA 506/88 Shefer v. State of Israel [177]. This is also the rule in the High Court of Justice: Kach Faction v. Knesset Speaker [175]; Attorney-General v. National Labour Court [69].

Indeed, there is no rule that does not have an exception. The court may consider a matter that has become theoretical where the issue involved is likely to recur and its nature is such that it becomes theoretical before a judicial decision can be made with regard thereto (an issue that is “capable of repetition, yet evading review,” in the words of Justice McKenna in Southern Pac.Terminal Co. v. Interstate Commerce Commission [213], cited in Roe v. Wade [212] and Shefer v. State of Israel [177]).

A good example of the exception that the appellant mentions in his statement is Tzemah v. Minister of Defence [9], in which the question raised was whether a provision of the Military Jurisdiction Law, which states that a senior officer who is a military policeman may make an order to arrest a soldier for a period that does not exceed 96 hours, was contrary to the Basic Law: Human Dignity and Liberty. In this matter, which was of a recurring nature, it was impossible to make a fundamental decision before the matter became theoretical.’

See also Man, Nature and Law Israel Environmental Protection Society v. Minister of Interior (not yet reported) [178]; the remarks of Justice M. Naor in HCJ 7190/05 Lobel v. Government of Israel [179], with regard to denying a petition that could not be decided because of ‘the absence of a concrete, clear and complete set of facts, which is essential for making a principled judicial decision.’

6.    In our case, the petition concerns a temporary provision whose type and circumstances justify a finding that the petition is both too late and too early. A number of factors make this the case, and together they all lead to the conclusion that there is no reason to make a judicial declaration that the temporary provision is void: the new law has not yet been formulated, if indeed the incoming Knesset chooses to enact such a law, whereas the existing law is about to expire. In this sense, the dispute today is merely speculative and its consideration is ‘theoretical.’ A real dispute should exist at every stage of conducting the judicial review and not only when the petition is filed; the deliberation is fruitful when it takes place too early, before the dispute is not known, or where it has not crystallized. The approach that where there are no special circumstances to justify this, the legislature should not be called to account with regard to a law that is no longer valid, or a law that has not yet come into effect, is based on remedial considerations and the logic of exercising judicial discretion. Admittedly even a temporary provision may justify judicial review, where there are circumstances that justify intervention; but in our case no such circumstances exist (cf. Ressler v. Knesset [128]).

Even if the legislature once again extends the temporary provision for a limited period, we have no reason to assume that the new temporary provision will be identical to the one we are reviewing today. Experience shows that in the past the legislator made a significant change to the provisions of this law. The change was in the clear direction of reducing the restrictions applicable to foreigners who want to become residents of Israel, whether by way of reducing the categories of persons who are not entitled or by adding regulatory provisions that authorize the Minister of the Interior to allow the entry of foreigners who are in the original categories. As we have said, in addition to experience there is also the uncertainty of the future. In this uncertainty (which itself makes our judgment cross over into the territory of an advisory opinion) there is one important certainty: the legislator, whose actions we are trying to predict today, is different from the one whom we are seeking to address today. We are seeking to direct the weapon of judicial review at a concern that arises from past laws and whose nature we can only imagine.

My conclusion is therefore that there is no need to address the question of the constitutionality of the provisions of the law, which are changing and at this time are setting into the murky waters of the future. Indeed, in the circumstances of this case it would be wrong to do so.

The constitutional right

7.    My colleagues saw fit to act differently, and the disagreement between them focuses on the opinion of my colleague President A. Barak, on the one hand, and the opinion of my colleague Vice-President M. Cheshin, on the other. Notwithstanding the different premise, I see no way to exempt myself from addressing the disagreement between them. The opinion of my colleague the president sets out a well-ordered thesis on the subject of constitutional judicial scrutiny. His opinion describes the legal issues precisely and with great clarity, each in its proper place. The opinion of my colleague the vice-president addresses the sensitivities of Israeli society. In his open and fluent manner, he describes the difficulties of our times admirably. He says (in para. 6 of his opinion):

‘…While we write this judgment the citizens of Israel continue to live under the threat of the murderous terror that is directed against them. We already know that we are speaking of one of the most serious onslaughts that we have undergone. Tens of thousands of terror attacks originating in the territories have struck children, the elderly, women and men indiscriminately and mercilessly. The vast majority of these are innocent citizens who are engaged in their normal day-to-day activities… Daily life in the country has been disrupted. Many citizens have become fearful of everyday occurrences, such as travelling on buses, visiting shopping malls, eating out in restaurants’ (ibid.).

He describes the alarming manner in which the ‘Protocols of the Elders of Zion’ have made their way into the Hamas Charter. He speaks of the responsibility that rests with the state to protect the lives of its citizens. Against this background, he seeks to determine the boundaries of the constitutional right to raise a family. In times of war, he says, it is questionable whether the basic right to marriage and family life ‘implies, in itself, a duty imposed on the state to allow the entry into Israel of enemy nationals merely because they married persons who are residents or citizens of Israel. This is an enemy that is sponsoring a prolonged and murderous attack against the state and its residents’ (ibid., at para. 2). Reality, the place and the time also indicate to my colleague the vice-president the nature of the principle of equality: he writes that —

‘… here we will also find the answer to the claim of discrimination, since a distinction made by the law — a distinction that concerns the residents of the territories and not the citizens of the state — is a permitted distinction between the citizens of the state who married foreign citizens that are enemy nationals and citizens of the state who married foreign citizens that are not enemy nationals.’

8.    I too am of the opinion that the constitutional question should not be divorced from the reality that encompasses it. The question should not be posed with regard to a theoretical world on another planet. The constitutional question should be considered here and now, in a pain-stricken state that exists on a burning strip of land. The reality is an overall reality in which it is difficult to make theoretical distinctions, just as there is no basis for making a theoretical and artificial distinction between the interest of the Israeli spouse who wishes to marry and the interest of the foreigner whom he wishes to marry; we should not avert our eyes from seeing who the foreigner is, to which political entity he belongs, who are his elected leaders and what are the circumstances in which his case is being considered. This reality that my colleague the vice-president describes is the true picture. It has an effect on the legal outcome, but my approach with regard to the method of the legal scrutiny is different. I believe that this reality cannot change the definition and scope of the right. It should be taken into account when we consider, within the framework of the constitutional balance, the question of the constitutionality of the restrictions imposed on the basic rights. In this I agree with the position of President A. Barak. One should not extend the operation of the limitations clause by restricting the right itself. The right should be interpreted generously and liberally. Thus, for example, we held that the scope of the freedom of expression also includes obscene and slanderous expressions, so that all forms of expression prima facie enjoy constitutional protection:

‘In examining the right of freedom of expression the point of origin in our legal system is that every expression, whatever its content may be, is “covered” by the constitutional protection’ (per Justice D. Dorner, in HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women v. Council for Cable TV and Satellite Broadcasting [180], at p. 81 {35}).

This is also true with regard to the right to family life. The right to realize family life is a basic right. Denying it violates human dignity. Denying it infringes the autonomy of the individual to marry whom he wants and to establish a family; it certainly infringes his liberty. This violation of liberty is no less serious than the violation of human dignity (on the restriction of the right to marry as a violation of liberty, see Justice Warren in the leading case of Loving v. Virginia [188]). It deals a mortal blow to a person’s fundamental ability to dictate his life story. Israeli law recognizes the right of the Israeli citizen to family life. The right to family life also means the right to family life together under one roof. The right to family life is not merely the right of the parents. It is also the right of the child born to those parents. The right to family life is therefore protected in the provisions of the Basic Law as a part of the basic right to liberty and as a part of the basic right to dignity.

The definition of the right to have a family life should not be restricted. Even if we cannot allow its full realization, because of permitted constraints, we should not restrict its recognition. My colleague the vice-president says that the restrictions imposed on the constitutional right here do not concern the ‘nucleus’ of the right and they are located on its periphery. He therefore seeks to define the right under dispute in a more focussed manner. My opinion is different. Even if we are speaking of a ‘peripheral’ aspect of the right, as he assumes, this cannot affect the definition of the right. The premise should be a generous definition. The restriction — which may take into account the location of the case in the periphery or the nucleus of the right — should be considered within the framework of implementing the limitations clause. The balance between rights of the individual and the public interest or between rights inter se should be made within the framework of the limitations cause.

9.    Derogating from the constitutional right to family life has ramifications, in the circumstances of the case and in an indirect manner, on a defined and distinct sector of the population, which is also a minority group. It therefore includes a violation of equality. The right to equality is a part of human dignity. The violation of equality is improper whether it is a collective violation, an individual violation, a violation that diminishes human dignity because of the degradation and humiliation of the injured person or a violation that detracts from the right of every person to enjoy, in an equitable manner, the advantages of persons living in that specific society. ‘This is a violation of the autonomy of the individual will — the freedom of choice and freedom of action of the human being as a free creature’ (President A. Barak, in Movement for Quality Government in Israel v. Knesset [51]). We should also not detract from the right to equality unless the conditions specified in the limitations clause are fulfilled. A democracy is committed to substantive equality between the citizens living in it. This was discussed by President A. Barak in Kadan v. Israel Land Administration [38], at p. 282:

‘The State of Israel is a Jewish state in which there are minorities, including the Arab minority. Each member of the minorities who lives in Israel enjoys absolute equality of rights. Admittedly, a special key to enter the house is given to members of the Jewish people (see the Law of Return) but once a person is inside the house as a lawful citizen, he enjoys equal rights like any of the other people in the house.’

We have held that discriminating against an Israeli Arab merely because he is an Arab violates equality. A discriminatory violation of social equality is a violation of equality. A direct or indirect violation of the right to education which involves manifest or latent discrimination against a certain sector of the population is a violation of the constitutional right to equality (see Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel [41]).

10. The Citizenship and Entry into Israel Law violates the possibility of realizing the constitutional right to family life and the constitutional right to equality. It reduces their scope. Albeit the law does not prevent the Israeli spouse from marrying the spouse from the territories, nor does it prevent the Israeli spouse from realizing his right to have a family life in the territories, or anywhere else outside Israel. But it derogates from the right of the Israeli spouse to realize the family unit in Israel in those cases where the foreign spouse is a resident of the territories and is included in those categories with regard to which the Minister of the Interior has been authorized to prevent their entry from the territories into Israel. The result of this is also a violation of equality, because most of the Israeli spouses who marry residents of the territories are Israeli Arabs. I tend towards the outlook of my colleague the president, that we are not speaking of a distinction which is, prima facie, a permitted distinction. At the same time, I am of the opinion that the law does not intend to discriminate against the Arab citizens of Israel because they are members of that sector of the population. De facto it applies also to Jewish spouses who marry residents of the territories (the number of which, however, is negligible). But this is not enough. The violation of equality is not examined solely in accordance with the purpose of the provision that is alleged to be discriminatory, but also in accordance with the unintended result that derives from it. Consequently, were the law to remain valid we would need to consider the question whether the violation of the constitutional rights in this case satisfies the requirements of the limitations clause.

11. In my opinion, we should also not restrict the defined scope of human rights in times of emergency. We should also not adopt different balancing tests. The Basic Laws do not recognize two sets of laws, one that applies in times of calm and another that applies in times of emergency. Israeli constitutional law has a uniform approach to human dignity and liberty whether in times of calm or in times of danger. We do not interpret the statement of Justice Holmes in Schenck v. United States [184] that ‘when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right’ (ibid. at p. 52) as a call to depart from the constitutional tests themselves in a time of emergency. This is the case with regard to the freedom of speech and it is also the case with regard to other basic rights. The tests according to which we examine the restrictions on human rights because of various constraints are uniform tests at all times. The test is identical. But it should be remembered that its implementation is affected by reality. This was discussed by my colleague the president in his opinion here:

‘War is like a barrel full of explosives next to a source of fire. In times of war the likelihood that damage will occur to the public interest increases and the strength of the harm to the public interest increases, and so the restriction of the right becomes possible within the framework of existing criteria’ (at para. 20).

I agree, therefore, with the approach of my colleague the president that there is only one track for examining the petitions before us. This track is the path of the basic laws — the rights specified in it and the balancing tests prescribed in it.

The conditions for limiting llso  not interpret  address todayo joined ount the constitutional right

12. There are four conditions stipulated in the limitations clause: the violation of the basic right must be in statute or by virtue of statute; the law must befit the values of the State of Israel; it must be intended for a proper purpose; and it must violate the constitutional right to an extent that is not excessive. The disagreement in this case does not revolve around the question whether the first and second conditions are satisfied. It concerns the question whether the third and fourth conditions are satisfied, i.e., whether the law is intended for a proper purpose and whether it does not violate the constitutional right to an extent that is not excessive. The third condition concerns the purpose and the fourth concerns the proper means of realizing it.

With regard to the third condition, namely the question whether the law is intended for a proper purpose, a difficulty may arise that is inherent in the actual definition of the purpose. The violation of the constitutional right within the framework of a law of the Knesset may be intended to protect another right, and it may be intended to achieve a particular public interest. ‘In principle, a purpose is a proper one if it serves an important social purpose that is sensitive to human rights. Therefore, legislation that is intended to protect human rights is certainly for a proper purpose. Also legislation that is intended to achieve general social purposes, such as a welfare policy or protecting a public interest, is for a proper purpose’ (per Vice-President Barak in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 459). The question whether the value competing with the violated right in this case — the value that constitutes the purpose of the law — is a right of the individual or a public interest is a complex question. We shall return to this below.

The purpose of the law in this case, as my colleague the president determines, is a security purpose. It aims to reduce, in so far as possible, the security risk presented by foreign spouses in Israel. What underlies the legislation is the security concern that Palestinian spouses, who have an Israel identity card by virtue of their marriage to Israeli spouses, may be involved in terror activity. The concern is one of an abuse of their status in Israel — a status that allows them free movement between the territories of the Palestinian Authority and Israel.

The law, so my colleague the president determines, is intended to provide security for Israel by means of a reduction, in so far as possible, of the security risk presented by Palestinian spouses who live together with their Israeli spouses. ‘It is intended to protect the lives of everyone present in Israel. It is intended to prevent attacks on human life. These are proper purposes’ (para. 82 of the president’s opinion).

The requirement of proportionality

13. The fourth condition listed in the limitations clause requires the violation of the constitutional right not to be excessive. It is not sufficient that the purpose is a proper one; it is necessary that the measures adopted to realize it will also be proper ones, i.e., proportionate ones. The phrase ‘to an extent that is not excessive’ has been interpreted in Israeli case law, following foreign case law, as referring to three subtests: the suitability test (the rational connection), the necessity test (the least harmful measure) and the test of proportionality in the narrow sense (the proportionate measure test). The first subtest requires the existence of a rational connection between the (proper) purpose and the measure chosen for realizing it. This is a test of common sense and life experience. Among the measures that satisfy the rational connection between the proper purpose and the measure, the measure that is least harmful should be chosen; this is the second subtest. The third subtest is the subtest of the total balance. It examines whether the correlation between the benefit arising from achieving the (proper) purpose and the damage caused (as a result of the violation of the constitutional right), achieves a proper balance between the needs of the public and the harm to the individual.

The third subtest of the requirement of proportionality therefore imposes on the court the task of making a balance, but this balance is not divorced from the test that the court makes within the framework of the first two subtests. Moreover, in many cases, when it has been proved that there is a rational connection between the purpose of the law and the means chosen by it (the first subtest) and when the court has been persuaded that the purpose of the law cannot be achieved, as it is, by adopting less harmful measures (the second subtest) the path to the conclusion that the proper overall balance (the third subtest) is also fulfilled is a short one. This natural path has led several persons to the conclusion that the third subtest is in fact a redundant stage in the constitutional scrutiny, and indeed the positive determination of the first two subtests has led frequently to a quick decision on the question of the third subtest (see, for example, R. v. Keegstra [219]; McKinney v. University of Guelph [220]).

Personally, I do not agree with the approach that the implementation of the third subtest is redundant. It seems to me that one should not reach a sweeping conclusion that when the first two subtests are satisfied, the question whether the condition of proportionality is satisfied will be answered in the affirmative. Admittedly the third subtest should not be divorced from the other two, and the answer given to each one of them inherently has an effect on the others. But one should not belittle the importance of the last subtest, just as there is no basis for exaggerating the importance of each of the subtests on its own. They should be applied while showing sensitivity to the circumstances of each case (see Libman v. Quebec (Attorney-General) [221]). We are not speaking merely of guidelines. The subtests as adopted outline the method of applying judicial scrutiny to the issue of the conditions of proportionality, and in certain senses also to the limits of the court’s power. They allow a uniform and logical examination of the question whether the condition is satisfied.

Therefore the court will refrain from applying the proportionality tests mechanically or literally, when it is considering declaring a law void. This was well expressed by the Supreme Court of Canada when it held that:

‘The impairment must be “minimal,” that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement’ (see RJR–MacDonald Inc. v. Canada (Attorney-General) [1995] 3 S.C.R 199, at p. 342, and also Libman v. Quebec (Attorney-General) [221]).

The tests of proportionality combine to examine the correlation between the expected violation of the protected right, namely the strength of the violation and the likelihood of its occurrence, and the expected benefit inherent in the proper purpose of the law.

14. I agree with my colleague’s determination that with regard to the conditions of proportionality the first two subtests are satisfied. First, this is because there is a rational connection between the purpose of the law and the measures chosen by it. ‘The prohibition against the entry of the foreign spouses into Israel,’ so the president says (in para. 84 of his opinion), ‘eliminates the risk that they present. Someone who is not in Israel cannot bring a terrorist into Israel to carry out his “designs”.’ Even the fact that it was possible to realize the purpose of the law by means of additional measures that were not adopted does not necessarily indicate that the measure chosen is not rational.

With regard to the second subtest, my colleague the president says that a simple overall comparison between the harm caused by the ‘blanket prohibition’ against foreign spouses entering Israel, and the possibility of making an individual check with regard to the security risk presented by each of the spouses who wish to enter Israel will indeed show, necessarily, that the individual check is less harmful. But this is not the relevant comparison. ‘The question,’ the president clarifies, ‘is whether it is possible to achieve the purpose of the law by use of a less harmful measure’ (para. 88 of his opinion). This approach has also been adopted, for example, by the Supreme Court of Canada, which proposed that the harm does not need to be the least harmful possible, but the least harmful in view of the legislative purpose and other interests (see Edwards Books and Art Ltd. v. R. [223]). For the second subtest to be satisfied, it is sufficient for the state to clarify why an alternative measure would not be as effective as the measure in dispute in furthering the legislative purpose. In this respect, my colleague the president rightly says that the individual check does not realize the purpose of the law to the same degree as the blanket prohibition. ‘… in view of the central value of human life that the law wishes to protect, it is clear that the blanket prohibition will always be more effective — from the viewpoint of achieving the goal of reducing the security risk as much as possible — than the individual check’ (para. 89 of his opinion). His conclusion is therefore that, in the circumstances of the case before us, the individual check does not realize the legislative purpose to the same extent as the blanket prohibition, and that there is therefore no obligation, within the framework of the least harmful measure, to stop at this level, and the Israeli legislature was entitled to choose the probation that it chose.

What remains undecided, therefore, within the procedural framework chosen by my colleagues, is the question concerning the third subtest of the conditions of proportionality, the question of proportionality ‘in the narrow sense,’ namely, whether the benefit arising from achieving the proper purpose of the law is proportionate to the damage caused by it. My colleague President A. Barak is of the opinion that the additional security that the ‘blanket prohibition’ provides is disproportionate to the additional harm caused to family life and equality. ‘Admittedly,’ the president says, ‘the blanket prohibition does provide additional security; but it is achieved at too great a price. Admittedly, the chance of increasing security by means of a blanket prohibition is not “slight and theoretical.” Notwithstanding, in comparison to the severe violation of human dignity, it is disproportionate’ (para. 92 of his opinion). I do not agree with this conclusion.

Between an interest and a right

15. The balancing test between the adopted measure and the purpose underlying the law is derived from the question of the definition of the value competing with the violated right: a private right or a public interest. Even prior to the Basic Law, case law created a distinction between a vertical balancing test (between a right and a public interest) and a horizontal balancing test (between rights of equal weight). But this distinction is sometimes problematic. The problem arises from the artificiality that is often inherent in defining the public interest as distinct from the right of the individual. It should always be remembered that the public, which has the interest, is composed of individuals. And when the public interest is divided up into its individual constituents, it reveals an accumulation of rights of the individual. Thus, for example, when we are speaking of public security, which is called a public interest, we are speaking of none other than the right of each member of the public to life and safety. This classification has great significance, since the balancing test depends upon it (and see in this respect also the various positions concerning the classification of rights and conflicting values in HCJ 6126/94 Szenes v. Broadcasting Authority [181] — a public interest or a personal right — and the various balancing tests adopted there accordingly). With regard to the purpose in the law, we are not required in this case to make that distinction, since we have before us a proper purpose, whether the competing value is classified as a general interest of public security or whether it is classified as a personal right to life, and no one disputes this. But this classification may have, in this case, a significance with regard to the balance underlying the requirement of proportionality.

16. In the case before us, the president seeks to describe the protected value as a public interest — public security; my colleague the vice-president sees before him the right to life, which, in itself, is a protected basic right within the framework of the Basic Law: Human Dignity and Liberty. This difference has great importance, as we have said, with regard to choosing the appropriate balancing test, a horizontal balance or a vertical balance. Indeed, the value of public security usually takes on a vague shape, and the tendency is to regard it as an interest of a non-specific public. Frequently the nature of the expected harm to public security is also intangible. The human right to life, however, is a concrete and tangible right. It is almost the ultimate right, the right of specific people — human beings, each of whom is a world in himself — to life. It seeks to protect specific people. As stated above, the distinction between the two — between the interest and the right — is sometimes difficult, and the case before us proves this. Prima facie we have here a value that is an interest, a public interest. But in this case the public image becomes clear and the danger is focused. We do not see before us an intangible public but the plaintive faces of persons who are likely to be harmed in the next act of terror. We see the horrors of the attack in our mind’s eye. This is not the intangible fear for public safety that we have known in previous cases (see, for example, HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [182]; Universal City Studios Inc. v. Film and Play Review Board [105]; HCJ 2481/93 Dayan v. Wilk [183]. Public security is speaking here of the actual right to life, and it is this that the law seeks to protect. The attack that the law seeks to prevent is directed at specific people, individuals, Moslems, Jews, Christians and Buddhists, who live among us. Each and every one of these persons has the right to life. They are not standing before us today in person, since no one knows what the future holds in store for him. But their right is before us. The dividing line between the public interest and the right of the individual loses its strength in this case. With this distinction before us, let us turn to an examination of the overall balance, as the third subtest of the conditions of proportionality instructs us. It seems to me that there will then be no other conclusion possible than that the condition has been satisfied.

The overall balance

17. The side of the benefit in this balance was discussed in the opinion of my colleague the vice-president (at para. 109):

‘… an individual check of the persons included in those population groups who have a proven potential for endangering security and life may reduce the violation of the ability to have a family life in Israel, but it will not properly guarantee public security, and it will disproportionately violate the security of the individual and the public. It is not merely that there is an inherent difficulty in examining ab initio the positions and beliefs of the resident of the territories, to find out whether he supports our enemies or not; we also cannot ignore a real concern, which has been proved in the past, that the terror organizations will recruit the spouse who is a resident of the territories into its ranks only after he has been given a permit that allows him to enter Israel and to move freely in Israel. The investment of greater resources or more concentrated efforts will also not guarantee the security of Israeli residents, and the meaning of this is that cancelling the blanket prohibition in the law and replacing it with an arrangement of an individual check is likely to lead to quite a high probability of an increase in terror activities in Israel; to the killing and wounding of residents of the state; to a real and tangible weakening of the feeling of stability; and as a result of all of these to the undermining of democracy itself. In the task of balancing between a reduction of the killing, safeguarding life and guaranteeing the stability of the system of government, as compared with the damage caused to some of the citizens of Israel who wish to live with their foreign family members in Israel — and we should remember that the amendment to the law reduced the scope of the violation significantly — the benefit is, in my opinion, greater than the damage.’

This is the position with regard to the benefit. With regard to the damage, the legislator has done much to reduce it. First, the restriction imposed in the temporary measure does not apply to marriages with Palestinians who live in countries that have ceased to be enemy states, Egypt and Jordan. It applies to those people who live in the territories that are today under hostile rule. It may become unnecessary if times change. The violation of the right to have a family life, although difficult, is first and foremost limited in time. This is a temporary provision, and it will be examined, if it is re-enacted, each time anew, and in accordance with the circumstances that will prevail at that time. The reconsideration in itself reduces the fear of a continuing disproportionate harm. The temporary measure merely postpones the realization of the right. It does not cancel it. Even my colleague President A. Barak recognizes the possibility that it will be necessary to postpone the realization of the right, if there is a difficulty in carrying out the individual checks. He says:

‘… the security checks must be treated with great seriousness. Therefore if it is not possible to carry them out because of the security position in one part of the territories or another, the individual check will be deferred until the check becomes possible.’

Moreover, in the prevailing reality even my colleague the president recognizes the possibility of formulating presumptions of risk that naturally involve a generalization, including a presumption with regard to the age at which foreigners present a danger. ‘If it is necessary to allow the identification of the foreign spouses in Israel as persons who came from the territories,’ he says, ‘this should be allowed until they reach the age at which the danger presented by them is reduced’ (para. 94 of his opinion). This need also reflects the difficulty inherent in an individual check as a replacement for the measure adopted by the law. This need, to make the individual checks stringent, indicates the difficulty in achieving the purpose underlying the law by a different method. The difficulty is two-fold: the need to discover the character of persons who live outside the jurisdiction of the State of Israel and the need to predict the future with regard to the expected behaviour of foreigners who wish to enter the territory of the state even as we speak. Restricting the right of foreigners who are nationals of an enemy entity to live in Israel together with their spouses, during this war, is a consequence of the fear concerning the intentions of hostile parties to recruit them for terror activities, the fear that within this framework pressure will also be placed on persons who would personally prefer not to be involved in this, and past experience that shows that for the purpose of the struggle against the State of Israel use has been made of civilians.

Moreover, the legislature reduced the blanket prohibition prescribed in the original law. It applies the prohibition to population groups that present a relatively high risk, in accordance with past experience and the professional assessment of the security authorities. It adds to this the possibility of giving permits to stay in Israel to additional groups and also giving a permit to stay in Israel for temporary purposes. The harm to the injured citizens has been reduced, thanks to these amendments, by approximately 30%, as can be seen from the explanatory notes to the draft law. Logic dictates that additional restrictions will be removed in the future so that the number of persons whose right is violated will decrease. In this regard, I add my voice to the remarks of my colleagues, that the law should also include a provision allowing the approval of an entry permit into Israel in specific cases where there are serious humanitarian reasons justifying this. This omission should be amended, if the legislature decides to enact a new provision that restricts the entry of foreigners into Israel in a similar manner. But such a law has not yet come into existence and the current law is already passing away. So here I return to the beginning: ‘this law’ — as the Citizenship and Entry into Israel Law states — ‘shall remain valid until the second of Nissan 5766 (31 March 2006).’ It is a temporary provision, and it is in its final moments. The harm of the provision is vague and this strengthens the conclusion that the overall balance is also unable to serve as a ground for intervention in the temporary provision.

Therefore I join with the position of my colleagues who wish to cancel the order nisi that was made and to deny the petitions.

 

 

Justice E.E. Levy

1.    In this matter, which I believe is one of the most sensitive and complex ever brought before this court, we are charged with the difficult task of finding the proper balancing point between basic rights of the first order and the security needs of the State of Israel. At this time in particular there is no need to expound on the weight of these security needs. As for me, I will not hide the fact that the decision was accompanied by grave doubts, and that I wavered to and fro between the conflicting outlooks of my colleagues President A. Barak and Vice-President Emeritus M. Cheshin. In the end, I came to the opinion that the point of balance lies in the determination that the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, requires careful examination, and within this framework there is no alternative to making changes to it that will reduce the damage it causes. However, since the formulation of a proper draft law must be done intelligently and on the basis of complex teamwork, and since on the other hand there is a concern that there will be those who will seek to abuse the position in order to harm the security of the residents of the state, my position is that, until the work of legislation has been completed, because of the fear of a normative lacuna, the law and the arrangements that exist by virtue thereof should be left as they stand.

2.    For more than half a decade the citizens and residents of Israel have been subject to a barrage of terror that is unprecedented in its intensity and the price it has extracted in blood. It is one of the most difficult periods that have befallen the state since it was established. The attacks make it difficult for the residents of the state to conduct their lives calmly and with security. It is this right to life and security, which every citizen or resident of any state around the world seeks for himself, that terrorism, with a cruelty that knows no equal, seeks to deny the residents of the State of Israel. I think that there is no clearer illustration that this danger still lies in wait for us, with ever-increasing intensity, than the tendencies to extremism in some parts of the Moslem world that threaten to become greater and stronger, and especially the deliberate choice of Palestinian society to place the reins of government in the hands of the Hamas movement, one of the leaders of the murderous terror against Israel.

3.    It is not for nothing therefore that the serious events that we have witnessed since September 2000 have become a turning point. Just as their intensity was completely different from the patterns of terror known in previous decades, so too did it become clear that the measures and defences used to frustrate terror adopted until then were insufficient. A redeployment and the implementation of more drastic defensive measures, which hitherto there had been no need to adopt, became necessary. These include legal arrangements that were capable of providing a normative basis for the war against terror. Thus, inter alia, the right of Israel to protect itself by means of a separation fence was recognized in principle (Beit Sourik Village Council v. Government of Israel [2]); it has been held that the military commander in the territories may order the place of residence of a person to be assigned for reasons of the security of the territories (Ajuri v. IDF Commander in West Bank [1]); the ability to impose severe restrictions on detainees in times of war (Marab v. IDF Commander in Judaea and Samaria [3]); and so on.

At the same time it became clear that the arrangements, by virtue of which it was possible for residents of the territories to acquire a status in Israel, could no longer stand in view of the drastic change in circumstances. I am speaking of the concern that by allowing the process of ‘family reunifications’ in the format that preceded the government decision of May 2002, there was a security breach that might play into the hands of the terror organizations. These, of course, rest neither night nor day in their attempts to find weaknesses in the defences of the State of Israel. Regrettably, from time to time they even succeed in doing so, and the suicide attacks that have plagued us only recently are sufficient to remind those persons, who wish to make light of the efforts of the security forces to prevent them, of how terrible and murderous are the consequences of a security breach of this kind.

4.    My colleague Vice-President Cheshin is therefore right in explaining that especially at this time the weight of the public interest, which seeks to reduce the security danger and ensure protection for the lives and safety of the public, is very great. The Knesset and the government rightly sought, each with the means at its disposal, to realize this interest by means of an arrangement that would reduce the existing risk. And even if, as my colleague the president says, the existence of this risk does not reduce the weight of the basic rights of the individual, which are violated by the arrangements adopted, in my opinion the security risk is most certainly capable of influencing the scope of the protection given to these rights and the location of the balancing point between them and the competing values.

5.    With regard to the nature of the arrangement under discussion in this case, I think that no one questions that the Knesset has the power to make legislative arrangements with respect to the immigration of persons who are not Israeli residents into its territory. This power is one of the cornerstones of every state, and my colleagues the president and the vice-president both discussed this extensively in their opinions. By means of arrangements of this kind, the state expresses its sovereign power of determining who may enter it, and naturally this involves making decisions concerning the composition of the population, the burden that the state is prepared to take on itself in absorbing new residents, the degree of benefit that this provides to the existing residents, and so on. And if this is the case in times of peace, it is certainly the case in times of war.

6.    Indeed, the public interest has a central place in shaping legislation that regulates the issue of immigration. However, and this is the second principle on which my position is based, I believe that there is no subject that is regulated in legislation that is exempt from satisfying the normative balance test against competing rights and values. From the moment that these acquired constitutional status, the scrutiny is a constitutional scrutiny, and when the court is required to carry out this scrutiny, it can only avail itself for this purpose of the tools of constitutional scrutiny prescribed in the Basic Laws and developed in the case law of this court for almost a decade and a half. This is self-evident, since as long as the Knesset as the legislature wishes to determine arrangements in statute — as opposed to Basic Legislation — it is subject to those principles that it established for itself when it sat as a constitutive authority.

Thus, no matter how important they may be, the immigration laws are not immune to constitutional review. Therefore, and notwithstanding the natural and understandable concern that the public interest of protecting the security of the state and its residents may be harmed, we cannot regard the executive power to determine immigration arrangements as an absolute authority that cannot be challenged. Like any authority, the exercising of this one is also subject to the rules and principles of constitutional scrutiny, and the first stage of this addresses the question whether basic rights of the individual have been violated by it.

7.    Two constitutional rights of the Israeli spouse who wishes to be reunited here with his Palestinian spouse are violated by the legislative arrangement that is the subject of the petitions before us, and both of them are derived from the right to human dignity, which is enshrined in the Basic Law: Human Dignity and Liberty. One is the right of a person to family life, which incorporates two secondary rights, without which it would appear they are meaningless — the basic right of a person to marry whom he chooses, as he sees fit and in accordance with his outlook on life, and the right that he and the members of this family will be allowed to live together also from the viewpoint of the geographic location of the family unit, which they have chosen for themselves.

The second right that is clearly violated by the Citizenship and Entry into Israel Law (Temporary Provision) is the human right to equal treatment. Prima facie, the prohibition in the law does not distinguish between Arab residents of Israel and Jewish residents. But it is clear to everyone that from an ethnic and cultural point of view, it is only for the Arab citizens of Israel that Palestinian residents of the territories constitute a natural group for finding a partner for marriage. This is a relevant difference that makes the legislative arrangement, which ignores this, deficient. Notwithstanding, I will emphasize once again what we have emphasized time after time in the case law of this court, and that is that constitutional rights do not stand alone, and therefore they are not absolute. On the other pan of the scales there are public interests which, in our case, as I have already said, are unparalleled in their importance. In making the balance we use, as aforesaid, the tools of constitutional scrutiny that are familiar to us, namely the conditions of the ‘limitations clause’ in the Basic Law: Human Dignity and Liberty, and especially the question of the purpose of the harmful measures and the extent of the harm.

8.    With regard to the purpose, as aforesaid, in the arrangement that is contained in the Citizenship and Entry into Israel Law, the legislature sought to provide a solution to the security risk presented by the spouse who is a resident of the territories, who wishes to make Israel the centre of his life. Notwithstanding, the language of the law shows that its purpose was not intended to provide a solution to every security risk that may arise from the entry of Palestinians into the State of Israel. This can be seen from the concessions, which are specific in their nature, that allow Palestinian residents of the territories to stay in Israel if they are spouses who satisfy the age requirements (s. 3 of the law), minors who are in the custody of a parent (s. 3A), and persons who are permitted to receive medical treatment in Israel or to work here (s. 3B). I believe that the rationale that underlies these concessions — that it is possible to neutralize the security danger that may arise from the persons falling into the concession categories — should cast light also on the cases of the other persons wishing to enter Israel in order to be reunited with their spouses.

9.    We therefore find ourselves, and in this I am in agreement with the opinion of my colleague the president, in the last stage of the constitutional scrutiny, which is the stage of considering the question of proportionality. I agree with my colleague the president that in its present form the law is problematic, since I fear that it harms not only the spouses who wish to be married, but also the democratic character of the State of Israel and the delicate fabric of relations with a significant sector of the public that lives in it. Notwithstanding, I think that the centre of gravity lies particularly in the second test of proportionality, namely the existence of a less harmful measure that is still capable of fulfilling the purpose underlying the Citizenship and Entry into Israel Law, which is, as I have said, reducing the danger that the normative arrangement will be abused to harm the security of the state.

The premise for my position, which seeks to discover less harmful measures than the one adopted by the Citizenship and Entry into Israel Law, is based on the assumption that in the final analysis there will be no alternative to replacing the blanket prohibition in the law with an arrangement based on an individual check of the person wishing to be reunited with his spouse. Naturally this arrangement must adapt itself to the security reality to the extent that this may change, and at this time I am of the opinion that the state ought to adopt measures of the kind that I will list below or ones like it, all of which at the discretion of the legislature:

a.     At this time, in so far as concerns the residents of the Palestinian Authority, whose ‘hostility’ does not require proof, they shall be subject to a ‘presumption of dangerousness,’ which the person seeking to immigrate will be required to rebut. For this purpose, the respondents may make the consideration of the case of the Palestinian spouse conditional upon presenting various items of documentation, from which it will be possible to discover his family and social ties, and whether he presents a danger in the present or the future. It is clear to me that an examination of the dangerousness of the candidate is difficult even in times of calm, and even more so in times of a security deterioration, and therefore this check may take time, and sometimes it is possible that it will not be possible to complete it, such as when the security establishment does not receive cooperation from its counterparts in the Palestinian Authority, and there is a difficulty in obtaining the information.

b.     It is a common phenomenon that a Palestinian who wishes to be united with his Israeli spouse first moves his place of residence to Israel, and thereby he presents the authorities with a fait accompli. Moreover, since the examination of applications for family reunification continues for a long time, sometimes also as a result of omissions on the part of the applicants themselves, the spouses become settled, acquire property, enter the work force and their children become a part of the local education system. This, in my opinion, is a situation that is unacceptable, since it involves offences against the Entry into Israel Law, and it is a basic principle that a person who wishes to immigrate to a foreign country must, first and foremost, obey its laws.

This leads to my conclusion that a consideration of an application of a Palestinian who wishes to be united with his Israeli spouse should be subject to the condition that as long as no decision has been made, he undertakes not to enter Israel. Conversely, entering and/or staying in Israel unlawfully should constitute sufficient grounds for denying the application for reunification.

c.     I further think that it would be correct to require every Palestinian who wishes to be united with his spouse in Israel to declare his loyalty to the State of Israel and its laws, and to give up his loyalty to any other state or entity.

As stated, these are merely examples of measures that could be adopted in order to ensure that the individual check does not become a source of security danger, and I am convinced that creative thinking by all the parties concerned may find additional measures that will achieve the same goal. However, to do all this requires time, and I am of the opinion that stipulating a framework according to which the respondents will be required to provide an improved arrangement within nine months is reasonable. Until such an arrangement is presented, because of the urgent security requirements, and the fear that a void may be created in the law, my opinion is that the current arrangement should be allowed to stand, in so far as the Knesset decides to extend its validity. It is also self-evident that the state should consider including transition provisions within the framework of the amended arrangement, in so far as these are relevant.

10. Before concluding my remarks, I would like to add that I can only express regret at the fact that the terror organizations, who do not stop at anything in order to achieve their purpose, do not even hesitate, as has been proved in the past, to abuse the genuine desire of Arabs on both sides of the border to be united in the covenant of marriage. It would appear that just as those persons do not recoil from spilling the blood of men, women and children whose only ‘sin’ is that they are Jewish (and we should remember that non-Jews have also been hurt), it is doubtful if they give any weight to the fact that by their actions they cause great damage also to the interests of members of their own people.

11. In conclusion, I propose to my colleagues that, subject to the aforesaid, we dismiss the petitions in so far as they concern making an absolute order at this time that declares the Citizenship and Entry into Israel Law to be void because it is unconstitutional. Notwithstanding, I should point out that if the respondents do not see fit to carry out what they have been asked to do, I doubt whether the law will continue to be capable of satisfying judicial scrutiny in the future.

 

 

Petition denied, by majority opinion (Vice-President Cheshin and Justices Rivlin, Levy, Grunis, Naor and Adiel), President Barak and Justices Beinisch, Procaccia, Joubran and Hayut dissenting.

16 Iyyar 5766.

14 May 2006.