Extra-territorial Jurisdiction

                                                                                    AAA 3782/12

 

The Appellants	1. Tel-Aviv Jaffa District Commander – Israel Police 2. Central District Commander – Israel Police 3. Israel Police
	v.
The Respondent	The Israel Internet Association
The Formal Respondents	1.      012 Smile Telecom Ltd. (pro forma) 2.      018 Xphone Ltd. (pro forma) 3.      Bezeq International Ltd. (pro forma) 4.      013 Netvision Barak Ltd. (pro forma)

 

In the Supreme Court sitting as the Court of Appeals in Administrative Matters

[24.3.2013]

Before: President A. Grunis, Justices E.Vogelman, N. Sohlberg

 

Appeal against decision of the Tel-Aviv- Jaffa District Court of 2 April 2012 in Case AAF 45505-10-10 handed down by Deputy President Hon. Judge Michal Rubinstein

 

Facts: In August 2010, the Israel Police ordered major Israeli Internet access providers to block access to eight gambling websites operating outside the State of Israel. The orders were based on section 229 of the Penal Law that permits the District Police Commander to order the closure of any illegal gaming, lottery, or gambling place. The access providers complied with the orders and the Israel Internet Association petitioned the Administrative Affairs Court against the District Commander, contesting the closure, in the interests of Israeli web-users and the general public. The Internet access providers did not petition against the closure of access to the gambling websites. On April 2, 2012 the Administrative Affairs Court (per Judge Michal Rubinstein) granted the petition, holding that the police had no authority to order Internet service providers to block access to gambling websites. 

 

In granting the petition, the Administrative Affairs Court ruled that the Israel Internet Association had an independent right of standing, given the important public interest in enforcing constitutional values and maintaing the rule of law, notwithstanding that no petition was filed by access providers themselves. Furthermore, the closure of Internet websites violated freedom of expression. Even if the content curtailed was of little social utility, websites closure can only be done with legal authority. Primarily the provision in the Penal Law allowed the closure of a physical “place” and did not include the closure of an Internet website. In this context no analogy can be drawn from the closure of prohibited physical places to the closure of prohibited websites, notwithstanding their similar purposes, because the potential for violating freedom of expression and freedom of occupation, and because blocking access to the Internet poses technical, political and legal difficulties, including the possibility of blocking legitimate websites and innocent users. Blocks by third parties – the access providers – also raises questions relating to liability, the manner of blocking and its costs. In view of all these factors the petition was granted.

An appeal was filed against the decision in the Supreme Court.

 

Held:

Regarding freedom of expression, the Supreme Court agreed unanimously that the content blocked on the gambling websites is limited in this case and hence the violation of free speech that resulted from blocking lawful content on gambling websites is of limited degree and lawful. Moreover, the primary infringement here relates to the website operators’ freedom of occupation. In this regard, the case law has already held that the infringement of freedom of occupation, the infringement satisfies the constitutional tests.

 

With respect to the concern that protected information on websites would be blocked, the Court noted that website owners can make such information available on alternative websites, or even on the same website while blocking only prohibited gambling.

 

Regarding standing, Justice Vogelman ruled that the Internet Association satisfies the conditions for recognizing a public petitioner, given that it seeks to promote the public interest of Internet users, an interest shared by the general public, or significant parts thereof, rather than protect its own special interest. Given this case presents a first attempt to define the boundaries of the district police commander’s authority under section 229 of the Criminal Law to block access to Internet gambling websites, the question is a fundamental one that justifies hearing through public petition. As to the sufficiency of the factual infrastructure, had the Appellants felt that any issue was not sufficiently clarified, they could have acted to remedy the situation. Moreover, the public petitioner is required to present the factual infrastructure sufficient for the proceeding. In the current case the factual infrastructure was indeed sufficient for purposes of judicial review.

 

The dispute and the result involved two basic issues: first, whether the language of the Penal Law authorizing police to close a “place” can and should be interpreted broadly to include a virtual Internet website, which is not a physical place, without a specific legislative amendment. The second and more important question was whether the police can and should be permitted to exercise their authority of closure with respect to a website by way of a third party, namely the access providers. 

Justice Vogelman (for the majority, with concurrence by President Grunis), wrote that a gambling website may be viewed as a “place,” and its blocking can also be viewed as its “closing” within the meaning of section 229(A)(1). Additionally, an online gambling site may be considered a “prohibited gaming venue,” under a purposive interpretation of the Criminal Law’s relevant provisions and in the context of time and advancing technology, which render section 229 of the Criminal Law applicable in the “virtual” world. Nonetheless, the main obstacle to such interpretation is the lack of express authority to order private third parties – access providers – to assist in implementing the authority to block websites. According to Justice Vogelman, when the law empowers a governmental agency, it is assumed that the legislature intended that agency, and not another, would implement that authority, and that the agency may act only within the boundaries of the authorizing law. Even if the authorization to close a place can be interpreted as authorizing closing websites, it is not identical to authorizing third parties to block access to websites.

 

This is consistent with the principle of administrative legality which only permits an agency to act within legislation that empowers governmental agencies to order third parties to assist in exercising that agency’s authority. Such authority is not even implied in the Penal law’s provision concerning police authority to order the closing of a place.  Absent explicit statutory source, it is impermissible to compel a person or private entity to act for the authorities. Hence the orders to access providers here violated the principle of administrative legality. The current statutory framework is insufficient because it lacks authorization to order a third party to assist enforcement agencies in exercising their powers.

Even though the rule is that the authority is permitted to receive assistance from private persons or entities as far as the technical aspects of fulfilling their task, there is also an interpretative presumption against delegating authority to private entities and in the absence of appropriate legislative framework, enforcement authority cannot be granted to those not part of the enforcement mechanism

Even if the access providers were not required to exercise discretion, and the police only requested help from them in the exercise of its authority – in the technical act of blocking a website identified through its IP address specified on the order – it is still necessary to prove that the access providers agreed to assist the police. Once the police imposed an obligation upon access providers, it can no longer be considered assistance – hence the need for explicit statutory authorization.

 

Justice N. Sohlberg, writing for the minority, found that as a rule the court will not grant a public petition where there is a private victim in the background who chose not to apply to the court for relief, and that in light of the website owners failure to file an appeal, it is doubtful whether the Internet association has standing. Furthermore, granting standing when the relevant party did not file a petition might mean that the required factual infrastructure would not be presented to the Court. Nonetheless under the circumstances, where the Administrative Court recognized the Internet Association’s standing and ruled on the merits, it would be inappropriate to reject the appeal for of lack of standing without examining the matter on the merits.

 

Regarding the substantive issue, though a specific legislative arrangement would be preferable, the law’s existing language provides a satisfactory solution as to the police authority to issue orders, and waiting for legislative authority frustrates appropriate response in law enforcement and service of justice.

Both in terms of language and purpose the word “space” should be interpreted to also mean virtual space, given that terms that serve in virtual space are borrowed from the tangible world. Accordingly there is no deviation from the principle of legality by finding that “place” also includes virtual space. As the damage wrought by gambling on the Internet is immeasurably greater than that which is caused in physical places and that the legislative purpose was to prevent illegal gambling regardless of its location, a purposive interpretation would and should interpret “place” as meaning virtual space. Accordingly, apart from certain, isolated exceptions, the rule should be that the Internet fits the definition of place.

With respect to the difficulty in using third parties for carrying out a criminal proceeding, the law recognizes the possibility to use a third party to present an object necessary for interrogation or trial. Considering the license the State has granted them, access providers bear public responsibility. It is therefore justified to use them to execute orders to restrict access, given that the order requires the technical acts that do not involve any discretion regarding the closing of a site with a particular IP address specified in the order. Regarding the requirement for third party consent, Justice Sohlberg analogized the status of the website owners to receptionist in a physical place whom the police would have been authorized to require to open.

 

Justice Sohlberg also found that failure to petition against blocking access may be viewed as the website’s owner’s consent to to being used to carry out the police order. Justice Sohlberg based this conclusion on the Talmudic rule of "silence is regarded as admission.”

 

Legislation Cited

Administrative Affairs Court Act, 5760-2000, s. 5 (1)

Basic Law: Human Dignity and Liberty

Civil Procedure Regulations, 5744-1984, reg. 3(a)

Criminal Procedure (Arrest and Search) (New Version) Act, 5729-1969, s.20 23

Criminal Procedure (Powers of Enforcement- Communication Data), 5768-2007, s.1, 3 (2)

Interpretation Act 5741-1981, s.17

Penal Law, 5737-1977 s. 224, 228, 229

Police Ordinance [New Version], 5731-1971, s. 3

Prohibition of Discrimination (Products and Services) in Entrance to Places of Entertainment and Public Places, 5761-2001, s.2

Regulation of Sports: Gambling Act, 5727 – 1967

 

Supreme Court Decisions Cited

[1] HCJ 243/62 Israel Films Studios Ltd v. Levi [1962] IsrSC 16 2407.

 

[2] HCJ 651/03 Citizens Right Bureau in Israel v. Chairman of Central Elections to the Sixteenth Knesset [2003] IsrSC 57 (2) 62.

 

[3] AAA 4436/02 Tishim Kadurim Restaurant, Member’ Club v. Haifa Municipality [2004] IsrSC 58 (3) 782.

 

[4] HCJ 8070/98 Citizens Rights Office in Israel v. Ministry of the Interior (10.5.04).

 

[5] LCA 4447/07 Mor v. Barak I.T.T. [1995] Society for the Bezeq International Services Ltd (25.3.10).

 

[6] CA 9183/09 The Football Association Premier League Limited v. Anon (13.5.12).

 

[7]  Cr.A 1439/06 Zaltovski v. State of Israel (28.3.06).

 

[8] CrA. 7430 /10  Anon. State of Israel (5.2.2010).

 

[9] LCrApp 787/79 Mizrahi v. State of Israel [1980] IsrSC 35 (4) 421.

 

[10]  (HCJ 131/85Savizky v. Minster of Finance [1965] IsrSC 19 (2) 369.

 

[11] HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of the Sixteenth Knesset Central General Elections Committee [2003] IsrSC 57 (2) 62.

 

[12] HCJ 3809/08 Citizens Rights Bureau v. Israel Police (28.5.2012).

 

[13] Association of Renovations Contractors for Restoration v. State of Israel (14.3.2011).

 

[14] HCJ 1/81 Shiran v. Broadcasting Authority [1981], IsrSC 35 (3) 365.

 

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

 

[16] HCJ 287/91 Kargal Ltd v. Investments Center Council [1992], IsrSc 46 (2) 851,

 

[17] HCJ 962/02 Liran v. Attorney General(1.4.2007).

 

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

[19] HCJ 80/70 Elizur v. Broadcasting Authority [1970],IsrSC 24 (2) 649.

[20] HCJ 852/86 Aloni v. Minister of Justice  [1987], IsrSC 41 (2) 1.

 

[21] HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority  [1994], IsrSC 48(2) 1.

 

[22] HCJ  2303/90 Philipovitz v. Registrar of Companies [1992], IsrSC 46 (1) 410.

 

[23] (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, (19.11.2009).

 

[24]  AAA 6848/10 Erez v. Giva’ataim (30.5.2012).

 

[25] HCJ 5031/10 Amutat Ir Amim v. Israel Nature and Parks Authority (26.3.2012).

 

[26]CA 630/97 Local Committee for Planning and Building Nahariya v. Shir Hatzafon Construction Company Ltd [1998] IsrSC 52 (3) at 399.  

 

[27]  HCJ 5394/92 Hoppert v ‘Yad Vashem’ Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3)353.

 

[28] 7368/06 Luxury Apartments Ltd v. Mayor of Yabneh (27.6.2011).

 

[29[ HCJ 6824/07 Mana v  Taxation Authority (20.12.2010).

 

[30]  HCJ 7455/05 Legal Forum for Land of Israel v. Israeli Government [2005] 905.

 

United States Decisions Cited

[[31] Center for Democracy & Technology cy & Technology v. Pappert, 337 F.Supp.2d 606 (E.D Penn. 2004).

 

 

For the Appellants: Advs. Yuval Roitman; Adv.Orli Aharoni

 

For the Respondent: Adv. Haim Ravia, Adv. Dan-Or Hof; Adv. Yossi Markovitz

 

Judgment

 

Justice N. Sohlberg

 

1.         The Israel Police issued orders restricting access to gambling websites on the Internet. The Tel-Aviv-Jaffa District Court, sitting as the Court for Administrative Affairs (Judge Michal Rubinstein) granted the petition by the Israeli Internet Association and ruled that the orders were issued ultra vires and should therefore be voided. The Israel Police appealed and requested the orders be resotred.

Background

2.         Crime is burgeoning and taking new forms. As a result, on 1 January 2006 Government Decision No. 4618 was adopted, establishing a Standing Committee for Direction and Coordination of Activity in the Battle Against Severe Crime and Organized Crime and their Offshoots. The Committee determined that because its far-reaching and grave consequences the phenomenon of Internet gambling would be a central enforcement target combining several tools – criminal, fiscal, and administrative. This is a growing crime-generating phenomenon that is accessible to a broad segment of the population. Within this context, with the knowledge of the Attorney General and the State Attorney, the Committee decided to restrict Israeli users’ access to gambling websites. Internet access providers were issued warning letters and given a list of gambling sites and their IP addresses to be blocked. The access providers and the website operators were also allowed the opportunity to object. In August 2010 the orders were issued. In October 2010 the Israel Internet Association petitioned to the Administrative Affairs Court to revoke the orders, and in April 2012 the petition was granted

The Ruling of the District Court

3.         The principle elements of the Administrative Affairs Court’s ruling are:

(a)        Locus Standi: The direct victims – the access providers and the website operators – chose not to exercise their right to petition against the orders. Nonetheless the court found there were grounds for recognizing the locus standi of the Israel Internet Association, given that it does not represent the interests of the access providers and website operators, which have primarily commercial interests, but rather as the representative of users in Israel and their rights to free expression and access to information. This is a matter of general public importance pertaining enforcing constitutional values and maintaining the rule of law. 

(b)        Restricting access to Internet gambling sites infringes freedom of expression: The Internet is an excellent tool for exercising the right to access information in a practical, efficient, cheap and reliable manner. It is a democratic tool that promotes equality, enables a decentralized and diverse discourse, facilitates economic growth, and is an excellent platform for business ventures. Access to information is a constitutional right and limitations on the use of Internet are therefore rare. yet, the Internet is also subject to abuse, to violation of copyright, publication of slander, pornography, encouragement of violence, drug abuse etc. The desire to minimize the harm caused by damaging uses of the Internet has led the authorities of different countries to adopt various means, including blocking access to websites that function as platforms for illegal activity, or use technological screening measures. The Israeli approach has been that freedom of expression is “all encompassing” and applies even to expressions that encourage illegal activity.  Still, freedom of expression is not an absolute right. When there are interests that justify it, such as security, or social, political and other interests, freedom of expression may be curbed. When applying a proportionality test, the balance may vary according to the type of expression and its inherent social value weighed against the benefit of restriction. The content of illegal gambling sites – for example game instructions, various lists, graphics and other audio-visual aides – are, generally speaking, of little social value. The expressions are of a purely commercial nature, encouraging acts restricted under criminal law. Conceivably, limiting access to such expressions may be justified by legitimate purpose. But the mere fact that an expression may be harm does not exclude it from protection. As such, restrictions on free speech, even on expressions with little social value such as those in illegal gambling sites, must pass constitutional muster and be legally authorized.  

(c )       The Police has no authority to order Internet access providers to restrict access to gambling websites.  The relevant sections of the Police Ordinance [New Version], 5731-1971 (“Police Ordinance”), and the Penal Law, 5737-1977 (“Penal Law”), through their language and purpose, authorize the Israel Police to order the closing of places where gambling is takes place, but these are only physical places, as opposed to preventing access to an Internet website. A website is not a “place” but rather an amalgamation of information and applications installed in a computer that communicates with other computers via the Internet. Information is transferred from the computer to the server. The police is authorized to order the closing of a “place” of prohibited games or a “place” where lotteries or gambling are held, but preventing access to a website is not equivalent to the closing of a place, and is not covered by that authorization, neither explicitly nor implicitly. That the law grants the police the power to shut down physical places cannot, in itself, be understood as legislative intention to broaden the authority to allow “censorship” power to the police, without clear guidelines for its exercise. Even if the purpose of the orders – reducing the prevalence of gambling – is identical to that of the authorizing closing down physical gambling places, blocked access to a website implicates freedom of expression and freedom of occupation differently.  Blocking access to the Internet poses technical, political and legal difficulties: the concern for possibly blocking legitimate websites or innocent users. Executing blocks by a third party – the access providers – raises questions of liability, methods for blocking and costs. The appropriate legal policy would be to wait for explicit regulation of restrictions to free expression on the Internet in primary legislation, following in depth public debate. “Acrobatic” interpretations should not be invoked to authorize the police to violate civil rights. Furthermore, over the past few years the legislature has considered proposals for legislative amendments on this issue, but the legislative initiatives were hindered for being insufficiently balanced. The subjective and concrete legislative intention indicates a desire not to authorize the police to block access to gambling websites at its own discretion.

In short, the orders to restrict access to gambling websites were issued ultra vires and should be voided. This was the ruling of the Tel-Aviv-Jaffa District Court, sitting as the Court for Administrative Affairs.

Principal Arguments of the Parties

4.         Attorneys for the State argue that the Administrative Affairs Court erred in determining that the Israel Internet Association has standing.  The latter is a public petitioner with no personal interest in the orders, and his petition should therefore have been dismissed in limine, especially given the existence of petitioners who could have presented the factual infrastructure required, yet they ultimately refrained from filing a petition. The petition seeks to permit illegal activity, rather than preserve the rule of law, and there was no justification for conducting a judicial hearing for this kind of petition by a public petitioner. Attorneys for the State further argue that the Administrative Affairs Court erred in holding the orders infringe freedom of expression. The websites subject to the orders do not serve as a venue for expression and their entire raison d’etre is conducting prohibited gambling. There is no justification to fully exempt the Internet from rules that apply to other media. Blocking access to gambling is accepted practice all over the world, and is necessary for crime prevention.

5.         The primary claim the State’s attorneys make is that the police is authorized to order blocking access to websites. The Administrative Affairs Court adopted a “rigid” interpretation that failed to fully account for the law’s language and purpose. The Administrative Affairs Court failed to consider a possible alternative in the authorizing statute. In any case the relevant provision can be seen to include Internet space, as well as physical space: a “place of gambling” is also a “virtual place”. The authority to close a place also encompasses orders to block access to virtual space. The attorney for the State argues that when the law was passed it was impossible to anticipate the existence of virtual space, but the purpose is the same: preventing illegal gambling, which causes immense harm to both the individual and the public. Waiting for primary legislation to explicitly grant parallel authority to virtual space means perpetuating Internet gambling, its grave consequences and its harm, while forcing the police to combat it with hands tied behind its back.

6.         On the other hand, the Israel Internet Association discussed the public interest in Internet access, and as a natural outcome, its right of standing in this petition vis-à-vis its activities to promote Internet use in Israel as a technological, research, educational, social, and business resource. The limited economic interest of website owners and access providers is not comparable to the public interest in having unfettered access to the Internet. This is the purpose of granting standing rights to a public petitioner, thus enabling judicial review in a matter of public and constitutional importance that implicates the rule of law. The Israel Internet Association also emphasized the right to know. “A governing authority which claims the right to decide what the citizen ought to know, will eventually decide what the citizen should think; and there is no greater paradox to true democracy, which is not ‘guided’ from above” (HCJ 243/62 Israel Films Studios Ltd v. Levi [1] at p. 2416). A website consists of layers of information, each of these a protected expression, including: the code, the graphic design, games, trailers, data and explanations. The suspicion of a criminal offense does not excuse limits on expression in advance.

7.         The Israel Internet Association further claims that the law does not authorize the Police to order a third party to block access to gambling websites. An Internet website is neither a “place”, nor “premises” but rather a collection of “pages” which contain information collected from files on a service computer that communicates with other computers via the Internet (Abraham Tenenbaum “On Metaphors in Computer and Internet Law”, Sha’arei Mishpat 4 (2), 356, 374 (2006)). The analogy between “site” and “place” is fundamentally flawed. Blocking access to knowledge is distinguishable from closing a physical place, inter alia because of the infringement upon freedom of expression. Physical closing does not implicate the rights of the general public. Blocking access to knowledge does. Internet access providers are not enforcement agents of the police. They serve as a channel for providing information to Internet users, and they have an immensely important role in exercising the right to access information.

8.         The Israel Internet Association requests we uphold the Administrative Affairs Court’s decision regarding standing based also on the fact that the consequences of blocking access to a website differ from the consequences of blocking a physical place. Blocking access to websites involves technical challenges that may block access to innocuous sites. Blocking may be ineffective, as well. It may have implications for international obligations, and raise questions about access providers’ liability. Costs are likely to be “rolled” onto users. As a matter of judicial policy, infringements upon freedom of expression and access to information should only done in explicit primary legislation. The Knesset debates around private bills on the matter reflect substantive reservations against conferring the police with the requested powers. Upholding the appeal would turn the police into investigator and prosecutor, judge and executor, while performing interpretive acrobatics and infringing free expression.

Discussion and Ruling

9.         I divide the discussion into three categories, following the path taken by the Administrative Affairs Court:

(a) Standing; (b) Freedom of Expression; (c) Police Authority.

 (a)       Right of Standing

10.       As mentioned, the orders compelled Internet providers to block access to a number of websites used for illegal gambling. The access providers and the website owners chose not to challenge the orders. Prima facie, as claimed by the attorney for the State, the Israel Internet Association is stepping into a dispute in which it has no part. The Administrative Affairs Court deviated from the rule that “the court will generally not grant a public petition where there is a private victim who chose not to turn to the court for relief ” (HCJ 651/03 Citizens Right Bureau in Israel v. Chairman of Central Elections to the Sixteenth Knesset [2] at p. 68).  Recognition of standing rights for the Israeli Internet Association prompted the petitions’ adjudication without presenting the Administrative Court with the required factual infrastructure. The precise contents of the websites subject to the orders were not presented, nor was a full description of the technical ability to block access. No basis was presented for the argument – which the Administrative Court found acceptable – that blocking access to gambling sites could also be expected to block other sites.

11.  The Israeli Internet Association further argued before the Administrative Affairs Court that the Internet providers’ right to hearing had been violated. It further argued that the decision to block certain sites was discriminatory. The problem however is that these are not arguments that can be raised by a public petitioner. These are arguments that only the website owners and the access providers could have raised, had they so wished to do so.

12.       It seems that a priori the petition should have been dismissed in limine in the absence of standing. However, post factum, once the Administrative Affairs Court recognized the Israel Internet Association had standing, and ruled as it did on the merits, it seems inappropriate at this stage to uphold the appeal merely based on his issue, without ruling on the merits of the appeal itself. It is incumbent upon us to rule on the legality of the orders.

Freedom of Expression

13.       The attorneys for the parties spoke loftily and at length about freedom of expression and the right to access information that derives from it. Indeed, we must make every effort to avoid infringing the free dialogue in the new “town square” and the flow of information on the Internet. Freedom of expression is the air we breathe, and the right to access information – our daily bread. All the same, in its decision, the Administrative Affairs Court stated that illegal gambling on the Internet certainly is not a protected right, and that in such circumstances indeed there is no “discourse of rights” (para. 21). However, the gambling sites also feature additional content: expressions, pictures, texts, explanations, lists and other audio-visual information. According to the Administrative Affairs Court all of these are of social value, concededly of “low value”. Nevertheless, “in the prevention of access to gambling websites the Respondents infringed the freedom of expression of users interested in entering the website and in browsing the information and of the site owners who uploaded the content” (para.23).

14.       This infringement upon free expression was scathingly criticized by the Israel Internet Association, but it appears to me that the alleged infringement is not quite what it was made out to be.  Attorneys for the State dispute this, claiming that the aforementioned gambling websites contain gambling content and nothing else, and that in any event, it is not content of a kind to which access cannot be denied based on freedom of expression. As mentioned, the petition was filed by the Israel Internet Association and not by access providers or website operators, with whom the relevant information is stored. This matter again exemplifies the problematic nature of granting standing to a party meddling in a dispute that is not its own, because the factual infrastructure laid before the court was insufficient and a court may follow it blindly.

15.       Regardless, even had the gambling websites under discussion included legitimate content alongside platforms of illegal gambling, there is nothing to prevent website owners from making the information accessible to users by one of two methods: either on an alternative site, or on the same site, together with blocking possible engagement in prohibited gambling there. The infringement of free expression is therefore quite marginal, if at all.

16.       We should not forget that the closure of a physical gambling place violates the right to property, a basic constitutional right, but is nonetheless permitted and frequently done according to the law. Case law, too, has permitted the closure of a physical gambling place, even when it serves for other legitimate activities (per former Justice Grunis in AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [3] at p.798 (hereinafter: Tishim Kadurim). As mentioned above, the Israeli Internet Association argues that not all of the content on the gambling sites at issue is illegal and that these sites serve as platforms for chatting and other legitimate uses. This is a factual claim that requires factual substantiation. But assuming it is correct, we again analogize to a physical gambling place, which may undisputedly be legally closed. In addition to serving for illegal gambling, such a place can also serve as a place for social interaction, where conversations, even on matters of highest importance, may be held. But this would not rise to the level of speech protected by the right to free expression that would prevent closing a physical place of gambling. Visitors would be able to continue to meet, to speak, and to exchange opinions in alternative venues.  Similarly, there is nothing to prevent taking the same action regarding a website where illegal gambling takes place.  Access to the latter would be blocked, and to the extent that other legitimate activities took place on the website, there would be no impediment to continuing those, whether on this site or on another site.

17.       Hence, in terms of practical implementation the concern for violating a fundamental principle has been alleviated. The elevated status of freedom of expression is far beyond dispute. It remains intact and its status is securely enshrined, and access to illegal Internet gambling can be restricted without infringing freedom of expression or the right to access information. I make additional comments on guarding against any infringement of free expression below, in my discussion of discretion in exercising police authority.  

(c)  Police Authority

18.       Law enforcement agencies source their actions in two statutory provisions. Section 3 of the Police Ordinance provides that: “The Israel Police shall work toward prevention and detection of offences, apprehension and prosecution of offenders, safe custody of prisoners, and maintenance of public order and the safety of persons and property”. This is a basic and important provision, but because of its generality is of limited value to us. A more important provision for our purposes is the specific provision of section 229(a)(1) of the Penal Law, which addresses “closure of places”, as follows:

 “A district police commander may order the closing of a place for prohibited games or a place for the conduct of lotteries or gambling.”

19.       There are two, similar alternatives. The first: “a place of prohibited games”, and the second, “a place for the conduct of lotteries or gambling”. The Administrative Affairs Court focused on the first alternative, which is defined in section 224 of the Penal Law:

“‘Place of prohibited games’: premises where prohibited games are held regularly, whether open to the public or only to certain persons, regardless of whether those premises are also used for some other purpose.”

Based on dictionary definitions in both Hebrew and English, the Administrative Affairs Court ruled that the statutory definition refers to a physical, delineated place; such as a house, building, field (para. 36 of the Administrative Affairs Court opinion). The court relied on Y. Kedmi’s book, which interprets premises “in the broad and comprehensive sense of the concept... Immovable property as distinct from movable property.” (Yaakov Kedmi, The Criminal Law (Part IV)  2283 (2006).

20.       Can the term “premises” be said to include the world of Internet? In my opinion “virtual premises” are also “premises” but this question can be left for future decisions. Section 229(a)(1) of the Penal Law, as mentioned above, consists of two alternatives. The second alternative, as worded, does not necessitate reference to the definitions section. The question therefore arises as to whether “place” can be broadly interpreted to mean “virtual space”. The Administrative Court answered this question in the negative, with sound, logical and, at first blush, persuasive reason: 

“Moreover, relating to a website as a ‘place’ is inconsistent with its mode of operation. A website, by definition, is an agglomeration of information and applications, installed on a computer, that connects with many other computers over the Internet. When a user ‘enters a website;, their personal computer contacts another computer (‘the website server’) which is found elsewhere, and requests information. The user’s computer has a unique number (IP address) and the website server has a unique number (a different IP address). The website server transmits the information to the personal computer, which uses a browser to arrange the information for reading. When “actions” take place on the website, the personal computer asks for new information from the website server, receives it, and arranges it on the personal computer. Information is transmitted between the personal computer and the server, but there is no “place” here at all. Justice Tenenbaum described this well in his article: ‘The choice of the Hebrew word “site”, intuitively conjures the notion of a geographical site. Perceiving the site as a “place” induces us to say “enter a site”, “exit a site” and the like… all the sites on the Internet are connected to each other and the vulnerability of one also harms the other… the Internet was created, developed and exists by virtue of all the individuals which support it and maintain its integrity. Correct and appropriate public policy must be based on this and facilitate these efforts… a “website” is not a place. In fact, a “site” is nothing more than a computer that holds software that regularly communicates with many other computers’” (para. 37 of the Administrative Affairs Court opinion).

21.       These comments were repeated and reiterated by the attorney for the Israel Internet Society, and I am prepared to endorse them unreservedly. A website, in essence, is not a “place” according to its technological definition. However, even if this is our point of departure, the necessary conclusion does not specifically exclude virtual space from the scope of section 229(a)(1) of the Penal Law, as will be explained. But prior to doing so a few comments must be made about the Internet, progress and the attempts of law and justice to keep up with the times. 

22.       Humanity in its entirety, laymen and experts, almost all of us are still learning, wondering and marveling at the Internet. Its influence is felt all over the world, but it will certainly take a long while before we can assess its full effect and implications: “We are living at the height of a revolution: Technological development in the computer realm, digital information and digital networks are generating a social, economic and political upheaval (Niva Elkin-Koren and Michael Birnhack, Introduction, in Legal Network: Law and Information Technology (with Niva Elkin-Koren, 2011);

The computer – and with it the Internet – are not merely a mutation of previous life forms that we have known, which we have given a home to in the legal system. They are a new life form, and their movement is not the movement of the life forms with whom we are accustomed to live. They move in the manner of the knight (the horse) in a chess game; its movement is not altogether forward, nor altogether backward or altogether to the side. It is not altogether diagonal. Its movement is a tinkling of this and a tinkling of that, and it exists in its own right. But here is how the new life form differs from the knight: we know in advance how the knight will move and we know, more or less, how to protect ourselves when it attacks us. As for these new life forms of the computer and the Internet – we have yet to fully explore them; we have yet to reach the bottom of the pit. One click in Jerusalem, and you are in Tel-Aviv, a second click and you are in Australia, a third click – and the system rebels and everything is erased as if it never was. We have begun to move at the speed of light whereas our bodies are in the carriage, and our stream of thought moves at the speed of the carriage (Mishael Cheshin, “Introduction” The Computer and the Legal Proceeding: Electronic Evidence and Procedure  (2000).

Some view the Internet as a new universe. “In a short time the Internet has created a new universe of inconceivable dimensions. This universe dominates almost every aspect of civilization, replicates it and corresponds to it” (Rubick Rozental, A Few Comments on the Language of Internet, Legal Network: Law and Information Technology, eds Michael Birnhack and Niva Elkin-Koren, 2011, 61).  The Internet has come to our world, entering into its inner domains, but we still have trouble defining it. It exists all over the world and simultaneously in no place at all. More precisely, there is access to Internet and its activity all over the world, but its existence is “nowhere”.     

23.       As is well known, the law follows sluggishly in the footsteps of innovations, and legislation does not keep up with the pace of scientific progress. Offenders against the law adapt to progress more rapidly than its enforcers. This is axiomatic. The former have no restraints; the latter do. Many years passed between the invention of the computer and the enactment of the Computers Law, (1995). Less than a generation or two passed in terms of computers, and the law is already out of date, because the legislature did not foresee, nor could it have foreseen the innovations in technology. But not only is the legal world perplexed. Psychology too has encountered new phenomena of addiction and psychological injuries, and is attempting to develop updated, “on the go” reponses.  The same is true for sociology, and other disciplines in social sciences, natural sciences and the humanities. Not surprisingly, the world of law too is still unequipped. Some have taken an extreme view, claiming that given the virtual nature of the Internet, it cannot be subjected to the laws of space, time and state (see written references for this approach in the article of Yuval Karniel and Chaim Wismonski, Freedom of Expression, Pornography, and Community in the Internet, Bar Ilan Law Studies 23 (1) 259 (2006); Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, Legal Network: Law and Information Technology, eds. Michael Birnhack and Niva Elkin-Koren, 2011, 207).

24.       This extraterritorial approach is unacceptable. Concededly, an abundance of legislation that would impair the tremendous benefit inherent in the Internet is undesirable, nor is there any point in legislation which is unenforceable given the characteristics of the network. However, for good or bad, virtual space exerts a tangible influence over the concrete world, and our world will neither consent to nor tolerate the virtual realm’s exemption from the law. Act of pedophilia committed online are still pedophilia, drugs sold via the Internet still have the same addictive and destructive affect as drugs sold on city streets, the terrible harms of Internet gambling are no less damaging than danger from gambling in a physical place. Quite the opposite, the Internet opens new horizons for the world of crime. They should be blocked. The approach of excluding law and justice from virtual space must be kept off bounds.

25.       All the same, undeniably, the legal regulation of activity in virtual space is complex and complicated. Normative claims as to what the law ought to be are difficult to make, nor is it easy to apply the existing law. Not by chance, there are those who have concluded that this is an area best suited for legislation; while others feel that case law is the appropriate method for adjusting the law to the Internet era. Both camps are uncertain about the extent to which Internet users should participate in formulating the rules governing virtual space and their application. (For a comprehensive review of the possible models, see: Iris Yaron Unger Uncovering the Identity of an Anonymous Internet wrongdoer – Comparative Review, The Knesset, Legal Department, Legislation and Legal Research, 2012).  A variety of models in case law and legislation have been adopted by states around the world (Miguel Deutch, Computer Legislation in Israel, Tel-Aviv Law Studies 22 (2) 427, 428 (1999)). The issue is weighty and broad and its influence far-reaching, but I will not elaborate on it beyond what is required for discussing the concrete questions of this appeal: the authority of the police to issue an order restricting access to gambling websites on the Internet.

26.       It seems that a comprehensive statutory regulation of this field, in a precise manner adjusted to the virtual era is preferable.  The question is whether, absent updated and comprehensive legislation, the law as currently worded satisfactorily considers the police’s authority to issue the orders in question. The Administrative Affairs Court decided to defer the legislative process, but to void police powers to order closure of virtual gambling places until the statute is expressly amended to confer such authority. This ruling involves difficulties.

27.       The ‘waiting period’ created restricts, and occasionally frustrates, appropriate responses toward law enforcement and justice.  This approach, coupled with the previously described pace of technological progress, can be expected to lead to a situation where many legislative acts will be neither relevant nor applicable. Even after the legislature has amended the legislation, it is entirely possible that within little time that amendment will no longer be useful. Hence waiting for the legislature to act will not necessarily provide a solution. “The judge interprets the law. Without his interpretation of the law, it cannot be applied. The judge may give a new interpretation. This is a dynamic interpretation that attempts to bridge between the law and changing reality without having to change the law itself. The law remains as it was, but its meaning has changed because the judge gave it a new interpretation that is consistent with society’s new needs. The court ... realizes its judicial role in bridging law and life (Aharon Barak, The Judge in a Democratic Society 57 (2004); and see HCJ 8070/98 Citizens Rights Office in Israel v. Ministry of the Interior [4], para. 12 of former Justice Grunis’ opinion; LCA 4447/07 Mor v. Barak I.T.T. [1995] Society for the Bezeq International Services Ltd (hereinafter: Mor) paras. F-I, of Justice Rubinstein’s opinion; CA 9183/09 The Football Association Premier League Limited v. Anon [6] paras. 4-6 of Justice Melcer’s opinion (hereinafter:  Anon)).

28.       On one hand, Internet crime is becoming increasingly sophisticated. On the other, criminal law develops slowly. The chasm between the two must be bridged. The Knesset achieves this through legislation, while the courts through case law. The reality of life does not allow us to wait for the Penal Law to be amended to determine which offences can escape sanction when committed over the Internet and which cannot.  Nor is it legally necessary to wait until the legislature has reviewed all of the criminal law’s provisions and decided which of them are applicable to the Internet. The court must respond to the specific matter brought before it and rule one way or another. This is not a question of ‘judicial legislation’, but rather of ‘judicial creation’. The same criminal offences proscribed many years ago and committed on city streets, are now committed on a larger scale and with greater force via the Internet. Occasionally, the actus reus is identical, the mens rea is identical, the legislative purpose is identical, and the damage, is quite often more extensive and severe in the virtual realm.  

29.       Needless to say, we are still bound by linguistic restraints and cannot deviate from their boundaries to cast our net over whatever we see as a crime or a tort in the “real world” and possibly appears as such in the virtual domain. All the same, the legislative purpose, generally common to all offences, whether committed here or there, requires an interpretative effort to prevent greatly harmful artificial loopholes in enforcement. The tremendous damage that can be wrought by the Internet was descussed by Justice E. Hayut: “The infringement concerned enlists human progress and technological innovations in computing in the service of crime, thus yielding a new and dangerous form of criminality that cannot be taken lightly. This form of criminality does not involve physical-tangible harm that leaves its marks on the victim’s body. It is committed remotely, with the click of a button, but its damage is extensive and carries different levels of implications, including to, as stated, a victim’s personal security and privacy, his property, his business, and his commercial secrets” (Cr.A 1439/06 Zaltovski v. State of Israel [7]). In the same vein, former Justice Grunis wrote: “The Internet is fertile ground for committing different types and categories of criminal activity, and inter alia, activities directed against state security. That the Internet era has made it significantly easier, technically, to commit offences such as a conspiracy to commit an offence cannot be ignored. Hence, in the case before us it is undisputed that “A” and “S” became acquainted by chance… via the Internet. In other words, conceivably, if not for the chance Internet meeting they would not have met and could not have conspired to commit the acts described in the indictment. Hence, the case before us demonstrates a need to impose punishment that deters from the negative and criminal side-effects that accompany technological developments” (CrA. 7430 /10 Anon v. State of Israel [8]). There are numerous other examples, and we take judicial notice of the Internet being exploited for grave and dangerous harm on a broad scale.

30.       Pedophilia is a pernicious scourge on the Internet. Is pedophilic material in virtual space nothing more than a collection of ‘pixels’ – with no substance – that the law is powerless to reach?  In practice, the courts do not stand idly by, and they ideed apply the Penal Law’s provisions to offences committed over the Internet. Naturally, this is not done reflexively, but rather the required physical and mental elements have been examined, under the circumstances of each case, and the principles of criminal law have been applied. (See Assaf Hardoof, Cybercrime, 17 (2010) who sharply criticizes the approach that the Internet’s characteristics undermine the foundations of criminal law. According to his approach, the mental complexities leading to criminal conduct committed in a physical environment also exist on the Internet.)

31.       We will return to the meaning of a “place… of gambling” in section 229(a)(1) of the Penal Law, which the police is permitted to close. If, according to the Administrative Affairs Court’s decision, it refers to a physical and not virtual place, then logic dictates that this would also be the meaning of a “place… of gambling” immediately above in section 228 of the Penal Law. If so, then not only would the police be prevented from issuing orders restricting access to gambling websites, but it is doubtful it would even be possible to convict a person operating, over the Internet, “a place for prohibited games or a place for the conduct of lotteries or gambling” (section 228 of the Criminal Law). On its face, this would conclusively preclude not only restricting access to illegal gambling websites, but also the enforcing the prohibition of possessing or operating illegal gambling websites. This state of affairs would remain until we are saved by a statutory amendment, which may or may not come soon.

32.       Moreover, in Israeli legislation, the term “place” is used for different offences and in numerous contexts. For example, “public place” is defined in section 34(24) of the Penal Law and is mentioned in numerous other sections concerning offences and punishments; Chapter C of the Preliminary Part of the Penal Law, deals with “Applicability of Penal Laws according to Place Where the Offense Was Committed  (emphasis mine – N.S.). A place in which an Internet website is viewed, or is used is a “place” that establishes judicial jurisdiction. Should we exempt the Internet from the Penal Law going forward because it is excluded from the definition of a “place”? Similarly, would we permit discrimination on the Internet just because it is excluded from the definition of a “public place” in section 2 of the Prohibition of Discrimination (Products and Services) in Entrance to Places of Entertainment and Public Places, 5761-2001? (See e.g. the conviction for supporting a terrorist organization on the Internet, where the internet was found to be a “public place” CrimF (Nazareth) 12641-11-10 State of Israel v. Abu-Salim (Deputy President Yung-Gefer) paras. 47-56 (1.4.12)).

33.       The civil law, too, is frequently required to apply the concept of “place” to the Internet. On more than one occasion courts have held that Internet-based conduct fall within the jurisdiction of courts all over the country. For example, in a breach of copyright and intellectual property case, concerning a website for a virtual shop selling household goods and gifts, the court held that “the picture was presented on the Internet, namely – in each and every place within the area of the State of Israel. It is therefore clear that the place of the omission was in the entire state and by extension in each and every district… the territorial jurisdiction extends to the entire area of the State of Israel” (Comments by Judge Tenenbaum in App. (Magistrates – J-Lem) 8033/06 Steinberg v. Levi (10.4.2007). These remarks, made in his role as judge are inconsistent with his decisive remarks in his role as scholar in the article cited above: that “an Internet site ‘is not a place’, which the Administrative Affairs Court relied upon in the decision appealed here (para. 37)). Even more accurately, all the alternatives stipulated in Regulation 3(a) of the Civil Procedure Regulations, 5744-1984 employ the language of “place” (place of residence, place of business, place of creating obligations, place intended for fulfillment of obligations, place of delivery of asset, place of act or omission).  Is it possible to exclude the Internet from territorial jurisdiction because it does not fall into the category of “place”?

34.       Due to space constraints and in the absence of satisfactory arguments it cannot be responsibly councluded that wherever the term “place” appears in primary or secondary legislation it must be applied to the Internet as well. Conceivably, there could be certain, isolated exceptions, but the rule should be that the Internet fits the definition of “place”. The Israeli Internet Association’s claim, which the Administrative Affairs Court accepted, that both in truth and according to its dictionary definition, virtual space is not a “place” is not sufficiently persuasive. The settled, entrenched and well-accepted law is that “the words of the law are not fortresses, to be conquered with the help of dictionaries, but rather the packaging of a living idea which changes according to circumstances of time and place, in order to realize the basic purpose of the law” (comments by then Justice A. Barak (LCrApp 787/79 Mizrahi v. State of Israel [9] at 427). There, the Court held that the “one who escapes from lawful custody” refers not only to an inmate who literally escapes from prison but also to a prisoner who fails to return from furlough: “it may be argued that our concern is with a criminal provision that should be accorded a narrow construction, by attaching only ‘physical’ meaning to the terms ‘custody’ and ‘escape’. I cannot accept this line of thought. A criminal statute, like any other statute should be interpreted neither narrowly nor broadly but instead by attaching to it the logical and natural meaning that realizes the legislative purpose" (ibid).These statements have retained their vitality and are applicable to our case too, and even a fortiori: in that case the issue concerned a criminal offense, whereas our concern here is with an administrative measure.

35.       As stated, the legal world is still not best prepared to handle the Internet, and this is also true of the world of language.  The terms that serve us in virtual space are borrowed from the tangible world. On the Internet we use a “desk top”; the user “cuts”, “copies”, “pastes” and “deletes”; “writes” “notes”; “stores” in “files”; and “sends” to the “recycling bin” and receives “documents” and “junk mail” into a “mail box”. Given this background, the word “place” is by no means exceptional. It would not be a deviation from the ‘principle of legality’, nor from the rules of interpretation were we to determine that “place” also includes virtual space, and that its meaning also encompasses a website. Since we speak of an Internet “site” in our daily conversations, we should remember its dictionary definition and its Talmudic root (b.Zevahim 7a): a “site” is a “place”.

36.       Therefore, in interpreting section 229(a)(1) of the Penal Law, I see no justification for taking a literal and narrow approach, which interprets the word “place” as a physical place only. In the current modern era, a website is also a type of place. The section’s language also tolerates the classification of virtual space – or perhaps better termed as “computerized space” – as a “place”.

37.       From language to purpose: In the case of Tishim Kadurim [3] then Justice A. Grunis explained the purpose for prohibiting certain games as a value-based goal. Man is born to labor rather than easy enrichment based on luck. Addiction to gambling is a serious scourge that harms the individual, their family and society as a whole. Before the Penal Law there was the Criminal Law Amendment (Prohibited Games, Lotteries and Bets), 5724-1964, and before Justice A. Grunis there was Justice Haim Cohn who made the following remarks about the legislative purpose behind the previous statute:

                        The legislative purpose, as reflected clearly in the nature and the language of the law, is to combat, by criminalization, the scourge of gambling and betting – the scourge of winning money or its equivalent other than by work or other reasonable consideration, but rather by the luck of the draw. Mr. Terlo rightly mentioned the well-known fact that mankind has an evil tendency to try his luck in gambling. One need not have a particularly developed commercial instinct to assess the tremendous prospect for profit in the commercial exploitation of this natural human tendency.  Mr. Terlo said, and I agree with him, that such commercial exploitation, in all of its various forms, produces demoralization. I further add that from my perspective, the wrong that the law seeks to prevent is not only the encouragement of desire for lawful easy enrichment without labor, but also – and perhaps primarily – the placing of an obstacle before the blind, where instead of spending his money on his own sustenance and that of his household, he invests in dubious ventures based on luck (HCJ 131/85 Savizky v. Minster of Finance [10] at 376).

38.  As we can see this plague is nothing new to us. The following is a reliable testimony from two hundred years ago about this phenomenon and the harm it causes, relating to the fate of those who wager on dice: “The number of those involved has multiplied, where their foolish preoccupation is such that they spend nights and days gambling, in their homes, on their roofs and on street corners, until they lose everything. Even if they are wealthy, eventually they lose all and must steal and resort to violence, while their family members starve; their children beg for bread, and there is none to give them, for they do not work to bring food to their families. And one sin leads to another, in that they neglect prayer and fulfillment of the commandments, for when temptation seizes them and they engage in gambling, it is extremely difficult for them to forsake it, as difficult as separating one’s fingernail from one’s flesh. They do not take care of themselves and do not tear away from gambling, even to eat at the time for eating and to sleep at the time for sleeping. One who is addicted to gambling will not leave it even when he is old, for only will-power can separate from it.” (Rabbi Eliezer Papo, Pele Yo’etz, Constantinople, 5584 - 1824).[1] […]

39.   In 1975 the legislature added a provision to the Penal Law Amendment (Prohibited Games, Lotteries and Bets), 5724-1964, which granted the District Commander of the Police the authority to issue an order to close “a place for prohibited games or a place for the conduct of lotteries or gambling” (S.H 5735, No. 779, 222). According to the introduction to the Explanatory Note of the bill, the legislature was dissatisfied with the existing criminal sanction, and sought to close places where prohibited games were conducted, as a preventive measure: “The Law imposes a punishment on the possessor or operator of a place for conducting games with cards, dice, game machines, and the like, But there is no law that prevents the actual existence of such place… The proposed law seeks to establish provisions… by enacting legislation directly designed to address the phenomenon of the crime that thrives in such places, and to confer the authority for the advance prevention of the opening of businesses that are liable to harm public safety and generate crime. It also proposes to stiffen the punishments and to adapt them to any given situation (H.H. 5735-1975).” Incidentally, the Explanatory Note refers to the closing of “a certain place”. In light of our conclusions above, it is not inconceivable that “a certain place” encompasses the Internet, it being a place where anonymity is preserved and where we have no knowledge of a website owner’s or users’ identities, nor do we know what that place is, or where is it located, all of these are considered  “anonymous".

40.       The harm wrought by gambling on the Internet is immeasurably greater than that which is caused in physical place. Gambling websites on the Internet are accessible to all sections of the population, from adult to child, the rich and the poor, the honest and the corrupt, the wise and the legally incompetent. With just a click of a button and press of a key any novice can gamble on the Internet. But not only accessibility is concerning, there is also availability – at  any time and any hour.  Identity can be disguised to enable the use of all features of virtual spaces. All of these come together to exacerbate the phenomenon and its range of harms: addiction, vast loss of funds, money laundering, tax evasion, incidental crime, and more. A large physical gambling venue can hold hundreds, perhaps even thousands of clients, but it pales in comparison to the Internet, which is available to millions of people. With these capacities, the number of victims also rises exponentially, as well as the amounts of funds dubiously invested.

41.       When section 229(a)(1) of the Penal Law was enacted, the legislature did not anticipate the Internet and by extension did not consider the illegal gambling that would be conducted there. However, the legislative purpose evidently was to prevent illegal gambling, regardless of location.  The police pursuit of offenders does not end at virtual space; the Internet cannot become a city of refuge. The material factor is not the platform for illegal gambling but rather the phenomenon itself. “Do not look in the canister, but at what is inside (Mishnah, Avot 4.2)” If it is technically possible to close a gambling place, even if the closure is not an enclosure but rather a prevention of access, the legislative purpose should be realized, to the extent possible, through proper interpretation. And again, if we assume that it refers to a physical place, then illegal gambling need not necessarily be conducted in a closed structure, for example, a vast area in which illegal gambling takes place.  The possibility of ordering its closure exists and can be done by preventing access through the gate. The police would be authorized to close the gate and prevent access to a space used for criminal activity. In the same vein, the Internet too is a space: a computerized space (some have used the expression “global public space”. See Jurgenb Habermas, The Structural Transformation of the Public Sphere, Thomas Burger & Frederick Lawrence translations (1989); Tal Samuel-Azran, Global Public Sphere on the Internet: Potential and Limitations, Legal Net:  Law and Information Technology, 433, 434 (Niva Elkin-Koren and Michael Birnhack eds, 2011)). Entrance into computerized space is also through a “gate” embodied by the access provider and the website operator. Concededly, the entrance is not physical, actually consists of communication between computers, but this is immaterial, because the technological definition is inconclusive as to the interpretative question.

42.       Jewish Law can enlighten us. The Torah was given at Mt. Sinai. In the ancient world, modern technology and the Internet era were unimaginable. Nonetheless, the Torah seeks to adapt to present and future reality by way of interpretation, for otherwise it would become a dead letter instead of a living document. Interpretation must adhere to language in order to fulfill the Divine words and to not deviate from them in any way. It was specifically because of this that the Talmudic Sages saw no difficulty in adapting terms such as ox or donkey or camel, used in those times for labor and transport, to the context of vehicles and planes. This is the present need for otherwise Jewish law will no longer be relevant or valuable. Rabbi Aharon Lichtenstein made remarks pertinent for our purposes, and they should guide us: 

                        In the developing technological reality the ability to cause damage, physical or even virtual continually increases, without incurring any liability under the criteria of Nahmanides or of Rabbi Yitzhack.[2] The harm may be more abstract and the process of causing it may be more indirect than the minimal threshold for liability under garma.[3] Nonetheless, the result is quite severe.

                        Accordingly, a learned and sharp-minded thief would be able to plan and execute the perfect burglary, with the assistance of grama tools for breaking in, without consequences, whether due to direct damage or force of garmi.  Should we persist to grant exemptions in this kind of scenario based on the law of grama in torts?...

                        The request is simple, the authority exists and eyes are raised in anticipation. In the event that leading Jewish authorities succeed in enacting an amendment for this matter it would provide a  remedy for a real concern for society, and at the same time, would  elevate the glory of the Torah (Lessons of Rabbi Aharon Lichtenstein, Dina d'Grami, 200 (5760); See also in the comments of Justice N. Hendel, para. 6 Anon.)

43.       Thus far on the laungauge and the purpose. We now proceed to address some of the difficulties the Administrative Affairs Court considered in the decision appealed here, in terms of applying of the law to the virtual sphere. These difficulties also lead the court to conclude that the solution lies with the legislature and not the court, and that it is appropriate to wait for legislative amendment.

44.       A primary difficulty is that the orders restrict access to the Internet through third parties – the access provider. According to the Administrative Affairs Court, based on the Israeli Internet Association’ claim, the law authorizes closing a place, but does not authorizes ordering a third party to prevent access to an Internet site. The claim is a weighty one. Access providers’ legal responsibility poses questions in different legal contexts. For example, in the Mor [5] case the Court held that the provider is not obligated to disclose the identity of anonymous “talkbackers”, and called upon the legislature to regulate the matter. Similarly, in Anon [8] the Court ruled that a supplier cannot be compelled to reveal the particulars of a site owner who breaches copyright in order to file an action for that breach. This decision was also accompanied by a call for legislation of the matter. At the same time, the Court held that if a certain matter did not find a legislative solution, courts would have to provide solutions in case law, and the legal doctrines required to fill in the lacunae were presented. The matter before us is different. Here, it cannot be said that there is no legislative provision that confers authority. There is no need for primary legislation of the issue. The section’s interpretation leads to the conclusion that the section applies to the virtual realm. Legal issues concerning the access provider may be adequately resolved in the context of how the police may exercise its authority to order restricted access to gambling websites. That such difficulties exist should not be a determinative factor in whether the authority exists.

45.       I also believe that the legal challenges involved in restricting access to gambling websites vis-a-vis the access providers were exaggerated. First, using a third party to execute criminal proceeding is not illegitimate. The law recognizes, for example regarding a summons to present evidence for investigation or a trial (section 43 of the Criminal Procedure (Arrest and Search) (New Version) Act, 5729-1969. Second, given the license they receive from the State, access providers have a public duty. They sit at a central intersection – the “Internet points of control” – and under these circumstances using them to execute orders restricting access is justified.  Third, it appears that had it concerned the closure of a physical place by the police, with third party assistance, there would have been no problem.  The attorneys for the State demonstrated this in another context thus: Illegal gambling is being conducted in an isolated villa. A guard is in charge of the path leading to the villa. Would the police not be authorized to order the policeman to prevent gamblers’ access to the path leading to the villa? Fourth, a police order directed at access providers instructing the to restrict access to illegal gambling websites does not require them to conduct any investigation or inquiry and does not unlawfully breach any of their rights, ordering them only to “execute a technical act that does not involve any discretion of the closing of a site with a particular IP address, explicitly specified in the order” (section 41 of the State’s summations). Case law has stressed that imposing legal responsibility on the supplier raises concerns that should be regulated statutorily (see Rachel Alkalai, Civil Liability of Internet Services Suppliers for Transfer of Harmful Information Hamishpat 6, 151, 154 on the Report by the Knesset Sub-Committee for Communications and Information on the Need for a Legislative Arrangement). However the situation in the case before us differs from the one described there. We do not hold that Internet providers are legally responsible to prevent, on their own initiative, access to websites used for illegal gambling.  Moreover, our ruling does not prevent access providers from petitioning a court in appropriate cases in order to subject it to judicial review. This right is stipulated in section 5(1) of the Administrative Affairs Court Act, 5760-2000 (item no. 7 of the First Schedule). Recall that the access providers did not exercise this right and did not challenge the order.

46. The Israeli Internet Association claims that this is an “unprecedented and exceptional measure” (page 1 of the summations). This is not so. The Administrative Affairs Court recognized that restricting access to Internet websites used for gambling is accepted practice around the world: “The desire to minimize the harm from negative uses has led certain authorities, even in liberal democratic countries, to take various measures against websites that support anti-social activities (see: Betting on the net: An analysis of the Government’s role in addressing Internet gambling, 51 Fed. Comm. L. J. (1999)). One of those measures is blocking access to websites that are breading grounds for illegal activity, by various technological means…” (para. 19 of the opinion) (ed. note: translated form the Hebrew opinion’s translation).  In Australia, a law was enacted in 2001, stipulating that “access providers shall block access to illegal gambling sites should they receive an express demand to do so from the authorities” (ed. note: translated from Hebrew opinion’s translation), subject to the conditions set forth in the Interactive Gambling Bill 2001. In 2006, the United States passed a law prohibiting Internet gambling – the Unlawful Internet Gambling Enforcement Act of 2006, which inter alia allows that under certain circumstances, the court may grant orders to compel internet providers to block access to gambling websites (paras. 54- 55 of the Administrative Affairs Court opinion).

47.       Additional restrictions are common around the world. The Council of Europe’s Convention on Cybercrime deals with the adoption of legislation intended to protect society from crimes committed online (http://conventions.coe.int/Treay/en/Treaties/Html/185.htm). It provides inter alia that all parties to the convention will adopt legislative and other measures as may be necessary to criminalize various acts of child pornography, which is disseminated over computer systems (Article 9). In 1998, Sweden passed a law addressing liability for electronic bulletin boards, including various categories of Internet pages (Act (1998:112) on Responsibility for Electronic Boards).  This statute requires service providers who store information (as distinct from Internet access providers) to make illegal content inaccessible or to remove the content. If further refers to a number of provisions in Sweden’s Penal Law, for example, incitement to racism, or child pornography (http://www.nai.uu.se/forum/about-nai-forum-1/SFS-1998_112-Act_E-boards.pdf.).

48.       Australia established an agency known as Australian Communications and Media, which is charged with, inter alia, regulating Internet content. The agency is authorized to investigate potentially prohibited content on the Internet, and to issue access providers “notice of warning and removal” relating to the contents of Internet websites used for illegal gambling. In Italy, since 2006, Internet gambling has been prohibited, unless on authorized websites.  Internet access providers are required to restrict access to unauthorized websites listed in a “black list” kept by an administrative body: Autonomous Administration of State Monopolies, http: www.aams.gov.it/site.php?id=6560).  As it turns out the restriction of access to websites is an accepted measure, occasionally following an order by an administrative body. The a priori involvement of a judicial body is not always necessary, and there is no need for a criminal investigation to precede the administrative directive. States around the world acknowledge the necessity of restricting prohibited activities on the Internet as well. The State of Israel is not a pioneer in this realm.

Police policy is to exercise this authority with caution. The investigations and intelligence branch prepare the infrastructure required for issuing an order.  Legal counsel to the police examines the material, and so does the State Attorney.  Immediately before issuing the order, the access providers and websites operates are given the right to present their arguments. The decision to issue the order is given at the level of the district commander.  A party who could have been aggrieved may file an application for a second review, and following that, as stated, may also petition the courts. After issuing the order, the police examines it periodically, and at least once a month considers whether to extend it, revoke it or amend it. Against this background, if the police orders, consistent with its authority, a third party to assist it in preventing an offence, and if the latter agrees, why should the court prevent it from doing so? If the same access providers wish to object, the doors of the court are open to them in order to hear their claims.

50.       As we have said, the authority is there; the manner of exercising it is subject to discretion and judicial review. Recall, that the access providers filed no petition to any court, and in this sense, the Internet Association is indeed meddling in a dispute to which it is not a party (HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of the Sixteenth Knesset Central General Elections Committee PD 57(2), 62.) Regardless, in the absence of appropriate factual infrastructure, there is no practical possibility or legal need to elaborate further on this matter.

51. The Administrative Affairs Court stated that restricting access through the orders in question could incidentally block innocent websites. Attorney for the State responded to this argument, claiming that from a technological perspective this fear was negligible because the IP address can be crossed with the website’s URL address in order to prevent restricted access to innocent sites. Personally, I see no need to rule on this point, given that it was not fleshed out in the Administrative Affairs Court.  The state can consider these claims in light of its discretion to exercise the authority. In preparing the order, the police must ensure that execution by access providers does not harm innocent websites, but only restricts access to the targetted website. Where it is impossible to avoid harm to innocent websites, as a side-effect of blocking access to a gambling website, to the extent that the Israeli Internet Association is correct and such situations indeed occur, the police would not be permitted to order restricting access to the site. Presumably, a provider wishing to avoid harm to innocent websites would present such claims under the right to be heard, in a petition for second review by the police, or in a petition to the court.

52.       The Israeli Internet Association also claimed that restriction of access was ineffective. The attorney for State argued in response that the inefficacy claim directly contradicted the Israel Internet Association’s claim concerning the damage such orders would cause: If the orders are ineffective, then naturally no harm would be caused. In any event, the court has no expertise regarding the efficacy of the orders. The position of the Israel Police – the professional body charged with the matter – is that the orders have a substantial effect and that this is another effective tool against illegal Internet gambling.  The Israel Police is aware of the methods used in an attempt to ’bypass’ the orders (for example, changing the URL website address, or its IP address). But this involves costs and not all end users know how to do it, and the police also has the tools for dealing with ‘bypass’ attempts. Actually, enforcement difficulties are not unique to virtual space and are common in all areas of crime: “For by wise counsel thou shalt make thy war” (Mishlei 24:6).

53.       The Administrative Affairs Court had difficulty not only with “place”, but also with “the closure”. According to the court, “closure is one thing, blocking access is another” (para. 41), and “even a broad interpretation of the law cannot confer the police commander authorities not specified in the law”  (ibid). My opinion is different. If the police is authorized to fully close illegal gambling websites on the Internet, then let alone it should be authorized to block or restrict the access to them. This is a less harmful measure. Section 17(b) of the Interpretation Law 5741-1981 provides that “any authorization to act or compel action implies the auxiliary authorities reasonably required therefore.” Authorization to close (and afortiori if closing is not possible) also means granting powers to block access.

54.       The Israeli Internet Association opposed various claims by the State’s representatives regarding the legislative regulation of the issue. This may be so, and it would have been preferable had they spoken in one voice, but we must remember that the issue raises real doubt. There is nothing to prevent changes in views or thought processes, and in making deliberations more productive. The binding position of the State’s representatives, at the end of the day, is that of the Attorney General, and the arguments were made on his behalf. Without derogating from its claims here, the State also submitted the draft bill to clarify the situation, but one cannot know how the legislative process will develop. The same applies to the four previous draft bills presented to the Knesset. Each one of them attempted to explicitly authorize the police to order access suppliers to block access to gambling websites, but none of them materialized into a legislative act. The Knesset members expressed varying opinions but I do not think it is possible to distill a clear conclusion from their comments regarding the subjective intention of the legislature, as concluded by the Administrative Affairs Court: “The fact that the legislator debated the proposal substantively and decided not to enact it, indicates that its subjective intention was not to apply its principles in fact… the subjective and concrete intention of the legislature in this matter, indicates that it sought not to give the District Commander authority to block access to gambling sites pursuant to his own discretion”  (para. 61). In my view, this conclusion is by no means inevitable. According to the record, some of the Knesset Members felt that a legislative amendment was entirely unnecessary, and that the authority already exists. In view of the differing views, additional possibilities exist. Summing up the debate, the committee chairperson pointed out the difficulties that were raised, but the general position was to conduct another hearing. A small part of the legislative proceedings and a few Knesset members who are members of the Constitution, Law and Justice Committee cannot provide a basis for a generalized legislature’s subjective intention.

Final Word

55.  I do not think that there was any justification to cancel the orders issued by the police, with the State Attorney and the Attorney General’s knowledge, to restrict access to gambling websites. First, it is doubtful whether the Israel Internet Association has locus standi in this petition; second, the alleged infringement of free expression is certainly not as serious as was alleged; third, the main point is that section 229(a)(1) of the Penal Law constitutes an authorization for the police to issue the orders. This is consistent with the section’s language, its logic, the legislative history and the legislative purpose.  I therefore propose to my colleagues to strike down the decision of the Administrative Affairs Court and to order the restoration of the orders to restrict access to gambling websites.

Note

56.       After reading the opinion of my colleague, Justice U. Vogelman, my impression is that he was slightly tough on the State regarding the use of a third party – access providers – for purposes of exercising the authority under section 229 of the Law. I addressed this point in paragraphs 44-45 above. I will add just this: My colleague mentioned the well known distinction between delegating authority which also includes the exercise of discretion, and receiving assistance in technical matters related to exercising that authority. My colleague acknowledges that the access providers were not required to exercise discretion, and the police only requested their help in exercising its own authority – in the technical act of blocking a website identified by its IP address as specified in the order. However, according to my colleague, it is still necessary to show that the access providers agree to assist the police, and once the police imposed an obligation upon the access providers, it can no longer be considered assistance.

My view is different. First, let us assume that the police district commander seeks to order the closure of a room used for gambling. To do so he orders a third party, in possession of the keys to that place, to lock the door, without requesting consent. Is there anything wrong with that?  Had the place of gambling not been an Internet site, but rather a room in a hotel, would the police not be authorized to order a reception clerk to assist it in exercising its authority to close that room or to open it? Would this require a legislative amendment?

Second, as mentioned in para. 49 above, prior to issuing the order the access providers were given the right to present their claims; the access providers are entitled to request a second review of the decision to issue an order, and the access providers are also permitted to petition the Administrative Affairs Court. In fact, the access providers took none of these steps. They may have reconciled themselves to the orders as a token of good citizenship; they may have an interest in preventing access to gambling websites, because in doing so they reduce their exposure to law suits (for example: parents suing them for their damages as a result of their children’s Internet gambling). I will not belabor the point speculating because the facts suffice: The access providers did not institute any legal proceedings to express their objection to the orders. My colleague seeks to be meticulous about the access providers’ rights, and requires that their consent be “explicit”, “sincere and genuine willingness”. Under the circumstances, my view is different. In the Haggadah of Pessach, tomorrow night, with respect to the son who does not know how to ask, we say “you shall open your mouth for him”. By way of analogy, this is how we relate to a mute, who is incapable or does not know how to present claims or to ensure their rights are protected. Access providers do not fall into this category and I see no justification for treating them under the criterion of “you shall open your mouth for him”, when the gates of the court were open to them, and they knowingly refused to enter. More precisely, in the future too, whenever the police seek to issue an order, Internet providers will be able to object and to present their case before the order is issued, after it is issued, and also to file an administrative petition. It therefore seems that we may appropriately apply the Talmudic rule that “silence is regarded as consent” (Bavli, 87b), to infer their agreement, and thus remove the obstacle to the exercise of the police authority to restrict access to gambling websites.

 

Justice U. Vogelman

Is the District Police Commander of the Israel Police authorized to order Internet access providers to restrict Israeli users’ access to gambling sites on the Internet, under their authority under section 229(a)(1) of the Penal Law, 5737-1977 (hereinafter: the Penal Law), to close down gambling places? This is the question before us.

General

1.         The appearance of the Internet has radically changed our world.  It enables easy and convenient communication between people. Some use it for interactive entertainment; others use it for electronic trade. Many use it – occasionally on a daily basis – to send electronic mail and for sending instant messages. A countless number of websites enable video and audio, and others enable telephony, files sharing, and the like (Assaf Hardoof, Hapesha Hamekuvan) [CYBERCRIME], 114, 117 (2010)). The web also enables access to immense quantities of information pooled on the Internet – an ever growing collection of documents created by independent authors and stored in servers’ computers. In that sense, the Internet is the most outstanding feature of the “information era” in which we are living, an era in which advanced technological reality enables the immediate transfer of data on a massive scale compared to the world around us (see HCJ 3809/08 Citizens Rights Bureau v. Israel Police [12] para.1 (hereinafter: the “Big Brother” law). In this way the Internet has and continues to contribute to social, economic, scientific and cultural developments around the world. Alongside these numerous advantages, phenomena of lawbreaking are likewise are not absent from the virtual world. The Internet enables activity that is defined as a criminal offence or civil tort, as well as technologies that enable the commission of torts or offences (Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, in Legal Network: Law and Information Technology, eds. Michael Birnhack and Niva Elkin-Koren, 2011). Illegal gambling enabled by the Internet is part of the content available on the Internet. Gambling websites offer their services from their locations in countries that permit it, and are accessible from different states around the world, including those in which participation in gambling is prohibited or restricted. Over the past few years these websites have become increasingly ubiquitous, given the high financial incentive for establishing them. Online gambling is one of the most profitable branches of trade on the Internet (Chaim Wismonsky, Sentencing Guidelines for Computer Crimes, Bar-Ilan Law Studies 24(1), 81, 88 (2008)).

2.         There is no need to elaborate on the negative social value involved in gambling. My colleague Justice N. Sohlberg also discussed this at length. This phenomenon has seen plenty of opposition, including the claim that a one’s livelihood should be based on work, a vocation or some other legitimate activity rather than easy enrichment based on luck. Whereas participating in gambling is not creative and undermines one’s work-ethic, a person participating in prohibited games may become addicted to this “occupation”, and the addict could cause extensive losses to themselves and their family and ultimately become a burden upon their family and upon society. As known, there are a few legal arrangements that permit gambling games under state auspices, encompassed in the Regulation of Gambling in Sports Act, 5727-1967 and in section 231(a) of the Penal Law. Mifal HaPayis,[4] for example, operates under such a permit. Notwithstanding that state-sponsored permitted gambling enables quick enrichment based on luck and also poses the danger of addiction, it should be distinguished from illegal gambling. Permitted gambling enables fundraising for public causes; they are not usually accompanied by negative elements such as coming under the control of organized crime, and finally, the state can oversee their mangagement and the distribution of funds (see AAA 4436/02 Tishim Kadurim [3] at p. 804,806; Ofer Grusskopf, Paternalism, Public Policy and the Government Monopoly over the Gambling Market, Hamishpat (7) 9, 28 (2002)).  As an aside, it should be noted that in many states gambling is permitted on a wider scale, but needless to say, our decision at this stage is restricted to Israeli Law and the legislatures’ values-based determinations.

3.         Techonolgically, it is now possible to block access to a particular website (compare:  Rachel Alkalai, Civil Liability of Suppliers of Internet Services for Transfer of Damaging Information, Hamishpat  (6) 151, 159 (2001)). This is the background for the orders subject to this proceeding. The events concerning us unfolded as following. At the end of June 2010 Israel Police district commanders sent warning letters to Internet access providers, notifying them of their intention to order blocking Israeli users’ access to various gambling websites (hereinafter: the warning letters). In the warning letters the district commanders specified the URL addresses and IP addresses of these websites. Notably, the Appellants claimed that the website operators also received a similar warning. The Internet access providers received a 48-hour extension to submit their challenges of the orders, and a further extension was granted to providers who so requested. One provider, Respondent 2, exercised its right to object to the orders. In a letter to the district commanders, Respondent 2 claimed that the orders because were unlawful because the district commander is only authorized to order closure of physical places; and also because the Penal Law does not authorize a district commander to use the providers to prevent users in Israel from having access to gambling websites. In August 2010 the police gave notice that it had rejected these claims and the orders forming the subject of the appeal were subsequently issued.

4.         Our decision in this appeal therefore relates to the legality of these orders. My colleague, Justice N. Sohlberg, found that there is a doubt regarding the locus standi of the Israeli Internet Association in this petition; and that there was no justification to declare the orders invalid because they were issued by the district commander without authority, as per the ruling of the District Court. Having read the comprehensive opinion by my colleague, and having considered the matter, I have concluded I cannot concur with the result that he reached. My conclusion precedes the analysis. As detailed below, in my view, section 229(a)(1) is short of authorizing the police to issue the relevant orders. In the first part of my remarks I will discuss the locus standi of the Israeli Internet Association. Next, I discuss the source for the claimed authority – section 229 of the Penal Law, and examine whether it sufficiently authorizes ordering the Internet providers to block access to gambling websites.

Locus Standi of the Public Petitioner

5.         The Israeli Internet Association is a non-profit organization that works to promote the Internet and its integration in Israel. The Association seeks to further the interests of Internet users. It has no self-interest beyond the interests it shares with the general public, or at least with significant parts thereof, and as such its petition is a “public petition”. As a rule, this Court’s jurisprudence has taken a permissive approach to standing rights of public petitioners (HCJ 5188/09 Association of Renovations Contractors for Restoration v. State of Israel  [13] para. 7.) Our firmly settled rule is that a public petition will be recognized where “the matter raised in the petition is of a public nature, which has a direct effect on advancing the rule of law and establishing policies to ensure its existence in practice” (HCJ 1/81 Shiran v. Broadcasting Authority [14] at p. 374; see also HCJ 910/86 Ressler v. Minister of Defense [15], at 462-463). Who can serve as the public petitioner? It could be any one of many people aggrieved by a certain administrative act (HCJ 287/91 Kargal Ltd v. Investments Center Council [16] at p. 862), including any one who is unable to indicate a personal interest in the matter or harm caused to them personally (HCJ 651/03 Citizens Rights Bureau in Israel v. Chairman of Central Elections Committee for Sixteenth Knesset [11] at p.68)). The judicial policy on this issue was and still is influenced by fundamental value-based concepts about the role of judicial review in protecting the rule of law and supervising appropriate functioning of public administration. As such, the court should refrain from refusing the hear a person who claims that an administrative authority has violated the rule of law for the sole reason that they have no personal interest in the matter, given that this would lead to providing the authority with a stamp of approval to continue violating the rule of law (HCJ 962/02 Liran v. Attorney General [17] para. 14 (hereinafter: “Liran”). Yitzchack Zamir Administrative Power Vol.1 120-121 (2^nd ed. 2010) (hereinafter: Zamir)). Along with broadening of the scope of standing rights, the principle that the court will not generally grant a public petition where there is a particular person or body who has a direct interest in the matter should be preserved, unless they themselves have failed to petition the court for relief in the matter concerning them (see Liran [17]). In the words of former Justice M. Cheshin in HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [18]: “…in a case of this kind we would tell the public petitioner seeking to claim the right of the individual injured: Why are you meddling in a quarrel which does not involve you? If the victim did not complain about the infringement that he suffered, why have you come to provoke dispute?” (ibid., p. 443).  

6.         My colleague Justice N. Sohlberg felt that the Internet Association was “meddling in a quarrel which does not involve it”. I do not share this position. In the case before us, the Internet Association has raised grave claims about the alleged overstepping of authority in issuing orders to Internet access providers. Our concern is with a first attempt to define the scope of the district commanders’ authorities under section 229 of the Penal Law, in terms of blocking access to Internet gambling websites. This is a fundamental question. It is undisputed that the administrative authority’s activity within the boundaries of its authority are central to maintaining the rule of law. This Court has already held that claims of exceeding of authority are categorized as claims that justify broadening standing rights, for “...a court takes a more lenient attitude to the right of standing of persons not directly and substantially harmed where it concerns exceeding authority of a tribunal or agency, or where it concerns an act committed unlawfully, as distinct from other cases” (per Justice Kister in HCJ 80/70 Elizur v. Broadcasting Authority [19] at p.649; compare HCJ 852/86 Aloni v. Minister of Justice  [20], at p.63).

7.         One of the underlying considerations in Justice N. Sohlberg’s position on the Internet Association’s standing was the concern that conducting a proceeding on the part of the Internet Association might mean that the court would not be presented with the required factual foundation.  While I do not deny this concern, it seems that it need not undermine the Association’s standing.  First, we may assume that had the Appellants who participated in the proceedings in the lower court wished to clarify any factual matter or otherwise, they would have done so. For example, consider the Appellant’s complaint that the trial court was not presented with a full description of the technological ability to order blocking access to the websites. Without making an iron clad determination on the question at this stage, it suffices to say that nothing prevented the Appellants themselves from presenting data on this point, to the extent that they disputed the factual infrastructure in the petition. Second, nothing prevents the public petitioner from presenting the necessary factual foundation. In this case, too, I do not find the legal foundation presented to the Court to have hindered judicial review. Consequently, in my view, there is no ground for us to intervene in the District Court’s ruling that the Internet Association has locus standi in this proceeding.

With this in mind we can proceed to the merits of the matter.

The Question of Authority

8. Section 229(a)(1) of the Penal Law, titled “Closure of Places” provides that “A district police commander of the Israel Police may order the closing of... a place for prohibited games or a place for the conduct of lotteries or gambling”. In section 224 of the Law, a “place of prohibited games” is defined as “premises in which prohibited games are habitually conducted, whether open to the public or only to certain persons; regardless of whether those premises are also used for some other purpose”. In order to determine that the orders directed at the access providers requiring them to block access to gambling websites, are within the authority detailed in section 229 of the Law, three interpretative moves are necessary. First, we must determined that a website fits the definition of “place” as defined by the law; second, that blocking access to the website is the equivalent of “closing” as defined in the Law; and third, that the access providers can be used to exercise such authority.

9.         I am prepared to assume, in line with my colleague Justice N. Sohlberg’s holding that a website could constitute a “place” as defined in different contexts in our legislation, and that an online gambling website may be viewed as a “place of prohibited games” as defined in section 229 of the Penal Law. In this regard, I tend to agree that a purposive interpretation of this legislation, in the spirit of the times and technological progress, may indeed lead us to the conclusion my colleague reached that section 229 of the Penal Law could be also applied to “the virtual world” (compare Assaf Hardoof Criminal Law for Internet Users: The Virtual Actus Reus, HaPraklit (forthcoming) (52) 67, 122-124 (2012) (hereinafter - Hardoof)).

10.       Regarding the infringement of free expression. Internet sites indeed serve for voicing opinions and exchanging ideas, but – as is well known – the law does not treat each and every expression similarly. Even had some of the gambling websites included pictures, explanations concerning the rules of different games, information about gambling relations, chat rooms, and others – this is content located at the periphery of the protected value. As such, even if blocking gambling websites may cause blocking access to lawful content, it must be remembered that the value of the “expression”, which we are asked to protect, is not high and that the extent of protection afforded corresponds to the extent of the interest in question (HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority [21] at p. 28). Moreover, to the extent that it concerns the blocking concrete websites, it seems that the primary infringement relates to the website operators’ freedom of occupation. Our precedents have already held that this is an infringement that passes constitutional tests (Tishim Kadurim [3] at pp.814-815). However, despite this and though I am prepared to assume that the extent of the infringement of freedom of expression is limited, I think it important to note that I share the general approach of the District Court, that when dealing with the sensitive topic of blocking Internet websites, we should particularly scrutinize the concern for infringement of freedom of expression. With respect to gambling websites, and only to them, my opinion, as mentioned above, is that the infringement of free expression that resulted from blocking lawful content on the gambling websites, is of a limited degree, On the other hand, it is certainly possible that other cases will reache us in the future, where there may be reason to significantly broaden the scope of protection afforded to expressions displayed on any particular website. Each site has its own characteristics.

11.       Aadditionally, the sensitivity of the matter – blocking websites – has another aspect , given that the trial court also found that blocking illegal gambling websites could also block access to “innocent” sites which the order did not target.  An unintentional block may occur because a number of websites, not linked to each other, may be located on a server with the same address. Regarding this point, the trial court referred to Center for Democracy & Technology v. Pappert [31] 337, F.Supp.2d 606 (E.D Penn. 2004), in which the United States Federal Court struck down a law that enabled censorship of pedophile websites, among others because of the filtering of “innocent” websites. The Appellants, for their part, challenge this holding. They claim that from a technological perspective, the fear of blocking sites that are unconnected to gambling activity is negligible, because the access providers were requested to block websites based on the combination of the IP address and the website address (the URL). This combination of the IP address and the URL address, allegedly, minimizes any possibility of blocking innocent websites. Apparently, this point was not fully clarified because even after examining of the papers filed with the trial court, it is unclear whether it is technologically possible to block only “targeted” gambling websites, as alleged by the Appellant, or perhaps, technologically, it poses difficulties. If indeed, there is danger of blocking “innocent” websites, then this would clearly constitute a grave infringement of free expression and the right to access information – an infringement that would necessitate explicit statutory authorization as well as compliance with the limitations clause.

12.       Had the question of blocking “innocent” websites been the only difficulty arising from this case, it might have been appropriate to remand to the trial court for an in-depth examination of this issue. However, the central obstacle the Appellants face is fundamental and disconnected to the previous question, namely using a third party to execute an authority, without explicit statutory empowerment to do so. In my view, section 229 cannot be sourced to exercise the authority by giving an order directed at a third party – the Internet access providers. My colleague, Justice N. Sohlberg, found that restricting access to gambling websites through a third party does raise concerns, but in his view these difficulties do not negate the authority to do so. My view is different, and I will clarify my reasons.

13.       Our concern is with a district police commander who issued orders to the Internet access providers to block access to gambling sites. These are “personal orders” – in other words, orders directed at a particular person or entity, imposing a prohibition or a duty upon them. This is an individualized rule of conduct. This kind of order, like any administrative decision, requires a written statutory source (Zamir, at 284).  The question therefore is whether the district police commander is authorized to order the providers – a private body that is not accused of any offence – to perform various actions on behalf of the Israel Police, and to actually serve as its long arm. This authority, arguably, is found in section 229 of the Penal Law, which authorizes the district commander to order the “closure” of places used for gambling.  As mentioned, I accept that had law enforcement authorities been able to affect the closure of websites used for gambling criminalized under Israeli Law (for example by disconnecting the website from its connection to the Internet or by shutting down the server’s activity) there would be no question regarding authority.  However, in this case, the relevant websites were not actually “closed”. Instead, the district police commanders ordered third parties – the Internet access providers – to block access to those websites. The issue then becomes whether the powers granted by by section 229 support doing so.

14.       When a governmental authority is conferred with a power, according to settled case law, the authority must exercise this power itself. When the legislature specifies an authorized office holder, it is presumed the legislature wishes that particular office holder, and that alone, exercise it (HCJ 2303/90 Philipovitz v. Registrar of Companies [22] (hereinafter: Philipovitz), at p. 420; see also Daphne Barak-Erez Administrative Power, 178 -170 (hereinafter: Barak-Erez)). These comments are particularly true for criminal enforcement. In the absence of appropriate legislation, law enforcement authority cannot be given to those not part of the enforcement mechanism. Criminal enforcement authority is one of the classic authorities of the state. This authority enables the state to fulfill its responsibility to enforce criminal law through its own execution. It is the state that exercises the Government’s authority over the individual in the criminal proceeding. Therefore, the state – having established the behavioral norms and having been charged with their enforcement – is the entity directly responsible for caution and restraint required for exercising this power. It is the entity that is accountable to the public for the way it executes its powers (HCJ 2605/05 Academic Center for Law and Business v. Minister of Finance [23], para. 28 of former President D. Beinisch’s opinon and para. 14 of Justice A. Procaccia’s opinion.)

15.       By attempting to source the authority in section 229 of the Penal Law, the State maintains it is exercising the authority by itself, and that enlisting Internet access providers to block gambling websites is merely exercising auxiliary powers that administrative agency must employ in order to exercise its authority (section 17 of the Interpretation Law, 5741-1981). I cannot accept this construction. As well known, there is a distinction between delegating authority that includes exercise discretion regarding a particular authority, and receiving assistance in technical matters related to exercising the authority (Philipovitz [22] at p. 424). Whereas the authority is permitted to receive assistance from private bodies about technical aspects of fulfilling their task, there is also a presumption against delegating authority to private entities (AAA 6848/10 Erez v. Giva’ataim [24] para 18; HCJ 5031/10 Amutat Ir Amim v. Israel Nature and Parks Authority [25] para. 18). Here, the access providers were not required to exercise discretion regarding the websites to which access was to be blocked. As such, it could be argued on its face that the authority did not delegate power but only requested assistance in exercising it, and that such assistance is in principle permitted. However, where assistance is concerned, the first and foremost element to demonstrate is that the person or entity whose assistance is required consents to assisting the authority, regardless of whether consent is motivated by commercial and economic motives (compare to Philipovitz [22] at 415), or by voluntary motives. The most important thing is that the authority may receive assistance only from those seeking to offer assistance based on pure and genuine motives and after securing explicit consent. When the authority imposes a duty on a person or entity to perform any act, one can no longer speak of assistance. In our case, the Appellants claim that the expression “closing of a place for prohibited games” mentioned in the relevant section of the Penal Law, also contains the possibility of ordering closure of access routes to that place using auxiliary authority. This is not so. Our concern is with orders that compel a private body – the Internet access providers – to “assist” the authority. Consequently the argument that the providers are an entity that grants its services voluntarily must fail. This is doubly important when the orders themselves warned, in bold print, that failure to comply with the order could constitute an offence of breaching a statutory provision, an offense of assisting the conduct of prohibited games, and an offence of assisting to maintain a place for prohibited games (sections 287, 225, and 228 of the Penal Law, combined with section 31 thereof).

16.       Additionally, I wish to clarify that were there an explicit statutory authorization it could be possible to “impose a duty” and receive assistance from any person for the purpose of realize various legislative goals. Indeed, different pieces of legislation empower an authority to order a third party to assist it, even in the criminal context. For example, section 20 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 provides that every person must help a police officer to arrest any person whom they are authorized to arrest. In a matter close to our own, a similar arrangement exists: the Criminal Procedure (Powers of Enforcement-Communication Data), 5768-2007 (also known as the “Big Brother Law”) allows Israeli investigatory authorities to be assisted by “holder[s] of a Bezeq license” (as defined there) in order to receive communications data on Bezeq subscribers for various purposes, such as discovering and preventing offences (section 1 and section 3(2) of this law). The various Internet providers are among the companies that may be required to submit communications data (see in the matter of the “Big Brother” law, para.2). This affirmation however also implies the opposite. Imposing a duty, coupled with a sanction, requires legislative bases. Without explicit legislative authority, it is impossible to charge a private entity with performing actions for the authority (compare: Civ.App. 90868/00 (District-T.A.) Netvision Ltd. v. Israel Defense Force- Military Police, para.9 (22.6.2000); Crim.F. 40206/05 (District-T.A.) State of Israel v. Philosof para. 8 b) (5.2.2007)). We are thus left with the need for explicit lawful authorization. In our case however, the language of section 229 of the Penal Law does not contain so much as the slightest hint of an authorization to impose a duty on a third party. And for good reason. Such authorization involves complex matters of law and policy.  In 2008, when the Knesset deliberated over the legislative amendments that would confer authority to block access to gambling websites, representatives of the Minister of Justice (as well as representatives of the police) expressed reservations about conferring authority as stated, for various reasons which will not be addressed here. Today the position of the authorities – with the support from the Attorney General – is different. Of course, the authorities are not bound by their former position, but the only lawful way to confer the district commander with the authority to order a third party service provider, in my view, is an amendment to primary legislation (an amendment which, needless to say, would have to satisfy the limitations clause in Basic Law: Human Dignity and Liberty). Accordingly, the manner in which the orders were issued here deviated from the principle of administrative legality, which is a fundamental norm of administrative law. “This principle teaches that the power of the public authority flows from the powers conferred upon it by law and nothing else. It is the law that grants the license to act, and defines the boundaries of its scope. This is the ABC of administrative law” (Baruch Beracha, Administrative Law, Vol.1 35 (1987); CA 630/97 Local Committee for Planning and Building Nahariya v. Shir Hatzafon Construction Company Ltd [26], at pp. 403-404; HCJ 5394/92 Hoppert v.'Yad Vashem' Holocaust Martyrs and Heroes Memorial Authority[27] at , 362 (1994);  HCJ 7368/06 Luxury Apartments Ltd v. Mayor of Yabneh [28], para. 33; see also HCJ 6824/07 Mana v  Taxation Authority[29]; HCJ 7455/05 Legal Forum for Land of Israel v. Israeli Government [30] at p. 910; Zamir, at 74-890; Barak-Erez at p. 97 and on). This is especially so in context of a mandatory authority, as anchored in the Penal law (see and compare Hardoof at p. 124).

17.       Could future legislation enable imposing the task of blocking gambling websites upon Internet access providers? An arrangement of this kind might take several forms. The legislature might determine that a court must grant such an order; it might grant the district police commanders – or any other authority – the authority to issue these orders, without petitioning a court (compare with “Big Brother” Law, para. 2). We assume that this legislation would also resolve additional concerns stemming from imposing the duty on access providers, while considering the costs likely involved in ensuring effective blocks, including the definition of access providers’ responsibility towards third parties, such as users and website owners whose access to them is blocked, and the like. In any event, it is clear that in our legal system the legislature is branch competent to consider the appropriate way to handle blocking access (Hardoof, ibid). Therefore we shall not jump the gun. We are not required at this point to pronounce on future legislation that has yet to be enacted and the details of remain unknown (and which, as mentioned, will also have to satisfy the limitations clause).

Other Legal Systems

18.       My colleague, Justice N. Sohlberg, found that restricting access to websites used for gambling is acceptable practice all over the world. Before we consider his comparative analysis, we should again note that the treatment of gambling in some countries is more lenient and as such no conclusive analogy can be drawn from the existing law in those countries to our legal system. On the merits of the matter, while certain countries receive assistance from Internet access providers to block gambling websites, as noted by my colleague, these are generally arrangements explicitly mandated by legislation, rather than acts designed to exercise general administrative powers. I will provide some examples.

19.       In the United States, gambling is regulated primarily at the state level rather than the federal level. There are significant differences between the various states in whether and how they view gambling and how they treat it. Federal legislation is therefore designed to assist states in enforcing local gambling laws where gambling activity extends beyond state-lines. Four primary pieces of federal legislation serve the authorities dealing with the gambling phenomenon: The first is the Federal Wire Act, of 1961 (18 U.S.C. §1084), which targets interstate gambling through linear communication. Though this law was enacted years before the Internet came into common use, and long before the online gambling became prevalent, this is legislation that authorities relied upon in the earlier days of the problem (see e.g. United States v. Cohen 260 F. 3d 68 (2d Cir. 2001)). The second act regulating the issue is the Illegal Gambling Business Act of 1970 (18 U.S.C. §1955) that was passed to battle organized crime that used gambling businesses as a main source of income, and it regulates the criminal responsibility of owners of large gambling businesses. The third is the Travel Act of 1961 (18 U.S.C. §1952), which prohibits the use of mail and interstate travel and travel outside the United States for unlawful purposes, including illegal gambling. The forth piece of legislation is the Unlawful Internet Gambling Enforcement Act (31 U.S.C. §5361-67), which prohibits gambling businesses from knowingly receiving payment linked to one’s participation in online gambling. It is interesting to note that law enforcement authorities occasionally found it difficult to rely on old statutes to receive Internet access providers’ assistance in closing gambling websites. Hence, for example, in April 2009 authorities in Minnesota instructed Internet service providers to block state residents’ access to 200 online gambling sites – an instruction given under the Federal Wire Act. However, this was challenged in court based on the argument that this act is inconsistent with the First Amendment’s protections for freedom of expression, and with the Commerce Clause (Edward Morse, Survey of Significant Developments in Internet Gambling, 65 Bus. Law, 309, 315 (2009)). In response, the Minnesota enforcement authorities withdrew the orders issues to the access providers (Lindo J. Shorey, Anthony R. Holtzman, Survey of Significant Developments in Internet Gambling 66 Bus. Law. 252 (2010)  

20.       In Australia, the Australian Communications and Media Authority’s power to order providers to block access to illegal gambling sites is regulated in detail in the “Interactive Gambling Act 2001 (sections 24-31) and in the regulatory code enacted under it (Interactive Gambling Industry Code (December 2001)). In Italy, a state my colleague referred to in his opinion, authorities’ authorization to order access providers to block illegal gambling sites is also set in legislation. Section 50(1) of Law No. 296 of 27 December 2006 (the Budget Law for 2007) established the authority of AAMS (Amministrazione Autonoma dei Monopoli di Stato), an organ of the Italian Ministry of Finance, to instruct, in an order to the communications bodies, to take measures toward removing illegal gambling websites, while setting an administrative fine of €30,000-80,000 for any breach by the communication providers. Under this law, Administrative Order No. 1034/CGV of 2 January 2007 was issued. It details the manner of exercising the power. According to the AAMS data, as of October 2010, 24000 websites were included in the “black list”. Every month hundreds of websites are added.

21.       Therefore we must conclude that even were there countries around the world that recognize the possibility of assistance from Internet access providers in blocking illegal gambling websites – this possibility is authorized there in explicit legislation. Where the subject was not regulated in explicit legislation, questions s about the power of the authorities to do so were raised in various countries, for reasons similar to those given by the District Court.

Afterword

 22.  Before concluding I would like to respond briefly to my colleague Justice N. Sohlberg’s comment regarding my position (para. 56 of his opinion). I wish to clarify that the thrust of my opinion does not turn on the interest of the access providers and the question of their concrete consent to blocking the websites. The conclusion I reached is based on the rule that an authority can only act within the boundaries of the powers the law conferred upon it, and that when exercising police powers the strict application of this rule is especially important. I would point out that I do not accept, as a given, my colleague’s assumption that a third party can be compelled to become “the long arm” of the police without its consent. Take a situation in which the reception clerk of a hotel (an example my colleague provides) fears a confrontation with criminal elements and has no interest in coming into contact with them. Would it also be possible then to compel the clerk to close the room? In my view this question is not free of doubt, but regardless, this we are required to rule on this question. In our case the totality of the circumstances that I presented and the sensitivity of the material discussed, in my view, lead to the conclusion that the existing authorization lacks the power necessary for exercising the alleged authority. 

Epilogue

I have reached the conclusion that section 229 of the Criminal Law does not authorize a district police chief to issue orders directed at Internet access providers, ordering them to block access to gambling websites. In my view, this requires express statutory authorization and the current arrangement is insufficient, because it does not contain authorization to order a third party to assist the enforcement authorities in exercising the power.

            For this reason, were my opinion to be followed, I would dismiss the appeal against the decision of the Administrative Affairs Court and would order the Appellants to pay the Respondents’ attorneys fee, for the sum of NIS 25,000.

 

                                                                                                Justice

 

President A. Grunis

My colleagues, N. Sohlberg and U. Vogelman are in dispute both about the preliminary issue of the locus standi of the Appellant and about the substantive issue of the district police commander’s authority. Regarding the first matter I see no reason to express a position. My colleague, Justice N. Sohlberg who addressed the position that the Appellant had no locus standi in the Administrative Affairs Court, analyzed the substantive issue, and concluded that it would not be proper to allow the appeal based on the preliminary issue without having considered the legality of the orders issued by the district police commanders. Under these circumstances I agree that it is appropriate to address the issue on its merits. Regarding the substantive issue, I concur with Justice U. Vogelman. That is to say, that I agree that the district commanders of the Israel Police do not currently have the authority to issue orders to Internet access providers to block access to gambling websites. The solution lies with the legislature.

 

                                                                                                            The President

 

It was decided by a majority opinion (President A. Grunis and Justice U. Vogelman) against Justice N. Sohlberg’s dissent, to dismiss the appeal, and to order the Appellants to pay the Respondent’s attorneys fees in the sum of NIS 25,000.

 

Handed down today 13th Nissan 5773 (24 March 2013).

 

 

H.C.J 100/57

H.C.J 103/57

 

           

IZHAK WEISS

v.

THE INSPECTOR GENERAL OF THE ISRAEL POLICE AND ANOTHER.

H.C.J 100/57

 

 

YOHANAN MILLER

v.

THE INSPECTOR GENERAL OF THE ISRAEL POLICE AND ANOTHER.

H.C.J 103/57

 

           

In the Supreme Court sitting as the High Court of Justice.

[February 13, 1958]

Before Olshan P., Sussman J., and Landau J.

 

 

 

Jurisdiction - Police Ordinance - Court of Discipline - Offence committed by Police in Gaza Strip after Sinai Campaign - Distinction between jurisdiction of Court of Discipline and ordinary criminal jurisdiction - Jurisdiction personal and  not territorial - International Law.

 

                The petitioners were members of the Israel Police Force. They were sent to the "Gaza strip" when it was occupied by Israel armed forces after the Sinai Campaign to do normal police work there. In contravention of an order forbidding the purchase of goods, they bought nylon material, medicines, cameras and films. They were charged before a Court of Discipline which was set up under the Police Ordinance. The petitioners contended that the court had no jurisdiction to hear charges against them because, inter alia, the Police Ordinance only dealt and could only deal with offences committed in Israel and not with offences committed in Gaza which was not part of Israel and had not even been declared to be the occupied territory of Israel. They obtained an order nisi from the High Court calling upon the Inspector General of the Israel Police and the Court of Discipline to show cause why the proceedings against the petitioners should not be discontinued.

           

            Held, discharging the orders nisi, that the jurisdiction of the Court of Discipline, which was established for preventing the lowering of the standards of the police, is not the same as ordinary criminal jurisdiction, but is personal and not territorial. The tribunal, therefore, had jurisdiction in the present case, although the offences were committed beyond the territory of Israel.

               

Palestine case referred to:

 

(1)        Privy Council Appeal 24/45 Lipshitz v. Valero & Others (1947), 14 P.L.R. 437.

 

            Israel cases referred to:

 

(2)        H.C. 279/51 Amsterdam & Others v. Minister of Finance (1952), 6 P.D. 945.

(3)        Cr. A. 126/51 EI-Tourani v. Attorney-General (1952), 6 P.D.1145.

(4)        Cr. A. 174/54 Shtampfer v. Attorney-General (1956), 10 P.D. 5.

(5)        H.C. 27/48 Lahisse v. Minister of Defence & Others (1949), 2 P.D. 153.

(6)   H.C. 268/52, H.C. 47/53 Sapoznikov & Others v. Disciplinary Tribunal (1953), 7 P.D. 656.

(7)   H.C. 13/57 Tsimoukin v. Civil Service Disciplinary Tribunal & Others (1957), 11 P.D. 856.

(8)        Cr. A. 20/53 Neiman & Others v. Attorney-General (1955), 9 P.D. 845.

(9)        C.F. 82/51 Haifa, Attorney-General v. A.B. (1951/52), 5 P.M. 123.

(10)      C.F. 208/52 Jerusalem, Shababo's Heirs & Others v. Heilin (1952/53), 8 P.M. 455.

 

English cases referred to: -

 

(11)      Niboyet v. Niboyet: (1878), 4 P.D. 1.

(12)      Re A Solicitor, Ex parte Incorporated Law Society: (1898), 1 Q.B. 331.

(13)      R. v. Casement: (1917) 1 K.B. 98.

 

Rabinovitch for the petitioners.

H.H. Cohn, Attorney-General, for the respondents.

 

LANDAU, J. The question raised in both these petitions is whether a Court of Discipline of the Israel Police Force has jurisdiction to deal with offences against discipline committed by Israel policemen in the Gaza strip at the time when the strip was in the occupation of the Israel Defence Forces.

 

            Both the petitioners are serving in the Frontier Force, Israel Police. The petitioner in File No. 100/57 holds the rank of assistant district inspector and the petitioner in File No. 103/57, the rank of police sergeant. During November and December, 1956, they served with the Israel Police Force in the Gaza district. In April, 1957, they were charged together with a third policeman before a Court of Discipline of the Israel Police on nine counts in connection with the purchase of various goods (nylon cloth, medicines, cameras and films) in the months of November and December, 1956, in Gaza, contrary to the orders given by the Deputy Inspector of Police, Gaza District, and, alternatively, by the Military Governor and, alternatively, contrary to standing orders for the Gaze area, all of which prohibited the purchase of goods in Gaza by anyone not a local inhabitant. These offences were described in the indictment as disobedience to an oral order duly given by a superior officer (that is to say an oral order given by the Deputy Inspector of Police, Gaza area); and as disobedience to an order duly given in writing by a superior officer (that is to say standing orders for the Gaza area) all of which are offences against the good order and discipline of the Police Force as set out in s. 18(1)(i) of the Palestine Police Ordinance and paragraphs 1 and 84 of the addendum to the Police (Definition of Disci­plinary Offences) Rules, 1955. The tenth count was confined to the petitioner Weiss for leaving without a reasonable cause the area of duty, contrary to paragraph 7 of the addendum - in that on December 1, 1956, being a member of the Police Force and serving in Gaza, he left the Gaza area and proceeded to Migdal without reasonable cause and, finally, the eleventh count also against the same petitioner and again contrary to paragraph 1 of the addendum - in that on the same day he used a police transport car for a purpose not connected with police duty, namely transporting goods contrary to orders of police headquarters.

 

            In their petition to the court, the applicants claimed that the Court of Discipline had no jurisdiction to deal with these offences. This court has issued orders nisi against the Inspector General of the Israel Police and against the Court of Discipline to appear and show cause why the proceedings before the Court of Discipline should not be discontinued and the complaint lodged before it struck out.

           

            The Attorney-General, who represented the respondents on the return day, did not deny the facts as set out in the petition, and the difference between the parties concerns the legal questions alone. The facts necessary to understand the dispute are shortly these: -

 

            (a) On the conquest of the Gaza strip by the Israel Defence Forces, the area was placed under martial law. The Israel Police entered the district at the request of the army for the purpose of doing police duty there. In an order setting out the "powers of the Israel Police in the district of Gaza in accordance with the law in force in the district of Gaza" which was issued by the Israel Army Commander, Gaza, to the Inspector General of the Israel Police, the Army Commander, by virtue of his authority, ordered that "the Israel Police Force is as from November 15, 1956, authorised to act in the Gaza area as a police force in accordance with the Police Ordinance as it was in force in Palestine on May 15, 1948, with such amendments as were added thereafter in the Gaza District". It was further ordered, "that every policeman or officer duly appointed in Israel shall have the right in the Gaza District to exercise the same powers that he had in Israel." The petitioners claim that they went to the Gaza strip after its conquest by the Israel Army and stayed there from time to time. It must be presumed that during those times they were there on police duty.

 

(b) In the order of the Military Commander which was mentioned in the indictment against the petitioners before the Court of Discipline, the purchase or sale of anything by anyone who was not a local inhabitant of the Gaza District was forbidden except by permission of the Commander or on his behalf. The order further provided that anyone contravening its provisions would be tried, in the words of the order, "by a military court set up to try offences against the Defence (Emergency) Regulations, 1945, and shall be liable to imprisonment for up to 3 years or a fine of up to IL. 1,000.- or both". We have also been told that the standing order for the Gaza area mentioned in the indictment repeated the contents of this order of the Military Commander.

 

(c) The area of the Gaza strip had not been declared as an 'occupied area' in accordance with section 1 of the Judicial and Administrative Areas Law, 1948. In the proclamation issued by the Commander of the Israel Army in the Gaza strip on November 13, 1956, it was declared that "the laws which were in force in the District on November 1, 1956. shall remain valid in so far as they shall not be contrary to this Proclamation or other proclamations or orders that have been given or will be given by me and subject to such modifications as the establishment in the Gaza District of martial law by the Defence Army of Israel may make necessary."

 

 (d) No proclamation was made according to section 51 of the Police Ordinance 1⁾ that enabled the Police Force or any part thereof to be placed under military command.

 

            Counsel for the petitioners, Mr. Rabinovitch, claims that the above facts do not entitle the Court of Discipline to entertain jurisdiction and try his clients for what they did during their stay in the Gaza district, that the jurisdiction of the Court of Discipline was derived from section 18 of the Police Ordinance, that the whole of the Ordinance, and therefore also the disciplinary jurisdiction provided for by it, apply only to acts committed within the State of Israel, that is to say, within the area to which the law of the State of Israel applies according to the Judicial and Administrative Areas Law. For the same reason the superior officers of the appellants in the Police Force had no legal right to send them outside the State of Israel. Further, the jurisdiction of the Court of Discipline set up under the Police Ordinance was a criminal jurisdiction and the acts alleged against the petitioners in the indictment were criminal acts and for this reason as well, there was no jurisdiction to try them. Criminal jurisdiction, they submitted, is territorial, that is to say limited to acts committed within the borders of the State, unless otherwise provided in the law - and there was no such provision. If it was possible to try the petitioners at all, either it would have to be done in accordance with the Police Ordinance, and such amendments of it as were made after 15.5.48 in the Gaza district - and no such amendments were called to our attention - or the petitioners should have been tried under martial law in accordance with the Order of the Military Governor.

 

            In spite of the exhaustive arguments of counsel for the petitioners, I have come to the conclusion that these applications must be dismissed and that the Police Court of Discipline had jurisdiction to try the petitioners for the offences set out in the indictment submitted before it.

           

            Counsel for the petitioners quoted at length from the judgment of Agranat J. in Amsterdam v. Minister of Finance (2), and indeed we can gather from this illuminating precedent the following principles relevant to this case: -

           

(a) From the point of view of internal ('municipal') law there is no restriction upon the power of a legislator possessing sovereign jurisdiction to enact laws concerning property and persons even if they are situated outside the borders of the State (ibid., at pp. 965, 966).

 

(b) Nevertheless the common law (and following it also Israel Law) recognises the principle that a law passed by Parliament applies only within the territory of the State unless it is otherwise provided, either expressly or by implication (ibid., at pp. 967, 968).

 

(c) An implied intention not to follow the territorial principle can be gathered from the general purpose of the law viewed as a whole in all its sections, or from the nature of the provisions of the law under consideration (ibid. p. 968, also the conclusions at p. 971).

 

            There is no conflict between these principles and Article 38 of the Palestine Order in Council, on which counsel for the petitioner relies. This Article (as amended in 1935) provides:

           

                        "Subject to the provisions of this part of the Order and any Ordinance or Rules the civil courts hereinafter described and any other courts or tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine" (substitute Israel).

           

 ject to the provisions) were meant to restrict and not to extend what is said in the body of the Article in the same way as similar words in the first paragraph of Article 431⁾ must be read restrictively (see Lipshitz v. Valero (l)). Does this mean, then, that according to the interpretation of this Article the civil courts in Israel have territorial jurisdiction only in respect of property and persons within the State? If this were so, this would seriously limit the above principle that a sovereign legislator has power to make laws applicable to matters and persons even if they are outside the borders of the State. For what is the use of a law which is meant to apply extra-territorially if the court has no power to enforce it? Both these matters are the two sides of the same coin. This proposition would lead us to the surprising conclusion that there was no validity to such laws as section 5 of the Ottoman Code of Criminal Procedure and the Rules for serving abroad of a summons to appear for trial before a civil court.

 

            The Attorney-General contended in this connection that the words "all matters and over all persons" in Article 38 do not mean that in a trial before the court both the matter and the person concerned must be within the boundaries of the State but that it would be sufficient if one or the other was in Israel. That is to say that for the purpose of Article 38 it would be enough in the case before us if the petitioners were to be present in Israel at the time of their trial although the incidents being the subject matter of the prosecution took place outside the boundaries of the State. I personally expressed  a similar opinion in the case of the Attorney-General v. A.B. (9). The judgment in that case was confirmed in EI-Tourani v. Attorney-General (3). This would be a sufficient answer here were we to hold that in Article 38 the legislator had made provisions concerning the jurisdiction of the courts of the State over persons or matters outside the State.

 

            But on further consideration it seems to me that this proposition itself is doubtful especially as regards the question of the extraterritorial jurisdiction of the courts in criminal cases. Article 38 is phrased in language commonly used in English statutes and had the legislator intended to make rules on this matter he would no doubt have been more exact and would have said that the local courts had jurisdiction in criminal matters when the accused at the time of committing the offence was within the country. For as is well known according to English law, the jurisdiction of a court to try an accused for a crime depends first and foremost on the place where the accused was at the time when the offence was committed. But according to Article 38 the jurisdiction of the court would be made dependent on the place where the accused is found at the time of trial. From this we see that this Article is not dealing with the question of extra-territorial jurisdiction of the court but with a different question altogether - that is to say with defining the boundary line of the jurisdiction of the civil courts therein mentioned and that of the other courts with limited jurisdiction, especially the religious courts. The legislator lays down that the jurisdiction of the civil courts is general, covering all persons and all property in Palestine, subject always to such limitations as are set out in the law as, for instance, Article 51(1) in connection with the jurisdiction of the religious courts in matters of personal status. Article 38 does not deal at all with the power of the Mandatory legislator to issue laws with extra-territorial effect or with the courts to enforce these laws. In other words the emphasis in this Article is on the comprehensive nature of the jurisdiction over all persons and all property in the land but it does not exclude additional jurisdiction - which need not necessarily be comprehensive - with regard to persons or property outside the country or with regard to causes of action originating abroad.

           

            I find support for my views in the judgment of Witkon J. which was given by him whilst sitting in the District Court in the case of Shababo's Heirs v. Heilin (10). That judgment was cited with approval by this court in Shtampfer v. Attorney-General (4). The subject-matter of that case was the immunity enjoyed by foreign diplomats and it was contended that Article 38 repudiated this claim to immunity. It is true that that case was different from the one before us because there an attempt was made to limit the comprehensive scope of the jurisdiction of the courts over all persons within the boundaries of the State. That contention, of course, could not possibly stand because Article 38 is also subject to and is restricted by Article 46 of the Order in Council 1⁾ which transfers to the body of the local law the rules of the common law relating to immunity of foreign diplomats. But in the course of his judgment Witkon. J. said : -

 

            "Article 38 is a kind of introduction to that part of the Order in Council which deals with the administration of justice by the courts and the division of their jurisdictions between the various courts themselves. The article is not meant to lay down rules in the field of International Law."

           

            With respect, I should like to agree with those words which also apply to our case. Consequently therefore (so long as there is no law enacted specifically on the subject) the general principles of the common law with regard to extending the extra-territorial jurisdiction of the local courts apply in this country. And this is not because the first words in Article 38 are directed to Article 46 but because of the provisions of Article 46 itself without any reference at all to Article 38.

           

            The law applying in the case before us is the law which was in force before the enactment of the Courts Law, 1957. In this connection however it is necessary to point out that the Israel legislator was of the opinion, it would seem, that the introductory proviso in Article 38 could be dispensed with altogether, for this Article was repealed by s. 48(8) of the Courts Law without being re-enacted.

           

            Counsel for the petitioners contends further that the jurisdiction of the Police Court of Discipline is by its very nature criminal and that, unless the law expressly provides otherwise, criminal jurisdiction is territorial and that the Police Ordinance has no such provision at all; on the contrary it has clear indications that it was intended to apply only within the confines of the territory of the State.

           

            Counsel for the petitioners is correct when he says that the basic principle of the criminal jurisdiction of the court is territorial. Such is the English law (see Halsbury, third edition, Vol. 10, p. 317, s. 579) and we have the same principle as it came to us through section 6 of the Criminal Code Ordinance. 1936. But this law is not without its exceptions. There are such exceptions in English law which were created by special statutes to cover certain crimes which were committed by British subjects outside England such as, for example, treason, homicide, bigamy (Halsbury, ibid., at p. 322 ff.). In Niboyet v. Niboyet (11), Brett, L. J. laid down the principle as follows: -

 

            "All criminal statutes are in their terms general but they apply only to offences committed within the terri­tory (of the State) or by British subjects" (p. 20).

           

From the historical point of view the personal principle preceded the territorial in criminal law, having its origin in the feudal notion of the tie of allegiance binding the king and his subjects. As we have said the principle continues to exist even today in connection with certain crimes and it does so side by side with the territorial principle which has in these days become more important. According to International Law too every State is entitled to exercise its legal jurisdiction over its subjects even whilst they are abroad. See for instance how Schwarzenberger in A Manual of International Law, third edition, p. 42, explains the historical transition from the personal principle to the territorial principle in modern times. He writes as follows: -

 

            "Thus the conception of territorial - as distinct from personal - sovereignty and jurisdiction developed, and the notion of personal sovereignty was pushed into the background. It would not, however, be correct to assume that the conception of territorial jurisdiction completely replaced that of personal jurisdiction. In modern international law the conceptions of personal and territorial jurisdiction exist side by side, though with the emphasis on territorial sovereignty."

 

And Oppenheim in the eighth edition of his book, vol. I at p. 330 says: -

 

            "The Law of Nations does not prevent a State from exercising jurisdiction within its own territory over its subjects travelling or residing abroad, since they remain under its personal supremacy."

 

            Thus our own Criminal Code Ordinance in section 3 (b)1⁾ strays from the territorial principle in prosecutions for crime and the same is the case in Article 3 of the Army Code (see Lahisse v. Minister of Defence (5), paragraph 31 of the judgment at p. 166). Further, the Israel legislator has recently abandoned the territorial principle to an even greater extent in the Criminal Amendment (Offences Committed Abroad) Law, 1955.

           

            I have dwelt at length on these matters because as we shall see they are of some importance: not that I am to be taken as agreeing with the contention of counsel for the petitioners that trials before a Police Court of Discipline are subject to the principle of territorial jurisdiction of criminal trials. Counsel for the petitioners relies on the judgment of Sussman, J. in Sapoznikov v. Disciplinary Tribunal (6), which upheld the jurisdiction of the same Court of Discipline to deal with an offence "of a civil nature", such as rape, although purporting to be an offence against discipline for acting in a manner likely to bring discredit on the good name of the force (ibid. at p. 662). The view was expressed in that judgment (at the end of p. 661) that a policeman who had been convicted in such a prosecution before a Court of Discipline could plead "autrefois convict" in a prosecution for the same offence before an ordinary court. The President of the court, dissenting, differed from this way of interpreting the law which would give to a policeman a special status that was better than that of an ordinary citizen as regards responsibilty for criminal acts that had nothing to do with his police duties (ibid. at p. 665). Counsel for the petitioners also cited the words of my judgment in Tsimoukin v. Civil Service Disciplinary Tribunal (7), where I respectfully agreed with the opinion of Sussman J. that the trial of a policeman before a Court of Discipline might induce an ordinary court to accept a plea of 'double jeopardy' and I added that such a trial was "very much like an ordinary criminal trial". Such a similarity no doubt exists especially in 'civil crimes' that are triable before a Court of Discipline. But we must not conclude from this that because the methods of the trials are similar, that trial before a Court of Discipline is in its nature essentially identical with that of an ordinary criminal trial. Regarding this point Cheshin, D.P. said this in Tsimoukin v. Civil Service Disciplinary Tribunal (7), at p. 861: -

 

            "The object of a trial before a criminal court is not the same as that of a trial before a court of discipline. In a criminal prosecution the purpose is to find out whether the accused has broken the law and whether he should receive the punishment prescribed by law; whereas the purpose of a trial before a court of discipline is not so much to punish the 'criminal' as to establish first and foremost whether he is still worthy of the trust which the authorities and the public had placed in him before he came under suspicion."

 

            We have to note in this connection that although according to section 18 (6) of the Police Ordinance the accused who is charged before a Court of Discipline is liable to both imprisonment and fine, according to section 18 (7) he is liable to dismissal which is the penalty par excellence of proceedings before a Court of Discipline.

           

            In a judgment on the same subject, I said in Tsimoukin v. Civil Service Tribunal (7), supra, that "proceedings before a Court of Discipline are sui generic and the usual notions regarding criminal or civil proceedings do not fit them completely". In spite of the fact, undesirable though it may be, that a policeman who has committed a crime might escape punishment in a prosecution for the same act before an ordinary court after a trial before a Court of Discipline, the purpose of proceedings before a Court of Discipline is completely different from that of regular criminal proceedings, in that it is meant to preserve the discipline and good order of the Police Force and to eliminate all unworthy elements from its ranks.

           

            Because of this difference in purpose, one cannot apply to trials before a Court of Discipline the principle of territorial jurisdiction which is characteristic of criminal trials - that is that criminal enactments are applicable only to offences committed within the State unless otherwise specifically provided.

           

            Because of this difference, the position is the same even if the acts in respect of which the petitioners were accused may also possibly be criminal offences against the Defence (Emergency) Regulations, 1945, in accordance with the order of the Military Commander. For at the hearing before the Court of Discipline these acts will be considered not from the point of view of their being crimes as of their being offences against discipline, in that the petitioners disobeyed orders which were given to them in their capacity as policemen.

 

            We return therefore to the general basic principle set out above following the judgment in Amsterdam v. Minister of Finance (2), that every enactment is territorial in application unless otherwise expressly or by implication stated; that the intention not to follow the territorial principle can also be gathered from the general object of the law as appearing in all its several parts or from the nature of the particular legal provision that is under the consideration of the court. In connection with this point, counsel for the petitioners, as will be remembered, contended that the Police Ordinance not only does not disclose that it meant to disregard the territorial principle but that, on the contrary, it had many sections that supported it. For instance, it is said in section 3 that "there shall be established in Palestine a Force to be known as the Police Force" and section 16 provides that "A police officer, when in Palestine shall..... be considered to be always on duty: he may at any time be employed in any part of Palestine" (now Israel).

           

            This being the case, Mr. Rabinovitch contends that the service of the petitioners by its very nature is confined to the area where they are obliged to serve and it was illegal to have sent them outside that area and having been sent there they did not take with them the special law, the Police Ordinance, that applies to them, and with it the jurisdiction of a Court of Discipline set up under it.

           

            The Attorney-General's reply to this contention is that no matter how the Police Ordinance was meant to be interpreted in the days of the Mandate, the fact that there is now a sovereign State makes all the difference. And from now on we have to consider the Ordinance as authorising the employment for service of the Israel Police Force in all areas, even outside the boundaries of the State, which are in fact under the control of the State and where the Israel authorities are bound to keep the peace among civilians. This is the conclusion of the Attorney-General who considers it to be in accordance with International Law which permits a State to send its armed forces outside its boundaries.

 

            This answer to the contention of counsel for the petitioners does not seem to me to be convincing. It is possible that the "territorial" sections of the Police Ordinance were originally enacted so that the law should be in harmony with the obligations of Palestine owing to its status as a country under mandate. But does this entitle us to breathe new life into these sections to make them fit the changes brought about by the creation of the State, as the Attorney-General is asking us to do ? There would of course have been no problem on this point had Israel proclaimed the Gaza strip to be occupied territory. But the Minister of Defence has refrained from issuing such a proclamation. The question therefore is whether there is any legal principle under which one can consider a policeman who is serving in an area which is in fact under the control of the State as if he were serving within the State itself. I have found no such rule either in our own municipal law or in International Law. The function of the police is of course to keep order within the State whereas it is the duty of the army to preserve the peace against all dangers from without. When a State sends its army outside its borders and conquers additional territory which it occupies without extending its sovereignty over it, it is occupying the territory through its army which sets up military rule therein. (See Oppenheim, seventh edition, vol. II, p. 438). Israel too has acted in this way with regard to the Gaza strip, that is to say it established there a military government from which all other authority was derived. The civilian police also- functioned in fact within this framework, for this force had been asked to operate there by the army, under whose command it was placed. And within this framework it carried out police duties among the local inhabitants. The Attorney-General has contended that the police are part of the armed forces of the State which are bound to serve also outside its borders and which in any case carry with them the prerogative of the State to try them wherever they are. As far as the army is concerned, it is true that this principle has received expression in sections 13 and 14 of the Military Justice Law, 1955, which provide for trial by court martial of members of the Israel Army in respect of military and other offences committed whether '"inside or outside" the boundaries of the State.

           

            But where is the authority for the proposition that for this purpose the civil police are part of the armed forces of the State? Section 51 of the Police Ordinance enables the Minister of Police during a war or an emergency to issue a proclamation declaring that the Police Force or some part of it is to be considered as a military unit; and on the declaration being made certain consequences follow as enumerated in the relevant section of the Ordinance. Such a declaration was never issued in connection with the Israel Police in the Gaza strip. Had it been, it is possible that those policemen who had been sent there for service would have been considered as soldiers also in this respect that they too were under an obligation to serve outside the area where Israel law applies. In the absence of such a proclamation, there was no legal authority to compel them to serve anywhere except within that part of the territory of the State where a policeman is bound to serve in accordance with the Police Ordinance. We cannot therefore consider this as being the source from which the Court of Discipline derived the necessary jurisdiction to try the petitioners whilst they were in the Gaza strip.

 

            But this does not end the matter. They were under no duty to serve in the Gaza strip and had the petitioners refused at the proper time to be transferred there, in my opinion, it would not have been considered on their part as a breach of duty. But nothing prevented them from agreeing of their own free will to undertake this additional service. A policeman may also volunteer to perform a service outside the State. It is sometimes necessary, for instance, to send police officers abroad, to make contact with the police of another State in connection with the investigation of a crime which a local resident is suspected of having committed. A policeman who undertakes such a task does not cease to be a policeman when abroad. I see no difference in principle between such a case and what happened here - except on a bigger scale - with regard to the Israel Police Force serving in the Gaza strip, that is to say in a place in Palestine outside the area where the law of the State of Israel applies. We have not heard that the petitioners objected to or protested against their being sent to the Gaza strip. In their application they say simply that "they went there". It seems that they must be considered as volunteers who undertook to perform a service which they were not obliged to do. But from its nature this was police work. If we come to the conclusion that the jurisdiction of a Court of Discipline is not territorial but personal in character, that is to say that it also exists in relation to matters connected with the behaviour of a policeman, wherever he is, even outside the State, then there is no difference between a policeman who went there under an order or as a volunteer. We dealt with a similar problem - though in another field - in Neiman v. Attorney-General (8). There the appellant, a clerk of the Jerusalem Municipality, claimed that he could not be held guilty under section 140 of the Criminal Code Ordinance, 1936 (Breaches of Trust by Public Officers) because the act was committed in Bet-Mazmil which was outside the area of the Municipality of Jerusalem. In rejecting this claim, this court said (at p. 857) :

 

            "Mr. Meridor was unable to cite any authority according to which an official, such as the appellant, would be exempt from liability if he could show that what he did was outside the confines of jurisdiction of the public body employing him..... The work at Bet-Mazmil was done in accordance with the decision of the Municipality, the way it was done was no different at all from the usual way of doing such things at the Municipality and the second appellant did this work in the course of his usual duties."

 

            And the same can be said in our case: the duties with which the petitioners were charged were ordinary police duties which had to be performed in accordance with the rules of discipline when carrying them out.

           

            We thus come to the decisive question in its simplest form : What is the nature, then, of a trial before a police Court of Discipline - is it connected with the territory of the State or is it per­sonal, that is connected with the man ? Counsel for the parties have carefully searched for precedents dealing directly with this question and have found none. I too have searched to no effect. The Attorney-General has mentioned an English judgment in re A Solicitor (12). In that case the English court was asked to revoke the licence of an English solicitor because of his misconduct in South Africa. The application was refused because the court was not prepared to accept, as the only ground for its decision, the judgment of the court of South Africa which had revoked the licence of the solicitor in that country. But this judgment can also be taken as ruling - although the question was not specifically considered - that had there been sufficient proof before the English court it would not have hesitated in granting the application, although the charge was in respect of an offence against discipline which was committed abroad. Wright, J. said at p. 662:

           

            "I do not say at all that there may not be cases where a solicitor is struck off the rolls by a foreign court when this court ought to - and probably would act - if the facts were brought before it in a proper way and if it could see clearly what it was that the solicitor had done....."

           

            In order to test the nature of disciplinary jurisdiction in the absence of direct authority we can only solve the problem in the light of general considerations and by reference to two opposing principles- the territorial principle and the personal principle - and decide which of these two is more appropriate to the jurisdiction in question.

 

            As I have already hinted, the territorial principle of jurisdiction is strongly linked to the notion of sovereignty of a State over its territory, whereas the personal principle is connected with the tie of personal allegiance existing between the sovereign and his subject. When we base jurisdiction on the notion of the sovereignty of each State within its own territory, it becomes clear that on the one hand the State is entitled to adjudicate on all matters within its territory, irrespective of the persons concerned and that on the other, an offence or some other act committed outside that territory must, as a matter of course, come within the jurisdiction of the foreign State where the offence or other act took place. An ideal division of jurisdiction between States based purely on territorial principles would require each State, in its administration of justice, to confine itself to matters taking place within its own borders and every time a State went beyond these it would be considered as interfering in the internal affairs of another State. (We have seen that this principle is not carried out in practice in its entirety but that it is sometimes mixed with elements having the characteristics of personal jurisdiction which result in fact in parallel proceedings in the courts of two States.) But when does this happen ? When the other State also claims for itself the right to try the persons concerned in the same matter. Every civilized State for example is prompt in punishing crimes committed within its borders and is willing to enforce civil obligations created there. But when the foreign State is indifferent to the same act and does not react at all to it, no clash need be feared between two different judicial jurisdictions. Now every trial by a Court of Discipline is held within the framework of some organisation which is either international or is limited to one State. If international, then it certainly is not confined to the area of any one State and if it is national no other State would have any interest in its doings. In any case no conflict can arise between two judicial jurisdictions. If, for instance, an Israel policeman committed an act which was a breach of discipline, whilst in France, that aspect of his behaviour would be of no interest to France.

 

            Further, as the Attorney-General has pointed out, the Gaza strip is not within the sovereign jurisdiction of any other State and for this reason too one cannot speak here of a conflict with the lawful jurisdiction of another State.

           

            So far I have dealt only with the point of inter-State relations according to which there is no objection to the extension of the jurisdiction of Courts of Discipline to deal with acts that took place outside the borders of the State. But that does not cover the whole problem. For the basic principle is that prima facie all jurisdiction is territorial and before it can be extended beyond the boundaries of the State, one has to show clearly that this was the intention of the law either expressed or implied. I am of the opinion that such an intention can also be implied from the very nature of a trial before a Court of Discipline. As I have said such a trial is held within the framework of some special organisation and concerns no one who does not personally belong to this particular body. Its purpose is to prevent the lowering of the professional standards of members of the organisation. Each such member has special duties and in consequence generally enjoys special privileges, all of which require the upholding of a special standard to ensure the effective functioning of the organisation and the protection of its reputation vis-a-vis others. These rights and duties too are personal to the member of the organisation and they forge a special tie of allegiance between him and it. One may draw in this connection a close comparison with the duty of personal allegiance which is at the root of jurisdiction, based on the personal principle. Here is a description by an ancient English writer explaining why the jurisdiction in a trial for high treason is personal [Foster in Crown Law, quoted in R. v. Casement (13)]:

 

            "With regard to natural born subjects there can be no doubt. They owe allegiance to the Crown at all times and in all places. ...

 

            Natural allegiance is founded in the relation every man standing in to the Crown, considered as the head of that society whereof he is born a member; and on the peculiar privileges he derived from that relation..."

           

            When we divest this conception of its 'royal' apparel does it not also fit the relationship of loyalty, to protect which, trial before a Court of Discipline is provided ? It is clear that such a relationship cannot be subject to any territorial limitation as it is necessary to protect the professional standards of a man who is subject to the discipline of an organisation "at all times and in all places" wherever he may be carrying out his duties. It would be unreasonable to give the law another interpretation whereby a policeman on police duty abroad would move about in a vacuum, as it were, as far as discipline was concerned.

           

            Finally I will answer briefly two further contentions of counsel for the petitioners: First that the petitioners should have been court-martialled for contravening the order of the Military Governor. Possibly they were also liable at the time to be called to account for the actions of which they are accused by being prosecuted before the Israel Military Court in the Gaza strip; but this was not done. The fact that this method was not used can certainly not prevent their being charged before a Court of Discipline for breach of discipline and misbehaviour which the actions themselves imply. The second contention of the petitioners was that the Court of Discipline when trying them should apply, with all its amendments which are unknown to us, the Police Ordinance as it was in force in the Gaza strip on the eve of its conquest by the Israel Army. This contention is based on the orders of the Military Governor for the Gaza District which authorised the Israel Police Force to operate as the 'Gaza Police Force' in accordance with the Police Ordinance with all its amendments made for Gaza. But this law applied in relation to the powers of the Gaza Police vis-a-vis the public when dealing with the local inhabitants. Vis-a-vis the Force the petitioners remained Israel policemen even whilst serving in the Gaza Police and as such they continued to be subject to the jurisdiction of a Court of Discipline to try them in accordance with the Police Ordinance as it was in force in the State of Israel.

           

            I am accordingy of the opinion that the orders nisi must be set aside, and the applications of both petitioners dismissed.

           

SUSSMAN J. I concur.

 

 OLSHAN. P. I concur. I am of the opinion that the question whether a person who is serving in the Police Force can be sent abroad in connection with his police duties, without his own consent, needs further consideration.

 

Order nisi discharged.

Judgment given on February 13, 1958.

C.A. 191/51

       

LEIB SKORNIK

v.

MIRIAM SKORNIK

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[February 19, 1954]

Before Olshan D.P., Agranat J. and Witkon J.

 

 

Family law - Husband and wife - Civil marriage according to law of domicile - No religious ceremony - Validity of marriage - Private International Law - Maintenance - Local law - Jewish law.

 

            The parties were married in Poland on April 2, 1948, according to civil law, without a religious ceremony. They were at that time Polish citizens who were domiciled in Poland, and they remained domiciled in that country after their marriage. They immigrated to Israel in 1950 and thereupon became stateless. Thereafter the husband instituted action against the wife in a District Court for the return of effects or payment of their value, and the wife counterclaimed for maintenance. It was held in the District Court that, in accordance with the principles of international law, the law to be applied in regard to the validity of the marriage was Polish law, and that the law to be applied in regard to the husband's liability for maintenance was Jewish law; that a valid marriage had been contracted; that the claim - based as it was on the Civil Wrongs Ordinance, 1944, - could not be maintained, and that the wife was entitled to maintenance.

           

            The husband appealed.

 

HELD: Per Olshan D.P.

 

(1) That whether the law to be applied regarding the validity of the marriage was Polish law or Jewish law, a valid marriage had been contracted, as the presumption in favour of such a marriage had not been rebutted.

 

(2) Semble, that the District Court had been entitled to apply private international law, and that it had correctly decided that the validity of the marriage was to be determined in accordance with Polish law.

 

Per Agranat J.

 

(l) That the District Court had correctly applied the principles of private international law, and that the validity of the marriage was to be determined in accordance with Polish law.

 

(2) That since the operative facts which constituted the cause of action of the claim all took place in Israel, such claim must be dealt with in accordance with local law, and that having regard to the provisions of the Civil Wrongs Ordinance, 1944, the claim must fail.

 

(3) That the wife's right to maintenance was to be decided in accordance with Polish law but that the amount of maintenance to be payable, being a question of remedy, was to be decided in accordance with local law, namely, Jewish law.

 

Per Witkon J.

 

(1) That the principles of private international law take precedence over all other laws, that the validity of the marriage was to be determined according to Polish law, and that according to that law there had been a valid marriage.

 

(2) That the right to maintenance of a wife married under Jewish law must be applied in favour of a wife whose marriage is based upon foreign law which is recognised by local law, and

 

(3) (dissenting on this point from the opinion of Olshan D.P.) that if the validity of the marriage was to be tested by Jewish law, there was no reason for disturbing the finding of the District Court that that presumption in favour of such a marriage had been successfully rebutted by the husband.

 

Palestine cases referred to:

 

(1)        C.A. 195/43 - Gertrud Freyberger v. Otto Friedman ; (1943), 10 P.L.R. 405.

(2)        C.A. 122/44 - Haim Cohen v. Rachel Ludmirer; (1944), 11 P.L.R. 522.

(3)   C.A. 119/39 - Pessia Nuchim Leibovna Shwalboim v. Hirsh (Zvi) Swalboim; (1940), 7 P.L.R. 20.

(4)   C.A. 234/45 - Ursula Tennenbaum v. Joseph Tennenbaum; (1945), S.D.C. 431; (1946), 13 P.L.R. 201 (on appeal).

(5)   C.A. 158/37 - Leib Neussihin and Others v. Miriam Neussihin; (1937), 4 P.L.R. 373.

(6)        C.A. 11/41 - Eliyahu Bichovski v. Nitsa Lambi-Bichovski; (1941), 8 P.L.R. 241.

(7)        Probate 290/45 - Levin v. Goldberg and Another; (1946), S.D.C. 320.

 

Israel cases referred to:

 

(8)        C.A. 26/51 - Shimon Cotic v. Tsila (Tsipa) Wolfsohn, (1951) 5 P.D. 1341.

(9)   C.A. 238/53 - Aharon Cohen and Bella Bousslik v. Attorney-General; (1954), 8 P.D. 4.

(10)      C.A. 87/49 - Zvi Levin v. Haya Naha Levin; (1951) 5 P.D. 921.

(11)      C.A. 100/49 - Estate of Meir Miller, Deceased v. Rivka Miller; (1951), 5 P.D. 1301.

(12) C.A. 98/47 - Ernst Halo v. Alfreda Yohanna Halo (known as Alfreda Yohanna Lange) and Others; (1948/49), 1 P.E. 195.

(13)      S.T. 1/49 - Aharon Rosenbaum v. Sheina Miriam Rosenbaum; (1953), 7 P.D. 1037.

(14) C.C. M/48/201 - Dr. Gershon Burg v. The Attorney-General;(1919), 2 P.M. 24.

 

English cases referred to:

 

(15) Spivack v. Spivack; (1930), 142 L.T. 492.

(16) Srini Vasan (otherwise Clayton) v. Srini Vasan; [1945] 2 All E.R. 21.

(17) Baindail (otherwise Lawson) v. Baindail; [1946] 1 All E.R. 342.

(18) In re Goodman's Trusts; (1881), 17 Ch.D. 266.

(19) Salvesen or Von Lorang v. Administrator of Austrian Property; [1927] A.C. 641.

(20) Pugh v. Pugh; [1951] 2 All E.R. 680.

(21) Brook v. Brook; (1858), 3 Sm. & G. 481; 65 E.R. 746; affd. H.L., (1861), 9 H.L. Cas. 193; 11 E.R. 703.

(22) In re Paine. In re Williams, Griffith v. Waterhouse; [1940]         Ch. 46.

(23) Conway v. Beazley; (1831), 3 Hag. Ecc. 639; 162 E.R. 1292.

(24) De Reneville v. De Reneville; [1948] P. 100.

(25) In re Luck's Settlement Trusts; (1940) Ch. 864.

(26) J. D' Almeida Araujo LDA. v. Sir Frederick Becker and Co. Ltd.; [1953] 2 All E.R. 288.

(27) Dean v. Dean; [1923] P. 172.

(28) The Colorado; [1923] P. 102.

(29) In re De Wilton; De Wilton v. Montefiori; (1900) 2 Ch. 481.

(30) Lindo v. Belisario; (1795), 1 Hag. Con. 216; 161 E.R. 530.

 

Sheps for the appellant.

Marks for the respondent.

 

OLSHAN D.P. This is an appeal from a judgment of the District Court of Tel Aviv of October 12, 1951, dismissing a claim of the appellant which he had brought against the respondent for the return of effects, or payment of their value to the sum of approximately IL. 404.-, and allowing the counter-claim of the respondent for her maintenance.

 

            Both parties resided permanently in Poland and were nationals of that country. On April 2, 1948, the parties were married in Poland according to civil law, without a religious ceremony. The learned judge held in his judgment that "the couple at first thought of living together in Warsaw, but since Poland had not yet been delivered from the scourge of 'key-money', and since they had already begun to think of leaving that country, they decided that for the time being they would each continue to live in his or her own birthplace - in the case of the appellant, the town of Chekhanov and in the case of the respondent, the town of Gleivitz near Katovitz, and that they would continue to see each other from time to time, which they did."

           

            The couple came to Israel on March 17, 1950, with a view to settling here. It would appear that on reaching Israel they lost their Polish nationality and became stateless. The couple lived at first in an immigrants' camp, but afterwards they left the camp without providing themselves with a permanent place of residence.

           

            According to the respondent, she agreed to leave the immigrants' camp because the appellant promised her to obtain a flat, and because of his argument that so long as they lived in an immigrants' camp he would be unable to find work. Some time after they left the immigrants' camp, quarrels broke out between the parties. According to the respondent, the appellant did find work, but refused to support her or to look for a place in which she could live, and caused her untold suffering. These quarrels brought the parties to court. In August 1950, the appellant lodged his claim and in September, 1950, the respondent filed her defence and counterclaim.

           

            In connection with the claim and counter-claim, the question arose whether a marriage subsisted between the parties. It was submitted by the appellant that since the parties were stateless they were subject to Jewish law and that, in consequence, a marriage which had been celebrated, according to Polish law without "Hupa Ve-Kiddushin"1⁾, could not be recognised in Israel. The appellant also attempted to show that the marriage was not valid in Poland in the light of the facts of the case; but without success. The submission in law of the appellant set out above, became the real dispute between the parties, and is also the main problem in the appeal before us. If the marriage was valid, there was no basis for the appellant's claim - based as it was, in the opinion of the learned judge, on the Civil Wrongs Ordinance, 1944 - and he should be ordered to pay maintenance, while if the marriage was invalid, the claim was well-founded, and the counter-claim should be dismissed.

           

            The question before us is: what law is applicable to determine the validity of the marriage?

           

            The learned judge held, in a carefully reasoned judgment, that the marriage was valid, and that the parties are to be regarded as man and wife. The approach of the learned judge to the problem may be summed up very shortly. In accordance with the principles of private international law, the law to be applied regarding the validity of the marriage is the law under which the marriage was celebrated, that is to say, Polish law; the law to be applied regarding the appellant's liability for maintenance is Jewish law. In other words, it must be assumed that the parties are man and wife, and it must then be determined in accordance with Jewish law if the behaviour of the appellant towards his wife in Israel, which preceded the filing by her of the counter-claim, entitles her to maintenance under that law.

 

            Before reaching the conclusion stated, the learned judge analysed the question of the validity of the marriage from the point of view of Jewish law in the following terms:

           

            "As against this, I agree that the parties never intended that their marriage, which is valid according to the personal law which applied to them during their residence in Poland, should be Kiddushin within the meaning of Jewish law. In the absence of other evidence, it is sufficient for me to quote from the evidence of the plaintiff and of the defendant on this subject. On page 2 of the record the plaintiff said: 'There were rabbis in Poland. I do not believe in God and no religious marriage therefore was celebrated.' And further, on the same page: 'I did not celebrate a religious marriage because such marriages mean nothing to me.' The defendant said on page 20: - 'I requested a Hupa, but he said there was no necessity.' I conclude from the evidence of the parties that there was nothing to prevent the celebration in Poland of a Jewish marriage, although it may have been impossible to dispense with a marriage by Polish law, but I do not believe the defendant, who sought to convince me that she, and to a lesser extent her husband, were in fact religious. In regard to this point I accept the version of the plaintiff without reservation, and I am satisfied that the parties gave no thought whatever to the Jewish religious aspect of their uni on. It was the intention of the parties to achieve the status of marriage in accordance with the provisions of Polish civil law, and of that law alone.

 

            Since the parties at no time intended to be married by Kiddushin according to Jewish law, that law will not regard their union as a marriage. The cohabitation of the plaintiff and the defendant cannot be regarded as cohabitation for the purposes of Kiddushin, though it certainly was cohabitation for the purposes of marriage under Polish civil law.

           

            There is no presumption to assist the defendant in her submission that it must at least be presumed that she has been married by Kiddushin according to Jewish law. From the point of view of Jewish law the parties have never enjoyed the status of a married couple."

           

            In Jewish law there is a presumption, of which a hint is given above, to the effect that "a man does not indulge in sexual intercourse for the purpose of sin", and that there is, therefore, with cohabitation "an intention of marriage." In other words, when a man cohabits the law presumes that he has marriage in mind, and a bill of divorcement is therefore necessary to dissolve the marriage. This subject has been a bone of contention for many centuries between those who argue for a strict interpretation of the law and those who wish to be more lenient regarding the question whether a woman, who has not been married according to Jewish rites, does or does not require a divorce in order to marry some other person. According to those who take a strict view of the law, a divorce is necessary because of the presumed intention to marry by way of cohabitation. On the other hand, according to those who argue for the more lenient view, the woman does not require a divorce if there was no reason to believe that there was any intention to marry. In other words, those who take the strict view demand a divorce in the absence of a clear foundation for the belief that there was no intention of marriage, while those who argue for the more lenient view do not demand a granting of divorce where there is no evidence of an intention to marry. Both these schools of thought, however, recognise the presumption referred to, and the whole dispute relates only to the necessity for the granting of a divorce. Both schools require that a searching enquiry be conducted before giving a decision in any particular case, and it is very doubtful if they would rely on the evidence of a husband who appears before them as a party interested in setting the marriage aside. In the absence of any other evidence, it is doubtful if even those who take the more lenient view would agree to come to a decision purely upon the basis of the evidence of the husband interested in setting aside the marriage, who appears before them saying, "I do not accept the presumption, and you cannot therefore attribute to me any intention of marriage according to Jewish rites." After all, in Jewish law, as is well known, a litigant is not a competent witness. Further, he puts himself in the wrong by denying a presumption which is one recognised by law. If, however, it be said that this is a matter which belongs to the law of evidence, and that in that respect the learned judge was not bound by Jewish law (Cotic v. Wolfsohn (8)), I doubt whether according to secular law also the learned judge would have been able to rely merely upon the evidence of the appellant (the plaintiff) in the absence of any other evidence.

 

            It must not be forgotten that the question whether the absence of a Jewish form of marriage was intentional or due to an oversight, or because of an objection to the expression of a religious intention, is a question of fact, and that in this case additional evidence in support of that of the appellant - an interested party - was required, before the matter could be properly decided.

           

            In speaking of the appellant (before the passage quoted above), the learned judge says: -

           

            "I am surprised to what depths he fell. He had heard from his lawyer that according to Jewish law - if it applies to the personal status of the litigant - his union with the defendant was not within the framework of a marriage at all. He had heard that Jewish law recognises cohabitation as a basis for marriage, and when a man and woman live together for some time and the reputation in the community is that they are husband and wife, there arises a presumption of a valid marriage. Thereupon he so lowered himself as to commit perjury before me and swear that at no time did he regard the defendant as his wife, but as his mistress. I do not, of course, believe one word of this. Let there be no misunderstanding whatsoever. The submissions which a litigant desires to make are a matter for his own conscience - if he has a conscience. The submission of the plaintiff that Jewish law - and Jewish law alone - applies to the personal status of the parties, and that according to that law they never enjoyed the status of a married couple, is a legitimate submission. I am about to deal with it in all seriousness. It is one thing to submit that a marriage which is valid at the place where it was celebrated is not recognised by the law which applies to their personal situation; it is quite another to give evidence which is a tissue of lies and which purports to lay down that from the outset, and from the subjective point of view of the parties or of one of them, there was no intention of a marriage even within the meaning of the law which applied at the place where the marriage was celebrated. I have no doubt that from the point of view of Polish law during the period of their residence in Poland, the parties contracted a valid marriage."

           

            I do not quote the above passage in order to reach the conclusion that the marriage was also valid according to Jewish law, nor do I express any opinion on that point. The question of whether the respondent will or will not require a divorce should she wish to marry another man does not arise for decision in this case, since the respondent's claim is for maintenance. It is sufficient for me to say that whether Polish law applies or whether Jewish law applies there exists in the circumstances a presumption that the parties are man and wife, and in order that the appellant be relieved of his obligation to pay maintenance, it was for him to rebut that presumption, whether he relies upon Jewish law or upon Polish law. Semper praesumitur pro matrimonio. In Spivak v. Spivak (15), a Jewess who came from Poland brought a claim against her husband for maintenance. Her husband had lived apart from her in England for many years, and a question arose as to the validity of the marriage which had been celebrated in Poland. It was held that it is only in cases of bigamy that there is a duty upon the Crown to prove the validity of the first marriage beyond dispute, but that in a civil case, the presumption is sufficient. In quoting another authority, the learned judge said: "Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed in the absence of decisive evidence to the contrary..."

           

            It is my opinion that, in view of the presumption referred to that "a man does not indulge in sexual intercourse for the purpose of sin", and the conclusion, that there exists an intention to marry, to be drawn from that presumption, the same rule must be applied where a claim such as a claim for maintenance is brought before a civil court and the matter is governed by Jewish law. It seems to me that where a claim is brought in a civil court, and that claim is one for maintenance, and it is clear from the facts that the parties are husband and wife, the court must apply the presumption relating to the validity of the marriage, unless it be proved by the defendant that according to the personal law which governs the case - be that Jewish law or some other law - the marriage is invalid. Should this not be established by the defendant, it is presumed that the personal law which applies recognises the validity of the marriage, and maintenance will be awarded in accordance with the provisions of the personal law.

 

            It follows that even had the learned judge decided that Jewish law also applied to the "Polish period" during which the marriage was celebrated, he would have had to award maintenance. I wish to emphasize once more that we are dealing here with a claim for maintenance in a civil court, and not with the question whether the defendant will or will not require a divorce. In the case before us the respondent discharged the burden of proof which lay upon her. She proved that, on the facts, she is the wife of the appellant. She proved, with the assistance of the presumption referred to, that she is also his wife from the legal point of view - whether the law which applies is Polish or Jewish law - for the purposes of a claim for maintenance. On the other hand, the appellant did not succeed in rebutting the presumption relating to the marriage of the parties, either according to Polish law or Jewish law.

           

            In giving an affirmative reply to the question whether the parties are man and wife, the learned judge applied Polish law, that is to say the law of the place where the marriage was celebrated, which is also the law of the matrimonial domicil, by virtue of which the parties acquired the status of a married couple.

           

            Without going into detail, I would say the conclusion of the learned judge is correct. The validity of the status which a person has acquired for himself is determined by the law which applied at the time that he acquired that status. He does not lose that status by changing his place of residence or his nationality even though he may then fall within the operation of another law. Any other conclusion would be likely to cause serious injustice. For example, a Jewish couple, married under civil law, lives in one of the countries of the diaspora for many years, emigrates to Israel in order to settle there, and acquires Israel nationality; the husband dies, and his estate is to be divided according to the law of succession to miri1⁾ property, in respect of which a will does not operate. If it be said that the question whether the widow was the wife of the deceased should be decided according to Jewish law, it will follow that she would lose all rights to the inheritance - a situation which the deceased never conceived of during the whole of his life, whether in the diaspora or in Israel. On the other hand, a possible, though rare, situation might arise where a Jewish couple married in the diaspora according to religious rites alone, without fulfilling the civil requirements of the law of the country in which the marriage was celebrated. (Such cases may have occurred during the war in places under Nazi rule.) Suppose that couple emigrated to Israel. If the law to be applied is that of the matrimonial domicil at the time of the marriage, it would have to be held that the marriage was invalid as being contrary to the law of the State in which it was celebrated. It is possible, however, that in such a case other additional considerations would apply, so no hard and fast rule can be laid down to cover such a case.

 

            The principal argument of counsel for the appellant, in attacking the decision of the learned judge relating to the application of Polish law to the question of the validity of the marriage, is that since the claim and the counter-claim were filed at a time when the parties were stateless, Jewish law was applicable regarding all the questions that arose, whether during the "Polish period", when Polish law applied, or the "Israel period", when the parties were stateless. It follows from this submission that if the defendant were, for example, a person who became an English national, then - because of the application of English law and the English rules of private inter­national law which are included in that law - every incident in the life of such a person which created his personal status would not be judged according to domestic or municipal English law, but according to that law (the law of his domicil or the law of his previous nationality) which applied to him at the time of such occurrence. If, however, such a person became an Israel national, the religious law would apply to every such incident which occurred at any place and at any time from the date of his birth, for religious law is universal, and recognises no frontiers or limitations, nor does it include or recognise any private international law. In advancing this submission, counsel for the appellant relied upon a line of decisions from the period of the Mandate in which it was held that, according to Article 47 of the Palestine Order in Council, the personal law of a Palestinian Jew or stateless Jew is Jewish law, that is to say, the religious law. According to this argument, the authorities referred to purported to lay down that it is not the nature of the problem which arises between the litigants which determines the personal law of the defendant to be applied, but it is the nationality of the defendant (or the fact of his being stateless), at the time that he requires the assistance of the court, which determines which law is to be applied to all the problems that arise, without exception, and without consideration of the law which would have applied to the defendant at the time of his acquisition of the status, or of the creation of the cause of action, which is the subject of the matter to be considered by the court. In other words, if the defendant is a Jew who is stateless, and who is subject to Jewish law, and the question arises whether he is married, then if, according to Jewish law, his marriage is not to be regarded as valid, the court is obliged to hold that he is not married. The court should overlook the fact that according to the law which applied to the defendant at the time and place of his marriage, his marriage was valid. Counsel further submitted that since the court had reached the conclusion that, according to Jewish law, the marriage of the appellant was invalid, and since at the time of the bringing of the action Jewish law applied to him, the court could not rely upon Polish law and hold that he was married.

 

            Having examined the precedents from the time of the Mandate, I have reached the conclusion that this submission - even to the extent that it is based upon the authorities referred to - is unsound.

           

            In Freyberger v. Friedman (1). it was held by the Court of Appeal that Jewish law applied to a Jew who was stateless in matters of his personal status. The parties, who were previously Austrian nationals, settled in Palestine, and married at a time when they were stateless. They subsequently became divorced according to Jewish law. In applying the religious law it was held by the court that the divorce was valid, and that the bonds of marriage between the parties had been dissolved. The problem whether Jewish law also applied to the status which had been acquired by the defendant according to foreign law, at a time when such foreign law applied to him, did not arise.

           

            In Cohen v. Ludmirer (2), Jewish law was applied to the defendant, a stateless Jew, in a claim brought against him in respect of the maintenance of a child. The child, however, had been born in Palestine at a time when the defendant was stateless, that is to say, at a time when, and place where, he was subject to religious law. Here, too, the problem with which we are dealing did not arise.

           

            In Shwalboim v. Shwalboim (3), the court dealt with a claim for maintenance brought against a defendant who was a Palestinian national, and it was held that the claim was governed by Jewish law. In that case, too, the question of the effect of the foreign law which would have applied to the defendant before he became a Palestinian national, did not arise.

           

            In Tennenbaum v. Tennenbaum (4), the respondent married his wife in 1937 at a time when he was a Czechoslovakian national. The parties were divorced according to Jewish law on January 19, 1940. Czechoslovakian law did not recognise the validity of the divorce which was effected outside Czechoslovakia. On March 1, 1940, the respondent married the appellant, who was then a German national, by Jewish religious rites. In view of the doubt which arose as to the divorce from his first wife - and also in regard to the validity of his marriage to the appellant - by reason of the foreign laws which applied to the parties, the respondent became naturalised on March 31, 1941, and on May 2, 1941, he again divorced his first wife before a Rabbi. Thereafter the parties appeared at the Rabbinate, and a "marriage of validation" was celebrated. On July 4, 1941, the appellant also became naturalised. Quarrels broke out between the parties, and the wife filed a claim for a declaration that she was not the wife of the respondent. The District Court held that the second marriage was invalid, but that since the law that applied to the parties in this instance was their personal law at the time when the claim was filed, and that was the religious law, the first marriage and divorce were valid, in spite of the fact that according to the foreign law which then applied to the parties, the divorce, and therefore also the first marriage, were invalid. In other words, it was held that Jewish law, which applied to the parties at the time of the filing of the claim, also applied retrospectively to acts performed by the parties at a time when they were subject to the foreign law.

           

            Since the appellant in this case, his counsel submitted before us, was a Jew who was stateless, and was in no different position - from the point of view of the law which applied to him - from that of a Jew who is a Palestinian national, it follows that, by comparing this case with the decision referred to, Jewish law also applies to the Polish marriage, and that marriage is invalid. Since this is so, he further submitted, the learned judge erred in superimposing upon Jewish law the principles of private international law, and he should have held - in accordance with Jewish law - that the appellant was not married to the respondent, and should have dismissed her claim for maintenance. The Court of Appeal, however (in the Tennenbaum case), in confirming the conclusion reached in the judgment cited above, did not accept the opinion of the District Court and held explicitly: -

 

"The next point for decision is, what law is to be applied. There is no question that the law applicable is the law governing the parties at the time of the marriage. In the case of the first marriage, this is either Czechoslovakian or German law. Evidence was led to prove that neither of these laws recognises a religious divorce made abroad, and therefore at the time of the marriage between the parties, the respondent must be considered to have been still married to his first wife. His first marriage to the appellant was therefore a bigamous one and was accordingly invalid... Now, on the same principle governing the first marriage, the law applicable as regards the second marriage certificate is Jewish law, because the husband was at that time a Palestinian subject." (Per Frumkin J., at pp. 204, 5.)

 

This judgment is certainly no authority for the view that the religious law, which applied to the parties at the time of the filing of the action, applies throughout - that is to say, also to what occurred in a period during which the parties were subject to foreign law.

 

In Neussihin v. Neussihin (5), a marriage was celebrated between the parties in Germany by religious rites but not in accordance with German civil law. Such a marriage was invalid in the eyes of German law. After the couple reached Palestine, they appeared by agreement before the Rabbinical Court which declared that they were married by Jewish religious law, and handed them a certificate confirming this fact. A short time thereafter the parties acquired Palestinian nationality. After some years the husband died, and disagreements broke out between the heirs of the deceased and his widow as to the division of his miri property. It was contended by the heirs that the widow had at no time been the legal wife of the deceased, since the marriage was void according to German law at the time of its celebration in Germany. It must be pointed out that when the parties appeared before the Rabbinical Court their marriage was confirmed, but no ceremony of marriage was celebrated not even what was called in Tennenbaum's case (4) a "marriage of validation". it was held by the court that the question whether the widow had been the wife of the deceased must be decided according to Jewish law. But it would be wrong to think, as is submitted by counsel for the appellant, that it follows from this decision that the religious law which applied to the widow at the time of the bringing of the dispute before the Court, applied throughout - that is to say, to the period during which the law which applied to the deceased and his wife was German law. The court merely recognised the declaration of the Rabbinical Court, as to the status of the parties, as a decision given by a competent tribunal, and refused to act as if it were a court of appeal from the Rabbinical Court and set aside its decision because it had disregarded private international law. It also does not follow from the judgment cited that private international law is not to be considered in addition to Jewish law in a claim which is elucidated in a civil court. The following provision from section 23 of the Succession Ordinance, 1923, is quoted in the judgment referred to: -

 

"23. For the determination of any question as to whether any person is a member of a class, or possesses a character or quality, whereby he is entitled to a share in a succession the civil courts shall apply the following rules : -

 

   (a) if the claimant is a Moslem or a member of one of the communities, the Moslem law or the law of the community shall apply;

  

   (b) if such claimant is a foreigner.... ."

           

            Since the widow was a member of the Jewish Community and a Palestinian national at the time that the dispute was brought before the District Court, had the Court of Appeal held that the religious law to which the widow was subject at the time of the hearing of the dispute was also the operative law even in respect of the period during which she was subject to German law - as counsel for the appellant in the present case had submitted - that court would have had no need to rely upon the decision of the Rabbinical Court as to the status of the deceased and the widow. It could itself have decided the case by reference to religious law (which validates a marriage celebrated according to religious rites anywhere), relying upon section 23 of the Succession Ordinance, according to the construction placed on it by the appellant's counsel.

 

            It seems to me that, up to this point, no support for the submission of counsel for the appellant can be found in any of the judgments referred to above. The two last judgments - the first directly and the second indirectly - support the point of view of the learned judge in the court below.

           

            In Levin v. Goldberg (7), the deceased was a Palestinian national and a member of the Jewish Community. His widow, whom he married in Rehovot by Jewish religious rites in 1938, and his son, claimed the estate. The sisters of the deceased opposed this claim on the grounds that the widow had not been the lawful wife of the deceased, and that the son was not their legitimate child. On the facts proved, the widow had been married civilly to a Jew named Rosovsky in Paris in 1931. She had been divorced from Rosovsky in Riga at the beginning of 1938 by a judgment of the District Court of Riga, without having received a Jewish religious divorce. It was submitted by those opposing the claim that since, according to Jewish law, even a marriage by civil rites possesses some of the character of a religious marriage, the widow could not be divorced from Rosovsky save by a Jewish religious divorce. It followed that the widow, at the time of her marriage in Rehovot, was already married, and her marriage to the deceased, therefore, was invalid. The court heard the evidence of Rabbis as to the validity of the marriage in Paris according to Jewish law, and reached the conclusion that no marriage in Paris, valid according to Jewish law, had been celebrated and the widow, therefore, did not require a divorce from Rosovsky before her marriage to the deceased, and that her marriage to the deceased, therefore, was a valid marriage.

           

            From this it may be submitted by counsel for the appellant that if, as is contended against him, the question of the validity of the marriage in Paris and the divorce in Riga is to be determined according to the foreign law which then applied to the widow, the court need not have based its conclusion regarding these matters on the principles of religious law. It follows that the religious law which applied to the widow at the time of the filing of the claim applied throughout, that is to say, also to the period during which she was subject to the foreign law.

 

            It appears from the judgment, however, that the parties at no time raised this question, for in that particular case the result of applying the religious law or the foreign law would have been the same. This question might possibly have arisen had it been proved that according to the religious law the widow would have required a religious divorce before her marriage to the deceased. What is more, no appeal was lodged against the judgment referred to, and it must not be overlooked that that judgment was given after the judgment of the District Court in Tennenbaum's case (4) and apparently before the decision of the Appeal Court was published varying the judgment of the District Court in that case (see Tennenbaum's case (4)). It might also have been necessary to examine whether the Paris marriage was valid from the point of view of the religious law for another reason, namely, in order to determine the validity of the marriage celebrated in Rehovot according to the religious law, without any regard to the foreign law which applied to the widow at that time. Those who opposed the succession did indeed submit that the fact that according to secular law - in view of the principles of private international law - the widow was regarded as a divorced woman, was irrelevant, since, according to their contention, the Rabbi in Rehovot could not have celebrated a valid marriage had he known of the Paris marriage and of the fact that the widow had been divorced according to foreign law without receiving a bill of divorcement from Rosovsky. The marriage in Rehovot was therefore invalid, since it had been celebrated as a result of the non-disclosure of facts. In other words, their submission was that in regard to the religious marriage in Rehovot, one of the conditions required by the religious law, namely, the production of a bill of divorcement from Rosovsky, had not been fulfilled.

 

            It might well be that the marriage in Paris had some of the aspects of a valid marriage from the religious point of view. We will not however, express an opinion here whether a civil court, in dealing with the division of the estate of the deceased, would have invalidated the marriage in Rehovot because of the absence of a divorce from Rosovsky, particularly when we take into account the fact that the widow had been divorced from him in Riga by a civil divorce, in accordance with the foreign law which applied to her at that time.

 

            As I have already said, the learned judge in the present case decided the fate of the case by applying Polish law. He held, first, that a marriage subsisted between the parties, and he overruled the submission that it was necessary to decide this question according to the religious law as well, which began to apply to the parties when they settled in Palestine.

           

            On this question the judgment reads: -

           

"On pages 5, 6 and 7 of Dicey's work (6th edition) the learned authors explain that, for reasons of practical necessity, there is no escape from employing the principles of private international law where the particular transaction reveals one or more foreign elements, for if you close your eyes altogether to the foreign element, you are liable to judge the rights of the parties in such a way as to do injustice. In Vasan v. Vasan (16), Barnard J. said, at p. 23: 'To deny recognition of a Hindu marriage for the purpose in hand would, in my opinion, be to fly in the face of common sense, good manners and ...', and in Baindail v. Baindail (17), Lord Greene M.R. said, at p. 346 : 'The practical question in this case appears to be : Will the courts of this country, in deciding upon the question of the validity of this English marriage, give effect to what was undoubtedly the status possessed by the appellant (that of a married man in India) ? That question we have to decide with due regard to common sense and some attention to reasonable policy.' I do not wish to exaggerate the importance of these remarks. The English courts would certainly not disregard precedent in order to give effect to what appears to them to be reasonable policy."

 

            To these comments I would add that the English courts will not assume the powers of the legislature which have not been given to them, in order to give effect to a policy which appeals to them, even were they to be convinced that they could not otherwise discharge their judicial duty and do justice between the parties.

           

            The learned judge continues :

 

            "I have only quoted these passages in order to emphasize the principles which move the legislature and the Courts in the creation of the rules of private international law and the crystallization of those rules. It seems to me, for considerations of common sense and reasonable policy, that justice would not be done between the par­ties if the foreign element in the relations which gave rise to this case were not recognised, that is to say, if the rules of private international law were not employed."

           

            I share the opinion of the learned judge that it would be impossible to do justice between the parties without having resort to the provisions of private international law. I am also of his opinion that "common sense and a reasonable policy" speak in favour of applying private international law side by side with the religious law, and particularly where there is a danger that by applying the religious law alone, the respondent would be deprived of a personal status which she had once acquired validly and lawfully.

           

            The only problem is whether this "common sense and reasonable policy" find their place in the laws to which the courts of this country are subject.

           

            The learned judge was alive to this problem, and made an attempt to discover this "commonsense and reasonable policy" in Article 47 of the Palestine Order in Council, as interpreted by him.

           

            And this is what he says in his judgment: -

           

            "As is well known, English private international law bases itself upon domicil in matters of personal status, while Article 64 (ii) of the Palestine Order in Council bases itself upon the national law. Save for this distinction - albeit a fundamental distinction - I do not see why Article 47 of the Order in Council referred to need be interpreted as if it were completely detached from the body of principles of English private international law. The contrary is true. I am about to interpret that article as if it were grafted on to the body of English principles, so that as far as possible, and as far as may be required, the word 'domicil' shall connote the opposite of the word 'nationality'. In other words, I am about to apply the personal law, but I shall apply that law within those limits in which it must be applied according to the general principles of private international law, and no further. What is the law of personal status which is to be applied between parties, in accordance with Article 47? My reply is as follows: In regard to what transpired during the Polish period, the Polish law must be applied, and as to what transpired during the Israel period, the Jewish law must be applied. Nor is Jewish law at liberty to re-open transactions already concluded and to criticise a status which was acquired during the Polish period; for private international law in Israel does not consult Jewish law as to the validity of a status which was acquired in Poland."

 

            The learned judge cites the English case of Goodman's Trusts (18). In that case a Polish woman died at a time when she was domiciled in England, and her personalty was to be distributed in accordance with English law. There were no heirs nearer than the descendants of the deceased's brother. According to the law of England of that time, only legal descendants - as distinguished from natural descendants born out of wedlock - were entitled to inherit. A certain woman, a daughter of one of the brothers of the deceased, appeared and claimed a share of the estate. The claimant was born in Amsterdam, Holland, out of wedlock, but after her birth her parents married in Holland at a time when they were domiciled in that country. According to the law of Holland their marriage, celebrated at a later stage, operated to legitimate the daughter born before the marriage, while according to English municipal law, the later marriage could not operate to change the status of the claimant as an illegitimate child. The question therefore arose whether, for the purpose of the distribution of the estate, the claimant was to be regarded as the legal niece of the deceased, in accordance with the law of Holland, or as the illegitimate niece of the deceased, in accordance with the law of England. It was held that in order to determine the status of the claimant for purposes of the distribution of the estate, the law of Holland was to be applied, and not English law.

           

            Cotton, L.J. said, at p. 291 : -

           

            "In support of this decision it was urged that in an English Act of Parliament the nearest of kin must be taken to mean those who by the law of England are recognised as nephews and nieces, that is, as legitimate children of the intestate's deceased brothers. This is doubtless correct... But the question as to legitimacy is one of status, and in my opinion by the law of England questions of status depend on the law of the domicil."

           

And further at p. 292 : -

 

            "If, as in my opinion is the case, the question whether a person is legitimate depends on the law of the place where his parents were domiciled at his birth, that is, on his domicil of origin, I cannot understand on what principle, if he be by that law legitimate, he is not legitimate everywhere.''

           

James, L.J., in the same case, said at p. 296 : -

 

            "According to my view, the question as to what is the English law as to an English child is entirely irrelevant... But the question is: What is the rule which the English law adopts and applies to a non-English child ? This is a question of international comity and international law. According to that law as recognised, and that comity as practised, in all other civilised communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the law of the country of his origin - the law under which he was born. It appears to me that it would require a great force of argument derived from legal principles, or great weight of authority clear and distinct, to justify us in holding that our country stands in this respect aloof in barbarous insularity from the rest of the civilized world ... the family relation, once duly constituted by the law of any civilised country, should be respected and acknowledged by every other member of the great community of nations. England has been for centuries a country of hospitality and commerce. It has opened its shores to thousands of political refugees and religious exiles, fleeing from their enemies and persecutors. It has opened its ports to merchants of the whole world, and has by wise laws induced and encouraged them to settle in our parts. But would it not be shocking if such a man, seeking a home in this country, with his family of legitimated children, should find that the English hospitality was as bad as the worst form of the persecution from which he had escaped, by destroying his family ties, by declaring that the relation of father and child no longer existed, that his rights and duties and powers as a father had ceased, that the child of his parental affection and fond pride, whom he had taught to love, honour, and obey him, for whom he had toiled and saved, was to be thenceforth, in contemplation of the law of his new country, a fatherless bastard ? Take the case of a foreigner resident abroad, with such a child. If that child were abducted from his guardianship and brought to this country, can anyone doubt that the Courts of this country would recognise his paternal right and guardianship, and order the child to be delivered to any person authorised by him ? But suppose, instead of sending, he were to come himself to this country in person" [and settle there] "would it be possible to hold that he would lose his right to the guardianship of the child in this country... ? Can it be posssible that a Dutch father, stepping on board a steamer at Rotterdam with his dear and lawful child, should on his arrival at the port of London find that the child has become a stranger ... ?"

 

            From the point of view of the facts, the case of Goodman's Trusts (18) merely lays down a principle similar to the provision contained in section 23 of our Succession Ordinance. According to that provision, if the law which governs the distribution of the estate directs that, in the absence of closer relatives, the estate is to be divided between the nephews of the deceased, and the question arises whether a particular claimant is a nephew of the deceased, that question must be answered in accordance with the law of the community to which the claimant belongs. In other words, it is the personal law of the claimant, and not the personal law of the deceased which is to be applied. In the case of Goodman's Trusts it was the Dutch law of the claimant and not the English law which applied to the estate.) The observations of the learned judge which I have cited from the case of Goodman's 'Trusts are merely the grounds which induced them to follow the principle stated. It may be that the provision of section 23 of the Succession Ordinance, according to which the personal law of the claimant is to be applied when we have to decide whether he belongs to a class of persons who are entitled to participate in the distribution of an estate. was enacted for the same reason. But that case in itself provides no solution to the problem before us, namely, whether in every case in which our law refers us to the religious law, we may not apply the principles of private international law - when that course is necessary in order to do justice between the par­ties. Let us assume that an estate, consisting of mulk property, is about to be distributed in accordance with foreign law, and that a nephew of the deceased claims a share of the estate as an heir. According to section 23 of the Succession Ordinance and the principle laid down in the case of Goodman's Trusts (18), the question whether the claimant is a nephew of the deceased must be determined, not in accordance with foreign law which applies to the estate, but according to the law which applies to the claimant. If the law which applies to the claimant is the religious law, then the question will arise whether the religious law must be applied subject or not subject to private international law.

 

            The difficulty here - as is pointed out by the learned judge in his judgment - is the existence of a conflict between secular law and religious law. The former is confined to matters arising within the borders of the State, or to nationals or residents of the State. It is for this reason that secular law recognises and applies other laws which govern the personal status of a man before he settled in the State or became a national of the State. The latter law knows no bounds or limits and applies to a person from his birth until his death in all matters affecting his personal status, without any reference to the place where, or the time in which, an occurrence may have taken place.

           

            The same problem may also arise in a case where the provision in section 23 of the Succession Ordinance is applied. In the case of Goodman's Trusts English private international law referred the court to the law of Holland, while here in this country it cannot be said that the religious law will refer the court to the foreign law under which the marriage which created the status of the plaintiff was celebrated.

           

            The learned judge was therefore correct in attempting to look for a solution in Articles 46 and 47 of the Palestine Order in Council. It has already been said by Grinzweig J. (Prof. Ginossar) in Burg v. Attorney-General (14): -

 

"In this connection it is appropriate to emphasize the word 'further' which appears in the opening portion of Article 47. In any event, Article 47 must not be interpreted as a provision standing alone. It must be read together with the earlier provision which leaves in force the law - including the whole of the Mejelle - as it existed in Palestine on November l, 1914. It seems to me, therefore, that Article 47 was not introduced in order to limit the scope of Article 46."

           

            Articles 46 and 47 of the Palestine Order in Council both deal with the jurisdiction of the civil courts of the country respecting the laws which they are to apply in judicial proceedings. It was laid down by the legislature in Article 46 that the English Common Law and the principles of equity must be applied where no solution can be found in the Ottoman Law - which it left in force - or in ordinances enacted or to be enacted by the Palestine legislature. Private international law contained within English Common Law must also be taken to be included. When the same legislature comes to deal with problems of personal status in Article 47, it refers the court to the personal law. Article 47 is general in its terms. It does not define what is meant by the personal law, and it draws no distinction between foreign nationals and Palestinian nationals or persons who are stateless. In regard to foreigners there is a later supplementary article, Article 64, which contains a specific provision that the personal law is the national law, that is the law of the nationality. The national law means the whole of that law, including private international law.

 

            In regard to litigants who are not foreign nationals, however, Article 47 remains without any supplementary article such as Article 64. It was only during a later period that the court held that the personal law (within the meaning of Article 47) of Palestinian nationals, or of persons who are stateless, was the religious law.

 

            I do not think that this is mere coincidence. When the legislature, in Article 64, applied to foreigners the law of their nationality, it knew that it was thereby also applying the private international law which is included within their national law. When, however, in Article 47, it applied the religious law to Palestinian nationals and persons who are stateless, it must be assumed that it knew that the religious law does not include the principles of private international law. The question that arises, therefore, is this: Did the legislature indeed intend to apply the religious law, and to exclude completely the application of the principles of private international law ? Had this been its intention, it is not clear why it did not choose the simpler and clearer method of laying down an unambiguous provision that in the case of foreign nationals the national law shall apply, and in the case of Palestine citizens or of persons who are stateless, the religious law shall apply.

 

            It seems to me that this was not its intention. In applying the religious law, the legislature did not intend to deny the application of the principles of private international law. The contrary is the case. It would appear from the manner in which Article 47 is drafted that the intention was to leave the door open for the application of English private international law until the problem should be resolved by Ordinances or regulations to be enacted or framed by the Palestine legislature, for this is the language used by the legislature in Article 47:

           

            "The Civil Courts shall further have jurisdiction ...in matters of personal status... Such jurisdiction shall be exercised in conformity with any law, Ordinances or regulations that may hereafter be applied or enacted and subject thereto according to the personal law applicable."

           

            It is interesting that the Article does not say "according to the religious law subject to any Ordinances etc. that may be applied", but says "...in conformity with any law, Ordinances or Regulations... and subject thereto according to the personal law..."

           

            If we remember that Article 47 is not intended to derogate from Article 46, what is the interpretation of the words "in conformity with any law that may hereafter be applied", in addition to the words "in conformity with any law which may hereafter be enacted"? "That may hereafter be applied" means the existing law, or the law the existence of which had already begun. Must it not be said that Article 46, which includes the principles of English private international law, is also a law, as other statutes in the future - "that may hereafter be applied" ? The result is that for so long as the legislature has not regulated, by an ordinance or law as provided in Article 47, the application of the religious law in a matter in which a foreign element exists, resort must be had to Article 46 (which also includes private international law), that may hereafter be applied.

 

I wish to cite here the remarks of Silberg J. in Cohen and Bousslik v. Attorney-General (9), which seem to me indirectly to support my point of view.

 

This is what he said at p. 19: -

 

            ''Yet, it is not only because of the different rules of evidence, but also because of the different approach to the substance of the case that the judgment of the civil court will not always be the same as that of the religious court, though both purport to deal with the matter according to Jewish law. One of the reasons for this is a different attitude towards the accepted principles of private international law, which require the recognition of the validity of legal acts done in the past, outside the territory of the State and under a foreign law, such as the national law of the parties or the law of their place of residence, and similar matters to be taken into consideration. The religious court regards itself as completely free from these "cramping" rules ; it extends the application of the religious law - a priori and unrestrictedly – to acts performed in the past by foreign nationals outside the boundaries of the State, and it is permitted so to do (see Neussihin v. Neussihin (5)); the civil court, on the other hand will, to some extent at least, take those rules into account, even if it deals with the matter, in principle, according to Jewish law."

 

            It seems to me, therefore, that when the learned judge was faced with the problem whether the status of the parties as a married couple continued to exist, or whether it was destroyed by the application of the religious law, he was entitled - relying upon Article 46 - to hold, in accordance with private international law, that the bonds of marriage created according to Polish law continued to exist, at least for the purpose of resolving the dispute before him, since private international law refers the problem in the present case to Polish law.

           

            Neither of the parties disputed the proposition that if the validity of their marriage was not to be determined according to the religious law. English private international law applied the law of the matrimonial domicil. that is to say. Polish law, and I see no reason to continue the argument on this point.

           

            It will no doubt be asked what the position would be were the situation reversed, that is to say, if the parties had celebrated their marriage in the country from which they emigrated by religious rites alone, such marriage being regarded as invalid by the law of that country ? The answer may possibly be that since they chose to be married in accordance with religious law, which is a universal law, a court in this country would not be obliged to invalidate such a marriage, when considering an ancillary claim and the question arose incidentally whether the parties were married. It may be that in order to validate their status, we would have to apply the religious law. The problem is by no means a simple one, but there is no need to decide this point in the present case.

           

            In short, it is my opinion that the appellant has not succeeded in this case in rebutting the presumption standing against him, and there I could have let the matter rest.

           

            Out of respect, however, for the detailed and well-reasoned judgment of the learned judge, and the comprehensive arguments addressed to us by counsel for the appellant, I have thought it proper to deal with the question of the application of the principles of private international law.

           

            Finally, counsel for the appellant submitted that the provisions of Polish law imposing upon the husband the duty of supporting his wife had not been proved.

           

            It seems to me that this submission is unfounded. Even were the religious law to apply to the whole of the case, as counsel submitted, it would be for him to establish those features which would relieve the appellant of the obligation of maintenance, since the respondent has proved that she was deserted by the appellant. If Polish law applies to the question of the validity of the marriage, then the religious law again applies - as was held by the learned judge - to the question whether in the circumstances that were established by the respondent, the appellant is liable for her maintenance. Since the parties settled in this country and became subject to religious law, the question of whether the husband was liable for the maintenance of his wife whom he deserted should be decided by the religious law which applied to him at the time of the desertion.

 

            I am accordingy of the opinion that the appeal must be dismissed, and the judgment of the court below confirmed.

           

AGRANAT J. I agree that the appeal must be dismissed for the reason mentioned in the second part of the judgment read by my colleague Olshan D.P.

 

            The subject of the appeal is a claim by the appellant for the return of certain movable property in the possession of the respondent or payment of damages in the event of the non-return of this property, and a counter-claim by the respondent against the appellant for the payment of maintenance. It is clear that the determination of both these claims depends upon the reply to a preliminary - to use an expression of my colleague Witkon J. - incidental question, namely, the question whether the civil marriage contracted by the parties outside this country is valid. The main facts, as found in the interesting and elaborate judgment of Cohen J. in the court below, are as follows: -

           

a)   The civil marriage of the parties - and no other marriage ceremony was celebrated - was contracted in Poland on April 2, 1948.

 

b)   The parties were at that time Polish citizens, and Poland was at that time their domicil. They also made Poland their domicil after the marriage.

 

c)   The parties immigrated to Israel in 1950.

 

d)  At the time of the filing of the claim and counter-claim the parties were stateless.

 

It must be pointed out that by virtue of section 2 (b) (2) of the Law of Nationality, 1952, which came into force after the judgment of the District Court in the present case had been delivered, the parties should have been regarded at the time of the hearing of the appeal as if they had been Israel citizens at the time when the claim was filed. This submission, however, was not argued before us, and counsel for both parties proceeded upon the assumption that their clients were at that time stateless persons. Since this is so, I shall proceed upon the same assumption, although my final conclusion would have been no different even had I regarded the parties as Israel citizens at the time when the claim was brought.

 

            What law are we to apply in deciding whether the Polish marriage is valid or not ? It is clear that we must first consider the concluding portions of Article 47 of the Palestine Order in Council, which provides that the law to be applied is : ''the personal law applicable". Since, however, the parties were, at all relevant times, foreigners - for a person who has no nationality is considered a foreigner within the meaning of Article 59 of the Order in Council - we are obliged to read the provision I have mentioned together with that contained in Article 64 (ii) of the Order in Council, which provides that "The personal law shall be the law of the nationality of the foreigner concerned unless that law imports the law of his domicil. . .. ." It has, however, been held by our courts that the personal law of stateless Jews is Jewish law (see Freyberger's case (1), Cohen's case (2), and Levin's case (7)). I shall deal later with the question whether the basis of this ruling is that Jewish law is the religious law of stateless Jews - and is therefore their personal law - or whether the basis is that Jewish law is their "national" law.

 

            Since the personal law of the parties at the time that their civil marriage was contracted was Polish law, and their personal law at the time when the claim was filed - as we assume - was Jewish law, the problem before us is confined at this stage to the question which date is to be taken into consideration, in order to decide which of the two laws mentioned above must be applied.

 

            Nothing at all, however, in regard to this point, is mentioned either in the provision contained in Article 64(ii), or in Article 47. Since this is so, we have no option but to seek the reply to our question in Article 46 of the Order in Council, that is to say, in the common law - including the principles of private international law which are part of it. In this respect I differ from the opinion of my colleague Olshan D.P. that it is possible to find assistance in that portion of Article 47 which provides : ''... such jurisdiction shall be exercised in conformity with any law, Ordinances, or Regulations that may hereafter be applied or enacted... ''. That is to say, I do not think that these words - and in particular the expression "be applied" - enable us to apply the principles of the common law by virtue of Article 46. It seems to me that the intention reflected both by the expression "applied" and by the expression "enacted" - particularly in the light of the word "hereafter" which precedes both those expressions - relates to laws to be applied or enacted in the future by the legislature itself, as distinguished from existing laws applied by the court. The two words mentioned give a hint in fact of two different systems of legislation which the English legislature intended to apply to Palestine ; the one - to which the word "enacted" applied - is direct legislation for the purposes of the country ; the other - to which the word "applied" refers - is the application of existing English statutes, such as the application of the Copyright Act, 1911, by means of the Order in Council of 1924 (Drayton - Vol. III, p. 2499) ; also the Emergency Powers Defence Act, 1939, which was applied to Palestine by virtue of the Order in Council, relating to Emergency Powers (Defence of the Colonies), 1939, (Official Gazette 1939, Supplement 2, pp. 649, 652, 656), and laws similar to these.

 

            On one point, however, there was unanimity of opinion among the three judges who sat in Bichovski v. Bichovski (6), that is to say, in regard to the point that until that time no "law, Ordinances or Regulations" relating to marriage, save those provisions contained in the Order in Council itself, had been applied or enacted (pp. 246-9, 251 ibid.). It is true that since the establishment of the State, the Women's Equal Rights Law, 1951, and the Rabbinical Court's Jurisdiction (Marriage and Divorce) Law, 1953, have been enacted, but these two statutes do not deal directly with the problem with which we are concerned. The words "the general law applicable" in Article 47 remain, therefore, the decisive words. As I have intimated, this expression must be interpreted - in order to answer the question what is the critical point of time in regard to the application of the personal law - in accordance with the provisions of Article 46. This is so, however, only because of the well-established principle in our jurisprudence that where there exists a lacuna in the local law, the omission is to be filled by relying upon Article 46, that is to say, by applying the English Common Law. And the English Common Law means that law including the principles of private international law which are a part of it. It is clear that we must apply those principles, for the operative facts constituting the subject-matter of this case include a foreign element, namely, that the parties contracted a civil marriage in Poland, at a time when they were nationals of that country .

 

            As is well known, under the common law matters of personal status are to be determined in England according to the law of the domicil. The law of the domicil, however, is also a man's personal law, no less than his national or religious law. In Salvesen v. Administrator of Austrian Property (19), Lord Phillimore said, at p. 670 : -

           

"I have used the expression 'the law which determines the personal status' because there are countries which would refer to nationality rather than to domicil ; but the principle is the same."

           

            In his article "The Recognition of Polygamous Marriages under English Law" (48 L.Q.R. 341), W. E. Beckett writes, at p. 352 :-

           

"This expression is used as meaning that law which is applied to determine questions of status - it is, under English Private International Law, the law of the person's domicil….".

           

            We are thus able to determine the critical time for deciding as to the personal law which applies in the case before us by comparison with the principle according to which the law of the domicil would be applied to such a case in England. If, according to English pri­vate international law, the law of the domicil at the time of the marriage is to be applied, we too shall apply the personal law which applied to them at that time, and if in England the law of the domicil at the time of the filing of the action is to be applied, we too shall apply the personal law of the parties at that date.

           

            It is true that a distinction is drawn in England between the question whether the marriage is valid from the point of view of its form, and the question of its essential validity. In regard to the first question, the English courts apply the lex loci celebrationis, while the second question is determined by them according to the lex domicilii.

           

            The question before us, namely, whether the civil marriage is valid, is - according to the prevailing view in England - a question of the validity of the marriage from the point of view of its form. In this respect however, we cannot rely upon the English principle which applies the law of the place where the marriage was celebrated, since the notion of the lex loci celebrationis must not be confused with the notion of the personal law - though there will sometimes be no real difference, whichever of these two laws is applied, as far as the final result is concerned. In regard to the distinction between the two conceptions referred to, see the remarks of Martin Wolf in his book on private international law, 11th edition, pp. 325-327). It seems to me, therefore, that I shall not go far wrong if I hold that we should apply those rules of private international law which would be applied by the English courts to the question of the essential validity of the marriage between the parties, or - to be more precise - whether the marriage is valid from the point of view of the capacity of the parties to contract a marriage.

 

            Let me therefore define the question before us in these terms : when the Courts referred to apply the law of the domicile in order to determine whether the marriage is valid from the point of view discussed above, which point of time do they consider before deciding the law of the domicil which applies in the particular case where the parties have since changed their domicil ? Before I reply to this question, I wish to clarify more fully my approach to the problem before us.

           

            I do not wish to be understood as holding that we have to decide whether the marriage is valid - from the point of view of form - according to the law applicable in England ; the question before us is not whether we must choose in this case between the personal law of the parties and the law of the place where the marriage was celebrated, and what English law would lay down in such a situation. The problem which arises is more restricted. It is well recognised that our law directs us to turn to the personal law of the parties in order to decide whether a civil marriage celebrated by the parties is valid - from all points of view. The only question which arises is which personal law is to be preferred and applied - the personal law of the parties at the time of the celebration of the marriage, or their personal law at the date of the filing of the claim. It is only for the purpose of determining the point of time - and for this purpose alone - that we turn, by way of analogy, to English private international law, since that law also refers us to the personal law in matters of status and marriage generally, save that in regard to the question of the validity of a marriage from the point of view of its form, English law, abandoning its general approach, applies the law of the place where the marriage was celebrated. As was said by Lord Greene in Baindail's case (17), at p. 345: -

 

"The proposition would not be disputed that in general the status of a person depends upon his personal law, which is the law of his domicil."

 

            The very basis of the application of the principle of the domicil or nationality of a person is the idea that questions of status are the concern of the country in which his life is centred, or the concern of the people to which he belongs (see Wolf, ibid, p. 103). This was emphasized by Pearce J. in Pugh v. Pugh (20), where he said, at p. 686 : -

           

            "It must be remembered that personal status and capacity to marry are considered to be the concern of the country of domicil."

           

            To sum up, for the purpose of furnishing the reply to the narrow question stated above, we draw, in our case, on the analogy of the general approach of English law in applying the personal law to matters of marriage.

           

            In this regard it is a rule of English private international law that when dealing with the question of the essential validity of a marriage, the law to be applied is the law of the domicil of the parties at the time of the marriage. This rule will at least apply where the domicil of both husband and wife prior to the marriage was the same. There is ample authority on this point, and I would first refer to the authorities collected by Pearce J. in Pugh's case (20), such as:

           

(a) the dictum of Lord Campbell in Brook v. Brook (21) that : -

 

"...The essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated" (ibid. at p. 684);

 

(b) the dictum of Lord St. Leonards in the same case that : -

 

    "... a marriage contracted by the subjects of one country, in which they are domiciled, in another country, is not to be held valid, if by contracting it, the laws of their own country are violated" (ibid. at p. 685) ;

 

(c) the dicta of Dr. Lushington in Conway v. Beazley (23) that:-

 

".... . the lex loci contractus as to marriage will not prevail when either of the contracting parties is under a legal incapacity by the law of the domicil ; and therefore a second marriage, had in Scotland on a Scotch divorce..... from an English marriage between parties domiciled in England at the times of such marriages and divorce, is null" (ibid at p. 687).

 

(d) In the same way, in the case of in re Paine (22), Bennett J. quotes with full approval, the same principle as stated in Hailsham, Vol. 6, p. 286, as follows: -

 

".... . the marriage must be a good and legal marriage according to the law of domicil of both contracting parties at the time of the marriage ..." ;

 

(e) and finally, are the dicta of Lord Greene in De Reneville v. De Reneville (24).

 

Applying this principle to our case, I reach the conclusion by analogy that the personal law according to which we must consider the validity of the civil marriage contracted between the parties in 1948 is their personal law at that time, that is to say - in view of what is provided by Article 64 (ii) of the Palestine Order in Council - the law of Poland. Since it is not disputed that according to that law civil marriages are valid from the point of view of their form, it follows that they must be regarded as valid in all places and at all times, for so long as the bond of marriage is not dissolved in a lawful manner or by the death of one of the parties. As was said by Scott J, in the case of Luck's Settlement Trusts (25) :-

 

"Status is in every case the creature of substantive law : it is not created by contract, although it may arise out of contract, as in the case of marriage, where the contract serves as the occasion for the law of the country of the husband's domicil to fix the married status of the parties to the contract. Perhaps the most far-reaching characteristic of status,... is its quality of universality, both in the general jurisprudence of other nations and in Private International Law as applied by English Courts. The general principle of status is that, when created by the law of one country, it is or ought to be judicially recognised as being the case everywhere, all the world over" (ibid, at pp. 890/891),

 

            Importance must also be attached to the remarks of Lord Greene in Baindail's case (17) at p. 345 :-

           

            "By the law of the appellant's domicil at the time of his Hindu marriage he unquestionably acquired the status of a married man according to Hindu law ; he was married for all the purposes of Hindu law, and he had imposed upon him the rights and obligations which that status confers under that law. That status he never lost. Nothing that happened afterwards, save the dissolution of the marriage if it be possible according to Hindu law, could deprive him of the status of a married man which he acquired under Hindu law at the time of his Hindu marriage..."

 

It follows that once the parties acquired the status of married persons in accordance with Polish law in 1948, that status remains in all places and at all times unless it be determined in some lawful manner, or by the death of one of the parties. Since that is so, no change in the personal law of the parties thereafter can deprive them of their status as married persons.

 

Before proceeding to the next question, I must make two comments. My first comment is this. There is room for the opinion - though I make no finding on the point - that the question whether the manner of celebrating the marriage is one of "form" or one of "essential validity" must be decided - since this is a question of "classification" - in accordance with the lex fori, that is to say, in accordance with the personal law of the parties at the time of the filing of the main claim and counter-claim, that is, Jewish law; and that according to that law, the failure to celebrate the marriage in accordance with religious rites is a matter that goes to the root of the marriage and is not merely a matter of form - particularly if the learned judge was correct in his conclusion that there is no basis, in the case before us, on the facts, for applying the presumption that "a man does not indulge in sexual intercourse for the purpose of sin." Martin Wolff shows in his book (ibid. at p. 343), for example, that according to the outlook of the Catholic and Orthodox Churches, the laws of one or other of which constitute the personal law applied in matters of marriage in various countries, the obligation to celebrate a marriage by a religious ceremony is not, in fact, merely a matter of form, but is a matter which goes to the root of the institution of marriage. (See also the example cited by Dicey, 6th edition, p. 69, paragraph (d).)

 

            As I have said, I myself do not hold that our matter is one dealing in fact with a question of "essential validity", and not with a question of form. Even if this case is to be regarded as dealing with a question of "essential validity" - which is a possible view - I am strengthened in my opinion that we should draw on the analogy of the English rule, according to which the validity of a marriage, from the point of view of its essential validity, should be determined by the personal law - that is to say, the law of the domicil of the parties at the time of the marriage; in other words, that in order to determine whether or not the civil marriage contracted by the parties in Poland in 1948 is valid or not, we must decide according to the personal law which applied to them at that time, namely, Polish law. Put differently, after paying due regard to the particular conception of the local law which governs matters of marriage - in this case, the Jewish law, which holds that the form in which persons contract a marriage is a matter affecting the very institution of marriage itself - even then we are directed, in accordance with the rule of private international law referred to, to prefer the provisions of the personal law of the parties at the time of their marriage, that is, the provisions of Polish law.

           

            My second comment is this. The rule according to which the law to be applied to matters of personal status is the personal law of the parties, is concerned with those cases where that law is the national law of the parties, for it is the national law – including the principles of private international law - which is to be applied (see the case of the Miller Estate (11). There is no doubt that in most countries the national law of the parties at the time of the marriage - particularly if the question that arises relates to the validity in form - will refer us to the lex loci celebrationis, and it will then in any case be proper to apply that law to the particular matter. It is not in all countries, however, that the rules of private international law which there apply render it imperative to refer to the lex loci celibrationis when the question referred to arises in the courts. In other words, there is the option in some countries of preferring the internal national law over the lex loci celebrationis for the purpose of validating a marriage contracted between the parties (see Wolf, ibid., pp. 340-341). In our present case - as I shall stress later - this whole problem does not arise, since the lex loci celebrationis and the national law of the parties at the time of the marriage are identical. I deem it proper, however, in order to make my own position clear, to point to the possibility of a divergence in some countries from the binding character of the rule which applies the lex loci celebrationis to the question here discussed, since a case may come before us at a future date in which the two are not the same, and even lead to different consequences in regard to the validity of the marriage.

 

            Having held that the parties were and are married, the next question to be considered is their rights and obligations for the purposes of the claim and counter-claim. It is clear that the reply to this question demands a reply to a prior question, namely, which law governs each of the two claims. To this question there is no one comprehensive reply - it is necessary to consider each of the two claims separately.

           

(1) The main claim. It is clear beyond all doubt that since, according to the statement of claim, the operative facts which constitute the cause of action in this claim all took place in Israel, the claim must be dealt with in accordance with the local law, and after we have replied to the question dealing with the validity of the marriage, no question of private international law will again arise. It was not submitted to us by counsel for the appellant that the provisions of the Mejelle should be applied in this matter, and it is, therefore, the provisions of the Civil Wrongs Ordinance that will apply. That being the case, the provisions of section 9(1) of that Ordinance - as was held by the learned judge - prevent the appellant from succeeding in a claim for damages based upon an act committed by his wife during the period of the marriage. It follows that the judge correctly dismissed the main claim.

 

(2) The counter-claim. What is the law which governs this claim? The reply of the learned judge was that it is Jewish law, and this is what he said in his judgment: -

 

            "As far as the counter-claim is concerned, that is, the claim for maintenance, it is not disputed that the defendant had no cause of action during the Polish period, and that if a cause of action exists it relates to the Israel period alone. Again, it is not disputed that for the purposes of the Israel period it is Jewish law which applies and the question is whether there is any reason why I should not recognise the Polish marriage for the purposes of a claim for maintenance under Jewish law... The award of maintenance to a wife in a proper case - a remedy recognised by Jewish law - is in no sense inappropriate in regard to the marriage contracted by the parties in Poland. I see no reason why Jewish law should not be consulted as to whether it would - according to its own provisions - recognise the remedy of maintenance to this defendant in the circumstances described in the counter-claim. The court need not concern itself with investigating the validity of that marriage, since such validity is postulated by the general law of the land, which determines this as a fact, having regard to Polish law, and by applying private international law. Jewish law is not required to give effect to a contract created by Polish law; what is required of it is to grant one of its remedies - if this be a suitable case - to the holder of a particular personal status. In other words, the only question addressed to Jewish law is this: What would you award to a married woman in such and such circumstances ? There is, therefore, no reason why I should not recognise the marriage between the parties for the purposes of the counter-claim for maintenance."

 

            Mr. Sheps, counsel for the appellant, made a threefold criticism of this part of the judgment: -

           

            (a) If maintenance is to be awarded according to Jewish law, then, in the light of the facts described in the Statement of Claim - including the fact that the parties celebrated their marriage by civil rites alone - the respondent cannot succeed in her counter-claim, since, according to Jewish law, maintenance cannot be awarded unless there exists a marriage celebrated according to religious rites.

 

(b) On the other hand, if the matter is to be determined by Polish law, such law has not been proved - neither its own provisions, nor the rules of its private international law.

 

(c) At the most, resort may be had to the principle of "the presumption of the identity of laws", for the purpose of determining the provisions of Polish law; but if this be so. then it follows that the provisions of Jewish law should be applied, which would not grant the counter-claim in view of the arguments set forth in sub-paragraph (a) above.

 

            If I have understood these criticisms correctly, they are based in the main upon the submission that Jewish law should not be grafted upon Polish law in the circumstances of this case. In other words, when Jewish law is asked which law it would apply to facts such as those alleged in the claim and established, it will unwillingy reply : "One of these facts is that the respondent is not married to the appellant according to religious rites, and to a woman such as this I shall not, therefore, award maintenance whatever the circumstances may be - whether she married the appellant according to civil rites or not, whether Polish Law - which recognises such a marriage - applies in Israel or not." Were this indeed the correct approach to the problem with which we are concerned, I would have thought there was substance in the criticism referred to - presuming that the judge was right in his conclusion that there is no basis in this case for applying the presumption that "a man does not indulge in sexual intercourse for the purpose of sin." In my view, however, that general approach is wrong, and I have therefore reached the same conclusion as was arrived at by the learned judge in regard to the obligation of the appellant to pay the maintenance awarded against him, although I have reached that conclusion by a slightly different route.

           

            My opinion is that it is imperative to distinguish between the question whether the wife has a right to maintenance at all, and the question of the amount of the maintenance to which she is entitled. The first question is one of a substantive right which is claimed by the wife, while the second question is one of the remedy which she seeks.

           

            The right. As far as the first question is concerned, I am of opinion that it too should be decided in accordance with Polish law. It is this law which conferred upon the parties the status of married persons. And as a result of that status, it conferred upon them certain rights and obligations. These rights and obligations continue to exist for so long as the status of marriage is preserved. For this purpose I do no more than repeat what I said in Halo v. Halo (12). at p. 204, that is to say: -

           

            "When we say that a person enjoys a particular status, whether it is the status of a married person, or the status of a citizen of the State, or a member of a religious community, it is understood that, by reason of such status alone, the law confers upon such a person certain rights, or imposes upon him certain obligations; and the good of the community (in the case of marriage) or of the group (in the case of citizenship or membership of a community) requires that the rights and obligations in question, shall remain in force as against the whole world. In other words, they are rights and obligations in rem, and this position remains for so long as that person continues to hold that particular status." (See also the two authorities cited in that judgment (ibid.).)

 

            Perhaps it would not be superfluous to repeat in addition the observations of Lord Greene in Baindail's case (17), which are cited above, that is to say, that when the appellant in that case acquired the status of a married person in accordance with Hindu law: -

           

            "...he had imposed upon the rights and obligations which that status confers under that law. That status" - and I add: with all the rights and obligations which flow from it – "he never lost. Nothing that happened afterwards, save the dissolution of the marriage ...could deprive him of the status of a married man" - and again I add: with all the rights and obligations which flowed from it - "which he acquired under Hindu law at the time of his Hindu marriage...".

           

            And, in conclusion, I rely upon the statements by Cheshire (4th edition, p. 659), which were approved by Pilcher, J. in Araujo v. Becker (26), that: -

           

"Not only the existence, but also the extent, of an obligation, whether it springs from a breach of contract or the commission of a wrong" or - so I would add - from a status acquired by a litigant - "must be determined by the system of law from which it derives its source."

           

            It follows from all I have said that the nature of the rights and obligations which flow from the source of the status of marriage acquired by the parties is to be determined by that law which conferred such status upon them, for were this not so, the expression 'status' would lose all its content. It follows that the right of the respondent to claim maintenance for herself from her husband must be decided according to Polish law, since such right - if it exists - has its source in the status of marriage which was created by that law.

           

            The rule, therefore, that the status of marriage imposes upon the husband the duty of maintaining his wife whom he has deserted, is so universal in our time, that the wife who applies to court and who has acquired her status through her marriage in accordance with a foreign law, should not be required to prove the provisions of that foreign law which confers that right upon her. Even were it not so, however, it is proper to assume, in a case such as this, that the foreign law is the same as local law. In other words, it is proper to assume that Polish law - in the same way as Jewish law - recognises the right of the wife to be maintained by her husband who has deserted her. According to this approach - that is to say, that the substantive right of the wife to maintenance is accorded to her under Polish law - in turning to Jewish law we do not ask that law whether it would, according to its provisions, afford the remedy of maintenance to this respondent in the circumstances set forth in the counter-claim, but we ask it whether, assuming that the parties were married according to Jewish law, it would oblige the husband to maintain his wife, the facts set forth in the counterclaim having been proved. If the reply is in the affirmative, then it follows that we must deduce that Polish law, too, would furnish the same reply. Since it is not disputed that Jewish law does indeed entitle the wife, who lives apart from her husband through no fault of her own, to maintenance, it must be held that Polish law, too, would grant her this right. I must only add that no question arises before us as to the application of the principles of private international law which are applied by the Polish court, and for that reason there is no need to prove those provisions, since at the time that the parties acquired the status of married persons, they were citizens of that country, it was the country of their domicil, and they also designated it as the country of their residence after the marriage.

 

            The amount of maintenance. I have reached the conclusion - though not without some difficulty - that this is a question of "remedy", and not one of "a substantive right", and that for this reason it must be determined in accordance with local law. It seems to me that we are concerned here with the giving of effect to a right to maintenance, and not with the extent of that right. I have not, indeed, found any direct authority laying down the principle as I have expressed it, nor have I found any authority against this proposition. I think, however, that it is possible to resort in this regard, by way of analogy, to the English rule which distinguishes between the right to recover damages for breach of contract - the existence, and also the extent, of which must be determined by the "proper law" under which the right was created - and the measure of damages which must be awarded as a result of such breach - which it is proper to determine in accordance with local law, the law of the country in which the court sits, to which the claim for damages has been brought. (See Cheshire, 4th edition, p. 659, and the judgment in D'Almeida's case (26).) Indeed, the expression "extent of the right or obligation" must not be confused with the expression "measure of damages". The first expression relates to the question of the degree of damage in respect of which compensation must be paid or the circumstances in which the damage must be regarded as being the direct consequence of the breach in question, while the second expression relates to the question of the sum which will constitute full satisfaction for the damage which was caused or the payment of which will be regarded as restitutio in integrum. If we apply this test to the matter with which we are concerned, then the extent of the right to recover - or the duty to pay - the maintenance relates to the question in which circumstances such rights or obligations exist - for example, whether the right or obligation is to be enforced when the reason for the husband's and wife's living apart is due to the wife's fault - while the amount of maintenance which the husband is obliged to pay to his wife relates to the question in which way effect is to be given to such rights or obligations.

 

            I am strengthened in my opinion by the following examples:

           

(a) There was a time in England when it was impossible for a wife, whose husband had deserted her and did not maintain her, to recover maintenance by bringing a monetary claim against him in a civil court. Her remedy was - and this remedy is still available today - to buy her necessaries from a merchant, and to debit her husband's account with that merchant with their price. The merchant, and he alone, was then entitled to sue the husband in a civil court for the price of the goods which he sold to the wife (see Rosenbaum v. Rosenbaum (13), at p. 1050).

 

(b) In the judgment last referred to, I attempted to show that all those remedies which are afforded by English law to a wife whose husband has deserted her and refuses to maintain her, for the implementation of the substantive right to recover maintenance from him, may be classified - where each such remedy relates to that substantive right - into one general category called "alimony". I also pointed out in that case that when a civil court in England awards alimony to a wife, it generally resorts to the practice - which was indeed no more than a practice - according to which the ecclesiastical courts in England used to award alimony, namely, by obliging the husband to pay an "ethical" allowance which did not exceed a third of the husband's income - where the matter related to his obligations to pay such an allowance on a fixed basis - or a fifth of his income - when the matter related to the payment of an ethical allowance for the period during which the main claim was pending, where such claim was based upon a cause of action constituting a matrimonial offence (ibid., pp. 1053, 1055). In resorting, however, to the practice referred to - and I emphasize this point - the civil courts of England merely act in accordance with a statutory provision - which has existed since 1857 - under which it is clearly laid down that the courts shall afford a remedy in accordance with the principles which used to be applied by the ecclesiastical courts in such matters. When, however, that same court, in the same case with which it is dealing, recognises the existence of the actual substantive right of the wife to recover maintenance in the circumstances referred to, it resorts to the principles rooted in the common law which take precedence over the practice referred to. (See the remarks of Duke J. in Dean v. Dean (27), at pp. 174 and 176.)

 

(c) And finally, in Levin's case (10), at p. 936, it was held by this court - after it recognised, relying upon Jewish law, the right of the respondent's wife to recover maintenance from her husband, the appellant - that the question of the amount of maintenance must be considered "in the light of the rule that the decision as to the amount of maintenance is within the discretion of the judge of first instance." In approving this rule the court indeed did no more than follow a previous decision given by the Supreme Court in the time of the Mandate.

 

            These three examples lead me to the clear conclusion that everything relating to the determination of the amount of maintenance is nothing more than a matter of the procedure for giving effect to the substantive right of a married woman to recover maintenance from her husband, and the obligation of the husband to pay such maintenance; in other words, that this is a matter of remedy and nothing more.

           

            If this conclusion is correct, then it is the lex fori which applies in connection with the fixing of the amount of maintenance - as distinguished from the obligation to pay such maintenance - and not Polish law. I shall be content in this connection to cite the dicta of Scrutton L.J., which he made in the case of The Colorado (28), at p. 108: -

           

"The nature of the right may have to be determined by some other law, but the nature of the remedy which enforces the right is a matter for the law of the tribunal which is asked to enforce the right."

           

            In applying the lex fori in order to determine that question of the amount of maintenance - whether the expression quoted relates to Jewish law, or to all those rules applied by the civil courts of this country in fixing the amount of maintenance which it obliges the husband to pay - including the tests laid down in Levin's case (10), and which were applied by the learned judge in the matter before us, I see no grounds - again applying a rule of the lex fori - for interfering with the discretion of the judge in fixing the maintenance in question at the sum which he laid down.

 

            From all this it follows that the appeal - also to the extent that it relates to the counter-claim - is without substance, and that the appeal as a whole, therefore, should be dismissed.

           

            I could have concluded my judgment at this point were it not that I feel bound to consider one basic question presented to us by counsel for the appellant in his attempt to prevent us from deciding that the law which determines the validity of the marriage of the parties is the foreign law which applied to them at the time that they contracted their civil marriage outside the country. Just imagine, says Mr. Sheps, that if that proposition is accepted, parties who celebrated their marriage according to Jewish law outside this country, at a time when they were citizens of a state which required the celebration of a marriage by civil rites alone, will not be regarded by the civil courts of Israel as married persons. And let there be no mistake about it, Mr. Sheps added with emphasis, that there are a large number of cases of Jews who celebrated their marriage by Jewish law alone, before their immigration to Israel, and surely the marriages of these Jews in such cases should be regarded as valid.

           

            In short, as Mr. Sheps argued, that very principle of "a healthy policy" which was stressed by the learned judge in upholding the validity of the civil marriage of the parties, obliges us to lay down a rule other than that which we have accepted, which is calculated to create a serious obstacle for Jews who belong to the category mentioned, and whose number is greater than those who celebrated their marriages by a civil ceremony alone before they came to Israel.

           

            The question raised by counsel for the appellant is undoubtedly a serious question which demands a well thought out reply. It is for this reason that I do not propose to run away from my duty upon the usual ground that when this question comes before us directly, we shall consider it and give our decision. The reply which should be given to this question may also be a factor which should properly be considered in laying down the rule according to which the validity or invalidity of a marriage such as that celebrated between the parties in this case should be determined. On the other hand, since the question referred to only arises indirectly, I do not intend to deal with it at any length, but shall content myself with pointing to the general line of thought which has led me to the conclusion which I have reached.

 

            My conclusion is as follows : I incline to the view that even a civil court in Israel, when faced with the question of the validity of a marriage celebrated between Jews in another country by Jewish law alone, will be found to recognise such marriage, even if the law of that country of which the parties were citizens at the time of such marriage only recognises a marriage celebrated in civil form.

           

            I have already dealt, in another part of my judgment, with the rule - which was already laid down in the time of the Mandate - that the personal law of stateless Jews is Jewish law. It is true that there is no mention of such a rule in the Palestine Order in Council itself, and it is possible indeed to hold another view, namely, that the personal law of such Jews should be deemed to be the law of their last nationality (in regard to this possible approach, see the remarks of Wolff, ibid, p. 103, note l). It is not my intention, however, as I have already said, to depart from the rule referred to, more particularly as in my opinion it is sound. I do wish, however, to express my disagreement with the approach which was the basis at that time for the acceptance of that rule - namely that Jewish law is the religious law of such Jews, and that it is only for this reason that it must be regarded as their personal law (in connection with this view, see Freyberger's case (1)). Such a conception of the matter appears to me to be fundamentally wrong, since it disregards the historical development of the Jewish people throughout the generations, and also because this conception is artificial and unrealistic, since it results in compelling unbelieving Jews - and there are such Jews - to obey Jewish law only because it is their "religious law" as it were - an impossible situation. In my view, the true basis of the rule referred to is that Jewish law is the national law of stateless Jews, no less than it is the national law, in matters of personal status, of Jewish who are citizens of Israel. I go further, however, and say that when a question such as that posed by counsel for the appellant arises before an Israel court, that court will certainly be entitled - for the limited purpose of recognising the validity of a marriage celebrated outside the country by Jewish rites alone - to regard Jewish law as the national law of the parties - that is to say, within the meaning of Article 64 (ii) above - even if the parties, at the time of the marriage, were citizens of a foreign state which does not recognise such marriages. I shall clarify my view.

 

            It is almost superfluous to explain today - what must now be plain to all - that the Jews, even after they were exiled from their country, never became, in their own eyes, a religious sect. According to their own conceptions, they never ceased to be a nation together with the other nations of the world. Their absence from their own country, to which its sons continued to be faithful, was temporary, and carried with it, through all its wanderings, and during all periods of its exile, that most valuable treasure - its culture, its and West Library, p. 69), said that this was:-

           

            During the long period, however, in which the Jews were compelled, in the lands of their dispersion, to confine themselves within the Ghetto walls, Jewish law soon assumed to a growing degree a religious form. But it never ceased, for this reason, to be the national law of the Jews, even after a breach had been made in the walls of the Ghetto and the Jews entered the world outside those walls. And this is also true of those Jews who, having "tasted enlightenment" and having acquired civil and political rights in the countries in which they lived, began to regard some of the provisions of Jewish law, and perhaps many of those provisions, as foreign to their spirit. In speaking of the place of the "Shulhan Aruh" in the life of the Jewish people, Ahad Ha'am, in his essay "Ancestor Worship" (Essays, Ahad Ha-Am, translated and edited by Leon Simon, East and West Library, p. 69), said that this was:-

           

            "The book closest to the spirit of our people having regard to its situation and needs during those generations which accepted it for themselves and their descendants. And if we declare 'that this is not our law', then our declaration will be untrue, for this is indeed our law in the form that it necessarily assumed at the end of the Middle Ages, just as the Talmud was our law in the form that it assumed at the end of an earlier period, and as the Bible was our law in the form that it assumed when the people was still living a national existence in its own country ; these three together are but three different milestones along the road of the development of one entity - the spirit of the Jewish people - in accordance with its position and needs during different periods."

 

And in another essay (The Law from Zion) he wrote :-

 

            "Only by the complete atrophy of his feeling for his people can a Jew be so 'emancipated' as to be able to regard all those things that have been sacred to the people from time immemorial with the indifference and detachment of an entire stranger, who may accept or reject them, may treat them with reverence or contempt, on the strength of a purely intellectual assessment of their objective worth. A Jew who has not yet suffered that kind of atrophy cannot rid himself of his attachment to his national past and all it held sacred, even though he may have become a thoroughgoing sceptic in matters of religion ; and the only difference between him and the religious Jew is that he says 'I feel' where the other says

'I believe.' "1⁾

 

            It is, indeed, a separate question whether, and to what extent, foreign States recognise the application of Jewish law - as part of their municipal law - to Jews who were resident in such places, just as it is a separate question whether - as one must suppose - those states which accorded a measure of recognition to Jewish law, did so upon the basis that that law was the law of a particular religious aspect that dwelt among them. This latter manifestation, in fact, provides reliable testimony as to the vital part played by Jewish law in respect of Jews in various countries. In this regard it is fitting that I should not pass over the observations made in the year 1795 by Lord Stowell, when called upon, sitting as an ecclesiastical court in England in Lindo v. Belisavio (30), to determine the validity of a marriage celebrated according to Jewish law. This is what he said: -

           

            "This is a question of marriage of a very different kind" (that is to say, which was not celebrated in accordance with the provisions of Canon Law) "between persons governed by a peculiar law of their own, and administered, to a certain degree, by a jurisdiction established among themselves - a jurisdiction competent to decide upon questions of this nature with peculiar advantage... If I am to apply the peculiar principles of Jewish law, which I conceive is the obligation imposed upon me, I may run the hazard of mistaking those principles, having a very moderate knowledge of that law."

            (As quoted from the judgment of Stirling J. in De Wilton's case (29)).

           

            As I have said, I do not attribute a great deal of importance - from the point of view of the problem with which we are dealing now - to the question of the extent of the application of Jewish law, as part of the municipal law of foreign states, to their Jewish residents. I do this since the very moment that we admit - as we are obliged to admit - the continued existence of the Jews, in all generations and in all the lands of their dispersion, as a separate people, we must test the nature of Jewish law by the historic relationship of the Jewish people to this law. We shall then conclude - against our will - that the Jewish people really treated Jewish law, throughout their existence and their dispersion, as their special property, as part of the treasure of their culture.

           

            It follows that this law served in the past as the national law of the Jews, and even today possesses this national character in respect of Jews wherever they may be.

           

            If this conclusion, based as it is upon the historical approach which I have mentioned, is correct, we can easily rid ourselves of that artificial conception - with which we have already dealt - which compels obedience to the 'religious' law by persons who in no sense regard themselves as religious. That conclusion, moreover, brings us to a satisfactory solution of the problem raised by counsel for the appellant.

           

            I must now return to interpret the expression "law of his nationality" which is mentioned in Article 64(ii) of the Palestine Order in Council. Generally speaking, it will be proper to assign to this expression its ordinary and accepted meaning, that is to say the law of the country of which the party affected was a citizen or national at all relative times, the lex patriae. However, in regard to the situation assumed by counsel for the appellant in posing the question referred to, we may extend the meaning of the expression referred to in such a way as also to embrace Jewish law, where the parties who were Jews, and foreign citizens, married outside this country ; that is to say, for the restricted purpose of validating such a marriage, it is proper to prefer here, over and above the foreign national law (lex patriae) which governed the parties at the time of their marriage and which only recognises marriages celebrated in particular civil form, the other national law which they possessed then, and which continues to be their national law, that is, Jewish law. If, moreover, we follow this course, and lay down the law in these terms, we shall also remain faithful to the principle - a widely-accepted principle in this branch of the law - that it is the duty of the judge who investigates the question of the validity of a marriage to do his best, so far as the law enables him so to do, to hold a marriage valid, and not invalid.

 

            This latter approach, which prefers the one national law of a person who possesses dual nationality over his other national law, with the object of validating a marriage which is valid according to one of those laws, but not to the other, is not foreign to private international law. In this regard I draw attention to the example furnished by Martin Wolff in his book referred to above, at pp. 130, 131.

           

            To sum up, I myself would incline to regard the marriage of Jews, as presented in the example of counsel for the appellant as valid. Since this is so, the question posed by him has no effect on my conclusion in regard to the correctness of the principle according to which I have held that the 'Polish' marriage of the parties is also valid.

           

            On the basis of what I have said, I agree that both parts of the appeal should be dismissed.

           

WITKON J. I agree that the appeal should be dismissed, though I differ somewhat from the grounds which moved my colleagues Olshan and Agranat JJ. to reach that result. As will appear, I am in general agreement with the learned judge who sat in this case in the court of first instance.

 

            My starting point is the well-known principle that in any case involving a 'foreign' element - foreign nationality, residence outside the country, a contract or act executed or performed in another country and so forth - it is the duty of the court to examine whether it is necessary to resort to the principles of private international law before having recourse to the internal municipal law. The provisions of the municipal law are generally directed to cases in which a foreign element does not arise, unless that law itself lays down a provision specifically directed to such elements. Where a foreign element appears in any case, resort must first be had to the principles of private international law, and it must be ascertained whether those principles refer us to any foreign law or not. The principles of private international law take precedence over any other law which is purely municipal and internal.

 

            There are two principles of private international law which must be considered in this case, when we examine the validity of the marriage between the appellant and the respondent, and both these principles prevent us from examining this problem according to the religious law. And this is the first principle: when a fundamental question falls to be considered - in this case, the question whether the appellant is entitled to claim damages from the respondent, and whether he is liable for maintenance - and when this question is dependant upon the reply to another question (an incidental question) - in this case the question of the validity of the foreign marriage celebrated by the parties in Poland - the court must consider the incidental question according to the law (the municipal or foreign law) which applies to that question and not according to the law (the municipal or foreign law) which applies to the fundamental question. That was decided in the case of Goodman's Trusts (18), and it is in this respect that the importance of that decision lies in connection with the case before us. The second principle is that the question of the validity of the marriage - at least from the point of view of form - must be tested according to the law which applied in the place and at the time of the celebration of the marriage (locus regit actum), and no change in the "personal law" of the parties - resulting from a change in their citizenship, their residence, or any other change - can operate to invalidate that which was valid at the time and in the place where the marriage was celebrated. These two principles refer us to Polish law, which applied to the parties at the time and in the place of their marriage, and there is again no room for the application of any other law in regard to the question of the validity of the marriage.

 

Counsel for the appellant relied on Article 47 of the Palestine Order in Council, and submitted that the matter before us is governed by the religious law, that is to say, Jewish law, and that according to that law the civil marriage celebrated between the parties in Poland is invalid. That law, counsel submitted, is universal in its application, and applies to Jews, who are governed by it in matters of personal faith - that is to say, Jews who are not foreign nationals at the time of the filing of the claim and therefore subject to the law of their nationality in accordance with Article 64 of the Order in Council. This submission disregards the two principles of private international law which I have stated above. It is based, apparently, upon the assumption that to the extent to which Article 47 brings into application, by way of incorporation by reference, Jewish law - which itself is universal in its application to Jews wherever they are, be their nationality or residence whatever it may - there is an indication that the Mandatory legislation intended to exclude the principles of private international law in respect of Jews, who are thus subject to Jewish law. My reply to this submission is that this was not the intention of the Mandatory legislature. The provision in Article 47 is a provision of the municipal internal law, and does not form an exception to the rule which I have stated: that private international law takes precedence in its application over municipal internal law. The provision in Article 47 is also subject to the rules of private international law. And if it be argued that Jewish law is universal, the reply is that every religious law, in its application in this country, flows from an act of the secular legislature, namely, Article 47 of the Order in Council - from the point of view of the basic norm according to the theory of Kelsen - and derives its force from that Article. The secular legislature only conferred legal force upon religious law subject to the principles of private international law. This, in any event, is the proper approach for a civil court in this country. And if it be argued that the position in a religious court is otherwise, as was hinted in Cohen's case (9), (which was cited in a judgment of my colleague Olshan J.), and that there is in this, therefore, evidence that a civil court too should apply religious law in accordance with Article 47 without having regard to the principles of private international law. otherwise there might be different results in the two judicial fora - the civil and the religious. If this result could be brought about in one and the same case by the litigants' choosing which court they will approach, the result could certainly not be one contemplated by the legislator. My opinion, therfore, is that a religious court, too, is obliged to act in accordance with the principles of private international law, once the legislature has conferred upon it jurisdicton in matters of personal status or in any other matter, and that there is no fear of there being different results in the two jurisdictions which exist side by side in this country.

 

            We cannot apply the religious law - in accordance with Article 47 - to a particular matter before we have ascertained whether the principles of private international law refer us to a particular foreign law. In the present case we have found that Polish law applies, in view of the two principles of private international law to which I have referred - the principle relating to decisions of incidental questions, and the principle that a change in citizenship or residence has no effect upon the matter. This being so, Jewish law has no application to this case, in spite of its universal character. It is Polish law which applies, because it is the law which governed the parties at the time and place of their marriage. The provisions in Article 64 of the Order in Council are, in my opinion, irrelevant to this matter, and it is only fortuitous that the 'national' law at the time and place of the marriage is the same law which applies at the place of its celebration. If, for example, private international law had referred us to some other foreign law - not Polish law - we should have applied that law without any reference to Article 64 and without paying any regard to the Polish nationality of the parties in the past. The only source for the application of Polish law is, as I have said, private international law, which applies in this country by virtue of Article 46 of the Order in Council.

           

            My colleague, Agranat J., has asked the question how one can grant relief to the respondent under Jewish law when her status as the wife of the appellant is only recognised by Polish law, and he draws a distinction between the "right" to claim maintenance and the "amount" of the maintenance to which she is entitled. In my opinion there is no necessity to draw such a distinction and for this reason I express no opinion upon it. In my view the institution called "marriage" possesses a universal character, and a marriage under Jewish law is no different from what is accepted in the rest of the civilised world. I have no hesitation, therefore, in applying the right to maintenance of a wife married under Jewish law in favour of a wife whose marriage is based upon foreign law, but is recognised by the law of this country.

           

            In view of what I have said above there is no necessity for me to deal with the question of the validity of the marriage between the respondent and the appellant from the point of view of religious law, namely Jewish law. Since, however, my colleague Olshan J. has dealt at some length with this question, I wish to state in detail the grounds which have impelled me to differ from his opinion.

           

            The learned judge in the court below laid down the principle in the following terms: -

           

            "Since the parties at no time intended to be married under the provisions of Jewish religious law, that law will not regard their union as a marriage. The cohabitation of the plaintiff and the defendant cannot be regarded as cohabitation for the purposes of a religious marriage, though it certainly was cohabitation for the purposes of marriage under Polish civil law.

 

            There is no presumption to assist the defendant in her submission that it must at least be presumed that she has been married according to Jewish religious law. From the point of view of Jewish religious law the parties have never enjoyed the status of a married couple."

           

            I do not wish to raise the question whether this is also the rule under Jewish law, since my colleague Olshan J. also did not do so. While Olshan J. was of opinion that there was nothing in the evidence of the appellant to displace the presumption of Jewish law "that a man does not indulge in sexual intercourse for the purpose of sin," it seems to me that the learned judge, who heard the witnesses and weighed their evidence, was justified in reaching the conclusion that the appellant at least had no intention of marriage. Although the judge did not believe the appellant in regard to other matters on which he testified, he accepted his evidence on this point, and there was also nothing before him to contradict this evidence. On the contrary, even the respondent said (at p. 28 of the record) : "My husband is not orthodox" ; and this was the ground for his refusal to celebrate a religious marriage because, as he said, "It is unnecessary". If, therefore, the principle is as stated by the learned judge, namely, that the presumption in question only applies to Jews who are "orthodox" , and who intend to be sanctified, then there was a sound basis in the evidence for his conclusion, and we are not entitled, in my view, to interfere therewith. My colleague Olshan J. points out that in a case dealing with maintenance there is no need to decide finally and irrevocably as to the validity of the marriage. In my view, this presumption is nothing but a rule of evidence. And in any event, what difference can it make ? If there is no room for the application of the presumption, then the marriage has not been proved and if there is room for the application of the presumption, then the marriage has been proved for all purposes, as long as that evidence has not been contradicted. I see no distinction in this regard between a claim for maintenance and any other claim which gives rise to the question of the validity of the marriage. A distinction such as this creates the impression that there is some distinction between a marriage "de jure" and a marriage "de facto". In my opinion, the public interest demands that we give a clear reply to the question of the validity of the marriage, nor may we leave the parties in a state of doubt as to whether they are married one to the other, or not.

 

            As I have said, my reply to this question is based upon Polish law, which operates in this case by virtue of the principles of private international law, and, as was held by the learned judge, I too answer this question in the affirmative.

           

            Appeal dismissed.

            Judgment given on February 19, 1954.