Jewish Law

 

CrimA 5338/17

 

 

Appellants:

Moshe Abutbul – Mayor of Beit Shemesh Beit Shemesh Municipality

v.

 

Respondents:	1.  Nili Phillip 2.  Eve Finkelstein 3.  Miriam Sussman 4.   Rachelli Shluss 5.  Miri Shalem 6.  The Israel Religious Action Center – Israel Movement for Reform and Progressive Judaism 7.  Attorney General

 

Appeal on the decision of the Jerusalem District Administrative Affairs Court (Judge Y. Merzel) of June 7, 2017 in AP 049319-05-15

 

 

Israeli Supreme Court cases cited:

[1]       LCA 6897/14 Radio Kol Barama Ltd. v. Kolech – Religious Women’s Forum (Dec. 9, 2015) [https://versa.cardozo.yu.edu/opinions/radio-kol-baramah-v-kolech-%E2%80%...

[2]       HCJ 746/07 Ragen v. Ministry of Transport (Jan. 5, 2011) [https://versa.cardozo.yu.edu/opinions/ragen-v-ministry-transport]

[3]       HCJ 153/87 Shakdiel v. Minister for Religious Affairs [1988] IsrSC 42(2) 221 [https://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affa...

[4]       HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94 [https://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]

[5]       HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [1998] IsrSC 52(3) 630 [https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-l...

[6]       CrimA 517/06 Boaz Manor v. KPMG Inc. (July 24, 2007)

[7]       CrimA 126/62 Dissenchik v. Attorney General [1963] IsrSC 17(1) 169 [https://versa.cardozo.yu.edu/opinions/dissenchick-v-attorney-general]

[8]       CrimA 519/82 Greenberg v. State of Israel [1983] IsrSC 37(2) 187

[9]       CrimApp 4445/01 Gal v. Katzovshvili, [2001] IsrSC 56(1) 210

[10]     LCrimA 3888/04 Sharbat v. Sharbat [2004] IsrSC 59(4) 49

[11]     CrimA 1160/98 SHIZAF Marketing, Promotion and Construction Projects v. Ashkenazi [2000] IsrSC 54(1) 230

[12]     LCrimA 48/98 Ezra v. Zelezniak [1999] IsrSC 53(3) 337

[13]     CA 371/78 Hadar Lod Taxis v. Biton [1980] IsrSC 34(4) 232

 

 

The Supreme Court sitting as the High Court of Justice

(Before: Deputy President H. Melcer, Justice (emer.) U. Shoham, Justice D. Mintz)

 

 Judgment

(Nov. 1, 2018)

 

Deputy President H. Melcer

1.         This is an appeal on the decision of the Jerusalem District Court, sitting as a Court for Administrative Affairs (Judge Y. Merzel) in AP 49319-05015 of June 7, 2017, in the matter of a request filed by Respondents 1-6 (hereinafter: the Respondents), in the framework of which an order was issued against the Appellants under the Contempt of Court Ordinance (hereinafter: the Ordinance), as explained below.

I will now present the information necessary for deciding the entire matter.

 

Factual Background

2.         On April 26, 2015, the Respondents filed an administrative petition with the Administrative Affairs Court (hereinafter: the administrative petition), concerning the removal of signs placed at various locations throughout the city of Beit Shemesh containing offensive demands, requests and statements concerning women (hereinafter: the signs). The petition was directed against the Appellants – the Beit Shemesh Municipality (Appellant 2), and the Mayor, Mr. Moshe Abutbul (Appellant 1).

To complete the picture, we would note that in June 2012, the Respondents approached the Appellants by various means, demanding that the signs be removed, and on Feb. 20, 2013, Respondents 1-4 even sued the Appellants in the Beit Shemesh Magistrates Court (CC 41269-02-13), claiming that they must compensate them for the humiliation and the offense caused to them due to the Appellants’ failure to remove the signs as required.

3.         On Jan. 25, 2015, the Magistrates Court (Judge D. Gidoni) ruled that the signs that were the subject of the claim convey an offensive, discriminatory message, and that the Appellants bear a conceptual and concrete duty of care to act to remove them. This ruling also determined that the Appellants were negligent in not taking reasonable action to remove the signs, putting them in breach of their duty of care. The Magistrates Court awarded each of the four plaintiffs in that proceeding compensation in the amount of NIS 15,000, as well as legal costs.

4.         After a long period during which the Respondents waited for the signs to be removed by the Appellants, the Respondents filed the said administrative petition. On June 19, 2016, at the conclusion of the deliberations on the administrative petition, the agreements arrived at by the parties were given the force of a judgment (hereinafter: the consent judgment), with the following determinations:

       a.         The Respondents [in the present case – the Appellants – H.M.] once again inform the Court that signs of the type that are the subject of the petition are illegal.

       b.         The Respondents [in the present case – the Appellants – H.M.] have the authority to exercise enforcement measures in respect of the violation of the law by the placement of signs of this type.

       c.         The Respondents [in the present case – the Appellants – H.M.]     will exercise all powers of enforcement at their disposal under law (including imposition of fines) in order to bring about the removal of the signs that are the subject of the petition, as well as other signs that bear the same illegality. Effective enforcement measures will be implemented immediately and continuously, and this matter will be accorded importance in the framework of the enforcement and budgetary priorities of the Municipality.

        d.         In particular, and in relation to the sign marked “A”, a request will be filed with the Beit Shemesh Court for Local Affairs to enter into courtyards within 15 days from today, in order to obtain from the Court an order like the order that was issued in the past, following which the Respondents [in the present case – the Appellants – H.M.] themselves will remove the signs. This will not be deemed to exhaust any other enforcement measures that are available to the Respondents [in the present case – the Appellants – H.M.] under any law, including the imposition of fines.

        e.         The signs that were marked B and G will be removed by the authorized bodies on behalf of the Respondents [in the present case – the Appellants – H.M.] within 21 days of today. This will not be deemed to exhaust any other enforcement measures that are available to the Respondents [in the present case – the Appellants – H.M.] according to any law (including the imposition of fines). The Respondents [in the present case – the Appellants – H.M.] undertake to remove these signs, if they are put up again, as soon as possible, subject to effective enforcement constraints.

        f.                      Within 15 days from today, an official request (complaint, if necessary) will be made by the Respondents [in the present case – the Appellants – H.M.] to the Beit Shemesh precinct of the Israel Police in regard to the  specific investigation of the placement of the signs marked A, B and G. A copy of the request will be sent to the Attorney General’s representative.

        g.         I once again notify the Court [this refers to counsel for the Municipality, Adv. Gastwirth – H.M.] that the Municipality requested (some 50) cameras from the Ministry of Public Security as part of the “City Without Violence” program, with a recommendation to place them, inter alia, on Nahar Hayarden Street, at the corner of Yehuda Hanasi (sign A) [additions mine  – H.M.].

5.         On Feb. 20, 2017, some eight months after the consent judgment was handed down, the Respondents filed a request with the Administrative Affairs Court, pursuant to the Ordinance, asking the Court to compel the Appellants to comply with the provisions of the consent judgment granted in the framework of the administrative petition. In the framework of the request, it was argued that despite the long string of events that preceded the filing of the administrative petition, and despite the ongoing harm to women in the city of Beit Shemesh, the Appellants are not exercising significant, effective enforcement measures in accordance with their undertakings in the consent judgment.

6.         On June 7, 2017, the Administrative Affairs Court granted the request in part, and ruled that the consent judgment had indeed been violated with respect to the sign marked “A” in the administrative petition, which was placed on the corner of Nahar Hayarden and Yehuda Hanasi Streets, and the signs that had been placed on Hazon Ish Street in place of the signs marked “G”. It ruled that this breach constitutes sufficient grounds for imposing a conditional fine upon the Appellants. The Court ruled that if all the said signs are not removed by July 6, 2017, the Appellants will pay a fine of NIS 5,000 for each day of delay in their removal. At the same time, the Court ruled that the part of the request concerning new signs placed after the consent judgment, regarding which no concrete order had been issued in that judgment, could not be granted, in light of the procedural framework of contempt of court proceedings.

7.         The present appeal was filed against this decision of the Administrative Affairs Court, together with a request to stay execution of fine. At the conclusion of the hearing before me on the request to stay execution, on July 6, 2017, I ordered that the decision of the Administrative Affairs Court, which was the subject of the appeal, be stayed in part, until such time as a different decision be handed down and subject thereto, provided that the following conditions be met:

a.         The two signs placed on Hazon Ish St. in Beit Shemesh, which call for the banishment of women from the sidewalk on the said street (a photograph of one of these two signs was submitted to the Court file and marked “G”), will be removed by inspectors on behalf of the Respondents [in the present case – the Appellants – H.M.], with the help of the Israel Police, within 14 days of today.

b.         Within fourteen days of today, cameras will be installed by the Municipality, and funded by it, on Hazon Ish St. for the purpose of identifying those attempting to replace such prohibited signs on the street, or of those spraying graffiti with similar content.

c.         The Respondents [in the present case – the Appellants – H.M.] will submit, by July 24,2017, a report on the execution of the instructions in ss. (a) and (b) above, and on all the legal actions and steps that they have taken in order to implement the removal order that was issued by the lower court in respect to the sign placed on Nahar Hayarden St., corner Yehuda Hanasi, in Beit Shemesh, in which women were exhorted to appear in the neighborhood, and in the Hareidi (ultra-Orthodox) shopping center there, in modest dress (a photograph of the sign was submitted to the Court file and marked “A”) (additions mine – H.M.).

8.         Subsequent to the above decision, counsel for the Appellants provided an update in their report of July 20, 2017 as follows:

a)         The two signs that were placed on Hazon Ish St. in Beit Shemesh, which call for banishing women from the sidewalk of the said street, were removed by inspectors on behalf of the Appellants, with the help of the Israel Police, on July 19, 2017 in the afternoon, but the signs were replaced during the night.

b)         On July 11, 2017, Appellant 2 installed wireless cameras, but on July 12, 2017, unknown persons damaged the cameras, rendering them inoperable.

c)         The Appellants concluded that the most effective way to remove the sign (marked “A”) was not by means of the order to enter courtyards and remove the sign forcibly, but by imposing fines on the owners and residents of the building on which the sign was hung.

Accordingly, the Appellants once again requested a stay of execution of the decision of the Administrative Affairs Court until the decision on the appeal.

9.         In her response, counsel for the Respondents stated that the Appellants “continue to drag their feet unceasingly in all their handling of the signs.” She argued that reasonable conduct on the part of the Appellants would be to remove the signs on Hazon Ish St. at night, in order to reduce opposition and friction, but Appellant no. 2 chose to remove them in the afternoon; the Appellants did nothing to repair the cameras; imposition of fines had not as yet brought about the removal of the signs, and in any case, under the circumstances, the conditions for staying execution have not been met.

10.       Counsel for Respondent 7 explained in his response that from the report of the Appellants and from the response of the police it emerges that the Appellants did not act in complete coordination with the Israel Police, and it is possible that had there been such coordination, the result would have been different with respect to the signs that were removed and replaced on July 19, 2017. Counsel for Respondent 7 further argued that the measures taken by the Appellants were insufficient, and that the Appellants are not fulfilling their obligations under the consent judgment. In this context, it was argued that limiting action to the imposition of fines does not amount to fulfilment of the  consent judgment, and once the Appellants made it clear both in the oral hearing and in their response that they do not intend to take action to remove the sign (marked “A”) – there is no justification for staying execution of the decision of the lower court.

11.       On Sept. 4, 2017, I denied the request to stay execution, and ruled that the partial stay of execution that I ordered on July 6, 2017 will lapse on Sept. 10, 2017 (hereinafter: commencement date). I also ruled that the Appellants will pay the costs imposed upon by the  Administrative Affairs Court as of the commencement date, unless the consent judgment is fully and irrevocably carried out prior to the commencement date.

12.       I shall now turn to the arguments of the parties to the appeal.

Arguments of the Parties to the Appeal

13.       According to the Appellants, the District Court erred in its ruling that they were in breach of the consent judgment, and alternatively, even if there had been a breach, in the special circumstances of the case at hand there was no justification for invoking the extreme, exceptional tool of contempt of court proceedings against them. They also argued that the consent judgment could be interpreted in more than one way, and that under the circumstances, there had not been a clear, unequivocal breach – which would have been a fundamental condition for invoking the mechanism of contempt of court proceedings.

In this context it was argued that the District Court did indeed rule that the Appellants had been in breach of the consent judgment in relation to the sign marked “A”, but the consent judgment did not set a time for removing the sign. Therefore, the Appellants were authorized, so they say, to exercise their discretion in regard to the enforcement policy to be adopted in relation to the said sign. Accordingly, after weighing all the relevant considerations, including the fact that the said sign had already been removed in the past, but replaced a few days later, the Appellants concluded that the most effective way of handling this sign was by imposing fines on the owners and residents of the building on which the sign was placed, and enforcing the said fines.

It was further argued that the signs marked “G” were indeed removed by the Beit Shemesh Municipality on July12, 2016, but were replaced on August 8, 2016. The District Court ruled that the Appellants were in breach of the consent judgment in regard to the new signs that were put up, but as opposed to the signs marked “G”, no date had been set for the removal of the new signs, and all that had been decided was that they should be removed “as soon as possible, subject to constraints upon effective enforcement”. Therefore, the Appellants argue that the obligation to remove them in the framework of the consent judgment had no time limitation, but was subject to their discretion. In this context, and after the Appellants weighed all the relevant considerations, including the fact that the signs concerned had been removed several times in the past but replaced each time, the Appellants concluded that the most effective way of handling these signs was not by removing them, but by surveillance of those responsible for posting them.

14.       The Appellants further argue that the caution that must be exercised in relation to invoking the extreme and exceptional tool of contempt of court is even more necessary when, as in our case, the matter concerns enforcement of the policy of an administrative authority. This, according to the Appellants, is because the court will not interfere in the discretion of the competent authorities in determining enforcement policy, other than in the most exceptional cases in which there is a total disregard for enforcement of the law, or unreasonable avoidance thereof on the part of the authorities. The Appellants claim that this is not the situation in the present case. In their view, despite the difficult situation that exists in Beit Shemesh, which includes, inter alia, violence towards municipal workers and inspectors, the Municipality has acted and continues to act to enforce the law in the matter of the signs. Under these circumstances, and bearing in mind that, in any case, the local police take extensive action against all acts of violence, the responsibility for all that concerns the removal of the signs should fall, according to the Appellants, on the police as well, and not only on the Beit Shemesh Municipality. Furthermore, examination of the breach of the consent judgment and the conducting of contempt of court proceedings should be carried out against the backdrop of the harsh reality that pertains in the city with respect to enforcement of the law in general, and with respect to handling the matter of the modesty signs in the city in particular. The Appellants also argue that the rulings of the District Court did not give due weight to the fact that the Appellants invested, and are still investing, great efforts in dealing with the matter of the signs, and these efforts have indeed brought about the removal of some of the signs, even though new ones have replaced them.

15.       As opposed to this, the Respondents argue that although their arguments were accepted in all the legal proceedings, and despite the fact that the Appellants were ordered to remove the signs, the situation today is that signs are still hanging throughout the city. They argue that the Appellants have displayed a consistent and continuous attitude of contempt for the rights of the women in the city, as well as for the principle of the rule of law, throughout the entire legal proceedings. They say that the Beit Shemesh Municipality takes great pains to avoid enforcing the by-law that it itself enacted, and that the Mayor even declared in the past that he supports the hanging of signs. As such, the Respondents further argue that the Appellants are in clear breach of the consent judgment, deliberately and by virtue of an intentional decision, and that they ignore the fact that this is a final judgment that includes clear obligations, and now they wish to reopen their arguments with respect to the means that they should adopt for the purpose of dealing with the signs.

The Respondents also claim that the Appellants are acting with a total lack of good faith, and that they never removed even a single sign without a legal action having been initiated in court. The Respondents add that the Appellants are in contempt not only of the consent judgment, but also of the decision of this Court of July 6, 2017, because new cameras were not installed after the damaging of the cameras, and no additional attempt was made to remove the signs marked with the letters “A” and “G”. The Respondents further note that the obligation to pay the fine is imposed on the Appellants up until such time as the signs are removed permanently, whereas a one-time removal, following which the sign is hung again within a few hours, does not exempt the Appellants from their obligation under the consent judgment to pay the fine and to exercise effective means of enforcement to again remove the signs that were replaced, as well as the other signs hanging in the city.

16.       According to Respondent 7 – the Attorney General – Appellant 2 did not fully fulfill its obligation under the consent judgment to exercise its powers in relation to signs that are hung within its boundaries in an effective, satisfactory manner. Respondent  7 emphasized that the signs are an extreme violation of human rights, including the right to equality, to freedom of movement, to dignity and to autonomy. It was also contended that the conduct of Appellant 2 in implementing the consent judgment is inconsistent with the decision of this Court of Sept. 4, 2017, in the framework of which it was explained that the obligation to pay the fine imposed on the Appellants in the contempt proceedings applies to the Appellants up until such time as the signs are completely removed. Clearly, pinpoint removal, following which the signs are immediately replaced, does not relieve the Appellants of their obligation. In this context, it was argued that the Beit Shemesh Municipality did not adopt all the requisite measures to remove the signs, and that it almost entirely refrains from enlisting the aid of the Israel Police for this purpose.  The Appellants did indeed attempt to comply with the consent judgment, but according to the Attorney General, they did not make the requisite effort, given their obligation to comply with the judgment, and in view of the extreme offensiveness of the signs. It is further claimed that following the action taken by the Municipality to remove the signs on Sept. 10, 2017, and given that the Appellants knew that new signs had been hung, the Municipality has confined itself merely to imposing fines. Clearly, since the Appellants refrained from implementing effective enforcement measures that would lead to the permanent removal of the signs addressed in the consent judgment for more than two months after the time of their pinpoint action, their one-time action cannot be regarded as implementation of the judgment, but rather, as disregard of the duty it imposes on them. Respondent 7 explained that the Israel Police is prepared to extend to the Municipality whatever assistance is necessary, but the burden of initiating and executing enforcement measures lies with the Beit Shemesh Municipality and not with the Israel Police. In addition, regarding the Appellants’ claim that the measure that they adopted is the most effective, it was argued that the approach adopted by the Beit Shemesh Municipality is effective to a certain degree, but it cannot replace the primary action of removing the signs.

Unfolding of Events since the filing of the Appeal

17.       On Dec. 4, 2017, a hearing on the appeal was held before this Court, in the course of which the parties repeated their main arguments. In the course of the hearing, the Appellants stated that the signs – the subjects of the contempt motion – as well as other signs that had been hung in the meanwhile, with similar wording, would be removed by Dec. 18, 2017. The representative of the State Attorney, with the knowledge of the Israel Police, declared that the Israel Police would help the Appellants remove the signs, and would increase its presence in the relevant areas. We granted these declarations the force of a judgment, and ordered that counsel for the parties provide an updating report on implementation of the above by Dec. 21, 2017.

18.       On Dec. 14, 2017, the Appellants provided an update in which they notified the Court that on Dec. 11, 2017 a widespread operation had been conducted by the Appellants, accompanied by the Police, to remove all the signs placed throughout the city. In the framework of this operation, which was  met by riots and disturbances of the peace, six of the eight existing signs were removed by municipal inspectors. The Appellants claimed that the two remaining signs were not removed due to the decision of the Police to stop the operation for fear of matters getting out of control. Several hours after the end of the operation, a number of small signs were hung, and later, the large sign, marked “A” was once again replaced. Subsequently, on the night of Dec. 12, 2017, the Appellants began another extensive operation to remove the signs in the city, removing no less than 15 signs throughout the city, including the sign marked “A”. In addition to the above operations, the Appellants said in their updating report that they will continue to impose fines on the owners and residents of the properties on which the signs appear, and they will examine how and when it will be possible to install a camera at the corner of Yehuda Hanasi and Nahar Hayarden streets, where the large sign marked “A” appeared.

In light of the above, the Appellants asked the Court to rule that there is not, nor was there, reason to pursue contempt of court proceedings against them, and accordingly to grant the appeal and reverse the decision of the District Court on the matter.

19.       From the response of counsel for Respondent 7 that was submitted to this Court on Dec. 22, 2017, it emerges that on Dec. 14, 2017, extensive action was indeed taken, in which additional signs were removed. It was also reported that the Israel Police increased its presence in the streets of Beit Shemesh, with emphasis on those streets where trouble was likely, and that it is dealing with events that occurred in response to the removals, providing a response to developing events and helping the Beit Shemesh Municipality in carrying out its duty to remove the signs. It was also noted that the Israel Police attempted to initiate additional actions to remove the signs, and to this end it approached certain people in the Municipality, but the cooperation on the part of the Beit Shemesh Municipality, so it was claimed, was limited. In this context, the response of Respondent 7 described four cases in which police officers from the Beit Shemesh station contacted various people in the Municipality in order to initiate action, but either there was no response to their request, or the response was negative.

20.       On Dec. 28, 2017, the Respondents filed their response to the Appellants’ report. According to the Respondents, as opposed to the picture of the situation that the Appellants sought to paint, there were no widespread, violent riots and disturbances of public order, but gatherings of several dozen citizens at most, against whom no measures were taken to disperse the demonstrations. The Respondents also claimed that, as emerges from the response of Respondent 7, the Appellants are again dragging their feet and refraining from seeking police help for the purpose of further removal of the signs. It was also explained that there are currently more signs hanging throughout the city of Beit Shemesh than were hanging at the time that the proceedings were conducted in this Court on Dec. 4, 2017. The Respondents also said that in addition to the many signs, graffiti had been spayed, and a great number of stickers calling for modest dress affixed (and not removed by the municipal inspectors). The Respondents also said that to the best of their knowledge, to this day no suspects have been arrested for placing signs or for spraying the offending graffiti. It was further noted that on Dec. 15, 2017, a notice calling upon people to harass Respondents 1-5 was distributed, aimed at causing them to desist from their legal battle against the modesty signs. The notice contained the personal details of Respondents 1-5, and after its distribution, Respondents 1-5 began receiving threatening calls.

The Respondents further contended that neither the Appellants nor the police are doing what they ought to be doing to put an end to the shameful phenomenon that has made its appearance, according to them, throughout Beit Shemesh. They said that despite the Appellants’ declaration that they are pursuing the process of imposing fines on the residents of the buildings on which the signs are placed, from an investigation conducted by the Respondents it emerges that hundreds of hearings that had been scheduled for arraignments in cases in which those accused of placing the signs opted for a trial had been postponed at the request of the Municipality. Furthermore, despite the fines having been imposed many months ago, the Municipality has not taken any steps to collect them. In addition, it was stressed that the cameras that the Appellants were supposed to install at the main points of friction have not yet been installed either. The Respondents also noted in their response that following the hearing that was held in this Court on Dec. 4, 2017, Appellant 1, the mayor of Beit Shemesh, was interviewed on the Reshet Beit radio station, and he stated that Respondents 1-5 must respect the sensibilities of the residents and desist from acts of provocation.

21.       In their response dated Jan. 1, 2018, the Appellants argued that they had proved, time after time, that they are committed to an uncompromising war on the phenomenon of the signs, and that even if some of the signs are replaced before being removed again, there is no real justification for pursuing the contempt proceedings against them. The Appellants argued that in the course of a period of two weeks, they conducted three operations to remove the signs. Each such operation imposed a heavy financial burden on the Beit Shemesh Municipality, and it is therefore not able to carry out such operations on a daily basis. In this context it was further argued that it is the police that have failed time after time to eradicate the phenomenon of the signs, and in an attempt to hide its failures it seeks to lay the full responsibility on the shoulders of the Appellants. In all that concerns the installation of cameras, it was explained that the Municipality acquired “a camera with face-recognition technology and real-time transmission […] but as of the present time, the police have not yet decided on the place and time for installation of the camera.”

22.       After a careful reading of the updating reports from the parties, on Jan. 15, 2018 I ordered that a further hearing be conducted on the appeal. The parties would be allowed to submit additional updates on their behalf until three days before the date of the hearing, which was set for Feb. 18, 2018.

23.       On Feb. 15, 2018, the parties submitted updating reports in accordance with the order to do so. In the framework of the report submitted on behalf of the Appellants, it was claimed that they continue in their consistent, vigorous activity against the phenomenon of the signs in the city, which they say has led to a significant decline in the dimensions of the phenomenon. The report also mentioned that on Jan. 15, 2018, the Municipality embarked on an additional, extensive operation, accompanied by the police, to remove the signs. The Appellants claimed that the said operation was met by violence and disturbances, and that 18 signs were removed in the operation, including large signs that had been hung on buildings. These were removed by means of a crane. It was argued that following the above operation, no large signs remain on buildings. The few remaining signs are small, or stickers that call for maintaining modest dress, and their contents are not, according to them, offensive, as were the contents of the large signs that were posted in the past. It was also mentioned that the signs marked “G”, which call to refrain from using the sidewalk, were removed by the Appellants on the evening of Feb. 14, 2018, and that it is their intention to continue to take action against all the signs throughout the city, including the small signs and the stickers that call for maintaining modest dress. It was further mentioned that together with removing the signs, the Appellants are taking legal action against the owners of the apartments in the buildings on which the signs were hung. In this framework, and following the fines imposed on the owners and their request to be tried for the said fines, the Appellants said that of late, plea bargains have been made with some of the residents, which include payment of the fines and an undertaking to refrain from committing offenses under the Beit Shemesh (Notices and Signs) By-Law, 5715-1955. On the subject of the cameras, it was argued that the Appellants are acting to install the cameras throughout the city, but in order to decide on the place and time, serious, systematic groundwork is being done by the city in cooperation with the police.

24.       The updating report submitted by Respondent 7 stated that the Israel Police is continuing to take various steps to provide assistance and security support to the Beit Shemesh Municipality in its actions to remove the signs and to prevent their replacement with new signs. It was also stated that the Israel Police holds frequent discussions with various entities in the Beit Shemesh Municipality, with the aim of initiating additional action to remove the signs. In this framework, on Dec. 26, 2017 the Beit Shemesh Municipality took action to remove signs, with the help of police forces, and 15 signs were removed. As was also stated in the updating report submitted by the Appellants, additional, similar action was taken on Jan. 15, 2018,  in the framework of which 18 signs were removed. According to the report, this action was met by various provocations and disturbances, and only the police presence made it possible for the Municipality inspectors to continue carrying out their job as planned. It was also stated in the report that the police and the Municipality carried out an advance reconnaissance to remove the graffiti, and that the Municipality is waiting for a quote to carry out the removal.

25.       The Respondents’ updating report stated that since the hearing held on Dec. 4, 2017, there had indeed been several operations to remove the signs, but some of the signs had been replaced. In addition, many stickers calling for modest dress had been affixed, and nothing came of calls to the municipal inspectors to have them removed. In this context, the Respondents noted that most of the signs and the stickers are located in the public domain at a low level, and therefore, it is not physically difficult to remove them. According to the Respondents, the fact that the signs and the stickers are still evident throughout the city means that both the Municipality and the police are not doing enough to eradicate the phenomenon. The Respondents emphasized in their report that to date, cameras have not been installed at the friction points in the city, despite the fact that in the consent judgment, the Appellants declared that they had applied to the Ministry of Public Security to receive cameras as part of the “City Without Violence” project. It was stated that the Ministry of Public Security approved a budget for the Municipality for seven security cameras, but contrary to its undertaking, the Municipality chose not to install these cameras in the areas that were the main friction points. It was further stated that despite the willingness of the Ministry of Public Security to authorize municipal inspectors in Beit Shemesh as support inspectors, the Municipality refuses to ask the Ministry of Public Security to authorize the inspectors, thereby preventing, in effect, the reinforcement of the security set-up in the city, in a way that would help in enforcing the law and eradicating the phenomenon of the signs.

26.       On Feb. 18, 2018, at the end of the additional hearing before us, in which we learned of a degree of progress that had been made in carrying out the provisions of the consent judgment, we made it clear in our decision that this progress is still insufficient in the circumstances, and that the Appellants must act, within 30 days –

        a.  To install seven cameras in the neighborhood in which there are violations, the budget for which has been approved for the Municipality by the Ministry of Public Security and the Israel Police (in the framework of the “City Without Violence” project).

        b.  To remove the large offending sign that is still in place – at the corner of Nahar Hayarden St. and Yehuda Hanasi St. (45 Rabbi Elazer St.) [the sign marked “A” – H.M.].

        c.  To remove the offending signs that were hung in the city, and to erase or cover the graffiti relating to the exclusion of women.

        d.  To move forward with the proceedings that were initiated against owners or residents of the buildings who aided in hanging the offending signs/notices.       

        e.  To remove immediately any new sign or notice that is hung.

(Emphases added – H.M.)

It was also ruled that the Appellants must report by March 20, 2018 on the actions taken by the Municipality, and the other parties must respond to their report by March 26, 2018.

27.       On March 20, 2018, the Appellants submitted their updating report. The report stated that after the hearing, three dates were set for operations to remove the signs. Accordingly, on Feb. 27, 2018, the Municipality carried out an extensive operation, with police support, to remove the signs. It was argued that in the course of this operation, hundreds of stickers, dozens of graffiti inscriptions and a number of signs, including the large sign marked “A”, were removed. The operation was met by disturbances of the peace, and there was even one incident of stone-throwing at a municipal vehicle which had municipal employees inside. After the operation, several graffiti inscriptions reappeared, including at the location of the sign marked “A”, and the report stated that these will again be removed in the course of the operation planned for the near future.

As for legal proceedings against the residents of the buildings on which the signs were hung, the Appellants said in their report that subsequent to the fines that were imposed on the residents and their requests to go to trial, plea bargains were signed and approved in respect of all the residents. These plea bargains included payment of the fines and an undertaking to refrain from committing offenses of this type, and most of the residents have already paid the fines that were imposed on them in the framework of the agreements.

Concerning the installation of the cameras, the Appellants said that this was a complex matter, and that it was not possible to complete the task within 30 days of the decision of this Court. They said that for the purpose of installing the cameras, the Ministry of Public Security allocated a budget of NIS 318,000, and that the Municipality intended to use this budget, and even to add to it, in order to install as many cameras as possible, but that this was likely to take up to 150 days (note: in the meanwhile, 150 days have passed and the Appellants have not reported that the installation has been carried out).

28.       On March 29, 2018, the Respondents submitted their response to the above report. Concerning the installation of the cameras, they said that the Municipality has been declaring its intention to install cameras in the sensitive areas for a long time, but these intentions have remained on paper, and in fact, not even one camera has been installed in those areas. The Respondents claim that although there is a budget, and although the Municipality has been saying for years that it intends to install cameras in the areas that are the main centers of dispute, it continues to refrain from installing the cameras, and it thus continues to disregard the decisions of this Court. In this context, the Respondents explained that there are dozens of cameras in every neighborhood in Beit Shemesh – except for those neighborhoods that are the main trouble-spots. It was also claimed that the proceedings conducted by the Municipality involved residents who were not involved in hanging signs, and only by installing cameras will it be possible to locate and initiate proceedings against those responsible for hanging the signs and violating the by-law.

The Respondents further maintain that the Appellants’ claim that “there are no longer any large signs on buildings throughout the city” is not true. They say that the large sign, marked “A”, was indeed removed, but that the same building now bears graffiti with identical wording to that of the sign that was there, and despite several actions by the Municipality to remove the signs, the city is still festooned with signs, stickers and graffiti  calling for modest dress.

29.       The updating report from Respondent 7, submitted on March 29, 2018, states that the Israel Police continues taking various steps to provide help and security support to the Beit Shemesh Municipality in its activity to remove the offending signs and prevent additional signs being hung. It also mentions that together with the various operations that took place on Feb. 15, 2018, Feb. 27, 2018, March 6, 2018 and March 21, 2018, in coordination with the Beit Shemesh Municipality, in which signs, stickers and graffiti were removed, the Israel Police reinforced its presence in the relevant areas within the boundaries of the city of Beit Shemesh. 

As for the of installation of cameras, the claim was that the Israel Police did indeed recommend that the Municipality erect high poles in order to cover a wide area and prevent vandalization of the cameras. However, a letter sent by the Chief of Police in Beit Shemesh to municipal officials explained that this was only a recommendation. Therefore, the delay in installing the cameras was not caused by the Israel Police, and the responsibility for their installation lies with the Beit Shemesh Municipality alone.

30.       On April 24, 2018, the Respondents reported in writing to the Court that in the month since the responses were submitted, the situation in Beit Shemesh in relation to the signs had deteriorated significantly. They noted that as of the date of writing the notice, there had been no progress on the installation of cameras. Moreover, graffiti was spreading, and the serious harassment of girls and women in the city in regard to modesty was continuing.

31.       On May 6, 2018, the Appellants submitted their response, in the framework of which they denied outright the assertions of the Respondents that they are disregarding the decisions of this Court. It was further emphasized that the present concern is an appeal of the decision of the District Court according to the Ordinance, on the matter of the consent judgment. The Appellants claim to have already fulfilled all the provisions of the consent judgment, and everything that is being carried out in accordance with the decisions of this Court is well beyond the scope of the consent judgment. They also claimed that, as is evident from the many updating reports that were submitted to this Court both by the Appellants and by Respondent 7, over the last year the Municipality conducted many operations with police support to remove the signs and the graffiti throughout the city. It was also argued that the consistent, vigorous actions of the Municipality, both on the physical level of removing the signs and on the legal level of taking action against the residents of the buildings, has led to the almost total eradication of the phenomenon of signs in the city.  However, alongside the gradual eradication of the phenomenon of the signs, the phenomenon of stickers and graffiti has grown. The Appellants declared that in accordance with the decisions of this Court, they acted and will continue to act to remove the stickers and the graffiti, as well. At the same time, they argued that hanging the signs, affixing the stickers and painting graffiti in the public domain constitute criminal offenses, and the responsibility for preventing them lies primarily with the police, which alone has the tools to find and arrest the perpetrators.

As for installing cameras, the Appellants notified the Court that the Municipality had issued a tender to the suppliers of the Ministry of Public Security for the installation of seven cameras, but the budget allocated by the Ministry of Public Security is much lower than the one bid that was tendered, and therefore a meeting of the Municipality was called for the purpose of approving the bid and attempting to lower the price.

Deliberation and Decision

32.       After studying the arguments of the parties, reviewing all the material that was submitted to us, and hearing the arguments of counsel for the parties, my position is that the appeal must be denied, and I will suggest to my colleagues that we decide accordingly. I shall explain below the reasons for this conclusion. However, before I address the questions that must be decided in this appeal, I will say a few words about the general phenomenon of the exclusion of women from the public domain.

Exclusion of Women from the Public Domain

The term “exclusion of women” refers to sweeping discrimination on the basis of sex, the main characteristic of which is withholding from women, due to the fact that they are women, the possibility of receiving public services, of participating in public activity, or of maintaining a presence in the public sphere. The exclusion of women is liable to manifest itself in several ways. One expression of it, for example, is gender separation, whereby certain public services are in fact provided to women, but in a separate manner. The exclusion of women may express itself in another form when women are prevented or categorically restricted from receiving services or from active participation in activity that takes place in the public domain.

34.       The practices that are suspect as being exclusionary of women give rise, by their very nature, to different questions in a variety of legal spheres, the central one of which is the constitutional-public sphere. These practices emphasize the tensions surrounding the rights of women to equality, dignity, freedom of expression, autonomy, and freedom of occupation, as against opposing rights and interests deriving from the principles of multi-culturalism, freedom of religion and the desire to prevent offense to religious sensibilities (see: LCA 6897/14 Radio Kol Barama Ltd. v. Kolech – Religious Women’s Forum [1]  (hereinafter: Kol Barama); HCJ 746/07 Ragen v. Ministry of Transport [2] (hereinafter: Ragen); Ruth Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, 5 ucla j. int'l & for. aff. 339, 362-66 (2000); Susan M. Okin, Is Multiculturalism Bad for Women? in Is Multiculturalism Bad For Women? 9-24 (Joshua Cohen, Matthew Howard & Martha C. Nussbaum, eds., 1999)).

35.       The exclusion of women in Israel sometimes involves a unique element that includes religious considerations, due to which we must ask whether, in special circumstances, it is possible to justify separate, or limited, treatment of women in the public domain, in view of the whole array of relevant interests (see, inter alia: Kol Barama case [1]; Alon Harel and Aaron Shenrech, The Separation Between the Sexes on Public Transport, 3 Alei Mishpat 71 (2003) (Heb.); Noya Rimmelt, Separation Between Men and Woman as Sexual Discrimination, 3 Alei Mishpat 99 (2003) (Heb.); Zvi Traeger, Separation Between Men and Women as Sexual Harassment, 35 Iyyunei Mishpat 703, 709-13 (2013) (Heb.); Alon Harel, Regulating Modesty Related Practices, 1 Law and Ethics of Human Rights 211 (2007)).

36.       The Report of the Ministry Team for Investigation of the Phenomenon of Exclusion of Women in the Public Domain (Jan. 5, 2012) (hereinafter: the Ministry Report), whose conclusions were adopted by the Attorney General in May 2013, examined in depth the phenomenon of the exclusion of women in this context. Gender separation and distinction in cemeteries, in state ceremonies, on public transport and in regard to the freedom of movement of women as pedestrians in ultra-Orthodox neighborhoods were all examined, including the various cultural and religious (halakhic) interests. As mentioned in the Ministry Report, the criterion that was adopted for considering the constitutionality of each occurrence that was suspect of being exclusionary of women was the criterion that was formulated in the case law of this Court regarding discrimination, namely, the question to be asked is whether there is a “relevant difference” that stems from the nature and the substance of the public services that are provided that would justify gender separation. At the same time, it was noted that in the framework of this examination, the unique cultural aspects of the ultra-Orthodox community must also be considered, including the question of how to relate to the fact that the women in the ultra-Orthodox community are a group that constitutes a “sub-minority” within the ultra-Orthodox minority (paras. 13, 25 and 242 of the Ministry Report; Kol Berama case [1]).

37.       At this point it should be noted that not every activity or policy that is said to constitute “exclusion of women” will necessarily be classified ultimately as prohibited discrimination, since the reality of life in these contexts is complex, and it does not permit the adoption of a simplistic, extreme approach with all its implications. Indeed, a practice that is suspect as being exclusionary of women will be examined on its substance, in accordance with its nature and characteristics, and according to the norms established in the case law (see, inter alia: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter-Rights, vol. 2, 703-05 (2014) (Heb.); HCJ 153/87 Shakdiel v. Minister for Religious Affairs [3], 242-43; HCJ 4541/94 Miller v. Minister of Defense [4], 109-10; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [5], 652-60 (hereinafter: Israel Women’s Network).

38.       “Modesty signs” are part of the disturbing phenomenon of excluding women from the public domain. Chapter 17 of the Ministry Report deals with the specific subject of the signs, and states that a local authority must refrain, insofar as possible, from allowing such exclusionary signs to be hung within its bounds, certainly in the public domain, in that they restrict the ability of women to move freely in that domain. The Ministry report makes it clear that placing signs in the public domain that call for women to dress in a modest manner, or to refrain from being in a certain place, expresses an illegitimate message whereby women are not free to use any part of the public space that they wish, or that their presence in that space is conditional upon being dressed in a certain way, even though the sign does not constitute an actual physical barrier limiting the public domain (see: p. 9 of the Ministry Report).

39.       The signs under discussion, which are displayed in the public domain, apparently announce the rules governing that location, and they instruct women to dress in accordance with certain norms, and not to be present in certain places. These rules receive written approval from the local people, institutions and city officials. The requirement is addressed to women only, and relates to the external appearance that is required of them, or to the place in which they may not be present. The signs present an explicit demand that imposes upon women the obligation to dress in accordance with a particular dress code as a condition for permission to pass through the places in which they are located. It may, in fact, be said that they constitute an expropriation of the public domain from women, converting it into private domain, while applying social pressure and infringing the autonomy and security of women. In such cases, therefore, the local authority has a duty to consider the said harm, act diligently to remove the signs, and also take action in accordance with the existing law against those who are responsible for their placement.

Moreover, to the extent that there is a concern about violence and disturbance of the peace due to action to remove the signs, the authority has a duty to ask the Israel Police for help with security, and to act in “real time” to restore order while exercising its relevant powers of enforcement. Indeed, the local authority may set an order of enforcement priorities, and as a rule, there is no room to interfere in its discretion when it has considered the benefit as opposed to the harm in certain enforcement activity, and decided ultimately to take other effective steps to achieve the appropriate purpose. At the same time, the action of the local authority must accord suitable weight to the severe breach of human rights caused by the placement of the signs described in the Ministry Report.

And now, a few preliminary words about the need for compliance with judicial orders.

The Rule of Law and Compliance with Judicial Orders

40.       The courts have ruled that the effectiveness of the rule of law is tested, inter alia, by the ability of the governing authorities to enforce judicial decisions and orders. Non-compliance with the orders of the court is a violation of the rule of law, and undermines the democratic foundations upon which society is built. For the purpose of dealing with the possibility of such violation, the courts were given power to employ certain means in order to ensure that the non-complier would eventually comply with the orders of the court that had been violated (see: CrimA 517/06 Boaz Manor v. KPMG Inc. [6] (hereinafter: Manor)). The process of preventing contempt of court is therefore essential to instill in society an awareness of the duty to respect the law and the orders of the judicial system in order to protect the status of the judiciary. From a broad perspective, the duty to enforce judicial orders is one of the distinguishing features of a free and democratic regime (Manor case; CrimA 126/62 Dissenchik v. Attorney General [7] , 179).

41.       In a different vein: the contempt of court process under sec. 6 of the Ordinance is a special one, which belongs in the “twilight zone between civil procedure and criminal procedure” (CrimA 519/82 Greenberg v. State of Israel [8](hereinafter: Greenberg); Manor case). The purpose of this process is to bring about compliance with the judicial order, and take it from the potential to the actual by means of a fine or imprisonment (CrimApp 4445/01 Gal v. Katzovshvili [9]). At this point it should be stressed that the contempt of court process is not essentially a punitive one; the measure that is applied by virtue of this process is in the nature of compulsion to perform an act, or to desist from an act, and it is not concerned with attaching a punitive taint to the person violating the order (LCrimA 3888/04 Sharbat v. Sharbat [10], 57-58; CrimA 1160/98 SHIZAF Marketing, Promotion and Construction Projects v. Ashkenazi [11]; LCrimA 48/98 Ezra v. Zelezniak [12], 346; CA 371/78 Hadar Lod Taxis v. Biton [13], 239-40).

Thus, the contempt of court process is a harsh enforcement process, whose ramifications, by way of imposition of an ongoing fine or imprisonment, may cause harm. The ongoing fine is liable to cause serious harm to the pockets and the property of a person, and imprisonment constitutes real harm to a person’s liberty – basic rights that are anchored in Basic Law: Human Dignity and Liberty. As such, enforcement measures under the Ordinance must be exercised with moderation, as the exception, and they must be confined to situations in which all other measures have been exhausted and have not helped, and all that remains is recourse to the process of contempt of court in order to ensure the enforcement of a judicial order (see: Manor case [6]; Greenberg case [8], at 192).

We shall now proceed from a review of the relevant normative rules to their application in the present case.

From the General to the Specific

42.       In the agreed judgment, the Appellants undertook, inter alia, to exercise all the enforcement powers available to them by law for the purpose of removing the signs that are the subject of the appeal, as well as other signs that are similarly unlawful. In addition, the Appellants agreed to ensure that enforcement measures would be adopted in a continuous and immediate manner, and that they would be repeated if the signs that had been removed were replaced. Moreover, this would be given high priority by the Municipality (see: secs. 3 and 5 of the consent judgment).

From the picture that emerges in the present matter, it is evident that the Appellants did not fully comply with the consent judgment, and they did not exercise all the enforcement powers available to them in order to remove the signs. In this regard, it should be stressed that at the end of the hearing held before us on Feb. 18, 2018, we ruled, further to the consent judgment, that the Appellants must “install seven cameras in the neighborhood in which there are violations, the budget for which was approved for the Municipality by the Ministry for Public Security and the Israel Police (in the framework of the project “City Without Violence”).” Clearly, installation of the cameras at the friction points constitutes an effective means of enforcement that allows for the identification of those violating the law in order to bring them to justice. As stated, the Ministry approved a budget for the Municipality for installing seven security cameras, but this has not yet been executed. From the updating reports submitted by counsel for the parties after the said decision was handed down it transpires that despite the undertakings to which the Appellants committed themselves with respect to installation of the cameras, no camera has been installed in the trouble-prone areas. As such, no option remains but to resort to the process of contempt of court in order to ensure enforcement of the said undertakings.

 Summary

43.       In exercising the powers of enforcement that it has been given, a local authority, like every governmental body, must bear in mind the need to protect the basic rights of every person, and to do all that is possible to put an end to the infringement of these rights (see: secs. 4, 11 of Basic Law: Human Dignity and Liberty). In the present case, beyond the expectation from the Appellants to act to eradicate the phenomenon of the signs, the Appellants also committed to do so several times, both in the framework of the consent judgment and in the hearings in the Court, as well as in the decisions that followed.

Regrettably, despite the serious violation of the basic rights of women, and despite the undertakings to which the Appellants committed themselves and which were given binding force of a consent judgment or of judicial decisions, the city of Beit Shemesh is still rife with unlawful signs, stickers and inscriptions. We cannot accept this grave state of affairs. The words of our colleague Justice Danziger in the Kol Barama  case [1] are apt here:

This is an illegitimate, unworthy phenomenon that has been describes as one that “delivers a mortal blow to human dignity” (HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [5], at 658-659), and it is a gross violation of the basic, fundamental rights of women. Moreover, the exclusion of women also has the potential of instilling a conception that the public domain belongs to “men only”, and consequently, of perpetuating gender-driven gaps in status and behaviors that by their very nature humiliate, degrade and debase women. This is particularly evident when women are forced to turn to the authorities and the courts for a declaration that they are “permitted” to execute basic acts in the public sphere, and clearly the harm that this involves is not limited only to their individual matter, but involves injury to society as a whole… [at para. 25].

44.       It is indeed evident that the Appellants took partial action in various ways in their attempt to comply with the court orders, but the reality proves that the measures that they adopted were insufficient. Since the Appellants have refrained to date from installing the seven cameras in the neighborhood in which there have been disturbances, and from again removing the signs that were taken down but replaced, the action that they have taken cannot be regarded as full implementation of the consent judgment and of the undertakings that followed, which were anchored in the decisions of this Court.

45.       Thus, in the event that the seven cameras are not installed in the neighborhoods in which there are breaches by Dec. 31, 2018, and in the event that the prohibited signs are not taken down by that date, I propose to my colleagues that the appeal before us be deemed as denied from that date on. On the other hand, if the Appellants act as stated by the above date, then bearing in mind the efforts made by the Appellants to date, and taking into account their compliance with the commitments they undertook (even if belatedly), the fines that were imposed upon them and that accumulated as of Feb. 18, 2018 and thereafter will be cancelled retroactively.

In addition, should the Appellants not comply with what is demanded of them here by Dec. 31, 2018, the Respondents will be permitted to renew the contempt proceedings in the Jerusalem District Court, and demand enforcement of the orders that were imposed by additional means, together with the fines.

46.       In conclusion, I would express the hope that the exclusion of women in the city of Beit Shemesh, the concern of these proceedings, will cease, and that the signs and the events described in this judgment will become a thing of the past.

 

Justice (emer.) U. Shoham

I concur.

 

Justice D. Mintz

I concur.         

 

Decided in accordance with the opinion of Deputy President H. Melcer

23 Heshvan 5779 (Nov. 1, 2018)

 

 

 

 

 

 

HCJ 3458/17

 

Petitioner:        Hiddush – For Religious Freedom and Equality

                                                v.

Respondent:    Israel Defense Forces

 

Attorneys for the Petitioner: Rabbi Uri Regev, Advocate; Sagi Agmon, Advocate

Attorney for the Respondent: Avi Milikovsky, Advocate

 

 

Before: Justice A. Baron, Justice Y. Elron, Justice O. Grosskopf

Petition for a decree nisi

(August 8, 2019)

 

Judgment

 

Justice A. Baron:

1.         The Petitioner is a registered association that works to promote freedom of religion and conscience, and equal rights. The petition concerns the funeral arrangements for soldiers who fall in military service. It is directed at the Respondent, the Israel Defense Forces, which is responsible for the burial of soldiers who die in the course of their military service. The Court is asked to issue a decree nisi ordering the Respondent to show cause:

1.         Why the Army’s orders and procedures should not be changed to allow full military honors for fallen IDF soldiers buried in military cemeteries, in a ceremony that expresses a secular worldview or a non-Orthodox religious worldview, whether by allocating a section for civilian burial in every military cemetery or in some other manner; and additionally –

2.         Why the Army’s orders and procedures  should not be changed in a manner that would allow full military honors for fallen IDF soldiers buried in non-military cemeteries in a  ceremony that expresses a secular worldview or a non-Orthodox religious worldview [emphasis original – A.B.].

            The petition argues that when confronted with the most devastating news, the family of a soldier is given the choice between an Orthodox religious military funeral or a civilian funeral. They are offered no option for bringing their loved one to rest in a civilian or non-Orthodox funeral with military honors.

2.         The Military Cemeteries Law, 5710-1950 (hereinafter: the Law) establishes the right of every fallen IDF soldier to be buried in a military or non-military cemetery, as his relatives may choose. The Law is silent in regard to the character of the funeral. While sec. 4(b) of the Law states that regulations shall be established in regard to the burial of soldiers in non-military cemeteries, no such regulations have been promulgated.

            The Army’s procedures for the burial of soldiers are, therefore, primarily regulated by the General Staff Orders and directives of the Ministry of Defense.

3.         General Staff Order 38.0116 (hereinafter: the Order) concerns funerals. A military funeral held in accordance with the Order comprises a variety of characteristics intended to express the official nature of the ceremony and honor for the fallen soldier, such as an honor guard, burial in a casket draped with the national flag, military eulogies, the placing of wreaths, and a rifle-volley salute. In addition to these official elements, a military funeral also includes various religious elements.

            As of the date of the filing of the petition, the Order allowed for the burial of a soldier in one of two ways: a military, Orthodox-religious ceremony in a military cemetery, or a civil ceremony in a civilian cemetery, without any military characteristics. The Order stated, inter alia, that a civil ceremony would not include a ceremonial carrying of the casket or  a ceremonial laying of wreaths, an honor guard would not be present, nor would there be a rifle salute.

            It should be noted that the Order did allow for deviating from the said procedures in exceptional cases, but only with the approval of very senior ranks.

4.         Since the filing of the petition, the Order was amended such that the updated Order allows for deviating from the religious characteristics in a military funeral in a military cemetery, as well as for holding a military funeral in a civilian cemetery. That being the case, the Respondent was of the opinion that the petition had become superfluous, and should be dismissed.

While the Petitioner expressed satisfaction for the change, which it described as “no doubt constituting appropriate and welcome progress in comparison to the prior situation”, it nevertheless pointed out that the change does not provide a solution for those who wish to conduct a religious military funeral that is not Orthodox, and for those who wish to conduct a secular funeral in accordance with their own views – as for example, by adding a literary, philosophical or poetic reading – and not suffice simply with removing the religious symbols, such that what would remain would be what the Petitioner described as a “meager, sterile” ceremony. The Petitioner therefore insisted upon proceeding with the petition, and was permitted to amend it in light of the updating of the Order.

5.         After the filing of the amended petition, the parties attempted to reach an out-of-court resolution of the dispute. We are informed by the Respondent that, among other things, a meeting was held that was chaired by the Deputy Attorney for Public and Administrative Affairs, with the participation of all the relevant government agencies and the Petitioner’s attorneys. There were also additional discussions and contacts between the parties. In the end, the Respondent was willing to make an additional change in the format of the Order that would expressly anchor the prevailing policy in regard to the manner of coordinating a military funeral, such that the default would be that changes in the format of the ceremony set out in the Order would be permitted, so that the funeral ceremony would be consistent with the expectations of the family, and would take their feelings into consideration.

            The Petitioner welcomed this willingness to make an additional change to the Order, but had several caveats in regard to the proposed wording, and therefore gave notice of its desire to move forward with the petition. Once again, the parties conducted a joint discussion, following which the Respondent’s relevant authorities approved further changes to the Order, such that in the course of coordinating a funeral, the bereaved family would be informed that its loved one could be buried in a military funeral that would be consistent with its lifestyle and beliefs. In that framework, the family would be permitted to choose whether it desired religious elements in the ceremony, and would be permitted to make other changes “as long as the structure of the ceremony is preserved” and there would be no “desecration of the sanctity of the cemetery”.

6.         We held a hearing on the petition on July 4, 2019, at the end of which, at our suggestion, the Petitioner withdrew the petition, it having become clear that all the remedies sought in the petition had been achieved. Nevertheless, the Petitioner’s attorney requested that the Petitioner be awarded costs in view of the results. The Respondent’s attorney stressed that consideration should be given to the fact that strides had been made, and the Order had been amended with the cooperation of all those concerned.

            Indeed, the Petitioner should be credited with raising and advancing a sensitive subject whose importance cannot be exaggerated, and which touches upon the raw nerves of Israeli society. Expressing honor and respect for those who have died in the course of military service is deeply rooted in the foundational values of the State of Israel and our common existence. Thus, the desire and aspiration, and even the duty, to permit every family that has made the ultimate sacrifice to accompany their loved one on the final journey in a manner that respects their memory and is consistent with their world view. Each by his faith shall live – and die, and the choice not to hold an Orthodox religious ceremony, if that be the choice, should not deny a person the official military honors of a military funeral. As for the Respondent, it is, indeed, clear that all the authorities relevant to the matter of the burial of fallen soldiers are sympathetic to the sensitivity of the matter and to the issues that the Petitioner brought into the spotlight, and that they carefully examined the arguments raised.

            In the present situation, the bereaved family of a fallen IDF soldier can conduct the funeral in a manner that is consistent with its lifestyle and beliefs, while maintaining the structure of the ceremony and its official character. In response to our questions, the Respondent’s attorney even expressly clarified that it is possible to conduct a military funeral without religious characteristics, “to add elements and remove elements”, while permitting a family that so desires to bring its own rabbi, even a woman rabbi, from whatever religious stream. It was further clarified by the Respondent’s attorney that all those changes to the Order that were summarized above and that were discussed since the filing of the petition, which the Respondent agreed to adopt in the Order, have already been approved by the relevant authorities, and that the changes to the Order will be made in the coming months, while already being adopted in practice, and that requests made by bereaved families are almost always accepted.

7.         In view of all of the above, the petition is dismissed. Nevertheless, we will state the obvious, that the gates of this Court will be open should any concrete dispute arise in regard to a funeral procedure. In view of the contribution of the petition to advancing the matter it addressed, the Respondent will bear the Petitioner’s costs in the amount of NIS 10,000.

 

Given this 7^th day of Av 5779 (August 8, 2019).

 

       

 

HCJ 4602/13 HCJ 9780/17
A.	Petitioner:
v.

 

Haifa Regional Rabbinical Court Attorney General Israel Bar Association B.	1. 2. 3. 4.	Respondents in HCJ 4602/13:
Great Rabbinical Court Haifa Regional Rabbinical Court B.	1. 2. 3.	Respondents in HCJ 9780/17:

The Supreme Court sitting as High Court of Justice

(November 18, 2018)

Before: Justices I. Amit, D. Mintz, A. Stein

Petitions for an order nisi

 

 

Israeli Supreme Court cases cited:

[1]                   CA 7750/10 Ben Giat v. Hachsharat Hayishuv Insurance Ltd. (Aug. 11, 2011).

[2]                   LFA 1398/11 A. v. B. (Dec. 26, 2012).

[3]                    HCJ 8928/06 A. v. Great Rabbinical Court of Appeals in Jerusalem, IsrSC 63(1) 271 (2008).

[4]                   HCJ 1000/92 Bavli v. Great Rabbinical Court, IsrSC 48(2) 221 (1994).

[5]                   LCA 8672/00 Abu Rumi v. Abu Rumi, IsrSC 56(6) 175 (2002).

[6]                   HCJ 9812/17 A. v. Great Rabbinical Court (May 29, 2018).

[7]                   HCJ 2617/18 A. v. Great Rabbinical Court (April 30, 2018).

[8]                   HCJ 7940/17 A. v. Netanya Regional Rabbinical Court (Jan. 8, 2018).

[9]                   HCJ 609/92 Beham v. Great Rabbinical Court of Appeals, IsrSC  47(3) 288 (1993).

[10]                 LCA 8791/00 Shalem v. Twenco Ltd., IsrSC 62(1) 165 (2006).

[11]                  HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court, IsrSC 12(2) 1528 (1958).

[12]      CA 253/65 Bricker v. Bricker, IsrSC 20(1) 589, 596 (1966).

[13]      HCJ 185/72 Gur v. Jerusalem Regional Rabbinical Court, IsrSC 26(2) 765 (1972).

[14]      CA 384/88 Zisserman v. Zisserman, IsrSC 43(3) 205 (1989).

[15]      HCJ 3995/00 A. v. Great Rabbinical Court, IsrSC 56(6) 883 (2002).

[16]      CA 264/77 Dror v. Dror, IsrSC 32(1) 829 (1978).

[17]      CA 819/94 Levi v Levi, IsrSC 50(1) 300 (1996).

[18]     HCJ 1135/02 Wasgael v. Great Rabbinical Court, IsrSC 56(6) 14 (2002).

[19]      LFA 7272/10 A. v. B. (2014).

[20]      LFA 2948/07 A. v. B. (April 18, 2007).

[21]      CA 1915/91 Yaacobi v. Yaacobi, IsrSC 49(3) 529 (1995).

[22]      HCJ 2642/08 A. v. Great Rabbinical Court Jerusalem (April 8, 2008).

[23]     LFA 2045/15 A. v. B. (May 21, 2015).

[24]      CA 300/64 Berger v. Director of Estate Tax, IsrSC 19(2) 240 (1965).

[25]      CA 135/68 Barelli v. Director of Estate Tax Jerusalem, [1969] IsrSC 23(1) 393 (1969).

[26]      CA 595/69 Efta v. Efta, IsrSC 25(1) 561(1971).

[27]      HCJ 1727/07 A. v. Great Rabbinical Court (March 19, 2007).

[28]      LFA 4545/09 A. v. B. (Jan. 7, 2010).

[29]      LFA 10734/06 A. v. B. (14.3.2007).

[30]      CA 8128/06 Levinson v. Arnon (Feb. 3, 2009).

[31]      LFA 2991/13 A. v. B. (Aug. 21, 2013).

[32]      LFA 7181/12 A. v. B. (Nov. 9, 2012).

[33]      LFA 5939/04 A. v. B., IsrSC 56(1) 664 (2004).

[34]      LFA 1477/13 A. v. B. (Aug. 6, 2013).

[35]      CA 806/93 Hadari v. Hadari, IsrSC 48(3) 685 (1994).

[36]      CA 3002/93 Ben-Zvi v. Siton, IsrSC 49(3) 5 (1995).

[37]      CA 741/82 Fichtenbaum v. Fichtenbaum, IsrSC 38(3) 22 (1984).

[38]      CA 4306/12 A. v. Bank Leumi Israel Ltd.  (July 15,2018).

[39]      HCJ 9734/03 A. v. Great Rabbinical Court, IsrSC 59(2) 295 (2005).

[40]      HCJ 1996/16 A. v. Great Rabbinical Court (June 21,2016).

[41]      HCJ 3689/15 A. v. Tel Aviv Regional Rabbinical Court (May 17, 2016).

[42]      HCJ 3394/18 A. v. Great Rabbinical Court Jerusalem (May 2, 2018).

[43]      HCJ 3042/18 A. v. Regional Rabbinical Court (May 1, 2018).

[44]      HCJ 4091/18 A. v. Great Rabbinical Court (March 25, 2018).

[45]     HCJ 7/83 Bayers v. Haifa Regional Rabbinical Court, IsrSC 38(1) 673 (1984).

[46]      HCJ 187/54 Barriya v Kadi of the Sharia Moslem Court, Akko, IsrSC 9 1193 (1955).

[47]      HCJ 8638/03 Amir v. Great Rabbinical Court Jerusalem, IsrSC 61(1) 259 (2006).

[48]      HCJ 3467/14 A. v. Haifa Regional Rabbinical Court (Sept. 21, 2015).

[49]     HCJ 2443/15 A. v. Great Rabbinical Court Jerusalem (April 12, 2015).

[50]      HCJ 5416/09 A. v. B., IsrSC 63(3) 484 (2010).

[51]      HCJ 323/81 Vilozny v. Great Rabbinical Court Jerusalem, IsrSC 36(2) 733 (1982).

[52]      CA 630/79 Lieberman v. Lieberman, IsrSC 35(4) 359 (1981).

 

Other Israeli cases cited:

[53]                 FA (Tel Aviv District) 13313-12-11 N.A.E.R. v. A.E. (26.2.2014)

[54 ]    FA (Haifa) 740/08 A. v. B. (19.11.2008)

 

 

JUDGMENT

(Nov. 18, 2018)

 

Justice I. Amit

The petition before us treats of the matter of specific co-ownership[1] in the residential home. The petition raises the question of whether there are grounds for intervention by this Court in the judgment of the Great Rabbinical Court in light of weight having been accorded to the alleged infidelity of the wife.

Background

1.         Following is a précis of the essential facts pertaining to the case. The couple married towards the end of 1982, and they have three adult children. In February 2013, after more than thirty years of marriage, Respondent no. 3 (hereinafter: the husband or the Respondent) filed for divorce in the Rabbinical Court, and he incorporated property matters in the suit. In section 2 of the form, “Divorce Suit and Ancillary Matters,” the husband specified three grounds for divorce, namely: The wife is rebellious in that she has not engaged in marital relations for several years; “The wife has been unfaithful for several months with …”; “She does not attend to cleaning nor to meals, and she is not concerned with unifying the family …” (emphasis added – I.A.).

Following a hearing held on June 26, 2013, Respondent no. 2 (hereinafter: the Regional Rabbinical Court) ordered the Petitioner to divorce. When she refused to do so, and in light of the verbal exchanges that took place in the courtroom between her attorney and the panel of judges, the Regional Rabbinical Court ordered that the Petitioner be arrested and that her attorney be dismissed, and it imposed personal costs of NIS 15,000 upon the attorney. The Petitioner filed a petition with this Court (HCJ 4602/13). Following a hearing held before me, the parties came to an agreement, and a consent decree was issued, as follows:

The Parties: After having heard the Court and after having heard the comments of Adv. Jacoby, and in order to restore calm after matters digressed from appropriate proportions, and taking into account that the matter involves a couple who have been married for thirty years with three adult children, and since we wish to conduct the dispute between us in a cordial manner, we have come to the following agreements:

1.       The wife is willing, without any implication whatsoever of an admission to the claims and the grounds raised against her in the past, to divorce.

2.       The husband is prepared to accept the wife’s consent, and to divorce on the basis of said consent.

3.       Both parties declare in this courtroom that they are willing to divorce and to arrange a get [Jewish bill of divorce – ed.] in the near future in a rabbinical court. This obviates the need to impose constraints of various types on the wife.

4.      The willingness of the parties to divorce, and the actual divorce itself, will have no ramifications for the subject of property, which will be adjudicated in accordance with statutory and case law.

5.       In light of the divorce of the parties, and in that light only, the wife is prepared to leave the home, without this implying in any way whatsoever any waiver of her claim to rights in the home (whether by virtue of the presumption of specific co-ownership or any other claim).

6.       In light of the above, and without any implication of an obligation on the part of the husband, the husband is prepared, until the end of the litigation in the property dispute, to participate in the wife’s rental payments in the monthly amount of NIS 2000, as a substitute for an appropriate user fee for the home had she continued to live there.

7.       The husband requests on his own initiative to cancel the protection order and the restraining order issued against the wife.

8.       Each party maintains its claims in relation to the ketubah [Jewish marriage contract – ed.].

9.       The parties will jointly enter into a process of mediation in an attempt to settle both the property matter and the entire familial relationship. The children will be asked to participate in the mediation process insofar as they agree to do so. The two parties express their will and their consent to expedite the mediation proceedings and the determination of the subject of property.

10.       …

11.       …

Indeed, following this agreement, the parties quickly divorced, but the question of the distribution of property was not settled, and the litigation between the parties continued.

2.         On the basis of an actuarial opinion, the Petitioner was obligated to pay the husband the sum of NIS 341,000. The husband owned various real-property assets that had been acquired or that he inherited prior to the marriage, and which the parties agree belong to the husband (namely, two shops and half the rights in two apartments occupied by protected tenants). In addition, the parties own real property that was acquired jointly in the course of their marital life, and it is agreed that each of them is entitled to half the rights (a shop and three store-rooms, an additional commercial property, and an additional 25% of the ownership rights in two apartments that are leased under protected tenancies. According to the Petitioner’s attorney, the assets are encumbered, such that their realized value is not high).

The main disagreement between the parties turned on the residential home. The husband brought into the marriage a plot of land that he had inherited in 1982, several months before the couple married. In 1988, the husband signed a “combination agreement” with a contractor, in the framework of which he transferred three-quarters of the plot to the contractor in exchange for the construction of a residential home on the other quarter (and an additional payment by the contractor in the amount of $30,000). The couple lived in that house for more than twenty years, until the marital breakdown in 2013.

The issue that was brought before the Regional Rabbinical Court was whether specific co-ownership of the residential home should be recognized. Several judgments have been handed down on this question by this Court, and I will mention two of them (CAA 7750/10 Ben Giat v. Hachsharat Hayishuv Insurance Ltd. (hereinafter: Ben Giat [1]); LFA 1398/11 A. v. B.  (hereinafter: A. v. B. [2]).

3.         In its judgment of Feb. 29, 2016, the Regional Rabbinical Court ruled that specific co-ownership in the residential home should be recognized, and the Petitioner is therefore entitled to half the value of the rights in the residential home registered in the husband’s name. In its decision, the Court relied, inter alia, on the husband’s statements in the framework of the litigation in the aforementioned HCJ 4602/13, from which it inferred an intention of co-ownership, such as: “Since I understood that there is a problem with the house, I suggested that the house be registered in the names of the children, and I said, Heaven protect us, the house will be there for me or for her in old age, if we should need hospitalization, we could sell it … I raised the problem of the residence, but I am not prepared for her boyfriend to live off the fruit of our labor of thirty years” (emphasis added – I.A.). The Regional Rabbinical Court also attached importance to the renovations and investments that had been made in the residential home. At the end of its judgment, the Regional Rabbinical Court summarized its conclusion, as follows:

Indeed, it appears that in the present circumstances, the conditions and the parameters specified in the above case law [the case of A v. B. [2] – I.A.] have been met. As stated above, the parties closed off a playroom, including painting and piping in the room, when the oldest son was a soldier, they closed off a space with a plasterboard wall, and they broke down the stairs and the pipes. The parties also replaced tiles and plumbing, and they built a kitchen at their expense. Thus, it seems that the renovation that was done was not minor and routine, and it would seem to comply with what the case law requires. It would appear that the renovation that was carried out, which from a factual point of view was agreed to by the two parties, and as described above, proves co-ownership.

We would add to this the long period of time, twenty years, during which the parties lived together in the said residential home.

Moreover, the Rabbinical Court finds reason to assume that an atmosphere of co-ownership with respect to the home prevailed between the parties, in light of what the plaintiff said in this case, as quoted above, from which it appears that he regarded the house as a joint potential asset, as stated at that time, which would serve both parties equally. This statement appears to be an intention of co-ownership. His words, “I am not prepared for her boyfriend to live off the fruit of our labor of thirty years” also give a similar impression.

Furthermore, in the present case we are not dealing with a house that the husband owned prior to the marriage, but with a house that was built by both parties in the course of their life, and possibly at the initiative of them both and with mutual assistance from the logistical aspect –  even though it was built in a "combination deal from the land that the husband had owned previously – and therefore there is more than a reasonable chance that in building the present house, the residential home, the parties were co-owners.

In light of all the above, and in light of the latest case law on this issue of distribution of an asset registered in the name of one of the parties, the court does not find grounds, nor the possibility, for not dividing the residential home between the parties, and in light of all the above, the court has decided to deviate from section 5(a)(1) of the Spouses (Property Relations) Law, whereby an asset that was owned by one of the spouses prior to the marriage is not included in the aggregate joint property and will not be included in the balancing of resources arrangement.

Consequently, the Rabbinical Court granted the Petitioner half the rights in the residential home.

 

Judgment of the Great Rabbinical Court

4.         The husband appealed to the Great Rabbinical Court. In its judgment of July 27, 2017, the Great Rabbinical Court (Judges Amos, Nahari and Almaliah) allowed the appeal on the decision of the Regional Rabbinical Court. According to the majority opinion, the wife was not entitled to any share, neither of the land nor of the house that was built upon it. According to the minority opinion, the wife was not entitled to a share in the land, but she was entitled to a share of only 20% of the structure (the house). Below I will review the main points of the judgment.

            In his written opinion, Judge Amos emphasized that we are dealing with an asset that the Respondent had acquired prior to the marriage and which remained registered in his name. In these circumstances, in order to prove specific co-ownership in the dwelling, some additional supporting evidence was required to show an intention of co-ownership. Judge Amos referred to what I wrote in the A. v. B. [2] case, to the effect that some flexibility is required in this regard when co-ownership of a residential home is concerned, but he nevertheless decided that “in this case it is difficult to say that it was indeed proved that there was some extra evidentiary support, other than the fact that the parties lived together, and at very least we could not dispel the doubt as to whether there was any additional supporting evidence.” This conclusion was explained by the fact that the indications noted by the Regional Rabbinical Court to prove a specific co-ownership were not sufficiently significant: the renovation of the house was not significant, and it is doubtful whether the Petitioner participated in paying for it, since she did not work at that time; the Petitioner did not present documents supporting her claim; the utterances of the Respondent concerning “the fruit of our labor” did not necessarily refer to the dwelling in dispute; “the atmosphere of co-ownership” in itself is not sufficient proof. In addition, it was noted that the Petitioner is leaving the marriage with property and in a good economic situation as compared to the Respondent. Given the starting point in sec. 5(a)(1) of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Property Relations Law), to which the case law concerning specific co-ownership constitutes an exception, and given that the Respondent is in possession of the house, it was ruled that the doubt that remained does not allow for recognition of the rights of the Petitioner in the house, and “how can we, on the basis of a doubt, take money away from a person who with absolute certainty owns the land which he undisputedly inherited from his forbears?”

Judge Amos did not stop there, noting:

To this it must be added that in the present case, the wife was unfaithful to her husband, she was ordered to accept a get, and restraining orders were issued against her, and only after much argument did she agree to accept her get. In this case, the question arises: Must it be assumed that also in the case of a wife who was unfaithful, a partnership was intended….?

Judge Amos opined that this point was important for the purpose of the conclusion regarding the intention of partnership, since:

We see that he [the spouse] had no intention to include as a partner in the property that was in his name alone the one who had harmed, destroyed and uprooted all the family life, and even if from his actions it was evident that he intended that there be a partnership, all of this was done mistakenly, and it is an umdana d’mukhah [2] that he was deceived and misled, and therefore this intention is void ab initio.

Judge Amos noted the rule under Jewish law that “a person is not punished retroactively for infidelity by taking away his rights in the common property” (HCJ 8928/06 A. v. Great Rabbinical Court of Appeals in Jerusalem [3] (hereinafter: HCJ 8928/06), but he held that a distinction must be made between penalization “in respect of rights that had already vested in one of the parties,” and consideration of the question of infidelity for the purpose of negating rights in an asset by virtue of the intention of co-ownership. In support of his position, Judge Amos referred to the judgment in FA (Tel Aviv District) 13313-12-11 N.A.E.R. v. A.E. [53], where the court said that “it is difficult to attribute an intention to a spouse to be partners in an ‘external asset’ with the other spouse, when the other does not maintain loyalty to his spouse [and] is unfaithful to her with other women.”

Subsequently, and under the heading of “And now to the halakhic aspect,” Judge Amos further emphasized that “the whole concept of the intention of co-ownership is contrary to the halakha,” and that consideration of the intention of co-ownership is a creature of the case law, which crystallizes in accordance with the circumstances of each case. As long as this is not anchored by statute, it cannot be said that the “intention of co-ownership” is part of state custom. It was further stated that the Rabbinical Court’s interpretation “is of equal value to the interpretation of any other judicial instance,” and must be effected in accordance with Jewish law. Moreover, it was noted that the intention of co-ownership cannot be accorded the force of “a well-known custom” since the condition for this is the husband’s knowledge of this rule, and intention on his part to be in partnership with his wife in respect of the property. In our case, this was not proved, and “when there is a doubt, the property must be deemed to belong to the one who possesses it.”

However, Judge Amos drew a distinction between the land and the building that had been erected on it. With respect to the building, it was noted that “there may possibly be a lesser partnership in it,” and therefore the Petitioner is entitled to 20% of its value, “since this was an dwelling that was built in the course of the marriage and in partnership with the wife in the course of the construction,  and it is possible that she even invested financially in it.”

Judge Nahari concurred in the conclusion of Judge Amos, and added that in his view, a narrow approach must be adopted in proving an intention of partnership, “a fortiori when the case also includes the ground of unfaithfulness, with respect to which an intention of co-ownership on the part of the betrayed appellant may certainly not be presumed.” Judge Nahari compared the intention of co-ownership to the laws of gifts, and concluded that the serious harm to the fabric of the marriage amounts to disgraceful behavior that justifies retraction of the intention of co-ownership, even if such an intention had been proved. According to him, this also applies in the present case in which “the act of infidelity creates an intention on the part of the owner of the property not to be in partnership with the person who betrayed him.”

Judge Almaliah agreed that the Petitioner had no rights in the land, since an intention of co-ownership had not been proved, but he expressed a different position regarding the Petitioner’s rights in the house itself. Judge Almaliah pointed out that the house was built as part of a combination deal, so that the Respondent had in fact financed the construction. In addition, the renovation of the house does not confer rights on the Petitioner, since the money came from the Respondent’s pockets. Moreover, the house was registered in his name alone, from which it may be inferred that there was no intention of co-ownership. Judge Almaliah added that he does not accept the comparison between the intention of co-ownership and the laws of gifts.

At the end of the judgment, Judge Nahari added that he retracts his position, and agrees with the conclusion that the Petitioner has no rights in the house. Judge Nahari reiterated his position that there is a similarity between the intention of co-ownership and the laws of gifts, and “it makes sense that there is no intention of co-ownership in respect of the person who betrayed the marital relationship.”

It was therefore decided by majority opinion that the Petitioner is not entitled to any share of the land or the house.

The petition before us turns on this. In brief, according to the Petitioner, the Great Rabbinical Court accorded weight to the claim of infidelity, and applied religious law to the matter of specific co-ownership in the residential home, thereby acting ultra vires.

 

Deliberation and Decision

 5.        I will begin by saying that I find that it would be proper to intervene in the judgment of the Great Rabbinical Court in that both the content of the judgment and the rhetoric it employs take us back to the days prior to the Bavli decision (HCJ 1000/92 Bavli v. Great Rabbinical Court [4]).  I will explain my conclusion below.

6.         The couple married in 1982, and there is no dispute that the Property Relations Law applies to their relationship. However, the case law has recognized that the provisions of sec. 5 of the Property Relations Law do not prevent the creation of partnership in a specific asset under the general law, including an asset that was acquired or received by one of the parties prior to the marriage, and that this applies in particular to an asset that serves as the residential home of the couple (see: A. v. B [2], Ben Giat [1] and the references there).

The question of whether specific co-ownership in the residential home should apply in a particular case is a mixed question of fact and law. In the case of A. v. B., I attempted to identify the markers and to understand what “additional supporting evidence” was required in order to recognize specific co-ownership in the residential home. Personally, in the present case, I would emphasize the fact that this is a first marriage with common children, the length of the marriage, harmonious relations while running a common household, at least for most of the marriage of thirty-one years, with the couple living in the residential home for twenty years, and the absence of any hint or external expression on the part of the husband, throughout all the years, that he intended to deny the application of co-ownership in the residential home. To this must be added the husband’s utterances in the course of the hearing in HCJ 4602/13, as quoted in the judgment of the Regional Rabbinical Court, as well as the renovation of the home. All these, in my opinion, give rise prima facie to specific co-ownership in their shared residential home – “the jewel in the crown of the community property presumption” – also with respect to couples who are subject to the Property Relations Law, the tendency being to “be lenient with the spouse who claims co-ownership of the residential home when this is registered in the name of only one of them” (LCA 8672/00 Abu Rumi v. Abu Rumi [5], 183).

At the same time, there is a wide range of views and approaches on the subject of specific co-ownership in a residential home. There are those who are lenient, and those who are strict as to the amount of evidence they require (see: Shahar Lifshitz, Marital Property, 172-82 (5776-2016) (Heb.) (hereinafter: Marital Property); Hanoch Dagan, Property at a Crossroad, 489 (2005) (Heb.)). The difference between the approaches can be explained by the starting point: the strict view regards the regime of co-ownership of property as based on a contractual model, whereas those who are lenient regard the co-ownership regime as based on a normative model, which for its part is based on principles and considerations of justice, fairness and equality. From this model, the path to recognition of the connective model –  a model that takes into consideration the special nature of spousal relationships – as requiring broad recognition of co-ownership between spouses, including its application to assets that were brought into the marriage, is short (Shahar Lifshitz,  On Past Assets and Future Assets and the Philosophy of Marital Property Law, 34(3) Mishpatim 627 (2004) (Heb.) (hereinafter: Lifshitz)).

7.         As stated, the Regional Rabbinical Court held that specific co-ownership of the marital home should be recognized, whereas the Great Rabbinical Court held that it should not. Normally – and although in my opinion the Regional Rabbinical Court was correct in its conclusion – I would not find grounds to intervene in the judgment of the Great Rabbinical Court. This is because this Court does not sit as a court of appeals over the rabbinical courts, and its intervention is confined to cases of ultra vires action, breach of the principles of natural justice, departure from the provisions of the law, or in exceptional cases in which an equitable remedy is required and the matter is not within the competence of any other court or tribunal (see, inter alia, HCJ 9812/17 A. v. Great Rabbinical Court [6]  and the references there; HCJ 2617/18 A. v. Great Rabbinical Court  [7] and the references there). This means that even if, in the opinion of this Court, there was some mistake or other in the application of the religious or secular law to a given set of facts, that would not be grounds for the intervention of this Court sitting as High Court of Justice.

In the present case, however, I have decided to intervene in the judgment of the Great Rabbinical Court. This is because a reading of the judgment in its entirety leads to the conclusion that it was the Petitioner’s act of infidelity that tipped the scales against her. In this, the Great Rabbinical Court presumed to apply religious law to matters of property, contrary to the case law, and in this it acted ultra vires.

8.         The Legal Advisor of the Rabbinical Court argued that a careful reading of the judgment reveals that, ultimately, the judgment is based upon secular law that relates to specific co-ownership in the residential home, applying markers specified in the A. v. B. case, and that everything that was said about the Petitioner and religious law was simply over and above what was required.

I do not share that opinion. First, Judge Nahari based his opinion explicitly on the analogy between the intention of specific co-ownership and the laws of gifts, and on section 5(c) of the Gift Law, 5728-1968, which permits the retraction of a gift due to disgraceful behavior. And what is the disgraceful behavior? The infidelity attributed to the Petitioner! Judge Nahari’s opinion, which is based entirely on the weight attached to the wife’s infidelity, is sufficient in order to shatter the basis of the judgment and to justify the intervention of this Court in the judgment of the Great Rabbinical Court (in this the present case differs from HCJ 7940/17 A. v. Netanya Regional Rabbinical Court [8], in which the halakhic discussion was “over and above what was necessary”).

I will mention that in my view, the analogy drawn by Judge Nahari between the intention of specific co-ownership and the promise to give a gift is incorrect. Indeed, in HCJ 609/92 Beham v. Great Rabbinical Court [9], the Court considered a gift given by the husband to his wife, which he wished to retract after finding out that she was unfaithful to him. The Great Rabbinical Court ruled that the gift was given by the husband to the wife on condition that she not be unfaithful to him, and when this condition was not fulfilled, the gift was revoked. The High Court of Justice denied the petition, with Justice Elon expressing his opinion that the Rabbinical Court was authorized to rule in accordance with Jewish law, in that “the law follows the judge.” However, the judgment in Beham was handed down prior to the judgment in Bavli, and it cannot serve as a precedent for our case. And the main thing is this: a distinction must be drawn between a commitment to give a gift, which may be retracted if certain conditions are met, and the application of the community property rule or specific co-ownership in an asset. The assumption is that community property, similar to co-ownership of a specific asset, crystallizes at a certain point over the course of married life (LCA 8791/00 Shalem v. Twenco Ltd. [10], 171-173; Ben Giat [1], at para. 24 of my opinion; Marital Property, at pp. 209-219), and the rationale for recognizing co-ownership is not the intention of the spouse to grant a gift to his spouse, but something else (Lifshitz, supra). However, even assuming that the co-ownership regime is based on a contractual rationale, such as a contract or a gift, the gift must be regarded as completed at a certain point in the course of marital life, and it is not possible to retract a completed gift. I do not wish to elaborate on this subject, since as I mentioned above, my intervention in the judgment of the Great Rabbinical Court does not stem only from an error in the application of the law, but also from the application of religious law to matters of property by taking the wife’s infidelity into consideration.

9.         In the written opinion of Judge Amos, too, we find that it was religious law that was determinant in the matter, with weight being given to the wife’s infidelity. Even prior to examining the matter from the halakhic aspect, Judge Amos saw fit to give weight to the Petitioner’s infidelity as negating the intention of co-ownership, and he quoted from the judgment of Judge Shohet in FA (TA) 13313-12-11 [53] that “[I]t is difficult to attribute to a spouse the intention of partnership in an external asset with the other spouse when that other spouse is not loyal to his spouse, is unfaithful to her with other women.” No distinction was made between the time at which the specific co-ownership crystallized, if at all, in the course of the marriage, and the time of the infidelity. Thus we find that the Rabbinical Court regards the act of infidelity as retroactively nullifying the partnership, on the assumption that had the husband known that the Petitioner would betray him one day, he would not have agreed initially to the partnership. In my opinion, the Rabbinical Court thus punished the wife retroactively for her infidelity.

On this point, after examining the matter from the perspective of the secular law, Judge Amos embarked on a broad review of the religious law, in the framework of which he regarded, for the purpose of the religious law, the case law on the subject of specific co-ownership in a residential home as a “custom” which had not been proved.

Since the discussion of this subject was conducted under the heading, “And now to the halakhic aspect,” it must be assumed that Judge Amos wished to emphasize that from a halakhic perspective, as long as no secular statute had been enacted that recognized specific co-ownership, the halakhah does not regard this as a custom of the land on the basis of which it is possible to take away a material asset from the person who is deemed to be its owner.  However, it should be stressed here that from the secular perspective, too, the community property presumption is not anchored in legislation; rather, it is the creature of the case-law, and has been a feature of Israeli law for decades. I would mention that in the Bavli case [4], the Great Rabbinical Court  distinguished between the Property Relations Law, which is grounded in statute, and the community property doctrine which originates in the case law. It ruled that “the case law of the courts does not in any way obligate the rabbinical court, and the rabbinical court decides only in accordance with Jewish law, in which the concept of co-ownership of property does not exist, and the only rights to which a wife is entitled are by virtue of the conditions of the ketubah and the halakhah.” The distinction made by the Great Rabbinical Court between a statutory provision and case law was rejected, and rightly so, by the Supreme Court in the Bavli case. And as stated by Professor Shifman following the judgment: “It is clear that the distinction between the word of the legislator and the word of the judge is untenable. From a secular point of view, they are regarded as one unit for the purpose of expressing the legal situation” (Pinhas Shifman, The Rabbinical Courts - Whereto?  2 Mishpat uMimshal 523, 527, at note 4 (5755-1995) (Heb.)). In short, for the purpose of the secular aspect, the judgments of the Supreme Court on matters of marital property do not fall within the rubric of custom that requires proof, but within the rubric of case law that obligates the parties and also obligates the rabbinical courts. I take this opportunity to reiterate and emphasize the distinction between the secular aspect and the halakhic aspect, and to clearly caution against regressing to what was said in the past and overturned in the Bavli case.

 

Religious Law and Secular Law in Family Law

10.       As we know, in the arena of Israeli family law we find religious law and the rabbinical judge, the secular law and the secular court dwelling together, in the sense of “And the children struggled within her” (Genesis 25:22). Division of jurisdiction between religious law and secular law, and division of jurisdiction and the “race for jurisdiction” between the religious court and the District Court is a sensitive, complex subject, to the extent that there are those who regard family law as laws of warfare, the battle being waged between the secular and the religious judicial instances (Ruth Halperin Kaddari, Towards Concluding Civil Family Law – Israel Style, 17 Mehkerei Mishpat 105, 108 (2002) (Heb.)). Family law is therefore seen as a struggle between the religious law and the secular law (Pinhas Shifman, Religious Language and Civil Language in Family Law, 10 Mishpat ve-Asakim 423, 426 (2009) (Heb.), and on this subject, there is abundant academic literature (and see, inter alia, Menashe Shawa, On “Ancillary” and “Sincerity” – Will the “Jurisdictions Race” between the District Court and the Rabbinical Court on Matters of Maintenance End?  2 Iyunei Mishpat 719 (1982) (Heb.); Pinhas Shifman, Forty Years of Family Law – The Struggle between Religious Law and Secular Law, 19 Mishpatim 847 (1990) (Heb.); Shahar Lifshitz, The Future of Secular Family Law in Israel: Classical Liberalism versus Communitarian Liberalism 17 Bar-Ilan L. Stud. 159 (2002) (Heb.); Berachyahu Lifshitz, The Garden of Delusion of “Matters of Marriage and Divorce”, 2 Mishpaha ba-Mishpat 107 (2009) (Heb.); Shlomo Dichovsky, The Rabbinical Courts and the Civil Courts – On the Friction Between Them in Family Matters, 4 Moznei Mishpat 261 (2005) (Heb.); Ruth Zafran, The Jurisdictions Race is Alive and Kicking: Rabbinical Courts Gain Power over Secular Family Courts, 43 Mishpatim 571 (2013) (Heb.)).

Religious law is at the helm in matters of marriage and divorce, but in all matters of distribution of marital property, secular law is binding. Even prior to the enactment of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, the Israeli legislature enacted the Women’s Equal Rights Law, 5711-1951. Against the backdrop of this Law, the case law intervened in unequal arrangements relating to property matters between spouses that originated in the religious law (thus, for example, in light of the provision of sec. 2 of the said law, the husband’s right to the usufruct of the wife’s estate was denied – HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court [11]; and in light of this provision, the Court recognized community property – CA 253/65 Bricker v. Bricker [12], 596). Against the backdrop of the provisions of that law, the case law distinguished, over the years, between matters of marriage and divorce, and matters of marital property to which the secular law must be applied, and it gradually and consistently removed the subject of property relations between spouses from the ambit of the term “matters of marriage” (HCJ 185/72 Gur v. Jerusalem Regional Rabbinical Court [13]; CA 384/88 Zisserman v. Zisserman, 207-208, at para. 6 (hereinafter: Zisserman [14]); Lifshitz, at 678). Prof. Shifman summarized the matter: “The rights of the husband in the wife’s property have left the framework of ‘matters of marriage’ due to their essential rescission in the Women’s Equal Rights Law, 5713-1951, as interpreted by the Supreme Court” (Pinhas Shifman, Family Law in Israel vol. 1, 30-32 (1974) (Heb.)).

12.       This is the situation with respect to property in general, and to the subject of partnership in property in particular, and as stated by (then) Justice Barak in the Bavli case [4]: “The laws of partnership in property which were developed by the Supreme Court are not derived from the act of marriage, and they are not included in matters of marriage.”

The Bavli decision is a cornerstone of our law, and it continues to apply even after a quarter of a century. I would mention that in that case, the Rabbinical Court ruled that the judgments of the civil courts do not bind the rabbinical courts, which judge according to Jewish law, which does not recognize the concept of co-ownership of property. The High Court of Justice set aside the judgment, and without discussing all the reasons, the bottom line is that the community property doctrine applies in the rabbinical courts as part of the general secular law, and in matters of marital property, secular law must be applied by the rabbinical courts.

The laws of community property are the law in Israel. They are part of the law of the State. They therefore apply in every judicial tribunal in Israel. They also apply in the rabbinical courts. Make no mistake: these laws apply in the rabbinical court not because a law of the Knesset states this explicitly. These laws apply in all judicial tribunals – including religious courts – because the case law of the Supreme Court is law in Israel. In order to nullify their application in a particular judicial instance, a special legislative act that states this expressly is required. Such legislation does not exist in Israel (Bavli, at 246).

[As an aside: for our purposes, the narrow interpretation given to the ruling in Bavli and its application to the laws relating to community property is sufficient. The broad interpretation holds that a default position may be inferred from the judgment whereby the rabbinical court must apply the secular law in any matter that is not one of “personal status,” as a matter of normative coherence of a uniform, comprehensive arrangement in the various courts (for an opinion supporting a broad reading of the ruling in Bavli, see Ruth Halperin-Kaddari, Legal Pluralism in Israel: The High Court and the Rabbinical Courts Following Bavli and Lev, 20 Iyunei Mishpat 683 (1997) (Heb.) (hereinafter: Halperin-Kaddari). For criticism of the ruling in Bavli, see Berachyahu Lifshitz, Contents and Outer Shell in the Doctrine of Partnership in Property Following Bavli, 3 HaMishpat 239 (1996) (Heb.) (hereinafter: Berachyahu Lifshitz). The author also observes that the Bavli ruling can be interpreted narrowly and broadly (ibid., at 240)).

 

The Effect of Moral Fault on the Property Dispute

13.       The importance of removing the marital property dispute from matters of “marriage and divorce,” while applying the secular law, manifests itself in the subject of fault. The tendency in secular law is to sever the fault of one of the spouses from the subject of distribution of property, possibly as part of the wider trend towards no-fault divorce (on the regime of no-fault divorce when the marital bond has broken down, see: Shahar Lifshitz, I Want to Get a Divorce Now! On Civil Regulation of Divorce Law, 28 Tel Aviv U. Law Rev. 671 (2005) (Heb.); Shahar Lifshitz, Changes in Family Regulation – An Analytical and Prospective Look at the Effects of the Civil Revolution in Israeli Law, 10 L. & Business 447 (2010) (Heb.)). It seems that Amendment no. 4 to the Property Relations Law, which after many years of struggles severed the distribution of property from the termination of the marriage, only reinforces this trend. This is not so in the religious law, in which fault in general, and sexual infidelity of one of the spouses in particular, have ramifications for property matters as well. Religious law regards intimate relations outside of marriage as extremely serious, and Jewish law has invoked property rights and obligations in order to punish the one responsible for the failure of the marriage (Berachyahu Lifshitz, at 256); Yitzhak Cohen & Amal Jabarin, Relations Outside of Marriage as a Consideration in Distribution of the Family Property – A New Look at Israeli Law, 16 L. & Business 465 (2014) (Heb.) (hereinafter: Cohen & Jabarin). The authors support exacting an economic cost from the spouse guilty of extra-marital relations and in their article they review the situation in the United States on this subject; and see also Lior Mishali-Shlomai, Moral Judgment of Behavior in Laws of Marriage and Dismissal, 121-125, 211 (PhD Thesis, 2014) (Heb.)).

As stated, the trend in secular law is to sever the matter of the sexual conduct of the parties from all that concerns the property dispute between the parties, thus “saving” the parties superfluous expenses involved in hiring private investigators to prove marital infidelity. As I have had occasion to say, albeit in a different context, “naturally, the attempt to prove guilt in order to ‘gain points’ in the battle over maintenance and property matters entails invasive action that breaches the privacy of the spouses” (FA (Haifa) 740/08 A.  v. B. [54]).

Deputy President E. Rivlin discussed this in HCJ 8928/06 [3], cited in the opinion of Judge Amos:

A person should not be punished for his part in the breakdown of the relations through economic sanctions in the framework of the distribution of property between the spouses. Dissolution of the family unit is an extremely difficult, painful event. In certain cases, one of the spouses can be regarded as having greater responsibility for the breakdown of the relationship than the other spouse. However, the difficulty of the dissolution, and the fault of either of the parties, should not be addressed by way of economic sanction in the framework of distribution of the marital property. Furthermore, it is often difficult to speak in terms of “fault” in this context. Dissolution of the marriage is the result of complex circumstances, and unfaithfulness per se does not place the entire fault on one spouse alone.

14.       Let us be clear: I am not saying that the question of infidelity can never have ramifications for the property dispute between spouses, but that the matter must be examined from the perspective of the secular law for the purpose of determining whether there are grounds for applying the community property presumption or specific co-ownership in the asset. Thus, I do not rule out the possibility of cases in which long-standing infidelity will attest to the absence of a partnership between the spouses (see HCJ 3995/00 A. v. Great Rabbinical Court  [15]. That was a case involving an extra-marital affair that had lasted for 12 of the 17 years of the marriage, and the Rabbinical Court denied the claim of the wife to specific co-ownership in the apartment that had belonged to the husband prior to the marriage; and also compare the abovementioned HCJ 7940/17 [8], in which the Rabbinical Court emphasized the “short window of time in the course of which the partnership could have been created […] At the time there were already difficulties in the marital relations”). However, in the present case, it was the husband who wrote in the divorce claim, after 31 years of marriage, that “in recent months” the Petitioner has another partner. The parties also agreed that the time of the break-up for the purposes of the actuarial calculation would be the year 2013, and not prior to that.

In a long line of judgments, it was held that infidelity is liable to put an end to partnership, “but one is not punished for it retroactively by having rights in the marital property taken away” (CA 264/77 Dror v. Dror [16]. And see, similarly, Bavli [4]¸ at 255; Zisserman [14]; CA 819/94 Levi v. Levi [17], 304; HCJ 1135/02 Wasgael v. Jerusalem Great Rabbinical Court [18], 24; and also LFA 7272/10 A. v. B. [19], at para. 24 per Justice Barak-Erez, at para. 3 per Justice Hendel, and at para. 5 per Justice Melcer, which dealt with fault in the form of violent behavior on the part of the spouse, as distinct from fault in the form of an extra-marital sexual liaison). This Court reiterated this principle in the above-mentioned HCJ 8928/06, when it intervened in the judgment of the Great Rabbinical Court, which attributed weight to the infidelity of one of the spouses during the time of the marriage in order to justify departure from the rule of equal distribution of marital property as specified in the Property Relations Law.

Judge Amos mentioned the judgment in HCJ 8928/06 [3] in his opinion, citing the rule whereby “one is not punished for infidelity retroactively by having rights in the marital property taken away,” but in his view there is a difference between penalization relating to “rights which one of the parties had already acquired,” and taking into consideration the question of infidelity for the purpose of depriving rights in an asset by virtue of the intention of co-ownership. As stated, in support of his position Judge Amos referred to the judgment in LFA (TA) 13313-12-11 [53], but a careful reading of that judgment reveals that as opposed to the present case, in which the claim of infidelity relates to the last few months preceding the outbreak of the dispute, in that case the court emphasized, alongside other reasons indicating the absence of intention of co-ownership on the economic plane, that:

…there is no dispute that the respondent had not been faithful to the appellant for years. He was unfaithful to her with other women, he was registered on dating sites, and he had relationships with other women at different periods of their life together, including during the period of the renovation of the apartment. The appellant was aware of this. She held back, came to terms and forgave. The respondent promised that he would change his ways, but he relapsed.

In these circumstances, Judge Shohet found that:

…it is difficult to attribute to a spouse an intention of co-ownership with the other spouse in an “external asset”, when that other spouse does not remain faithful to his spouse, betrays her with other women and attempts to hide from her not only external assets but also joint assets, and he breaks his promise each time anew to change his ways, despite the willingness of his wife to forgive him and accept him.

Make no mistake: we have discussed the fact that general co-ownership, as well as specific co-ownership in an asset, crystallizes at a certain point in the course of marital life. Even those who hold that weight should be attributed to the guilt of a spouse in matters of property will agree that the infidelity of the spouse takes effect from that point onward, as a point in time that attests to a crisis in the spousal relations, and therefore a distinction must be drawn between property that accumulated prior to the act of betrayal and property that accumulated from the time of the betrayal and until the actual dissolution of the marriage. A severe crisis in the relationship will put an end to the partnership from that time onward and apply only to property that exists at that time” (Cohen & Jabarin, at 481, emphasis added – I.A.).

15.       Thus, contrary to the judgment in HCJ 8928/06, the Great Rabbinical Court decided to invoke religious law and to explain why, in its view, the infidelity of the Petitioner affects the present issue. This would appear to illustrate that even though the Rabbinical Court paid lip service to the secular law, the deciding factor was the wife’s infidelity, and after 30 years of marriage, it retroactively denied her the right to specific co-ownership in the residential home. In doing so, the Rabbinical Court introduced the element of fault into property matters through the front door, or at least, through the window, while actually rejecting, in practice, the doctrine of specific co-ownership in the residential home.

16.       A comment prior to concluding. 

As a rule, the ideal situation is one of harmony between the courts, in order to minimize, insofar as possible, what may be regarded as a brawl between the secular court and the religious court. It is this very aspiration for harmony that ought to lead to uniformity in decision-making with respect to property matters, to prevent a situation in which the substantive law in property matters is determined by the identity of the judge. This has undesirable consequences, such as dishonest incorporation of the subject of property in the divorce suit, and providing an incentive for the undesirable phenomenon of forum shopping.

The intervention of this Court in the judgments of the Great Rabbinical Court is no trivial matter. As we noted, such intervention is reserved for exceptional cases. This derives, inter alia, from the principle of comity between the courts. This Court is careful not to trespass on the domain of the rabbinical courts in halakhic matters. The rabbinical courts, too, ought not trespass on the domain of the secular law in matters of property.

17.       Finally, if my opinion is accepted, we will reverse the judgment of the Great Rabbinical Court, which would mean that the judgment of the Regional Rabbinical Court would again stand, and the Petitioner would be entitled to half the rights in the residential home. I would again emphasize that the question facing us is not whether specific co-ownership should be applied to the residential home, since opinions may differ on this matter of fact and law (see and compare LFA 2948/07 A. v. B. [20], at para. 6). The relevant question here is whether the Great Rabbinical Court applied the religious law by attributing weight to the wife’s infidelity on what was purely a question of property. In my view, the answer to this is yes, and the judgment of the Great Rabbinical Court displays a clear retreat to the situation that pertained prior to the Bavli case. Therefore, our intervention is justified.

Finally, I would point out that I am not unaware of the claim of laches in submitting the petition. In the circumstances of the case, I do not think that there is sufficient reason for dismissing the petition in limine, but I would suggest that the Petitioner not be awarded costs.

And another concluding remark: at the request of the husband and for the purpose of current execution proceedings between the parties, it is hereby clarified that for the purpose of the payment of NIS 2000 per month, as provided in an agreement between the parties in HCJ 4602/13, the date of the judgment of the Regional Rabbinical Court on Feb. 29, 2016, is the date that constitutes “the end of the proceedings in the property dispute”.

18.       After having read the opinions of my colleagues Justices D. Mintz and A. Stein, I would add some brief comments:

            a.         In response to the opening comment of my colleague Justice Stein, I would explain that my judgment does not represent any erosion of the law pertaining to the scope of the intervention of this Court in the judgments of the rabbinical courts. The law remains as it was, and my judgment is merely its application to the circumstances of this particular case.

            b.         I completely agree with my colleague Justice Stein that the Bavli case did not introduce anything new with respect to the application of the community property presumption, and that its innovation lay in the fact that following that ruling, it became clear that the rabbinical courts must decide according to the secular law on property matters. I will again refer the reader to para. 12 of my opinion, where I quoted from the Bavli case and referred to articles addressing the question of whether the judgment should be given a narrow or a broad interpretation.

            c.         In para. 8 of my opinion, I mentioned the judgment in the Beham case. The quotation brought by my colleague from the Bavli case (para. 12, near the end of his opinion) only explains how then Deputy President Barak decided to deal with this case by distinguishing it, through the determination that underlying the judgment in Beham was the agreement of the parties,  which may also be interpreted as agreement to the application of Jewish law (and see Halperin-Kaddari, at 685, note 4).

            d.         As I emphasized in para. 7 of my opinion, in normal circumstances, even if I thought that the Great Rabbinical Court was mistaken in its application of the law applying to specific co-ownership in the residential home, I would not tend to intervene in its judgment. However, in the present case, according to the approach of the husband, too, the alleged infidelity of the Petitioner occurred in the last months of the 31 years of their marriage. Therefore, it is hard to understand how this infidelity can be included in the basket of indicators and facts that the court examines in deciding whether specific co-ownership in the residential home had been created over the years. The weight given by the Great Rabbinical Court to the wife’s infidelity in the present case (in the category of “shameful conduct”, in the words of Judge Nahari), is therefore incompatible with the ruling of this Court, whereby rights cannot be nullified retroactively. But this is what the Rabbinical Court did in the present case, ignoring the ruling that it is secular law that is binding in the matter of the distribution of property. In this, the Rabbinical Court acted contrary to the ruling in Bavli, and thus overstepped its authority.

e.  There are those who hold that specific co-ownership in the residential home that was brought into the marriage is not based solely on the intention of the spouse, and I refer to the connective model mentioned in para. 6 of my opinion and Lifshitz’s article mentioned there.

f.   In all events, even if we analyze the doctrine of specific co-ownership from the perspective of the intention of co-ownership, I would clarify that I too am prepared to assume that in certain cases, infidelity on the part of one of the spouses could be one of the relevant facts when the court is assessing whether specific co-ownership has been created in the residential home that was brought into the marriage (see para. 14 of my opinion). Therefore, I cannot be accused of ignoring the wish of the spouse who brought the asset into the marriage that his spouse not be a partner in the asset in the event of infidelity.

Like my colleague, I too am of the opinion that as a rule, where it has been proved that the “betrayed” spouse did not intend from the outset to share his property with the “betraying” spouse (whether in general, or in the case of infidelity), this intention must be respected. On the other hand, it is not possible to carry out a “retooling” and to say that once the spouse committed an adulterous act, we must assume that the “betrayed” spouse did not intend, from the outset, to share his property with her. Such a determination is flawed in that it begs the question.

In the present case, there is no indication that the husband wished not to share his property with the Petitioner in the case of infidelity (I would mention that the Regional Rabbinical Court reached a completely different conclusion with respect to the husband’s intention, as reflected in his own statements).    The practical ruling of the Great Rabbinical Court is that in any case of infidelity, it may be determined that there was no intention of partnership. My colleague Justice Stein wishes to maintain neutrality in the attitude of the Court on this subject, however, the practical significance of his opinion is that whenever a rabbinical court deals with the issue of specific co-ownership in an asset, it will be possible to introduce the element of infidelity as proof of the lack of intention of partnership. From here, it is only a short step to the phenomenon – which even my colleague rejects – of bringing evidence about acts of infidelity and adultery of one of the spouses in the framework of a dispute concerning property, and where would this land us?!

           

Justice D. Mintz

Although I accept fairly substantial parts of the opinion of my colleague Justice I. Amit, I cannot concur in the result, and in my opinion the petition must be denied.

1.         A study of the judgment of the Great Rabbinical Court – with its three opinions of the members of the panel – reveals that it was based on factual determinations whereby co-ownership of the asset that was the object of the petition (hereinafter: the asset) was not proved. The Great Rabbinical Court reached this conclusion due to the absence of “additional supporting evidence” to prove the partnership (per Judge Amos); or due to the absence of an “assessment of an intention for co-ownership or giving” (per Judge Nahari); or due to the absence of “any intention of co-ownership” (per Judge Almaliah). Indeed, the matter of the alleged infidelity of the Petitioner was manifest in the opinions of Judges Amos and Nahari, and Judge Nahari even ruled expressly that “the act of infidelity creates an intention of non-partnership of the owner of the asset vis-à-vis the person who was unfaithful to him, and from this a conclusion may be derived in respect of our matter.” However, this is not sufficient in order to justify the intervention of this Court in the judgment. I will explain.

2.         There is no dispute that in this case, the property relations regime that applies to the couple is that of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Property Relations Law or the Law). According to this regime, during the course of the marriage, there is separation between the assets of the spouses, whereas upon the termination of the marriage, the couple becomes subject to an obligation to balance the value of the assets between them, or in other words – to carry out a “balancing of resources” (CA 1915/91 Yaacobi v. Yaacobi [21], 550 (hereinafter: Yaacobi); LCA 8672/00 Abu Rumi v. Abu Rumi [5], 179 (hereinafter: Abu Rumi)).

3.         Section 5(a) of the Property Relations Law provides that upon the dissolution of the marriage (including its termination due to the death of one of the spouses), each spouse is entitled to half the value of the total assets of the couple. Under sec. 8 of the Law, the court may set a different date for executing the balancing (a date which is sometimes called “the date of the breach”; and see: HCJ 2642/08 A. v. Great Rabbinical Court Jerusalem [22]; LFA 2045/15 A. v. B. [23]). However, one of the assets that is excepted from the balancing of resources under sec. 5(a)(1) of the Law is an asset that one of the spouses owned on the eve of the marriage, or that he received as a gift or as an inheritance during the marriage. Section 5(a) of the Law must be read together with sec. 4, which provides that contracting the marriage or its existence per se does not affect the property of the spouses by conferring upon one of them rights in the property of the other, or by imposing upon him liability for the obligations of the other (LFA 1398/11 A. v. B. ) (hereinafter: LFA 1398/11 [2])).

4.         In Yaacobi [21], there was disagreement in this Court on the question of whether the community property presumption applied to a couple who married after the entry into force of the Property Relations Law. The prevailing view was that just as spouses who married prior to the effective date of the Law (Jan.1, 1974) are subject to the single, special property relations regime of “the community property presumption” (which means that when a couple leads a normal life-style that reflects joint effort, the property that has accumulated in the course of the marriage will be owned jointly. This partnership is inferred from the circumstances of their life together and from the intentions attributed to the couple. The presumption relies on a contractual construction relating to an implied agreement between the parties, whereby they are equal partners in rights. And see: CA 300/64 Berger v. Director of Estate Tax [24]; CA 253/65 Bricker v. Bricker [12]; CA 135/68 Barelli v. Director of Estate Tax Jerusalem [25]; CA 595/69 Efta v. Efta [26]). Couples who married after the effective date, are governed only by the resource balancing arrangement, and the community property presumption does not apply to their affairs (HCJ 1727/07 A. v. Great Rabbinical Court, para. 6 (hereinafter: HCJ 1727/07 [27])).  Accordingly, as a rule, a spouse who is subject to the resource balancing arrangement may not claim ownership in any of the property of the other spouse, or in a particular asset, on the contention that the community property applies to the property or to the particular asset.

5.         Notwithstanding the above, it has been ruled that the spouses are not barred from claiming ownership of assets by virtue of the general law, i.e. regular property law and contract law. For this purpose, and for the purpose of recognition of co-ownership of a particular asset, including the residential home that was brought into the marriage by one of the partners, one must bring evidence of factual circumstances additional to the very existence of extended marital life together (Abu Rumi [5], at 183). The question of whether the intention of specific co-ownership was proved, as stated, is a factual question which must be proved by the person claiming it, and it depends on the circumstances (LFA 4545/09 A.  v. B. [28], para. 6; LFA 2948/07 A. v. B. [20]; LFA 10734/06 A. v. B. [29]; CA 8128/06 Levinson v. Arnon [30], para. 23; LFA 2991/13 A. v. B. [31]; LFA 7181/12 A. v. B. [32]; LFA 5939/04 A. v. B. [33]). It will be examined in accordance with an assessment of the wishes of the parties, their express or implied agreement and their life circumstances in relation to the specific asset. In this framework it was ruled that one of the considerations must be whether the asset is registered in the name of one of the spouses, and that in view of the maxim that “the burden of proof is on the claimant,” the burden falls upon the other spouse to prove that he is entitled to rights in that asset. The existence of a long marriage per se is insufficient, and in this context one must take into account, inter alia, the conduct of the parties and the nature of the monetary investments of the unregistered spouse in the asset (LFA 1477/13 A. v. B. [34]).

6.         The residential home is said to be the “jewel in the crown of the community property presumption” (CA 806/93 Hadari v. Hadari [35], 690), and the nature of the asset itself affects the evidentiary base that is required to ground the community property presumption (CA 3002/93 Ben-Zvi v. Siton [36], 13). This is true today as well, after the “community property presumption” regime has almost disappeared and we are now almost entirely under a regime of “resource balancing” under the Law. Accordingly, it has been ruled that a lesser amount of proof is required to prove co-ownership of family assets in general, and of the residential home in particular, which is the main asset of the family (CA 741/82 Fichtenbaum v. Fichtenbaum [37], 26; for an extended discussion, see: CA 4306/12 A. v. Bank Leumi Israel Ltd.  [38]).

7.         And now to the matter at hand. My colleague Justice Amit is also of the view that extended infidelity of either of the spouses may well attest to the lack of partnership between the two, including in their joint residential home (para. 14 of his opinion). Infidelity can constitute a circumstance that undermines the community property presumption between spouses (and see: CA 264/77 Dror v. Dror (hereinafter: Dror [16]), which is very logical. However, as my colleague pointed out, just as the crystallization of the partnership is assessed along the timeline of married life, so too, the circumstances that indicate the absence of partnership are examined along the timeline of married life, and “one is not punished for them retroactively” (see Dror, ibid., at 832 and see: HCJ 9734/03 A. v. Great Rabbinical Court [39]). In other words, the infidelity of one of the spouses is not sufficient to nullify the partnership that crystallized in the assets, if it crystallized prior to the infidelity.

8.         Prima facie, in the present case the spouses lived in harmony for many years, and under the law there is no justification for allowing the alleged, later infidelity of the Petitioner to nullify the partnership in assets that had crystallized previously. In this case, however, I cannot agree with the position of my colleague Justice Amit that the three Judges of the Great Rabbinical Court included infidelity among the aggregate considerations for denying co-ownership of the asset, and that it was, in fact, this consideration that tipped the scales against the Petitioner. In my view, from the words of Judges Amos and Almaliah and their reasons, we learn that this conclusion was reached independent of the infidelity. Thus, although Judge Amos discussed Jewish law, he concluded that co-ownership of the asset had not crystallized even before he discussed the Petitioner’s infidelity. In his written opinion he even stressed that reference to the infidelity was in addition to and beyond what was required, and the discussion of the “halakhic aspect”, as he defined it, was incidental. Judge Almaliah, too, ruled in accordance with the secular law, and in his opinion he makes no mention at all of the Petitioner’s infidelity among his considerations for denying co-ownership of the asset. Therefore, although Judge Nahari ruled that the act of infidelity creates “an intention of non-partnership of the owner of the asset vis-à-vis the one who was unfaithful to him” (reasoning a fortiori), it cannot be said that the conclusion of the majority in the Rabbinical Court is tainted by the consideration of circumstances that are not relevant to the matter, or that the Rabbinical Court applied religious law to existing financial relations between the couple. Therefore, the Rabbinical Court did not act ultra vires in its judgment.

9.         Since the Rabbinical Court did not act ultra vires, and given the limited scope of the intervention of this Court, when sitting as the High Court of Justice, in the decisions of the rabbinical courts (see: sections 15(c) and 15(d)(4) of Basic Law: The Judiciary; HCJ 9812/17 A. v. Great Rabbinical Court [6]; HCJ 2617/18 A. v. Great Rabbinical Court [7]; HCJ 1996/16 A. v. Great Rabbinical Court [40]; HCJ 3689/15 A. v. Tel Aviv Regional Rabbinical Court [41]; HCJ 3394/18 A. v. Great Rabbinical Court Jerusalem [42]; HCJ 3042/18 A. v. Regional Rabbinical Court [43]; HCJ 4091/18 A. v. Great Rabbinical Court [44]), even if I assume that the Rabbinical Court erred in its application of the law, this case does not fall within the scope of those cases that justify the intervention of this Court.

10.       Parenthetically, though not necessarily of marginal importance: When Judge Amos turned to a discussion of the halakhic aspect, he ruled that the validity of the interpretation of the Rabbinical Court in relation to co-ownership of property under the Property Relations Law and the existing case law of the Court, is of equal value to that of any other judicial instance. No one, I believe, would dispute this. However, Judge Amos went on, perhaps beyond what was necessary, and ruled that the Rabbinical Court must provide substance for its interpretation according to Jewish law and not according to the general law. He would appear to be mistaken in this (see: HCJ 1000/92 Bavli v. Great Rabbinical Court [4]). Nevertheless, I will briefly address the position of Jewish law as discussed in the opinion of Judge Amos.

11.       Under Jewish law, the financial obligation resulting from one spouse being a partner in the property of the other spouse must be based on a “known custom” by which the spouse undertook the obligation. In support of this, Judge Amos cited Maimonides (Mishneh Torah, Laws of Marital Relations 16:7-9), and also quoted from Responsa of R. Eliahu Mizrahi 16 (Constantinople, 1450-1526, also famous for his commentary on Rashi’s commentary on the Bible). Due to their importance, the full text quoted by Judge Amos from the said responsum appears below:

For it is not within the power of custom to bind someone in a monetary matter if he objects in principle to that custom. We will not compel someone to surrender money that is in his possession on the basis of a contested custom. This is in contrast to matters of ritual law, in relation to which no one can object to a valid custom, and they will be bound by that custom, regardless of their wishes on the matter …. This, as we examine whether that local custom is clear and unambiguous to all the residents, and then we find that the transaction was made on the condition that it would comport with local custom, and it is as if he had expressly stipulated to that effect, and he must carry out that condition, and not by reason of it being the custom observed by others. Hence, even if one of the parties now strenuously objects and says “I never had any such intention and never agreed to that”,  we nevertheless rule that the transaction was made in accordance with the custom, … However, if the custom in question was not clear and unambiguous to all the townspeople, then we say that he may never have heard of the custom, or had heard of it but never agreed to abide by it. Therefore we are concerned with a doubt, and we do not remove money from a person’s possession on the basis of a doubt.

What this means is that if there is a custom that is well-known to all the inhabitants of the town, this custom may not be refuted, and there is a type of conclusive presumption that everyone acts in accordance with custom, and a person may be required to pay out money if the custom so demands in those circumstances. As opposed to this, in the case of a custom that is not familiar to all the people of the town, the assumption is that the person might not have heard about it, or alternatively, that he heard about it but did not act according to it. It is a matter of doubt, and we do not take away a person’s money on the basis of a doubt.

12.       In view of the above, Judge Amos ruled that even if we decide that money is to be taken away by virtue of “state custom,” there must be a clear intention of partnership, and the burden of proof falls on the other spouse by virtue of the maxim, “the burden of proof is on the claimant.” This is because state custom only raises a doubt, and where there is a doubt, the asset should be deemed to be owned by the person in possession of it. In our case, therefore, according to Judge Amos’s approach, there was no justification, under Jewish law, to determine that the asset was co-owned, and to deprive Respondent 3 – the Petitioner’s ex-husband – of his half of the property for her benefit.

13.       First, allow me to say that from the above it may be inferred that it was not the infidelity that underlay the main thrust of the decision of Judge Amos according to Jewish law, but rather the power of “state custom” – in the form of the financial regime under the Law or under the “community property presumption” – to determine the question of ownership of the asset. Secondly, the present case is not similar to the proof that was adduced, inasmuch as the decision in the present case is not based on “state custom,” as expressed in the community property presumption, against which Judge Amos spoke out, but rather it is a decision based on the general law and an examination of the evidence on the merits.

14.       As stated above, the applicable property relations regime between the Petitioner and Respondent no. 3 in the present case is that of resource balancing under the Property Relations Law. As such, co-ownership in the asset does not derive from the community property presumption, but from the general law (and see the different view of my colleague Justice Amit in CA 7750/10 Ben Giat v. Hachsharat Hayishuv Insurance Ltd. [45]. This, as stated above, involves determining the intention of specific co-ownership of the spouse in the asset, with the Petitioner bearing the burden of showing the existence of the partnership. In other words, according to both the general law and Jewish law, it is the Petitioner who bears the burden of proving the existence of an intention of co-ownership of the asset, and in the case of a doubt, the entire asset should be assigned to Respondent no. 3. It would be different, indeed, if the Petitioner’s rights in the asset derived from the community property presumption, for then the paths of the two legal systems might diverge (on the force of civil legislation according to Jewish law, see: R. Mordekhai Eliahu, The Attitude of Halakhah to the Law of the State, 3 Tehumin 242 (5742-1982) (Heb.); R. Dr. Ron Kleinman, Secular Law in the State – ‘State Custom’? 32 Tehumin 261 (5772-2012) (Heb.); R. Asher Weiss, Are State Laws Valid by Virtue of Local Custom? 34 Tehumin 171 (5774-2014) (Heb.); on the adoption of laws and regulations according to the doctrine of “The King’s Law”, see: “Dina de-Malkhuta Dina” and “Community Regulations” in  Ido Rechnitz, Medina ke-Halakhah 190 (2018) (Heb)).

15.       Moreover, the above also emerges from what Maimonides writes (Mishneh Torah, Laws of Marital Relations 16:9), quoted by Judge Amos, as follows:

But if this stipulation was not included in the text of the ketubah, but they simply married, if the husband knew of this ordinance of the Geonim, the woman may collect. If he did not, or we are unsure of it, we deliberate at length concerning this matter. For an ordinance of the Geonim does not have force when it was not explicitly stated in the conditions of the ketubah… (emphasis added – D.M.).

In other words, if there is a doubt as to whether the custom has become widespread, and as to the husband’s knowledge of the custom, the rabbis “deliberate at length,” i.e., they investigate the circumstances of the case thoroughly (and see: R. Adin Even Israel Steinsaltz,  Maimonides with Commentary (2^nd edition, 2017) (Heb.)). This is also the decided law in the general law, i.e., that the circumstances of the case are investigated thoroughly as to whether in fact, despite the apparent ownership of the disputed asset by one of the spouses, the other spouse also has rights in it. Indeed, in the case cited by Maimonides, too, the reference is to a custom of which the spouse may not be aware. However, when in the present case we refer to proving the existence of co-ownership in accordance with the general law and the laws of evidence, it would seems that Jewish law and general law lead to the same place, where the burden of proof falls upon the one who claims co-ownership of the asset that is the property of the other spouse.

I will comment, parenthetically, that Maimonides’ above-cited position was not adopted in practice (Shulhan Arukh, Even ha-Ezer 100:1; and see Beit Shmuel, ad loc.).

In conclusion, therefore, I do not find that the Rabbinical Court acted ultra vires, or that it concluded purely on the basis of Jewish law that the Petitioner did not prove co-ownership of the asset as claimed. Therefore, if my opinion be accepted, the petition will be denied.

 

Justice A. Stein

1.         In the disagreement between my colleagues Justices I. Amit and D. Mintz, I find myself concurring with Justice Mintz. My disagreement with the opinion of Justice Amit stems from the reasons specified below. In practice, Justice Amit is seeking to change our long-standing rule of not intervening in the judgments of the rabbinical court except in limited, defined cases, when one of the following flaws is involved: (1) ultra vires; (2) clear departure from provisions of law that are directed at the religious court, which can be seen as acting ultra vires, or as an error of law that is clear and evident on the face of the judgment, which is equivalent to acting ultra vires (see: HCJ 7/83 Bayers v. Haifa Regional Rabbinical Court [45; HCJ 187/54 Barriya v Kadi of the Moslem Sharia Court, Akko [46]; HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court [11]; and the article by the late Professor Menashe Shawa, Is the Religious Court’s Deviation from or Disregard of the Provisions of Secular Law Directed at it in Particular Equivalent to Acting “Ultra Vires”? 25 Hapraklit 299 (1972-1973) (Heb.)); (3) breach of the principles of natural justice; and (4) this Court reaches the conclusion that a Petitioner ought to be given equitable relief that is not within the authority of another court. This last norm is based on the provision of sec. 15(d)(4) of Basic Law: The Judiciary (hereinafter: the Law), which vests in us the power “to order religious courts to hear a particular matter within their jurisdiction or to refrain from hearing or continue hearing a particular matter not within their jurisdiction [….]”, and on the provisions of sec. 15(c) of the Law, which provides that the High Court of Justice “[…] shall hear matters in which it deems it necessary to grant relief for the sake of justice […].”  The supra-legislature that enacted Basic Law: The Judiciary did not grant us the power to interfere in the substance of the judgments and decisions of the religious courts, and we have reiterated this principle countless times (see, e.g., HCJ 8638/03 Amir v. Great Rabbinical Court Jerusalem [47], para. 10 and the references there; HCJ 3467/14 A. v. Haifa Regional Rabbinical Court [48]; HCJ 2443/15 A. v. Great Rabbinical Court Jerusalem [49], para. 7 and the references there; HCJ 9812/17 A. v. Great Rabbinical Court [6], para. 13 and the references there; and HCJ 2617/18 A. v. Great Rabbinical Court [7], para. 10 and the references there). This is a fundamentally important principle by which we preserve the balance sought by the legislature between the general law and the religious law on matters of marriage, divorce and their monetary ramifications. This balance should be maintained and preserved unchanged. I will already emphasize that our case turns on the two first exceptions to the rule against intervention, and therefore I will discuss them alone.

2.         In my view, applying this basic rule in the present case presents no difficulty. Clearly, Respondent no. 1 in HCJ 9780/17, the Great Rabbinical Court, did not exceed its authority in deciding on the appeal of the judgment of the Haifa Regional Rabbinical Court as it saw fit in the circumstances of the case. This power was vested in the rabbinical courts – the regional courts and the Great Rabbinical Court – after the Petitioner and Respondent no. 3 in the above case before the High Court, a wife and husband who divorced by agreement (hereinafter: the wife, the husband or the couple, as relevant), agreed to settle their financial affairs in the rabbinical court (as preserved in the agreement on which this Court issued a consent decree: see the decision of March 3, 2013 given in the framework of HCJ 4602/13). Similarly, I found no clearly evident, facial legal error in the judgment of the Great Rabbinical Court (hereinafter: the Rabbinical Court) that would require our intervention.

3.         The judgment of the Rabbinical Court dealt with the house in which the couple had lived with their children over the course of many years of marriage (hereinafter: the house). The plot of land and the funds to construct the house were brought into the marriage by the husband, as determined by the Rabbinical Court, and the ownership remained registered in his name alone. The wife claimed the existence of an equal partnership in the rights in the house. The husband argued that the house was and remained entirely his, and the Rabbinical Court agreed with the husband. Among the considerations negating the existence of an equal-rights partnership in the house, the Rabbinical Court included the fact that the wife, while still married to the husband, had an affair with another man. Justice Amit believes that such a consideration represents a departure from the provisions of the law and is ultra vires.  My opinion is different. I believe that consideration of this fact as part of the entire set of facts relevant to the question of implied partnership is not a clear, evident mistake on the face of the judgment, and it certainly does not constitute an ultra vires act. In the absence of an explicit agreement, the question of whether co-ownership of the asset exists in any particular case is a factual one (as explained in the opinion of my colleague Justice Mintz), and it is possible to view it as a mixed question of law and fact. In order to answer this question either positively or negatively, the judge  must establish factual findings concerning the existence or absence of an equal-rights partnership between the couple in the specific asset under discussion – and we do not intervene in such findings. In the present case, the Rabbinical Court ruled as a matter of law and a matter of fact that the couple had not established an equal-rights partnership in the house. I will freely admit that I am not comfortable with this ruling, as the evidence shows that the husband and wife lived in this house for many years, raised their children in it, and that their family life was, for the most part, unremarkable (though not without friction). But the point is that my opinion on this is not what matters, since the authority to determine the facts of the case and to decide whether these establish an equal-rights partnership in relation to the house is not vested in me. Such authority lies in the hands of the Regional Rabbinical Court, as the first instance, and with the Great Rabbinical Court, as the final instance. This Court only examines whether the boundaries of this authority were breached, and once it finds that that is not the case, it must end the task assigned to it in section 15(d)(4) of Basic Law: The Judiciary. All that remains for me is to concur in the opinion of my colleague Justice Mintz, confirm the judgment of the Rabbinical Court, and deny the petition.

4.         Another matter on which I do not agree with Justice Amit is the ramifications of HCJ 100/92 Bavli v. Great Rabbinical Court [4] (hereinafter: the Bavli case) for the law regulating the property relations between spouses. In my opinion, the Bavli case does not help the Petitioner. That ruling did not introduce any great innovation concerning the application of the community property presumption to specific assets that are not defined in the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Property Relations Law) as being subject to balancing, and in respect of which there is no explicit agreement between the spouses. On this subject, the Bavli case only reiterated the principles that had already been established in several judgments (see: CA 253/65 Bricker v. Bricker [12] ; CA 300/64 Berger v. Director of Estate Tax [24]; CA 135/68 Barelli v. Director of Estate Tax, Jerusalem [25]). These judgments recognized the existence of an equal-rights partnership in assets by virtue of an implied agreement between the spouses, and such an agreement – like every agreement – might relate to the entire property of the spouses, or it might relate to full or partial partnership in only one asset. The Property Relations Law established its rules for balancing in relation to the property accumulated in the course of the couple’s marriage, as part of their joint life’s enterprise (see secs. 5-10 of the Property Relations Law). In doing so, the law limited in practice the scope of application of the community property presumption: this presumption could no longer apply to property subject to balancing, the rights in which are regulated by the law. The application of the presumption was confined, therefore, to other assets, those which could not be balanced, as long as an implied partnership agreement could be proved in respect of them. The Bavli case and other judgments that followed it (see LCA 8672/00 Abu Rumi v. Abu Rumi [5]; HCJ 5416/09 A. v. B. [50], para. 13 and the references there (2010); and Prof. Shahar Lifshitz’s article, Family and Property Relations: Challenges and Tasks Subsequent to the 4th Amendment of Property Relations Law, 1 Hukim 227 (2009) (Heb.) ratified this change in the community property presumption.

5.         The great change wrought by the Bavli ruling was the repeal of the old rule whereby “the law follows the judge” (see: HCJ 323/81 Vilozny v. Great Rabbinical Court Jerusalem [51]). This rule allowed a rabbinical court to decide on property matters that were properly brought before it in accordance with religious law, disregarding the general law (see: Benzion Schereschewsky and Michael Corinaldi, Family Law vol. 1, 426-37 (New Edition, 2015) (Heb.)). The Bavli ruling turned this rule on its head in establishing that it is the judge who must follow the law. Accordingly, it was ruled that the rabbinical courts must rule on property matters in accordance with the community property presumption as defined in the general law and its contractual foundations. This ruling completed the revolution in the financial regime of the laws of marriage and divorce. Prior to the Bavli case, significant parts of this subject were governed by the laws of the person’s personal status, which dictated the financial consequences of marriage and divorce for a couple. The Bavli case transferred the entire financial aspect of the laws of marriage and divorce from a regime of status to a regime of contract that allows a couple to act as an autonomous unit and determine the financial consequences of marriage and divorce by themselves and for themselves, subject to the protections against abuse provided in the Property Relations Law and in the general laws of contract (see secs. 5A(d), 22 and 12 of the Property Relations Law; and secs. 12, 15, 17, 18, 39, and 61(b) of the Contracts (General Part) Law, 5733-1973).

6.         This transition found expression in the rules that apply in the absence of a written property agreement between couples. The first and most fundamental of these rules was laid down in sec. 4 of the Property Relations Law, according to which: “The contraction or existence of the marriage shall not by itself affect any ownership rights of the spouses, confer on one of them rights in property of the other or impose on one of them liability for debts of the other.” Accordingly, sec. 5(a)(1) of the law provides that “property which they had immediately before the marriage or received by way of gift or inheritance during the marriage” will be excepted from the resource balancing that applies to property accumulated during the time of the marriage. I will call this rule the “preservation of rights in past assets.” The second rule states that a spouse may waive the preservation of his past rights and make his spouse a partner in those assets. This rule requires the court to identify and enforce the unwritten and unarticulated agreements concerning partnership in assets that the couple formulated between themselves and on which they acted in the course of their life together. In applying this rule, the courts usually decide according to the principle that “where a positive plea is met by an uncertain one, the positive plea prevails”” (see: TB Bava Kama  118a): in the absence of evidence that clearly shows that the spouse in possession of the past asset agreed to include his spouse as an equal-rights partner in that asset, the asset will remain entirely in the hands of its original owner. This rule has been applied, in most cases, in relation to real property (a house or an apartment) in which the couple lived and maintained a common household until their relationship broke down, as happened in the present case. In such cases, as determined elsewhere by my colleague Justice Amit, long years of marital life in the residential home registered on the name of one of the spouses is not sufficient: the spouse who claims co-ownership of property that is not his must present evidence of the intention of partnership that constitutes “additional supporting evidence” (see: LFA 1398/11 A. v. B.[2]; and LFA 1477/13 A. v. B. [34]).

7.         The transition from a regime of status to one of contract established an important principle that did not receive sufficient emphasis in the opinion of my colleague Justice Amit. I am referring to the autonomy of the spousal relationship (a value that is of prime importance, and that sometimes clashes unavoidably with social equality: see James S. Fishkin, Justice, Equal Opportunity and the Family 30-43, 64-65 (1984)). Spousal relationships are an individual matter, not only on the emotional and intimate plane, but also regarding property. Every spousal relationship exists by virtue of the practices and agreements that the spouses establish between themselves on the basis of their beliefs in regard to their desired way of life. Agreements between spouses concerning their individual personal property, and the extent to which the other spouse may share in that property are not, therefore, uniform. Agreements on property matters established in a relationship between one particular couple are not similar – and need not be similar – to the agreements that are formed in another couple’s relationship. Couples are permitted to live their lives together in a religious, secular, patriarchal, or feminist format, or some other format that incorporates values and world views of all types. Similarly, they may adopt whatever model of conjugal relations they may desire, which may or may not include sexual freedom. All these are private matters that are not our concern. Autonomy of the relationship between couples requires us to adopt a neutral, equal attitude to all lifestyles between couples, and all property arrangements, as long as no unlawful exploitation is involved.

8.         As such, the question whether the registered, sole owner of a particular asset, who brought that asset into the marriage, waived the rule concerning preservation of past assets and made his spouse an equal-rights partner in the asset, is an individual question, the answer to which (in the absence of explicit acquisition) is found in the lifestyle and the beliefs of the couple. This is, therefore, a question regarding which which it is not possible – nor desirable – to lay down  comprehensive rules that are oblivious to the beliefs, values and circumstances of the intimate relations of the couple. Every couple may act in accordance with its beliefs, and it is in accordance with those beliefs that it will distribute – or not distribute – the personal property of each of the spouses. We will not replace a spouse’s beliefs with our own. When considering the question of partnership, secular and rabbinical courts are therefore obliged to infer the existence or absence of an equal-rights partnership in a disputed asset from the patterns of the couple’s lives and their mutual expectations. These expectations may certainly include the condition of sexual fidelity between the couple as a sine qua non for the agreement of one spouse to share his property equally with the other. Such a condition, insofar as it exists, must be respected and enforced by the secular and religious courts.

9.         Justice Amit now suggests that we lay down a comprehensive rule according to which acts of “infidelity” cannot serve as a consideration in decisions concerning the partnership of one spouse in the property of the other. He is of the opinion that the fact that one spouse was not faithful to the marital bond and was found to engage in “infidelity” is not relevant to the question of co-ownership. Justice Amit explains that acts of “infidelity” may be taken into account only in extreme cases, when their frequency attests to the destruction of the spousal unit, which could – in other circumstances – have served as a basis for implied co-ownership of the disputed property. In his opinion, this rule is necessary so that considerations of moral guilt will not feature in decisions that are intended to settle property disputes between couples, including decisions regarding the question of co-ownership such as that which we now confront. The reason for this is simple: the “unfaithful” or “adulterous” spouse should not be punished by deprivation of his property.

10.       I agree with Justice Amit that our law does not permit depriving property from a spouse who has been “unfaithful” to the other spouse. There is no dispute about this principle. For this reason, I would not permit evidence to be brought about acts of “unfaithfulness,” “adultery” and so forth, in the framework of a discussion of a monetary dispute that turns on property that is recognized as being subject to balancing under the Property Relations Law. Property and rights belonging to either of the couple – the husband and the wife, in the present case – are his, whether he remained faithful to his spouse or whether he committed an act of “betrayal.” His property cannot be taken away from him in any case, and his property includes conclusive, unconditional partnership in an asset that formerly belonged in full to his spouse. But the problem is that this is not the question that faced this Court in the present case. The question facing us turned on giving and not on taking. The question that was decided, as it was decided by the Rabbinical Court, is only this: can one infer from the conduct of this couple in the course of their marital life that the husband agreed to make his wife a partner, unconditionally, in the rights in the house, where the plot on which it was built and the funds for its construction were brought by him into the marriage, and which remains registered in his name as owner? This is therefore a matter of examining the existence of a grant of a right that the wife did not acquire for herself due to her marriage to the husband per se (see, again, secs. 4 and 5(a)(1) of the Property Relations Law), and not with taking away the wife’s property due to an act of “betrayal” or “adultery.” Whether such a right has or has not been granted is a matter of empirical fact, and not of guilt, punishment, justice or other consideration in the realm of norms, as distinct from facts. On this matter, the intention of the spouse who owns the asset is of the utmost importance (see CA 595/69 Efta v. Efta [26]; and CA 630/79 Lieberman v. Lieberman [52]). This intention might indicate a lack of desire to make the “betraying” spouse a partner in the asset, and we are obliged respect and enforce these intentions, too. As stated, this obligation exists by virtue of the transition to a contractual regime and the principle of autonomy of the relationship between couples, which may, as we have said, be religious, secular, patriarchal, feminist, puritan or liberal according to the couple’s choice.

11.       And note: a court (or rabbinical tribunal) that reaches the conclusion that the intention of partnership was nullified due to an act of “betrayal” or “adultery” of the other spouse is not punishing that other spouse. In these cases, the court decides that the intention of partnership was nullified as a matter of fact and not as a matter of guilt and punishment. In so deciding, the court is maintaining neutrality in its attitude to the different patterns of marital life and relationships as required by the principle of autonomy. The principle that Justice Amit proposes that we adopt does not maintain neutrality, for it negates the wishes of the owner of the property not to share his property with his spouse in any case of infidelity. Such a rule would accord priority to one model of faithfulness and property relations between couples over other models, and I cannot concur in this.

12.       I would like to add that an implied agreement, which as we have said, is derived from the way of life chosen by the couple, may also provide that a grant of an equal-rights partnership in the property of one spouse will be void in the event of “betrayal.” This transpires from the words of (then) Deputy President A. Barak in the Bavli case [4] (at 250-51) concerning the significance of another important judgment, handed down in HCJ 609/92 Beham v. Great Rabbinical Court of Appeals [9]. In that case, the husband sought to cancel half the ownership rights in the apartment that his parents had given his wife, after they bought the apartment with their money in order that the couple should live in it, and registered the other half of the rights in his name. The reason for this was the sexual relations that the wife had with another man while still married to the husband. The apartment itself was sold, and the couple used the consideration in order to purchase another apartment, which was also registered in the names of the husband and the wife in equal shares. The Great Rabbinical Court, to which the parties turned by virtue of a jurisdiction agreement, ruled in favor of the husband. The wife petitioned the High Court of Justice, and her petition was denied. This Court ruled that on the basis of an assessment of the wishes of the parties, the wife received from the husband’s parents a conditional gift, and the condition was that she should be faithful to her husband (see ibid. at 293-94). (Then) Deputy President Barak justified this outcome, saying as follows:

It appears to me that underlying the Beham case lies the fact that the parties turned to the Rabbinical Court by agreement.  […] Such agreement may possibly be interpreted as agreement to the application of Jewish law to the gift. Moreover, Justice Elon treated the entire dispute as a dispute over the interpretation of a contract, noting that under the secular law, too, the assessment of the intentions of the parties may well be interpreted as indicating a conditional gift.

13.       It is time to move from the general to the specific. As my colleague Justice Mintz explained in paras. 1 and 8 of his opinion, two of the three judges of the Rabbinical Court decided against the wife on the question of co-ownership of the house, after examining the whole set of relations between the couple from the aspect of an implied agreement. This set included the act of “infidelity” of the wife as a consideration acting to negate or nullify the intention of the husband to include her as an equal-rights partner in the house, which as we have said, was built on a plot owned by the husband prior to the marriage and from funds that he brought into the marriage. For the reasons I have elaborated above, and by virtue of the rule “where a positive plea is met by an uncertain one, the positive plea prevails”, the Rabbinical Court was authorized to include this matter among its considerations. I fear that the Rabbinical Court gave the matter too much weight, but this fear has no bearing, as judicial review of the judgments of the religious courts by the High Court of Justice is confined in principle to the question of competence and to correcting fundamental errors in the process. The Rabbinical Court ruled as it saw fit, within the boundaries of its authority. Its decision does not display any facial error in law, let alone a clear, evident error that would be the equivalent of acting ultra vires. 

14.       Therefore, like by colleague Justice Mintz, I am of the opinion that this petition should be denied.

 

Decided in accordance with the opinions of Justices D. Mintz and A. Stein, Justice I. Amit dissenting.

Given this day, 10 Kislev 5779 (Nov. 18, 2018).

 

 

 

HCJ 2152/20

 

Petitioner:                                Yedidya Ephraim Meshulami

 

                                                v.

 

Respondents:              1.         Chief Rabbinate of Israel

                                    2.         Government of Israel

                                    3.         The Knesset

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice U. Vogelman, Justice N. Sohlberg, Justice Y. Elron

 

Petition for an order nisi

 

Judgment

 

Justice N. Sohlberg:

1.         This is a petition for the granting of an order nisi from the “side effects” of the corona virus: Why should the Respondents – the Knesset, the Government and the Chief Rabbinate – not immediately and urgently declare a leap year, such that a second Hebrew month of Adar be established, so that the month of Nissan will be postponed for thirty days, with all the attendant implications? The Petitioner is of the view that the current state of emergency requires this, as a sort of “first aid”, in view of the fact that our brethren are in isolation and quarantine, and will not have sufficient time to prepare for celebrating Passover as required, in accordance with all its rules and laws.

2.         This petition should be dismissed in limine. I doubt that the subject is justiciable (I addressed the issue of justiciability elsewhere: OM 6092/07 Ornan v. Ministry of the Interior,^[1] paras. 17-18). In any case, the Petitioner recognizes that the law provides no express authority for declaring a leap year in a state of emergency. According to him, such a declaration can “lawfully and quickly be given, at least as a ‘temporary provision’, with the consent of all the Respondents”. I do not know what legal mechanism the Petitioner is referring to in speaking of a “temporary provision”[2] given “with the consent of all the Respondents”. In any case, in the absence of any legal basis for the petition, there is no cause to address.

3.         Inasmuch as we are already addressing the issue of declaring a leap year when it is not its designated time, I will add some comments beyond what its necessary. The Petitioner claims that there is halakhic authority to order a leap year when there is a public need, and refers us to the Maimonides’ Mishneh Torah (Sanctification of the New Month, chaps. 4-5). However, it would seem that the Petitioner did not pay proper attention to what Maimonides stated there, in chap. 5:1, writing: “All that we have said concerning the fixing of the beginning of the month on the basis of observing the new moon, and concerning intercalation of the year because of the season or because of some other necessity, is applicable only to the Sanhedrin in the Land of Israel, or to the members of the court who were ordained in the Land of Israel to whom the Sanhedrin gave permission to act ... However, when there is no Sanhedrin in the Land of Israel, the months are established and the leap years are determined only by such methods of calculation as we employ today.” In addition to the lack of authority, it is also worth noting in this regard the words of the author of the Lekakh Tov midrash (Tuvia ben Eliezer, 11^th cent.) on Parashat Hohodesh [the additional Scriptural reading for the Sabbath before the beginning of the month of Nissan – ed.], according to which “it is proper to rely upon the rules for intercalating the year, so as not to divide Israel into sects such that one violates the holy day of the other”. Indeed, intercalating the year is no small matter. There was good reason for entrusting the halakhic authority in such a matter to the Sanhedrin or a court whose members were ordained in the Land of Israel. This Court will not trespass upon the boundaries of the Sanhedrin, but with all due caution, it would seem that even from a religious/halakhic perspective, the Petitioner’s arguments lack merit.

4.         The petition is therefore dismissed.

Given this 26^th day of Adar 5790 (March 22, 2020).

 

High Court of Justice

FH HCJ 3660/17

Before:                                                 Honorable President M. Naor

                                                                Honorable Justice E. Hayut

                                                                Honorable Justice Y. Danziger    

                                                                Honorable Justice N. Hendel

                                                                Honorable Justice N. Sohlberg

                                                                Honorable Justice D. Barak-Erez

 

The Petitioners:                                1. General Association of Merchants and Self-Employed Persons

                                                                2. Noam Knaani

                                                                3. Avraham Levi

                                                                4. Morris Bremer

                                                                5. Yaakov Bremer

                                                                6. Adi Wizaum

                                                                7. Motti Maoz

                                                                8. David Chaimov

                                                                9. Eliyahu Miller

                                                                10. Isaac Alkoser

                                                                11. Pinhas Tsalik

 

The Respondents:                           1. Minister of Interior

                                                                2. Minister of Economy

                                                                3. Ministry of Economy

                                                                4. Tel Aviv-Jaffa Municipality

                                                                5. Mayor of Tel Aviv-Jaffa

                                                                6.  Otzar Marine Industries Ltd.

                                                                7. The Tel Aviv-Jaffa Economic Development Authority Ltd.

                                                                8. Israel Land Authority

                                                                9. Gindi Holdings Development 2009 Ltd.

                                                                10. Yaakov Bruchim (formal)

 

Further hearing of the High Court of Justice’s verdict in HCJ 6322/14, HCJ 996/15, HCJ 2998/15, and HCJ 4558/15 (unpublished) rendered on April 19, 2017 by the Honorable President M. Naor and the Honorable Justices A. Hayut and D. Barak-Erez

Date of Hearing: 15 Av 5777 (August 8, 2017)

Representing Petitioner 1:                            Adv. David Shuv; Adv. Uriel Boni

Representing Petitioner 2-11:                     Adv. Ivri Feingold

Representing Respondents 1-3 and 8:      Adv. Dana Briskman; Adv. Ron Rosenberg

Representing Respondents 4-5 and 7:      Adv. Yisrael Leshem; Adv. Yochi Kadir-Paz; Adv. Idan Liron

Representing Respondent 6:                       Adv. Yehezkel Reinhertz; Adv. Avinoam Peretz

 

Verdict

President M. Naor:

At the heart of this further hearing before us is the character of the Sabbath in the city of Tel Aviv-Jaffa. The background for the proceeding is two amendments to the By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter together: the Amendments), which address opening businesses on the Sabbath in the city of Tel Aviv-Jaffa.

Background of the Further Hearing

1. The By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter: the By-Law) provides that businesses should not be opened on the Sabbath and Jewish holidays, with limited exceptions (see section 2 of the By-Law). The enforcement of the By-Law was the focus of a judgment by this court in App Adm Pet 2469/12 Bremer  v. Tel Aviv-Jaffa Municipality (unpublished) (June 25, 2013) (hereinafter: the Bremer  case). In that case, the court accepted the position of the appellants there (who are also the petitioners before us) that the enforcement policy then in place -  which included imposing fines but refraining from issuing closure orders – is not effective. The court therefore remanded the issue to the municipality to exercise its discretion and make a decision about how to exercise the powers granted to it to enforce the By-Law. It was also held that if the municipality wants to change its policy regarding opening businesses on the Sabbath, it cannot do so by way of non-enforcement but rather should amend the By-Law as required by law.

1. [sic] As a result of the decision in the Bremer case, in 2014 the city council approved an amendment to the By-Law (By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 1), 5774-2014 (hereinafter: Amendment No. 1). Amendment No. 1 basically permitted the opening of businesses on the Sabbath in three commercial sites, the opening of convenience stores in gas stations on the Sabbath and the opening of grocery stores. Then-Minister of Interior Gidon Saar used his authority under Section 258 of the Municipalities Ordinance [New Version] (hereinafter: the Ordinance) to approve most of the provisions of Amendment No. 1, but he invalidated the provision regarding opening grocery stores. Amendment No. 1, as approved, was published in Reshumot [official legislative reporter-trans.].
2. Thereafter, the city council approved an additional amendment to the By-Law (By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 2), 5774-2014 (hereinafter: Amendment No. 2)). Amendment No. 2 addressed the opening of grocery stores on the Sabbath according to area and subject to various restrictions, including receiving a permit. Amendment No. 2 was submitted to Interior Minister Saar on August 13, 2014.  On October 7, 2014, using his authority under Section 258 of the Ordinance, the Minister of Interior ordered the publication of Amendment No. 2 to be delayed. About a month later, on November 3, 2014, Interior Minister Saar resigned from his position. From the time the decision was made to delay, and for two and a half years, no decision was made on the merits of Amendment No. 2. That was despite an agreement reached during legal proceedings and various developments, about which I will expand later.
3. These amendments were at the foundation of four petitions that were disposed of in the verdict that is the subject of the further hearing (HC 6322/14 General Association of Merchants and Self-Employed Persons v. Minister of Interior [unpublished] (April 19, 2017). In those petitions a number of claims were raised regarding the amendments. In brief, Petitioner 1 and Petitioners 2-11 (hereinafter: the merchants) and Respondent 9 (hereinafter: Gindi) raised a variety of claims about the lawfulness, reasonableness and proportionality of permitting businesses to open on the Sabbath. In opposition, Respondent 4 (hereinafter: the Municipality) petitioned against the Minister of Interior’s decision to delay the entering-into-force of Amendment No. 2. In the verdict that is the subject of the further hearing it was unanimously decided to accept the Municipality’s petition and to reject the petitions of the merchants and Gindi. Regarding the delay of Amendment No. 2, it was held that, in light of the long period of time that had passed since the decision to delay, the failure to make a decision on the merits should be seen as an unexplained decision to invalidate Amendment No. 2. The absence of an explanation imposed a burden on the state to prove that the decision to invalidate Amendment No. 2 was made lawfully, but the state did not provide a reason that it believed justified the invalidation. Given that state of affairs, the court invalidated the decision to invalidate Amendment No. 2. It was also held that using the amendments to permit businesses to open on the Sabbath is not per se a flawed decision in terms of authority or discretion.
4. The petitioners, who did not accept the result of the verdict, filed a motion for a further hearing, and on July 12, 2017, Deputy President (ret.) E. Rubinstein granted it. In his decision he explained:

 

“Do we have before us a rule in the sense of Section 30(b) of the Courts Law? In my opinion, the resulting state of affairs shows an answer in the affirmative. Indeed, sometimes there is uncertainty in cases like this […], and we are further dealing with a procedure in which restraint was exercised, but once the verdict was rendered against the background of a flaw in the conduct of the authority and with a

 

And later it was written:

“Irrespective of the result, the Sabbath, whose status in global Judaism needs no elaboration, deserves to have its case considered and clarified when all positions are before the Court, especially considering the broad implications, stakes and importance for others […]” (ibid, para. 12).

5. On August 8, 2017, we heard the parties’ oral arguments before this expanded panel. The disagreements between the parties can be distilled into two questions: The first question before us is the validity of Amendment No. 2, in light of the various transformations it underwent; A second question that arose is whether the amendments meet the standards of administrative law. These are the questions that need to be decided in the further hearing. I will address them in order.

 

The Validity of Amendment No. 2

        The Transformations of Amendment No. 2

6. The Municipality submitted Amendment No. 2 to the Minister of Interior for approval on August 13, 2014. About two months later, on October 7, 2014, Interior Minister Saar ordered a delay in publishing the amendment. In doing so, he exercised his power under Section 258 of the Ordinance, which says:

 

Approving and(a) Once the council approves a by-law,

Publishing By-Laws the mayor will sign it, and the

by-law will be published in Reshumot.

(b) A by-law will not be published as detailed in subsection (a) until six days have passed from the day the mayor brought the by-law to the attention of the Minister; If the Minister or his authorized representative announces that he does not oppose the by-law, the by-law will be published even before the end of this period.

(c) During the period specified in subsection (b), the Minister may order a delay in publishing the by-law, so long as he does not decide to do so without the Minister or his authorized representative having first detailed his reservations and given the mayor or his authorized representative an opportunity to raise claims against the delay in publishing the by-law.

(d) If the Minister delays the publication of a by-law as specified in subsection (c), he may do one of the following:

(1) Order a cancelation of the delay;

(2) Invalidate the by-law for reasons he will enumerate;

(3) Return the by-law with his comments to the council for reconsideration.

(e) If the Minister cancels the order to delay publication of the by-law, the by-law will be published in Reshumot.

 

The text of the section teaches us, therefore, that the decision to delay is not the end of the story. Subsequent to it, there must be a decision on the merits – cancelling the delay and publishing the by-law, invalidating the by-law or returning it to the city council with comments. A decision of this kind was not forthcoming, and in the meantime the petitions that are the subject of the further hearing were scheduled for oral hearings before this court.

7. The hearing took place on July 6, 2015, and at its conclusion it was decided:

“1. After some back-and-forth, the Tel Aviv municipality […] and the state agreed to the following:

1. The Municipality will not insist on chapter 4 of its petition [about delaying Amendment No. 2 – M.N.].
2. Within 7 days, the Municipality will submit answers to the questions that the Minister of Interior has posed regarding Amendment No. 2 to the by-law, without prejudice to the claims that the Minister of Interior acted without authority on the substance of the issue.
3. Ninety days thereafter (the court’s recess days are included in the count), the Minister of Interior will issue a decision regarding Amendment No. 2.
4. The Municipality and the other parties reserve their right to raise claims regarding the decision that will be issued.

2. The Minister of Interior’s decision will be submitted to the court and all the parties to the petitions listed in the heading within 100 days from today, counting the days of the court recess.
3. We take note of the fact that the other petitions have yet to be considered, and the parties’ arguments will be heard at a time that will be determined” (emphases added – M.N.).

8. On October 13, 2015, after the one hundred days set in the above-mentioned decision had passed, the state informed the court that then-Interior Minister Silvan Shalom, who had begun to examine the issue, discovered a conflict of interest that prevented him from making a decision, and that therefore the issue was referred for a governmental decision about transferring the authority to another minister. Two months later, on December 14, 2015, the state informed the court that the government had decided, on December 13, 2015, that “Within 4 weeks a decision will be made regarding the appropriate mechanism for exercising the authority of the Minister of Interior.” On December 24, 2015, the state made an additional filing, informing the court that the authority of the Minister of Interior had been transferred to the government, and that a committee of directors-general had been established to discuss the issue and make recommendations to the government within 180 days.
9. On March 28, 2016, an additional hearing was held, and the court subsequently issued orders-nisi in the petitions. Seven months after the committee of directors-general was established, on August 4, 2016, the state updated that the committee had completed its discussions, and that the deadline for submitting its recommendations had been extended by 45 days. Approximately five months later, on January 17, 2017, the state informed the court that the government had held a discussion about Amendment No. 2 in its meeting on January 8, 2017, during which the director-general of the prime minister’s office clarified that the committee of directors-general had not arrived at a single agreed-upon recommendation. The committee presented the government with a “range of possibilities” that arose in its discussions, which spanned the gamut between approving Amendment No. 2 as written to completely invalidating it. At the end of the discussion, the government decided to delay a decision on the matter, pending a decision on merging the cities of Tel Aviv-Jaffa and Bat-Yam – a process about which, at the time, not even a first decision had been made.
10. On January 23, 2017, a third hearing was held in the petitions, and at its conclusion they were referred to the court for a decision. A week later, on February 3, 2017, the state informed the court that on January 29, 2017, the government decided to restore the authority to the current Minister of Interior, Aryeh Deri, and that he intended to make a decision within sixty days. From that update and until the issuing of the judgment that is the subject of the further hearing, two and a half months later, no additional update from the state was received. In the verdict rendered on April 19, 2017, it was held that, in light of the long time that had passed – a duration of two and a half years – the failure to make a decision on the merits should be viewed as a decision to invalidate Amendment No. 2 without explanations. Because the state did not meet its burden of providing a reason that would justify such invalidation, the court held that the decision to invalidate Amendment No. 2 was invalid.
11. On May 3, 2017, the petitioners filed a motion for a further hearing. They attached to that motion a document signed by Interior Minister Deri, dated April 9, 2017. That document shows that the Minister of Interior decided to invalidate Amendment No. 2. The reason was his determination that consideration for the autonomy of the Municipality did not justify the scope of the infringement of Amendment No. 2 on the social and religious-national values that form the basis of making the Sabbath a national holiday (hereinafter: the Interior Minister’s position). The Interior Minister’s position was not submitted to the Court prior to the rendering of the verdict, and it was not submitted to the Municipality. The verdict was therefore rendered in the absence of the Interior Minister’s position being placed before the Court. In any event, we were not informed that the Minister had reached a decision.

In its response of June 23, 2017 to the motion for a further hearing, the state clarified that the Minister of Interior first informed the Attorney General of his intention to invalidate Amendment No. 2 on April 18, 2017. At the request of the Attorney General, an unsigned copy of the above-mentioned document was submitted for his review on April 19, 2017, a few hours before the verdict was rendered. Under these circumstances, “the state believed that it would have been inappropriate to submit the Minister of Interior’s decision to the Tel Aviv Municipality at that time” (ibid, para. 47).

12. The question of the status of the Interior Minister’s position is at the heart of the central dispute between the parties to the further hearing. The parties also disagree regarding the lawfulness and reasonableness of invalidating Amendment No. 2 on the merits.

 

The Parties’ Claims Regarding Amendment No. 2 and the Interior Minister’s Position

 

13. The merchants claim that the Interior Minister’s position is the sole starting point for the further hearing. That position, they argue, reflects the consistent position of the executive branch and the legislative branch, and therefore it should be determinative. The Merchants also argued that, on the merits, there is no cause for intervening in the Interior Minister’s position, which takes into consideration all the ramifications of Amendment No. 2 and reflects a clear, values-based decision on a complex and sensitive issue.
14. In contrast, the state argued that the current proceeding is inappropriate for evaluating the lawfulness of the Interior Minister’s position. In its opinion, that position was not reviewed in the verdict that is the subject of the further hearing, and given the unique character of this proceeding, it would be inappropriate to review the position at this stage. In its argument summary, the state did not address the Interior Minister’s position on the merits, but in response to our questions during the oral hearing, the position of the Attorney General was submitted using the following words:

“The Interior Minister’s decision indeed raises significant legal difficulties, primarily given the extent of the intervention that the central government may exercise into the autonomy of the local authority. Having said that, the decision does not rise to the level of extreme unreasonableness, and that is once we consider that, under the unique circumstances of this case, as a practical matter, the result of the decision is to accommodate the will of the local authority to a certain extent by opening the three sites, convenience stores, and shops in Jaffa on the Sabbath. The Attorney General believes that, were the result of the Minister of Interior’s decision to be that no shop would be open and there would be no accommodation of the will of the residents, then the issue would reach the level of extreme unreasonableness” (Transcript of August 8, 2017 hearing, p. 28, lines 18-24).

 

Having said that, the state repeated its position in principle that this is not the appropriate stage at which to consider the lawfulness of the Interior Ministry’s position (See: ibid, line 25). In his argument summary, filed pursuant to my decision of July 31, 2017, the Minister of Interior argued that it would be proper to rule on the merits of his position, considering the importance of the issue in principle.

15. The Municipality claimed that it would be inappropriate to rule on the Interior Minister’s position at the current stage of the proceeding. The Municipality also claimed that the Interior Minister’s position, given its timing, does not justify deviating from the finding in the verdict that is the subject of the further hearing, namely that the state’s conduct is defective due to laches that are so extreme, they turn the delay into an unexplained refusal. In any event, according to the Municipality, the Minister of Interior’s authority to invalidate the amendment expired a long time ago. On the merits, the Municipality claimed that the Interior Minister’s position was based on extraneous considerations and suffers from extreme unreasonableness.

The Validity of Amendment No. 2 – Discussion and Resolution

16. Does the Interior Minister’s position have consequences for the validity of Amendment No. 2? In my opinion, the answer is no. The state is correct in its argument that the current proceeding is inappropriate for evaluating the lawfulness and reasonableness of the Interior Minister’s position, which was not brought before the panel in the proceeding that is the subject of the further hearing. The procedure of a further hearing is intended for clarifying a rule that was decided in a verdict, and not for discussing what the verdict does not contain (see: FH Civ Haran v. Charitable Trust Foundation of the Late Gavrialovich [unpublished] (September 15, 2010); FH Civ 8184/13 Dabah v. State of Israel [unpublished] (May 8, 2014); FH Civ 1075/14 Keren Hayesod – United Israel Appeal v. Jewish National Fund via the Israel Land Administration [unpublished] (July 15, 2014); FH Crim 6876/14 Doe v. State of Israel [unpublished] (December 17, 2014); FH HCJ 360/15 Hamoked: Center for the Defence of the Individual V. Minister of Defense [unpublished] (November 12, 2015). The Interior Minister’s position was not submitted to the Court in the proceeding that is the subject of the further hearing. The parties to the case did not make arguments about it, and the Court did not give its opinion about it. There is therefore no room to consider it at this stage of the proceeding (See and compare FH 2/64 Koenigshofer v. Humphert, 18(3) PD 377, 383 (1964); See also my opinion in FH Civ 3993/07 Jerusalem Tax Assessor 3 v. Ikafood Ltd., 65(1) PD 238, 320-324 (2011)).
17. Indeed, “You can’t turn back the clock” (FH 3/58 Finance Minister v. Freight and Container Ships Ltd., 12 PD 1849, 1854 (1958); See also ibid, page 1852). That is particularly true when, as is in our case, the Municipality was not made aware of the Interior Minister’s position, and the position was not made public but rather remained buried in the Minister of Interior’s drawer, even though ten days passed between the time it was reached and the publication of the judgment (See and compare App Civ 5945/04 Jerusalem Tax Assessor 1 v. Sami [unpublished], para 10 of my judgment (April 22, 2007). The rule is that “Norms that have ramifications for the collective or for the rights of individuals must be made public, so that everyone can know what the law says […]. Law that is made public is binding law, it and not documents of whose existence individuals and the collective, all of them or some of them, are unaware” (App Civ 3213/97 Naker v. Herzliya Local Planning and Zoning Committee, 53(4) PD 625, 648 (1999); See also and compare App Civ 421/61 State of Israel v. Haus, 15 PD 2193, 2204-2205 (1961)).
18. Another reason not to deviate from the decision reached in the verdict regarding Amendment No. 2 is the timing in which the Minister of Interior’s position was received. It should be noted: the decision to delay the publication of a by-law is not a final decision. It must be followed by a decision on the merits (see art. 258(d) of the Ordinance). In my opinion, we don’t need to rule on the principled question of what is the precise time period in which a minister of interior, who has ordered delay of the publication of a by-law, must make a final decision on the merits of that ordinance, in order to determine that this particular decision came too late. I will explain.
19. In our case, Minister of Interior Gidon Saar made his decision to delay publication on October 7, 2014, during the sixty day period allotted in Article 258 of the Ordinance. Time passed, and no decision was made on the merids of the amendment. After about nine months, the parties reached an agreement in the context of litigation, which was validated by the court in its July 6, 2015 decision. According to the terms of that agreement, the minister of interior committed, as noted, to submit his decision to the court and the other parties “within 100 days from today” (ibid, emphasis added – M.N.). The deadline for making a decision on the merits of Amendment No. 2 was – according to the agreement – therefore October 16, 2015. That deadline passed. No decision on the merits was reached, and every few months, the state would issue an “update” to the court, saying that no decision had been reached (as enumerated in paragraphs 9-11). Despite repeated comments from the court to the effect that the executive branch is refusing to decide a question placed before it (see my decision of December 15, 2015 (“[As] we repeated and emphasized, the executive branch must made a decision”); Transcript of March 28, 2016 Hearing; Transcript of January 23, 2017 Hearing), the state acted as if it had all the time in the world. No additional agreement was reached by the parties, and none was requested in any event, and no judicial decision was issued to authorize deviating from the timeline set. The Minister of Interior’s Position, dated April 9, 2017, missed the deadline, therefore, by about a year and a half.

I don’t see a legal justification for intervening in the holding made in the decision that is the subject of the further hearing, namely that under the circumstances described, we are dealing with a refusal made without providing reasons (see paragraph 18 of the verdict and the sources cited therein). Based on what has been said thus far, the request for a further hearing should be rejected.

20. Having said that, and once Deputy President (ret.) E. Rubinstein decided that “the Sabbath deserves … to have its case considered and clarified when all positions are before the Court” (his decision of July 12, 2017), I see fit to address the merits of the Minister of Interior’s position, even though arguments for dismissal forestall that. Evaluating the merits of the Minister of Interior’s position leads to the same result, denying the request for an additional hearing. I will explain.
21. As noted, the Minister of Interior thought that Amendment No. 2 should be completely invalidated. To his way of thinking, the consideration that should be accorded to the local authority’s autonomy does not justify the “extent and the derivative meaning of the harm that Amendment No. 2 causes to socio-social and national religious values and purposes that are the basis of the designation of the Sabbath as a day of rest” (para. 59 of the Interior Minister’s position). In his introduction, the minister addressed the importance of the Sabbath in Jewish heritage:

“The Sabbath and its observance is [sic-trans.] a bedrock of the secret of the Jewish people’s existence. Sabbath observance is one of the commandments that the children of Israel were commanded to observe in the ten commandments […]. Numerous ideas in the foundations of the Jewish people’s belief are included in and derive from this commandment and its observance. As is known, the Sabbath was designated as a day of rest in the State of Israel from its very founding. Two purposes are at the heart of this weekly day of rest: a socio-social purpose and a national religious purpose, which are intertwined” (ibid, paras. 16-17).

The Minister of Interior believes that Amendment No. 2 significantly infringes on the social purpose of the day of rest. That is due to the competitive disadvantage it creates for small business owners which constitutes “harm to and thwarting of” their ability to exercise their right to a day of rest (ibid, para. 35), and due to the employment of workers who are “an interchangeable work force […] of weak socio-economic status” in businesses that would be permitted to open on the Sabbath (ibid, para. 41).

22. Additionally, The Minister of Interior thought that Amendment No. 2 significantly undermines the national-religious status of the Sabbath and the way the public sphere looks during the Sabbath. That is due to its deviation from the status quo, which allows places of entertainment to open, but prohibits purely business activity:

 

“Throughout the years, as per the status quo that represents broad national agreement regarding activities on the Sabbath, places of entertainment have been allowed to open […] but commercial activity and opening commercial establishments has not been permitted. The draft by-law put forward now proposes, for the first time, to allow pure, undeniably business activity throughout the city of Tel Aviv” (ibid, para. 45).

He believes that should not be allowed, especially considering the scope and size of the area where sales would take place and the fact that the amendment applies to businesses that do not sell food for immediate and urgent needs. Similarly, he thinks it would be wrong “to recognize the Tel Aviv Municipality’s claim that a “need” that can be recognized in order to justify undermining the purposes of the Sabbath is essentially just a need to satisfy the “will” of the residents, based merely on their preferring the convenience of a particular arrangement – and no more than that” (ibid, para. 51).  That is particularly true because, in his opinion, the will of the residents and the “habit” for which they are asking to open businesses “is the result of violations of the law and years in which it was not enforced” (ibid).

23. The Minister of Interior also stated that the arrangement that the municipality adopted risks becoming a model for other towns in Israel, and therefore Amendment No. 2 would trigger changes in the character of the Sabbath throughout Israel:

“Under these circumstances, the dam would burst and [the] opening of businesses on the Sabbath would risk turning into a breached vision throughout the country […]. Therefore, in essence, it is not a single by-law that hangs in the balance but rather the appearance of the Sabbath and its character, as a national, general matter, hang in the balance” (ibid, para. 58).

For that reason, he believes, “in the broad perspective granted the central government” (ibid, para. 57) emphasis eliminated – M.N.)) invalidating Amendment No. 2 is justified.

24. According to the State, although the Minister of Interior’s position “arouses significant legal difficulties,” it “does not reach the level of extreme unreasonableness.” I cannot accept that argument. The Minister of Interior’s position did not appropriately consider the uniquely autonomous status of the Municipality, and therefore is not reasonable. I will explain. Local autonomy, meaning “the direct connection of the local authority to the law, unmediated by other governmental authorities” (HCJ 3791/93 Mishlev v. Minister of Interior, 47(4) PD 126, 132 (1993) (hereinafter: the Mishlev case) is “the basic principle of local administration” (Itzhak Zamir, Hasamchut Haminhalit [Administrative Authority], Vol. 1 453 (2nd ed. 2010) (hereinafter: Zamir) (emphasis added – M.N.)).
25. If that is so, in exercising his authority under Article 258, the Minister of Interior should accord significant weight to local autonomy, as “those wielding authority from the central government should be guided by the need to act with respect toward the elected officials of the local authority – toward them and those who elected them – and to remember that the days of coercive paternalism have passed” (Mishlev case, p.131; See also: Zamir, pps. 451-453, 477;  FH HCJ 3201/96 Agriculture Minister v. Lod Valley Regional Council, 61(3) PD 661, 663 (1997); HCJ 2838/95 Greenberg v. Katzrin Local Council, 53(1) PD 1, 10-15 (1997); FH HCJ 1913/13 Muasi v. Minister of Interior, 52(2) PD 49, 66 (1998); HCJ 10104/04 Peace Now v. Supervisor of Jewish Towns in Judea and Samaria, 61(2) PD 193, 168 (2006); See also and compare: HCJ 4381/97 Meizlik v. Petah Tikva Local Planning and Zoning Council [unpublished], para. 57 of Justice E. Rubinstein’s judgment (December 29, 2009)). As was noted in a case similar to ours:

“With regard to the degree of intervention of the central government in the enactment of the bylaws, the Attorney-General’s position was that the power to disqualify bylaws that do not deal with issues that affect the central government or that extend beyond the boundaries of that local authority should be exercised in moderation. As a rule, the Minister of the Interior should not replace the discretion of the local authority with his discretion where the authority acted within its power and in a reasonable manner. The Minister of the Interior has no technical ability to consider in depth the considerations that guided the local authority and the factual basis that was used to enact the bylaw, nor is it right that he should do so” (HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 606 (2004) (hereinafter: Solodkin case).

26. The Minister of Interior’s position in this case did not really take into consideration the autonomy of the Municipality. Indeed, the Minister of Interior clarified that he does not think the will of the city’s residents is adequate to justify any harm to the purposes of the Sabbath and to permit businesses to open. The Minister of Interior focused on the character of the Sabbath at the national level, without giving expression to the local character and the circumstances of Tel Aviv-Jaffa. His explanation was that if Amendment No. 2 were to be approved, “the dam would burst” and the arrangement that the Municipality adopted would become a model for other towns in Israel. I cannot accept this explanation. Legal standards should not be changed on basis of mere assumptions regarding potential consequences that the future may hold. Indeed, “Thus, while it may very well be that the slippery slope is indeed quite perilous, the slippery slope argument is by far more dangerous” HCJ 5016/96 Horev v. Transportation Minister, 51(4) PD 1, 74 (1997)). The infringement on the municipality’s autonomy is particularly problematic in this case, because local authorities in Israel were explicitly authorized to legislate by-laws that govern the opening of businesses on the Sabbath (See: Law to Amend the Municipalities Ordinance (No. 40), 5751-1990 (hereinafter: the Authorizing Law). One of the purposes at the foundation of the Authorizing Law is specifically that these issues should be regulated at the municipal, local level, and not at the national level.
27. This purpose is well-grounded in precedent. I noted as much in the Bremer case:

“If the nature of the city of Tel Aviv-Jaffa requires, in the opinion of its leaders who represent the population, not to close businesses such as those of the Respondents, on the Sabbath, the By-Law can be changed through the manner prescribed in the law […] The Attorney General stated that the Municipality is authorized to strike a balance "between the interest of preserving the nature of the Sabbath as a day of rest […] and making certain economic activity possible". However, in my opinion, the appropriate place for striking such a balance is in a Municipality decision whether to promulgate a by-law regarding the activity of businesses on the Sabbath and formulating the arrangements prescribed” (ibid, para. 52 of my opinion).

And in another case, President M. Shamgar ruled:

“Pursuant to the amendment to the Authorizing Law, which added paragraph (21) […] reasons related to religious tradition were authorized as relevant in enacting by-laws under paragraph 20 […]. Article 249(20) [of the Ordinance-M.N.] does not set mandatory guidance for the local authority but rather merely grants it power. That is understood, because we are talking about an authorizing provision whose application and method of implementation remain in the hands of the local authority” (HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993) (hereinafter: the Israel Theaters Case).

This court noted even before the Authorizing Law was enacted:

“This issue of opening and closing shops is inappropriate for national legislation. It should be regulated specifically at the local legislative level, because it is an issue which requires taking into consideration the make-up of the population of each place, its habits and ways of life and the character of that place” (Crim App 858/79 Lapid v. State of Israel, 34(3) PD 386, 391 (1980)).

Regarding another authorizing law, which addresses the sale of pork on the territory of a local authority, it has been established that:

“The purpose was therefore that the balance between the conflicting purposes — the considerations concerning the protection of religious and national sensibilities, on the one hand, and the consideration of individual liberty, on the other — would not be made on a national level, according to a principled balancing that the legislator determined. Instead, the purpose was to make a balancing at a local level. In this local balancing, the character of the authority and the changing particulars of each local authority would be taken into account. (Solodkin case, p. 610; See also: HCJ 163/57 Lubin v. Tel Aviv-Jaffa Municipality, 12 PD 1041, 1076 (1958)).

28. We should not mix things up. The authority to make the value judgment within the framework of the by-laws belongs to the Municipality, not to the Minister of Interior.  The Minister of Interior does not evaluate whether the decision is optimal, in his opinion, but rather whether it is within the zone of reasonableness. In that sense, in my opinion, the broad perspective given to the Minister of Interior was intended, for example, to ensure that the by-law that a particular local authority enacted does not create a negative externality for other local authorities (take for example a local authority that decides to bury its garbage on the outskirts of its borders, next to another city). Indeed, leaving the judgment in the hands of the municipality was intended to realize the principle of municipal autonomy. Beyond that, however, it was also intended to realize a central aspect of the Authorizing Law, namely tipping the scales in favor of local considerations, and no one is in a better position than the municipality to evaluate them. A decision by the Minister of Interior is intended to oversee the lawfulness of a decision by the Municipality, not to replace its discretion.
29.  Furthermore, the Minister of Interior’s position contradicts an additional central purpose at the foundation of the Authorizing Law – the balancing purpose. This purpose affects the scope of the Minister of Interior’s discretion pursuant to Article 258 of the Ordinance (See and compare: the Solodkin case, p. 621). The Minister of Interior’s position is sweeping in character, and it would prohibit opening any grocery store at all – and indeed any commercial establishment, except for a critical need – without reference to a city’s circumstances or the will of its residents. We might wonder: If the solution is so simple, why did I take more than two whole years to reach it? I will dare to say that the HCJ [High Court of Justice-trans.] is again being called upon to do the dirty work. After the HCJ does that dirty work, one can say, “It wasn’t me (the Minister) – it was the HCJ.”
30. In any event, the Minister of Interior’s position is inconsistent with the Authorizing Law, which relies entirely on a purpose of compromise and balancing (see: the Israel Theaters case, p. 207; the Bremer case, para. 52 of my opinion; See also and compare: the Solodkin case, p. 622). It is a balance between the conflicting rights within the circumstances of the particular case: the balance between freedom of religion, on the one hand, and freedom from religion, on the other; the balance between equality on the one hand, and freedom of occupation on the other. In my opinion, considering this purpose of the Authorizing Law, a sweeping position that lacks a balance reflecting the character of a city, the uniqueness of the different areas within it and the distances between them – is unreasonable.
31. I have thus reached the conclusion that, even if the Minister of Interior’s position had been submitted on time and considered on its merits, there would be no cause to deviate from what was decided in the verdict which is the subject of the further hearing determined regarding Amendment No. 2. Amendment No. 2, therefore, remains valid. The question remains whether Amendment No. 2, like Amendment No. 1, meet the standards of administrative law. I will now address that question.

The Amendments’ Compatibility with the Standards of Administrative Law

 

The Parties’ Arguments on the Amendments’ Compatibility with the Standards of Administrative Law

32. The merchants raised many arguments against the compatibility of the amendments with the standards of administrative law. Regarding authority, the merchants argued that the amendments constitute a primary arrangement that the Municipality is not authorized to regulate. That is especially the case, they argue, because the Authorizing Law only authorizes the Municipality to order the closing of places of entertainment and not the opening of businesses. The merchants also argued that the amendments contradict the Hours of Work and Rest Law, 5711-1951, which, they say, proscribes the opening of businesses on the Sabbath. Their claim is that the Hours of Work and Rest Law is on a higher normative plane, and therefore such contradiction negates the amendments. However, after we held oral hearings, and upon hearing our comments, the merchants withdrew that claim (see: Motion of August 31, 2017). Regarding discretion, the position of the merchants was that the amendments are unreasonable, because they contradict the status quo that reflects a decisive rejection of commerce on the Sabbath, in contrast to the activity of places of entertainment. The merchants also claimed that the amendments are unreasonable, both due to their broad implications – which, they argue, threaten to strip the laws regarding rest of their power – and also because they infringe on equality and encourage criminal activity.
33. Gindi also argued that the amendments are unreasonable, emphasizing claims it made in the proceeding that is the subject of the further hearing. It believes that the Municipality should be ordered to add the site, “Sarona Market”, which it owns, to the list of commercial sites where Amendment No. 1 permits businesses to open on the Sabbath. That is primarily because the decision not to include the site on the list was based on extraneous considerations, as the Municipality partially or completely owns the three sites which it permitted to open on the Sabbath.
34. The state and the Municipality argue that there is no cause to intervene in the court’s holding in the verdict that is the subject of the further hearing, namely that the amendments were enacted pursuant to lawful authority and that they do not deviate from the zone of reasonableness. The state also claims that there is no contradiction between enacting the amendments, which was done pursuant to the Authorizing Law, and the Hours of Work and Rest Law, because these legal provisions address different issues. This approach, the state argued, is consistent with this court’s jurisprudence and with interpretive considerations.
35. The Minister of Interior’s position, which was separately attached to the state’s argument summary (see: my decision of July 31, 2017), was different. Like the merchants, he believes that Article 9A of the Hours of Work and Rest Law proscribes the very opening of commercial businesses on the Sabbath. Therefore, he argues, the Authorizing Law cannot supersede this provision, and it does not authorize the Municipality to permit opening businesses on the Sabbath.

 

The Issue of Authority – Discussion and Ruling

 

36. The merchants’ arguments regarding the Municipality’s lack of authority to enact the amendments are not new. These claims were raised and rejected in the verdict that is the subject of the further hearing. I see no reason to deviate from that ruling. First, the merchants argued that the Authorizing Law does not authorize the Municipality to permit opening businesses on the Sabbath, because it only addresses the closure of places of entertainment. That claim must be rejected.
37. The Authorizing Law came about due to the doubt that arose regarding the authority of local authorities to enact, in their by-laws, provisions that, for religious reasons, proscribe opening places of entertainment on the Sabbath (see: Crim Case (Jerusalem Magistrate) 3471/87 State of Israel v. Kaplan [unpublished] 5748(2) PM 26 (1987) (hereinafter: the Kaplan case). Indeed, the Authorizing Law was intended to remove that doubt and to guarantee the continued validity of the existing by-laws. However, its purpose, as defined, was “to grant local authorities the authority to regulate the prohibition on opening businesses on days of rest,” including for reasons related to religious tradition (Explanatory Notes of the Local Authorities Bill (Prohibition on Opening and Closing Businesses on Days of Rest), 5748-1988, H.K. 134 (emphasis added – M.N.); See also the Israel Theaters case, p. 2017; the Bremer case, paras. 27-28 of my opinion). In any event, the text of the Authorizing Law is clear.
38. The Authorizing Law explicitly authorizes the local authorities in Israel to enact provisions in their by-laws that address opening businesses in their domains on the Sabbath. The Authorizing Law added, inter alia, Article 249(21) to the Ordinance, which says that:

 

A municipality may use its authority pursuant to paragraph (2) within its jurisdiction or in part of its jurisdiction regarding days of rest, taking into consideration reasons of religious tradition and regarding the day of Tisha Ba’av […];

The above-reference article explicitly refers to Article 249(21), which addresses “the opening and closing of shops”:

 

•  

and Closingrestaurants, coffee shops, tea houses, drinking establishments,

•  

 

I cannot accept the argument that a law that authorized, inter alia, “regulating the opening […] of shops and factories […]” was intended to apply only to places of entertainment or only to regulating the closure of businesses. That argument is incompatible with the clear text of the law (for more on the municipality’s authority to permit opening businesses on the Sabbath see: the Bremer case, para. 52 of my opinion). 

39. The merchants and the Minister of Interior raised an additional argument on the issue of authority, namely that there is a contradiction between the amendments and the Hours of Work and Rest Law. According to that argument, the Hours of Work and Rest Law prohibits opening businesses on the Sabbath, and therefore the By-Law cannot permit them to open. That argument should also be rejected. Indeed, as the state noted, we are dealing with two sets of laws that operate on different planes and do not contradict each other. To the contrary: they complement each other. Business owners whose activity on the Sabbath has been approved within the framework of the amendments are still subject to the provisions of the Hours of Work and Rest Law, and obviously they must abide by them. I do not accept the merchants’ position that the Hours of Work and Rest Law contains a sweeping prohibition against opening businesses on the Sabbath. In my opinion, an interpretation of that kind is inconsistent with the text and purpose of the law.
40. Indeed, during the oral hearing, the merchants argued that the procedure before us is inappropriate for ruling on the interpretation of Article 9A of the Hours of Work and Rest Law. In addition, a week after the hearing (on August 13, 2017), the merchants filed a motion to supplement their arguments on that issue. In our decision of August 14, 2017, we denied that motion. Despite their motion being denied, on August 31, 2017, the merchants submitted a long line of documents on the subject, attached to an “urgent update and motion” from them. In that framework, they moved for the court “to refrain from addressing the question of the meaning of the prohibition set in Article 9A of the law” and stated that they wanted to relinquish their argument about the contradiction between the amendments and the Hours of Work and Rest Law. That motion was also denied (see our decision of August 31, 2017). We must therefore rule on the issue of the correct interpretation of Article 9A of the Hours of Work and Rest Law. That is especially true, given Deputy President (ret.) E. Rubinstein’s ruling that “the further hearing will apply to the entire verdict” (para. 12 of his decision of July 12, 2017), and given that the above-stated issue was placed at our doorstep by the merchants in the framework of the procedure that is the subject of the further hearing, and in any event was raised by the Minister of Interior in the summary of argument submitted on his behalf.
41. The Hours of Work and Rest Law prohibits employment and work on the weekly day of rest. It says:

Prohibition 9. An employee shall not be employed during his weekly rest, unless

Of Employment such employment has been permitted under section 12.

During Weekly

•  

 

• On the prescribed days of rest […] the owner of a workshop of

Of Work [sic] industrial factory shall not work in his workshop or industrial

During Weekly factory, and the owners [sic] of a shop shall not do business in his

Restshop.

(b) On the aforesaid days of rest, a member of a cooperative society

shall not work in a workshop or industrial undertaking of the society; a

member of an agricultural cooperative society shall not work in a

workshop or industrial undertaking of the society unless the work is

connected with the services necessary for its farm […]

 

Permission 12. (a) The Minister of Labor and Social Affairs may permit an

For employee to be employed during all or any of the hours of weekly

Employment rest, if he is satisfied that interruption of work for all or part of the

On Weeklyweekly rest is likely to prejudice the defense of the State or the

Restsecurity of persons or property or seriously to prejudice the economy, or a process of work or the supply of services which, in the opinion of the Minister of Labor and Social Affairs, are essential to the public or part thereof.

 

 

42. My opinion is that the Hours of Work and Rest Law does not address the question of opening or closing businesses on the day of rest, but rather with the personnel question of work on the day of rest.  I draw that conclusion from the text of the clauses and their captions, which use the words “employment” or “work” (see: Aharon Barak, Parshanut Tachlitit Bamishpat [Purposive Interpretation in Law], 401-402 (2003) (hereinafter: Barak)). Similarly, from reading the explanatory notes for Amendment No. 1 of the law it is clear that Article 9A, which was added at the same time, was not intended to serve as a provision that requires closing businesses, but rather was intended to expand the application of the prohibition of employment (see: ibid, p. 407). According to the explanatory notes of the amendment:

 

“The Hours of Work and Rest Law, 5711-1951 currently applies to salaried employees only. The suggested amendment would also subject factory owners, members of a cooperative society and shop owners to the provisions regarding days of rest, with some caveats” (Explanatory Notes of the proposed Hours of Work and Rest Law (Amendment), 5727-1966 (1966, H.H. 136).

 

This approach is supported by the fact that we are dealing with a law that infringes on the constitutional right to freedom of occupation (see: HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38, 51 (2005) (hereinafter: the Design 22 case)) and that carries criminal sanctions (see: art. 26 of the Hours of Work and Rest Law). These reasons also lead to the conclusion that the appropriate interpretation is a narrow interpretation (see: Barak, p. 425).

43. My conclusion that the Hours of Work and Rest Law does not create a sweeping prohibition on opening businesses on the Sabbath is also compatible with precedent regarding the Hours of Work and Rest Law, which held that it does not contain “a general provision about closing places on days of rest” (the Israel Theaters case, p. 206 (emphasis added – M.N.); See also: the Design 22 case, p. 63). In any event, let it be clear that the amendments were enacted pursuant to the Authorizing Law, and it is what authorizes the Municipality to permit businesses to open on the day of rest (see para. 39 above). If that is so, even if a contradiction were to exist, it would be a contradiction between the Authorizing Law and the Hours of Work and Rest Law, meaning between norms that are on the same plane. Under the non-interpretive standards we use (see: Barak, p. 117), the Authorizing Law would prevail as a law enacted subsequent to the Hours of Work and Rest Law (lex posterior derogate priori), and in any event it is a more specific law that grants power to the local authorities in Israel in a targeted way, in contrast to the generality of the Hours of Work and Rest Law (lex specialis derogate generali).
44. In passing, I note that on the issue of the interpretation of the Hours of Work and Rest Law, as well as on additional issues that arose, we were presented with the position of Minister of Interior Deri that was, as noted, different from the state’s position. In the oral hearing before us, and in their response of August 20, 2017, the merchants argued that we should have allowed the Minister of Interior to present his position separately from the state. I reject that argument. According to the case law, “the position of the authorities (as opposed to the personal opinion of those holding office within them) on questions of law is determined, as an institutional matter, by the Attorney General” (HCJ 320/96 Garman v. Herzliya City Council, 52(2) 222, 239 (1998); See also: HCJ 4247/97 Meretz Party in Jerusalem City Council v. Minister of Religious Affairs, 52(5) PD 241, 277 (1998); HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel, 47(5) PD 404, 425 (1993); But compare: HCJ 6494/14 Gini v. Chief Rabbinate [unpublished], paras. 21-26 of the opinion of my colleague, Justice N. Sohlberg (June 6, 2016); But see also: ibid, paragraph D of the opinion of Deputy President E. Rubinstein; and also HCJ 6017/10 Israel Union for Environmental Defense v. Minister of National Infrastructure [unpublished], paragraph G of the opinion of Justice E. Rubinstein (July 3, 2012).

Indeed, the personal position of Minister of Interior Deri was different from the state’s position. The Attorney General agreed to bring it to our attention. In doing so, he acted within the scope of his authority. But that is not the position of the state, which is the litigant before us. The state’s position – as was presented before us and as should be presented before us – is the one that is decided by the Attorney General (See: HCJ 4267/93 Amitai – Citizens for Good Governance and Integrity v. Prime Minister of Israel, 47(5) PD 441, 473 (1993); See and compare also: Solodkin case, p. 607).

45. I have therefore reached the conclusion that the Municipality did not exceed its authority when it enacted the amendments. However, as is known, authority is different from discretion. A number of arguments were raised regarding discretion. I will now evaluate them.

 

Issue of Discretion – Discussion and Ruling

46. In the verdict that is the subject of the further hearing, it was held that the amendments are within the zone of proportionality within which the Municipality must operate. I do not see a cause for deviating from that holding, either. First, regarding Gindi’s claims that extraneous considerations influenced the decision not to include the site it owns on the list of sites in Amendment No. 1, because Gindi is a respondent, I doubt that it is possible to grant its motion for a remedy. In any event, in my opinion, the relevant considerations that the Municipality raised, the most important of which is the proximity to residential areas, suffice to preclude intervention in the By-Law based on Gindi’s arguments. Additionally, the merchants also raised a long line of arguments which, in their opinion, show that the amendments are not reasonable and not proportional.
47. These arguments were presented by the merchants in the proceeding that is the subject of the further hearing. Inter alia, they repeatedly referred to documents they submitted in the procedure that is the subject of the further hearing, which included various statements that the mayor made on various occasions. I do not think that the procedure of a further hearing is the appropriate framework for reconsidering facts and arguments that were already presented and decided upon (See: FH 6/58 Mann v. Ayun, 12 PD 109, 112 (1958); FH Crim 5567/00 Deri v. State of Israel, 54(3) PD 601, 613 (2000); FH Crim 2334/09 Perry v. State of Israel [unpublished], para. 34 of the opinion of Justice A. Procaccia (ret.) (May 23, 2011)). A further hearing is not intended to facilitate arguments against the result of a particular proceeding by re-arguing the case before an expanded panel that exercises judicial review of the verdict. Instead, it focuses on the legal aspect. The procedure of a further hearing revolves around the legal precedent that was set in the verdict (See: FH 3379/91 Caspi v. State of Israel [unpublished] (August 15, 1991); FH Civ 1075/15 Blum v. Anglo Saxon – Asset Agency (Israel-1992) Ltd. [unpublished], para. 18 of my opinion (March 8, 2015)).
48. At the legal level, my opinion is that the amendments are within the zone of discretion that the Authorizing Law granted to the Municipality. The merchants painted a gloomy picture of the amendments wreaking serious harm to their rights to equality and freedom of religion. It is true that the amendments violate the merchants’ rights and also the rights of others, a violation which, in my opinion, is beyond de minimus. In this context, the violation stems from both the opening of commercial establishments on the Sabbath as well as opening places of entertainment, and it also affects the social purpose and the national purpose at the heart of the designation of the Sabbath as a day of rest. In no way do I minimize this violation. However, the review does not end once a rights violation has been found. On the other side are the other rights that the amendments protect, including freedom of occupation and freedom of conscience. The heart of the review is the balance between the conflicting rights. The balance does not favor one worldview over another. It does not detract, not even a whit, from the status and importance of the Sabbath as national property of the Jewish people and as one of the values of the State of Israel as a Jewish and democratic state, as Ahad Ha’am said: “More than the Jewish people kept the Sabbath, the Sabbath kept them.” However, balance means letting a thousand flowers bloom. It means that, in addition to protecting the unique character of the Sabbath, we should also allow each individual to design his Sabbath as he wishes and according to his beliefs and to fill it with content as he sees fit. To borrow the words of Zelda, “To light candles in all the worlds – that is the Sabbath” (Zelda, “Sabbath and Weekday”). There is a reason the legislator saw fit to task the local authority with conducting this balance: so that the balance point it chooses will reflect the unique character of each city, the extent of communal life within it and the potential practical solutions that characterize its circumstances. Indeed, when the Sabbath begins, the city is draped in celebration, but the garment draping one city is different from the garment draping another.
49. The balancing with which the local authority is tasked is not simple, but it is crucial for maintaining communal life in a diverse society like ours. Communal life is not “all or nothing” but rather is based on tolerance for a divergent opinion, mutual respect and mutual compromise. Communal life is not “black and white” but rather a spectrum. It is responsive to the recognition that human beings are free creatures who design their life narratives, but also to the recognition that they do so within the framework of society and not on a desert island. It is based on the understand that each of us bears responsibility for society as a whole, but that does not mean giving up on fundamental components of our identity or the uniqueness of each of us. It is not a perspective of “I won’t sign on to desecrating the Sabbath” but rather recognition of the indispensability of the perspective, “Live and let live”.
50. In the case before us, a review of the amendments, in my opinion, points to the fact that they were enacted in order to achieve this balance. The amendments were designed to reflect a unique balance point that is appropriate for the city of Tel Aviv, taking into consideration the status of the Sabbath, the composition of the population in each neighborhood, its way of life and the nature of the city. Amendment No. 1 permits opening businesses in a very limited number of clearly delimited commercial sites that are disconnected from residential areas. Amendment No. 2 permits opening a limited number of grocery stores according to geographic location, in a way that considers the character of each area. The opening is subject to various restrictions, first and foremost the need to obtain a permit. Ultimately, in our case, we are talking about opening a limited number of businesses that constitute a tiny fraction of the number of businesses operating in the city during the week, and that also influences the proportionality of the measure. The balancing point chosen facilitates observing the unique character of the Sabbath and does not significantly change the look of the city, considering the existing normative situation. I am not saying this framework is optimal. There may be other frameworks that are also within the zone of proportionality. I am not even saying that this framework should or could be adopted in other cities. My ruling can be summarized as follows: the proposed amendments are within the zone of proportionality within which the Municipality operates, and there is no place to intervene in them.

 

Conclusion

51. Therefore, if my opinion prevails, the motion for a further hearing is denied. Beyond what the law requires, and despite what is written in paragraph 41 [para. 40-trans.], no court costs will be imposed.

 

After These Words

52. After writing these words, I read the opinions of my colleagues, Justices N. Hendel and N. Sohlberg. My position has not changed, but I feel I must add the following brief words:
53. My colleague, Justice Sohlberg, commented that I favored “reasonableness above authority”, because, in his opinion, I focused on the question of the reasonableness of the Minister of Interior’s position and not on the question of the Municipality’s authority to enact the amendments to the By-Law (see para. 1 of his opinion). Indeed, as I noted, “authority is different from discretion (above, para. 46 [para. 45- trans.]) – but these are two stages of the review of the same administrative decision. In our case, as noted, the Minister of Interior’s position was that Amendment No. 2 should be invalidated. What needed to be reviewed was his authority to do so (and there was no dispute that the authority exists pursuant to Article 258 of the Ordinance, and therefore there was no reason to expand on that). At the second stage, the reasonableness of his exercise of discretion must be evaluated. A similar evaluation is required for the passage of the amendments by the Municipality: First, we must ask if the enactment of the amendments was done with the proper authority (see paras. 37-43 above [paras. 36-42-trans.]) and then the question arises whether there were flaws in the exercise of judgment (see paras. 47-51 above [paras. 46-50-trans.]). After that evaluation was completed, my conclusion regarding the authority of the Municipality to enact the amendments was different from that of my colleague Justice Sohlberg.
54. This is not the place to restate all the reasons that formed the basis of my ruling (see paras. 37-39 above [paras. 36-38-trans.] regarding the Authorizing Law and paras. 40-44 [paras. 39-43-trans.] regarding the Hours of Work and Rest Law), but I will note that, in my opinion, the Authorizing Law specifically granted the local authorities in Israel the authority to regulate the opening and closing of businesses in their jurisdictions on the Sabbath, using by-laws. That is clear from the text of the law as well as from its legislative history (see: KP 12(3) 1192-1193 (5751) (U. Lynn (Chair of the Constitution, Law and Justice Committee)), and compare the wording of the bill in its first reading with the wording in the second and third readings). I think there is no dispute between me and my colleagues, Justice Hendel and Justice Sohlberg, about that.  However, our opinions diverge regarding the Hours of Work and Rest Law. In my opinion, as noted, it does not articulate a sweeping prohibition on all business activity on the Sabbath, and they disagree with that. I think the position of my colleagues does not reflect the full range of relevant sources regarding the purpose of the legislation (as noted, I will not repeat my explanation, but see paras. 41-43 above [paras. 40-42-trans.], and see also the comprehensive and clear opinion of my colleague, D. Barak-Erez at paras. 4-25), and especially the way the law was understood and implemented in the nearly half century that has passed since it was enacted, both by this court (see: the Israel Theaters case, p. 206; the Design 22 case, pps. 44, 46, 63), as well as by the administrative authority in charge of implementing it. In its argument summary, the state clarified that “the interpretation that has been determined, that Article 9A applies only to the personnel aspect of work during days of rest, is compatible with long-standing enforcement policy and the interpretation according to which the Ministry of Labor (in its various forms) operates” (ibid, para. 17).
55. In my opinion, there is no contradiction between the Authorizing Law and the Hours of Work and Rest Law. Regarding this determination of mine, my colleague Justice Sohlberg wondered, “What is the point of the Authorizing Law?” (para. 16 of his opinion), noting that if the Hours of Work and Rest Law does not include a sweeping prohibition on opening businesses on the Sabbath, then the point of departure is that their opening is permitted. However, that, in my understanding, is exactly the justification at the heart of the Authorizing Law. It is a basic principle that one does not prevent a citizen from making a living “and one doesn’t get involved in this life in a purely administrative way” (HCJ 144/50 Shaiv v. Minister of Defense, 5 PD 399, 407 (1951)). It is true that the administrative agency has no authority other than that which the law grants it: “If an agency professes to deviate from the domain delimited, it leaves the domain recognized by law, and in that sense, its actions are null and void” (Baruch Bracha, Mishpat Minhali [Administrative Law], Vol. I 35 (1987); See als: Zamir, p. 73; Dafna Barak-Erez, Mishpat Minhali [Administrative Law], Vol. I 97 (2010) (hereinafter: Barak-Erez). As I noted, the Authorizing Law was enacted because of the doubt that arose regarding the authority of local authorities to enact provisions in their by-laws regarding prohibitions on opening businesses on the Sabbath (see para. 38 above [para. 37-trans.]; see and compare a similar authorizing law addressing the sale of pork; Solodkin case, pp. 602, 607-608). The Authorizing Law was enacted and granted the Municipality the authority “to regulate the opening and closing of shops, and workshops […]” on “days of rest, taking into consideration reasons of religious tradition”.   Accordingly, President M. Shamgar ruled in the Israel Theaters case that “Article 249(20) does not set mandatory guidance for the local authority but rather merely grants it power. That is understood, because we are talking about an authorizing provision whose application and method of implementation remain in the hands of the local authority” (ibid, p. 207); In accordance with that, I ruled at the time, in the Bremer case, that if the municipality believes that the character of a city justifies permitting certain businesses to be open on the Sabbath, it should amend the by-law (See: ibid, para. 52), and as a result the Municipality enacted the amendments that are the subject of our case. That was also my position in the verdict that is the subject of the further hearing, and that is my position now.
56. For that reason, I cannot agree with the approach of my colleague, Justice Sohlberg, which declines to view the Authorizing Law as a law enacted subsequent to the Hours of Work and Rest Law. It is well-known that laws are not enacted for the sake of enacting them. The legal situation that existed prior to the passage of the Authorizing Law is different than the legal situation now. The Authorizing Law changed the face of the Municipalities Ordinance, which predates the Hours of Work and Rest Law. Article 249(20) of the Ordinance, which also predates the Authorizing Law, but within whose framework the case law had barred taking religious tradition into consideration, changed its form, and thanks to Article 249(21) it took on a new form. Therefore, as I noted (see para. 43 above [para. 42-trans.]), even if there were a contradiction between the Authorizing Law and the Hours of Work and Rest Law, then under the non-interpretive standards we use, the Authorizing Law prevails as a later law. That is because it was enacted in 1990, while Article 9A was added to the Hours of Work and Rest Law in 1969.
57. As to the comment of my colleague Justice Sohlberg about the need “to limit the wingspan” of the reasonableness rationale (see paras. 35-36 of his opinion), I emphasize that my opinion differs from his. In this court’s jurisprudence going back nearly four decades, the reasonableness rationale is as an essential tool in reviewing the decision of an administrative agency (See: HCJ 389/80 Dapei Zahav Ltd. v. Broadcasting Agency, 35(1) PD 421, 435-449 (1980); See also Barak-Erez, Volume II, pps. 723-769 and especially p. 733). In my opinion, there is no flaw in the reasonableness rationale just because it is an abstract norm or an open-ended term. On the contrary: “that fact allows reasonableness to be a ‘bridge through which the law can provide modern solutions to new social problems’” (HCJ 3997/14 Movement for Quality Government in Israel v. Foreign Affairs Minister [unpublished], para. 2 of my opinion (February 12, 2105); For more on the importance of the reasonableness rationale in administrative law, see, e.g.: ibid, paras. C-D of Deputy President E. Rubinstein’s opinion, and paras. 3-6 of the opinion of my colleague, Justice E. Hayut; see also HCJ 5853/07 Emunah National Religious Women’s Movement v. Prime Minister, 62(3) PD 445, 486-489; 510-512 (2007), to which my colleague Justice Sohlberg referred (in that case, Justice A. Grunis’s position regarding the reasonableness rational, on which my colleague relied, remained a minority opinion, and Justices A. Procaccia and E. Arbel addressed the status and importance of the reasonableness rationale)). The sting of its vagueness is dulled following years in which case after case in Israeli common law shaped it, something that provides us a comprehensive body of rules to govern its implementation.
58. My position, as stated, has not changed, and it is that the Municipality is authorized to enact provisions in its by-laws concerning the regulation of business activity on the Sabbath. Exercising this authority must withstand the standards accepted in our administrative law, and specifically it must be proportional. I also held (see paras. 49-51 above paras. 48-50-trans]) that the amendments in our case are within the zone of proportionality accorded to the Municipality, and therefore there is no room to intervene in them. This determination does not mean that there are no other frameworks for regulating business activity on the Sabbath that would also be within the zone of proportionality. If, for example, the municipality wanted to distinguish between places of entertainment and business establishments within the By-Law and to permit opening the former only – even though that distinction has no grounding in the legislation – and some petitioner challenged a hypothetical by-law such as this, I also would think there is no room for intervention. The very exercise of the authority granted it, as well as its method of exercising it within the zone of proportionality, are up to the Municipality.
59. In the Bremer  case, there was no doubt that the by-law did not permit opening businesses on the Sabbath. I thus ruled in that case that the Municipality should work to ensure that businesses are closed on the Sabbath, and if the character of the city justifies, in its opinion, permitting certain businesses to be open on the Sabbath, the Municipality should change the by-law. That was – as I noted (see above, para. 49 [para. 48-trans.]) – not to make a value judgement regarding the desired character of the Sabbath, but rather as an expression of the view that laws, including the By-Law, should be followed. Those words also apply to the case at hand. My ruling does not seek to express a “secular” or “religious” view. My verdict reflects what, in my mind, is the correct interpretation of the law, as I explained at length.

 

The President

Justice Y. Danziger

With complete concurrence, I join the comprehensive judgment of my colleague the President.

At the heart of the matter – the question of the Sabbath. How it should be treated and how it should be observed. This question is a question of values, and the answer will vary depending on the identity of the respondent. Recognition of that fact of course supports the conclusion that the discretion to determine the appropriate balance concerning the Sabbath should not be exercised generally, “at the national level”, but rather in a more focused and considerate way, for each urban space, keeping in mind the difference and diversity among the populations that comprise the various cities. This approach facilitates optimal expression of the character and uniqueness of the cities and their residents. It facilitates maximal expression of the free wills and autonomies of the residents. The appropriate perspective, as my colleague the President expressed well, is the perspective of “live and let live”. In a society composed of a complex human mosaic, this perspective is necessary and essential. It is the cornerstone of successful communal life. In this sense, as noted, it is hard to give priority to a value judgment at the “national” level, which is inherently more general and less pluralistic, at the expense of a narrower judgement, aimed at the local character only. In addition, it should be noted that the Sabbath is not a singular thing. There is no one correct way to observe it. It can be done this way and that way. In that context, I am concerned that the dichotomous division between one who “observes” the Sabbath and one who “violates” it oversimplifies the reality and its complexity. This is especially so regarding the concern that the Minister of Interior expressed, that the national religious look and character of the Sabbath will be changed in one fell swoop, and in place of the “national agreement” about it, there will be one big confusing mess. As noted, this concern assumes, in theory, that there is one correct “national way” to observe the Sabbath, which is not the case.

 

                                                                                                                                                Justice

 

Justice Y. Amit

1. I concur with the precise and exhaustive judgment of my colleague, the President.

For years, the conduct of the executive branch indicated that, in effect, it had decided not to decide regarding the validity of the amendment to the By-Law. As noted in the President’s judgment, that conduct should be viewed as an unexplained refusal which does not withstand judicial review. I also share the President’s opinion regarding the relevance of the Hours of Work and Rest Law, 5711-1951, because there are different purposes at the foundation of the two laws, and “the division of labor is as follows: the Hours of Work and Rest Law regulates the Jewish worker’s rest on the Sabbath, while the by-laws address the question of opening (or closing) the businesses themselves” (Gidon Sapir, “’Vikaratem Lashabat Oneg?’ Avoda Mis-char Vibilui Bishabat Biyisrael Mekom Hamidinia Viad Hayom [‘And Call the Sabbath a Delight?’ Work, Commerce and Leisure on the Sabbath in Israel from the Founding of the State to the Present]”, 31 Mehkarei Mishpat 169, 182 (2017); hereinafter: Sapir). Similarly, I don’t think there was a flaw in the discretion of the Municipality, which chose to legislate a balanced arrangement within the zone of proportionality.

2. The decision to grant a further hearing was also based on the honored status of the Sabbath “in the world of Judaism”, and, I would add, the honored status of the discussion of the Sabbath’s character in Israeli society. Given the importance of the issue, I will address it briefly.

I completely agree with the President that “The Minister of Interior’s position did not appropriately consider the uniquely autonomous status of the Municipality (para. 27 [para. 26-trans.] of her verdict). Indeed, the present case exemplifies the clash between the central government and the local government. The relationship between these governments is complex, and this is not the place to exhaust the discussion (for an expansion, see: Nehamia Avneri, Mishpat Hamakom: Shilton Atzmi Mekomi Vichakika Mekomit [The Law of the Land: Local Self Rule and Local Legislation], 23-58 (2013) (hereinafter: Avneri); Shalom Zinger, Dinei Shilton Mekomi: Hoveh Viatid [The Law of Local Government: Present and Future], 121-147 (2013) (hereinafter: Zinger); Yisachar Rosen-Zvi, “’Makom Hatsedek’: Mishpat Hashilton Hamekomi Vi-i-Tsedek Chevrati” [’The Place of Justice’: The Law of Local Government and Social Injustice]”, 28 Iyunei Mishpat 417 (5766-5767)). To avoid getting off scot-free, I will add a few words about the status of local government in the context of multi-culturalism, shaping the public sphere and the relationship between religion and state. I will note that I address these issues from a broad perspective and therefore will not address the legal distinctions between a municipality and a local council.

3. There are two discernable principled perspectives regarding the status of the local government, and for our purposes we will make do with the succinct description that Justice Folgelman provided in HCJ 4790/14 Yahadut Hatorah v. Minister of Religious Services [unpublished] (October 19, 2104) (references deleted):

"The administrative perspective views the local government as part of the central government. On this view, the central government is the source of authority for the local government, and the central government has supervisory powers over and the power to intervene in the local government. This position sometimes expresses a paternalistic view of the local government as pertains to its relationship with the central government. It views the local government as one who is dependent on the [national-trans.] government or as an arm of the central government; 'a contractor' that plays a role for another governmental body, subject to its instructions and under its supervision [...] in contrast to this perspective, there is another perspective regarding the local government -- the autonomous perspective. In contrast to its predecessor, this perspective considers the local government to have independence from the central government [...] It is based on the opinion that the local government is a body of independent-democratic rule that represents the interests of the local residents. It views the local government as a tool for realizing communal-cultural values regarding different issues, meaning: an institution whose role is to facilitate members of the community running their ‘internal’ affairs without intrusion from the state, while preserving the ability of the communities to control their public space and to translate the preferences of their members into public policy [...]

Throughout the years, various approaches have been expressed in the case law (in various contexts) regarding the above-mentioned perspectives, to the point where some said that the law of local government 'is swinging like a pendulum' between two opposing perspectives on local government [...]"

 

To continue the image of the pendulum, I note, by the way, that I doubt if the legislative branch and the executive branch invest sufficient efforts to improving the organizational and legal framework within which local government agencies operate. Over the years, commissions have been established, experts have invested time and effort, but a significant portion of the reports on the subject have not been implemented. It is particularly worth nothing the report of the Governmental Commission on Local Government Affairs (Zinbar Commission), which was approved by the government as far back as 1985 but was neglected. In addition, the Municipalities Bill, which was proposed by the government and put before the Knesset for consideration in 2007, was not promoted (for academic writing on the bill, see the publication Chukim, which devoted its first issue to the subject, and also Ron Shapira’s article, “Hirhurim Al Hatzaat Chok Iriot Chadash [Reflections on the New Municipalities Bill]”, 7 Din Vidvarim 677 (2012)).

4. In any event, the Israeli legal system recognizes the autonomy of local governments to act within the framework of their lawful authority. In our case, the authorization is unambiguous: The Law to Amend the Municipalities Ordinance (No. 40), 5751-1990 (known as the Authorizing Law) authorizes the municipality to design the local legal arrangements for opening places of business on the Sabbath. This means that for this sensitive issue, the legislator chose to transfer the authority to the local government, which acts according to its considerations and commensurate with the character of the residents and the place (see paras. 26-29 [25-28-trans.] of the President’s opinion). This starting point is in large part also the ending point that dictates denying the motion. I chose to go beyond that only in order to expand the view-point and to highlight the fact that the Authorizing Law is just one branch of the branches of a broader principle, which is expressed in legislation, case law and the legal literature.
5. Legislation: The most prominent example of the legislator’s consideration of the local character is the Authorizing Law that is the subject of our discussion, but additional laws regarding the relationship between religion and state contain a similar discernable trend. The prohibition on selling pork was left to the discretion of the local authorities (Local Authorities Law (Special Authorization), 5717-1956), as was the opening of places of entertainment on Tisha Ba’av (Law Prohibiting Opening Places of Entertainment on Tisha Ba’av (Special Authorization), 5758-1997). The prohibition on openly displaying leavened products on Passover does not apply in a town where a majority of residents are not Jewish (art. 2 of the Law of the Holiday of Matzot (Prohibitions on Leavened Products), 5747-1986), and the prohibition on raising swine excludes a number of local authorities enumerated in the schedule of the Law Prohibiting Raising Swine, 5722-1962. From an additional perspective, the Law of Jewish Religious Services [Integrated Version], 5731-1971 regulates religious services by establishing local religious councils, and the local authority’s council significantly influences the appointment of the council’s members (art. 2 of the law; See also art. 6A) and also influences the appointment of the municipal rabbi (Amendment 7 of the Jewish Religious Services Regulations (Elections of Municipal Rabbis), 5768-2007).
6. Case Law: The President’s opinion cited judgments that emphasized the important of creating local arrangements regarding opening and closing businesses on the Sabbath, as well as in the context of selling pork and its products, according to the legislation cited above. I can add statements that have a more general hue. Thus, for example, Justice Cheshin emphasized in HCJ 6741/99 Yekutieli v. Minister of Interior, 55(3) PD 673, 705 (2001): “Unlike the state, whose policy is inherently state-wide, a local authority is authorized and required to focus itself – subject to specific exceptions enumerated in law – on its own domain only, and its policy must express local interests of the authority and its residents. A local authority is supposed to take care of its community – not the entire community of the state – and its policy must adapt itself to the community as a whole living within the authority’s domain”.

In another matter, Justice Cheshin directly addressed the provision of religious services by the local authority:

“Even though religion – doctrinally – knows no boundaries of place or time, religious services have a local character and are supposed to adapt themselves to the specific needs of the residents of this or that local authority […] The demands for Jewish religious services, while sharing a common denominator, vary in their points of emphasis from community to community; the demands for religious needs can be heterogeneous and dependent on worldview” (HCJ 4247/97 Meretz Party in Jerusalem City Council v. Minister of Religious Affairs, 52(5) PD 241, 253 (1998)).

Prior to the above words came comments by Justice Alon, who expressed himself in this spirit: “Local authority elections give expression, first and foremost, to the will of the residents of that authority regarding the municipal issues of that place, and the religious services provided by the religious council constitute a substantial part of these municipal needs” (HCJ 121/86 Shas Party v. Minister of Religious Affairs, 40(3) PD 462, 466 (1986).

Justice Dorner’s words in HCJ 2838/95 Greenberg v. Katzrin Local Authority, 53(1) PD 18 (1997) (dissenting opinion regarding the result):

“Referring the handling of local issues to the local authorities is based on the view that it is better for local issues to be regulated according to the conditions of each place and its needs. The appropriate solution for a particular problem in a particular town does not necessary fit another town. The local authority has a relative advantage over the central government in handling local issues. Additionally, for considerations of democracy, local issues should be managed according to the will and aspirations of the residents of the place, and by their elected officials.”

7. The literature and academic writing of legal scholars also include expressions of recognition of the special status of the local authority, and I will cite a few of the sources relevant to our issue.  Professor Itzhak Zamir thought that the special status of the local authority is even expressed in the context of primary arrangements. He said: “It is one thing to grant authority for setting primary arrangements to a local authority, such as a municipality, which is a democratic body directly responsible to the residents. Democracy, even micro-level democracy, deserves sweeping authority to serve the residents according to the policy it set. It is another thing to grant such authority to a minister or another administrative agency” (Itzhak Zamir, “Hasamchut Haminhalit [Administrative Authority]”, 81(a) Mishpat Umimshal 103 (1992); See also Itzhak Zamir, Hasamchut Haminhalit [Administrative Authority], Vol. 1 446-457 (2nd ed. 2010)).

Prof. Menachem Maunter addressed this issue in the framework of a discussion of the State of Israel as a multi-cultural state. According to his approach, the solution for disagreement stemming from different cultural groupings is to implement the principle of decentralization. As he wrote:

“Decentralization needs to be an important principle in the life of a multi-cultural state. The citizens of such as state should get used to the perspective that the state is not supposed to comprehensively realize their normative viewpoints within the context of its uniform arrangements. Instead, citizens of a multi-cultural state should expect to realize their normative viewpoints comprehensively at the sub-state level, namely: at the municipal level, within cultural communities, in associations […] to say it another way, citizens of a multi-cultural state need to get used to the recognition that only some of the normative arrangements that apply to them will be uniform, while others will be differential – they will apply only to some citizens” (Menachem Mautner, Mishpat Vitarbut Biyisrael Bifetach Hameia Hesrim Viachat [Law and Culture in Israel at the Turn of the Twenty-First Century] 322 (2008)).

Mautner went on to specifically address realizing the principle of decentralization as concerns the public character of the Sabbath in Israel. In light of the definition of Israel as a Jewish state, the Sabbath was established as the official day of rest, but regarding the specific content that is to be expressed in the public sphere, Mautner supports a solution that allows different communities to design arrangements that suit the character of the place, so long as they don’t severely infringe on those whose culture and beliefs differ (ibid, pps. 326-327; Compare Sapir’s suggestion on page 223, that primary legislation can regulate the issue at the national level, together with authorizing local authorities to make changes via a special majority; See also the draft Sabbath Law, 5776-2016). It is worth mentioning Mautner’s comment that the response to the disadvantages of the principle of decentralization is developing social solidarity and emphasizing the common good (ibid, p. 331 and thereafter; for more on trends and challenges of decentralization see, Ishai Blank, “Mikomo Shel Ha’mekomi’: Mishpat Hashilton Hamekomi, Bizur Vi-I Shivyon Merchavi Biyisrael [The Place of the ‘Local’: the Law of Local Government, Decentralization and Spatial Inequality in Israel”, 34 Mishpatim 197 (5764-5765); Ishai Blank, “Mamlachtiut Mivuzeret: Shilton Mekomi, Heipardut Vi-i-Shivyon Bichinuch Hatzibori [Decentralized Statehood: Local Government, Secession and Inequality in Public Education]”, 28(2) Iyunei Mishpat 347 (2004); Ishai Blank, “Kihila, Merchav, Subyekt – Tezot Al Mishpat Umerchav Biakvut Sifro Shel Yisachar (Isi) Rosen-Zvi [Community, Space, Subject - Theories on Law and Space Following Yisachar (Isi) Rosen-Zvi’s Book]”, 2 Din Udvarim 19 (5767)).

As part of Prof. Ruth Gavison’s attempts to find a remedy for the perpetual tension in the relationship between religion and state in Israel, she also addressed questions related to the character of public life. Prof. Gavison expressed regret that “these battles are waged using such dogmatic language, and they deteriorate into a threat against the rule of law and the legitimacy of the institutions authorized to make communal decisions in our society. That stems from, inter alia, the breakdown of mechanisms for negotiation and compromise”. She later emphasized that “Some of the coercion stemming from enforcing a particular public character can be minimized using spatial limitations”, and as an example she mentioned activities in the public sphere on the Sabbath (Ruth Gavison, “Medina Yehudit Videmokratit: Etgarim Visikunim [Jewish and Democratic State: Challenges and Risks]”, Rav-Tarbutiut Bimidina Demokratit Viyehudit [Multi-culturalism in a Democratic and Jewish State] 213, 258-259 (eds.: Menachem Mautner, Avi Sagi and Ronen Shamir; 1998)). Indeed, he who ignores the difference between the population of Ramat Gan and the population of Bnei Brak, or between Jerusalem and Tel Aviv, and seeks a uniform, rigid solution, will find himself forcing an inappropriate social arrangement in a broad manner. The differences are not just between cities. Within the same city, there are differences between neighborhoods and between areas, and the local authority is tasked with these distinctions. The variations and differences at the municipal level are not just at the geographical-territorial level but also along the axis of time. What was right for yesterday is not necessary right for today, creating a need to allow the local authority, which has its “finger on the pulse”, the flexibility it needs. We need not go far back to see that “the city of Tel Aviv at that time was a single house on the seashore” but now Tel Aviv is a vibrant and bustling city, a city that never stops, and its character in the 2000’s is not the same as its character decades ago.

8. Following our minor digression, we get back on track and point to the targeted conclusion: Israeli law recognizes the autonomy granted the local government to exercise its lawful authority, commensurate with the nature of its residents and the local character. Indeed, “Regarding the source of authority, according to the principle of administrative rule of law [intra vires-trans.] […] the local authorities are subject to the favor of the governmental branch (legislative or executive) which grants them the power to act. On the other hand, regarding the content of the authority, the various authorizing statutory provisions grant the local authority powers with a generous hand” (Avneri, p. 91; emphasis in original). That is the general principle, and for the specific issues of religion and state it has advantages that cannot be disregarded: creating a public sphere that suits the character of the surroundings and the way of life of the residents of the place, as well as minimizing coercion of different cultural populations. However, it is not a silver bullet, and the principle should be implemented with caution and sensitivity.

Similarly, the autonomy granted the local authority is not, of course, absolute. The various legislative provisions detail the powers of the central governmental agencies to supervise and intervene. Inter alia, legislating by-laws is subject to the authority of the Minister of Interior pursuant to Article 258 of the Municipalities Ordinance [New Version]. In the current case, we need not exhaust the discussion of the boundaries of the local authority’s autonomy or the limits of the power of the Minister of Interior to intervene in the content of a city’s by-law (on this, see para. 26 [para. 25-trans.] of the President’s opinion, and compare: HCJ 58/53 Haviz v. Haifa Municipality, 7 PD 701, 713 (1953); HCJ 6249/96 Association of Contractors and Builders in Israel v. Mayor of Holon, 52(2) PD 43, 47 (1998); HCJ 7186/06 Malinovsky v. Holon Municipality [unpublished], paras. 57-62 (December 29, 2009); HCJ 1756/10 Holon Municipality v. Minister of Interior [unpublished], especially para. 41 (January 2, 2013); Avneri, pps. 78-84; Zinger, p. 211).

In my opinion, to extrapolate, we can say that the scope of the legitimate intervention of the Minister of Interior (or another agency of the central government) is inversely proportional to the scope of the discretion granted the local authority, pursuant to the authorizing law and its purpose (compare: HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 621 (2004)). In our case, the legislator authorized the local authority to act according to its discretion, which requires, as noted, adapting to the character of the residents and the place. The Tel Aviv City Council did the work of designing a measured and balanced arrangement that expresses observance of the character of the Sabbath in the public sphere along with considering the daily needs of a respectable portion of city residents.

In contrast, the Gavison-Medan Contract contained an agreement for a general prohibition on commercial activity on the Sabbath, but suggested allowing limited activity for small grocery shops (Yoav Artsiali, Amanat Gavison-Medan: Ikarim Viekronot [Gavison-Medan Contract: Essences and Principles] 40 (Israel Democracy Institute; 5763)).

Before concluding I note that in light of the special status of the Sabbath in the State of Israel and against the background of the distinction between the local level and the central government, I did not see fit to evaluate what has been done in this area in foreign countries. In that context, I will briefly say that the arrangement that the Municipality of Tel Aviv set is moderate compared with the global trend toward limiting restrictions on commercial activity on days of rest (see Tomer Yahud and Ariel Finkelstein, “Chukei Hamischar Vihavoda Biyom Hamenucha Bimidinot Haolam: Mechkar Hashvaati [Law of Commerce and Labor on the Day of Rest Throughout the World: A Comparative Study]” (Institute for Zionist Strategies; July 2016).

9. Conclusion: Regarding the petition before us, I concur with the President’s opinion.

 

Justice

 

Justice N. Hendel

1. Again, the Sabbath. The queen for whom the State of Israel forces the court to define the boundaries of her kingdom.

The current procedure raises for further hearing the question of the lawfulness of two amendments to the By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5730-1980, K.T. 745, 1448 (hereinafter: the By-Law), which moderate and abridge the scope of the prohibition that the By-Law had imposed in the past on opening businesses on the Sabbath and Jewish holidays. The first one - By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment), 5775-2015, K.T. H.S.M. 358 (hereinafter: the First Amendment) – permits the opening of “convenience shops” in gas stations and other shops – “including any office, commercial establishment, kiosk […] public entertainment, workshop or factory” at three defined sites within the city. Similarly, the First Amendment significantly reduces the restrictions on the format for operating coffee shops, a term that includes also “restaurant, bar, a shop selling ice cream or any other food establishment” and pharmacies throughout the city. An additional element of the amendment – the authority to grant a permit to open grocery stores on the Sabbath and Jewish holidays on certain streets – was invalidated by then-Minister of Interior Gidon Saar. In addition to the argument that it essentially authorized activities of businesses “that for years trampled upon the By-Law with a heavy boot” and was not an arrangement based on relevant criteria, the invalidation was explained by reference to the disproportional infringement that opening the grocery stores via the proposed framework would cause to “the value of the Sabbath as the general day of rest in the State of Israel”.

Following the invalidation of this aspect of the First Amendment, the Tel Aviv-Jaffa City Council approved the second amendment – that is the Tel Aviv-Jaffa By-Law (Opening and Closing Shops) (Amendment), 5777-2017, K.T. H (hereinafter: the Second Amendment). Like its predecessor, this amendment authorized the mayor to grant permits to open grocery stores on the Sabbath and Jewish holidays. However, the framework proposed in the Second Amendment is more detailed, grounded and proportional in a number of ways: first, it limits the size and character of the grocery stores – and clarifies that permits can be issued only to kiosks or businesses used for “selling food and consumer items for personal or household use, that do not include handling the food, including food delivery”, whose size does not exceed 500 square meters. The second amendment limits the number of permits and subjects the authority of the mayor to a maximum “regional quota”. The starting point for calculating that quota is 15% “of the number of units used for transacting in food in that same area during all the days of the week.” In addition, the amendment gives clear priority to opening grocery stores located in central areas that are noisy anyway, while minimizing the infringement on the character of the Sabbath in residential areas, and it outlines clear and egalitarian criteria for allocating permits, in order to avoid rewarding lawbreakers.

The Second Amendment was also brought to the approval of then-Minister of Interior Gidon Saar, who noted its relatively limited nature, compared with its predecessor. However, the minister saw fit to clarify certain aspects of the amendment -- the criteria for granting permits and the scope of discretion allowing the authority in the future to expand the quota for permits. The minister therefore ordered the publication of the Second Amendment in Reshumot to be delayed, pursuant to his authority under art. 258(c) of the Municipalities Ordinance [New Version], and left the final decision on the issue to his successor. However, the successor failed to make a decision, his authority - which at a certain point was transferred to the Israeli government - was later restored to the current Minister of Interior, Aryeh Deri, but still the decision was delayed. With the continued silence of the Minister of Interior and the government as background, the verdict that is the subject of the further hearing was rendered, in which this court (President M. Naor and Justices E. Hayut and D. Barak-Erez) rejected the petitioners' claims in HCJ 6322/14 and HCJ 996/15 [unpublished] (hereinafter: Association of Merchants), accepted the Tel Aviv Municipality's petition (HCJ 4558/15) [unpublished] regarding the Second Amendment, and authorized the two amendments to the By-Law (hereinafter: the verdict). At first, it was held that the failure, over a long period of time, to make a final decision on the fate of the amendment -- deviating from the deadlines set out in the Municipalities Ordinance – was a violation of the general obligation to act with due diligence, and ignoring the agreements reached during the litigation was essentially "an unexplained decision to invalidate Amendment No. 2” (para. 18 [para. 17-trans.] of President M. Naor’s judgment). The burden of proving the lawfulness of the decision therefore passed to the state – which did not meet it and did not present any reason for invalidating the Second Amendment.

Regarding the substantive merits of the Association of Merchants’ arguments, it was held that the Law Amending the Municipalities Ordinance (No. 40), 5751-1990, S.H. 1336, 34 (hereinafter: the Authorizing Law) explicitly authorizes the local authorities to regulate the opening and closing of businesses on the Sabbath and Jewish holidays – and that the amendments do not contradict the provisions of the Hours of Work and Rest Law, 5721-1951, because the latter “concerns the regulation of individual labor relations internal to the place of business. In contrast, the amendments to the By-Law regulate the activities of businesses without reference to the identity of the employee”. Regarding the issue of discretion, it was held that the amendments are within the zone of proportionality and fulfill the purposes of the Authorizing Law – conducting a balance between the conflicting rights, according to the unique characteristics of each local authority. The petitioner’s arguments in HCJ 2998/15 [unpublished], seeking to expand the list of sites where the First Amendment allowed shops to open, were also rejected.

The Association of Merchants, which was dissatisfied with the result, filed a motion for a further hearing in which it repeated, inter alia, the argument that the amendments to the By-Law are contrary to the Hours of Work and Rest Law which, it claimed, prohibits the very existence of commerce on the Sabbath. Furthermore, the Association of Merchants found that, although it was not brought to the court’s attention in real time, the Minister of Interior, as early as April 9, 2017 – ten days before the verdict was rendered – signed a letter intended to be sent to the mayor of Tel Aviv-Jaffa, containing a reasoned decision regarding the invalidation of the second amendment (hereinafter: the reasoned decision). Under these circumstances, and considering the substantive ramifications of the verdict on Israeli society as a whole, the Association thought that the position of the minister should not be ignored, and his reasons should be evaluated before invalidating the decision. The Minister of Interior shared this position, and the state supported holding a further hearing on the question of the relationship between the Hours of Work and Rest Law and the Authorizing Law – although, on the substance of the matter, it accepted what was decided in the verdict on this issue. On July 12, 2017 Deputy President (ret.) E. Rubinstein granted the Association of Merchant’s motion, and decided that “the further hearing will apply to the entire verdict”. Hence the hearing before us.

2. Before getting into the heart of the issue, as a preliminary matter, I will outline general contours for the image of the Sabbath, about which – as the Babylonian Talmud relates – the Holy One Blessed Be He said to Moses our rabbi, the most revered of prophets:

“I have a precious gift in My treasure house, called the Sabbath, and desire to give it to Israel; go and inform them” (Babylonian, Shabbath, 10a).

This “present” occupies a central place in the world of Judaism – and found a place of honor in the Ten Commandments, on the seam-line between the fundamental commandments that concern the relationship between a person and God, and those that are among people. The Sabbath carries a double normative duality. First – the universal as opposed to the particular. The world as opposed to the Jewish people. The holy scriptures contain a distinction between the “Genesis Sabbath” and the “Jewish Sabbath”. In this sense, the Sabbath has undergone permutations. At the conclusion of the story of creation in the chapter Genesis, the Sabbath is presented as “the crown of creation” – “God blessed the seventh day and made it holy because on it he ceased all the work that he had been doing in creation” (Genesis 2:3). Ibn Ezra clarifies that “doing” means that humankind continues the doing, starting on the eighth day. Construction of the physical world hence concluded in six days, but from a moral point of view, the world is not yet complete. The Sabbath is the mediator between the creation of the physical world and the creation of humankind, responsible for continuing its spiritual construction (see the comments of the Rabbinical Judge Dr. Isidor Grunfeld on the book “Horeb” of Rash”ar Hirsch [Samson Raphael Hirsch, Horeb: A Philosophy of Jewish Laws and Observances, Volume I, 273 (the Soncino Press, 1962)].

The second stage in the development of the Sabbath is the obligation to “keep and remember” that was imposed on the Jew in relation to the Sabbath day. As was written in the Ten Commandments in the Book of Exodus –

“Remember the Sabbath day to set it apart as holy. For six days you may labor and do all your work, but the seventh day is a Sabbath to the Lord your God; on it you shall not do any work, you, or your son, or your daughter, or your male servant, or your female servant, or your cattle, or the resident foreigner who is in your gates. For in six days the Lord made the heavens and the earth and the sea and all that is in them, and he rested on the seventh day; therefore the Lord blessed the Sabbath day and set it apart as holy” (Exodus 20:8-11).

The Sabbath therefore has a complex and multi-faceted nature. Indeed, the Sabbath prayers and blessing over the wine mention the universal aspect (“in memory of the act of creation”) as well as the Jewish historical aspect (“in memory of the exodus from Egypt”).

There is an additional duality. On the one hand, the Sabbath is a commandment concerning the relationship between people and God, but simultaneously it is also a commandment concerning the relationship among people. More precisely, between a person and his society. The aspiration is to create a different society. A society of equality and rest. The Sabbath is supposed to be the religious experience that brings a person closer to his creator, and also a social experience that topples societal boundaries and brings a person closer to himself. We should pay attention to what the Book of Exodus commands – that all of us should rest on the Sabbath: the landlord, the citizen and the foreigner, and even the slave (at the time this concept existed) and the domestic animal. Jewish law even recognizes the concept of the “resting of utensils” (See Babylonian Talmud, Shabbath, 18b). Such is the Sabbath – a diverse, multi-purpose and multidimensional creature.

The Sabbath contains a national-particularistic aspect, in which it is presented as a kind of symbolic and perpetual reminder of the extraordinary relationship between God and his people – a relationship that has a constitutive expression in the exodus from slavery in Egypt to spiritual liberation and receiving the Bible. In this sense, the Sabbath expresses the national uniqueness and spiritual uniqueness of the Jewish people: “It is a sign between Me and you for your generations, to know that I, the Lord, made you holy […] Thus shall the children of Israel observe the Sabbath, to make the Sabbath throughout their generations as an everlasting covenant. Between Me and the children of Israel, it is forever a sign” (Exodus, 31:13-17). In parallel, but in harmony, the image of the Sabbath – as it is portrayed in the Ten Commandments of the Book of Exodus (20:8-11) and in the Book of Deuteronomy (5:12-15) – also expresses a universal human experience of exodus from slavery to freedom. It puts the social aspect in center-stage and calls for the learning of lessons from past experiences, internalizing the value of a day of rest that momentarily blurs the gaps between social classes – “in order that your manservant and your maidservant may rest like you”.

Given the many layers and meanings of the Sabbath, it is no wonder that, even when other traditions found themselves tossed about in the winds of change or bowing under the burden of new and challenging world views, the Jewish public maintained broad agreement regarding its importance. On this point, we recall the famous words of Asher Ginsberg, “Ahad Ha’am”:

“One need not be Zionist or scrupulous about religious commandments in order to recognize the value of the Sabbath […] we can say without exaggeration that more than the Jewish people kept the Sabbath, the Sabbath kept them. Had it not reshaped their ‘soul’ to them and rejuvenated their spiritual life each week, the hardships of the ‘days of action’ would have pulled them further and further down, until they would have finally descendent to the lowest storey of materialism and moral and intellectual nadir. Therefore one definitely need not be Zionist to feel the glory of the historical holiness that surrounds this ‘good gift’” (Ahad Ha’am, Al Parshat Drachim [At a Crossroads], Vol. 3, Chap. 30; emphasis added).

Haim Nahman Bialik, a graduate of the Volozhin Yeshiva and the national poet, also noted, in that spirit, that “without the Sabbath, there is no image of God and no image of humankind in the world. If work were an end in itself, there would be no difference between human and beast […] the Sabbath is culture” (Letters of Haim Nahman Bialik, Vol. 5, 228 (Fishel Lachower, ed., 5699)).

These perspectives quickly became entrenched in the law of the young State of Israel. As early as June 9, 1948 – less than a year after the establishment of the state – the official newspaper published the Days of Rest Ordinance, 5708-1948, which declared the Sabbath, together with Jewish holidays, to be “the fixed days of rest in the State of Israel”. The Work and Rest Hours Law, 5711-1951 granted the Sabbath a more substantial and tangible status, determining that “the weekly rest will include […] for Jews, the Sabbath Day.” These provisions, on whose details I will expand below, express the diverse purposes that allow even a person who is not religious to recognize the importance of the Sabbath. As Justice A. Barak noted a decade ago:

• There are two purposes that underlie the arrangements concerning the hours of weekly rest in the Hours of Work and Rest Law, and these complement one another […] one purpose is a social purpose, which is concerned with the welfare of the worker and gives him social protection […] The second purpose is a national-religious purpose, which regards the observance of the Sabbath by Jews as a realization of one of the most important values in Judaism that has a national character” (HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38, para. 20 (2005) (hereinafter: the Design case).

 

And Justice Barak wrote in the Horev case (HCJ 5016/96 Horev v. Minister of Transportation, 51(4) PD 1, para. 55 of his opinion (1997) –

“Sabbath observance is a central value in Judaism. The fourth of the Ten Commandments, the Sabbath constitutes an original and significant Jewish contribution to the culture of mankind. See 31 The Jewish Encyclopedia, [107], under The Sabbath, at 422.  It is a cornerstone of the Jewish tradition and a symbol, an expression of the Jewish message and the character of the Jewish people. Deprive Judaism of the Sabbath, and you have deprived it of its soul, for the Sabbath comprises the very essence of the Judaism’s nature. Over the generations, throughout its blood-soaked history, our nation has sacrificed many of its children in the name of the Sabbath”.

However, we cannot ignore the Israeli reality – which accords the Sabbath a character that is not necessarily compatible with the Jewish law conception over the generations. The delight of the Sabbath in Bnei Brak and Safed is not like the delight of the Sabbath of citizens who take advantage of their vacation day for a walk in the bosom of Israeli nature, a visit to football fields or museums – often with a fascinating integration of the traditional “blessing over the wine” – or “just” for rejuvenation. At the heart of the issue is a deep and profound ideological dispute, which is at the center of a prolonged public discourse that has reached this court on more than one occasion. I personally think that, given the respect with which we should treat each other’s world view – Sabbath view – we would do well to avoid a binary determination and rather shape the public space by way of compromise. We should give expression to the traditional view of the Sabbath, to which I subscribe, without pushing aside a significant segment of the population whose view of the Sabbath – as a national symbol and as a social symbol – differs. And what a good example we have before us. Israeli law does not impose on an individual the Jewish law prohibition against working on the Sabbath. It focuses on his right to rest from everyday troubles. It is no accident that the term day of rest relies on the commandment, “in order that your manservant and your maidservant may rest like you”. That is out of recognition that the Sabbath is the day of rest of the Jewish people in its country. This sensitivity to the worker, to the individual, integrates the universal with the particular; the history of the nation with the needs of the individual and safeguarding his human dignity. Indeed, the Sabbath is a secret gift that reveals a new face in every generation.

3. I now state that I cannot concur with the position of my colleague, President M. Naor. Were my opinion to prevail, we would rule that the motion for a further hearing should be granted, in the sense of invalidating the Second Amendment, because the reasoned decision of the Minister of Interior on this issue does not deviate from the zone of reasonableness.

Indeed, the decision was made with great delay, blatantly violating the obligation of the administrative agency to exercise its authority with appropriate speed, according to Article 11 of the Law of Interpretation, 5741-1981, and according to the agreements reached during the previous proceeding. Furthermore, the Minister of Interior kept quiet and refrained from informing this court – through the Attorney General – about the substantive change in the state of affairs due to his signing the decision to invalidate the Second Amendment. However, as serious as his conduct may be, when it became clear that at the time the verdict was reached, there was a reasoned decision to invalidate the Second Amendment, we are not at liberty to ignore it and to shift the burden from the Tel Aviv Municipality – which petitioned against it – to the state. Indeed, art. 258(d)(2) of the Municipalities Ordinance authorizes the Minister of Interior “to invalidate a by-law for reasons he will provide”. The obligation to provide reasons, in our case, is therefore grounded in the specific norm that authorizes the minister to invalidate by-laws – and does not derive (only) from the general obligation to provide reasons, which is grounded in Article 2A of the Law to Amend the Organization of Administration (Reasoned Decisions), 5719-1958, or from the obligation of fairness that the administrative agency bears (see Civ App 3886/12 Zeev Sharon Construction and Earth Contracting Ltd. v. VAT Director [unpublished], para. 39 (August 26, 2014)). Therefore, had the reasoned decision not been given in time, we would surmise – in light of the combination of the obligation to provide reasons and the provision of Article 6(b) of Law to Amend the Organization of Administration (Reasoned Decisions), 5719-1958 – that it is insufficient to transfer the burden to the state, and that we should render invalid the decision to invalidate the Second Amendment. However, once the reasons for invalidating the Second Amendment were given (even if not delivered) before the verdict was rendered, the obligation to provide reasons was met, and there is no longer a justification for transferring the burden to the state – not to mention “automatically” invalidating the decision to invalidate.

4. My colleague President M. Naor reasons that (para. 17 of her opinion) [para. 16- trans.] “the procedure of a further hearing is intended for clarifying a rule that was decided in a verdict, and not for discussing what the verdict does not contain” – and therefore the Minister of Interior’s reasons, which were not presented to the court in the prior proceeding, cannot influence the result of the further hearing. However, even if the Minister of Interior’s reasons were missing, their absence was very “present” – and even played a central, if not determinative, role in the verdict.  The discussion of “what is” in the decision in the previous go-round, namely authorizing the Second Amendment due to the Minister of Interior’s unexplained invalidation, does not allow us to ignore the reasoned decision that came into the world, at the end of the day, before the verdict was rendered. Under these circumstances, we can understand Deputy President E. Rubinstein’s (ret.) approach, which held that a decision bearing such substantial ramifications for the character of the Sabbath in the State of Israel is important enough “to justify further consideration, when all the positions are laid out” (para. 11 of the decision to hold a further hearing). That includes the position of the Minister of Interior, to whom the legislator trusted with broad discretion on the issue.

I will add that even if “the Minister of Interior’s position” was not formally presented in the prior proceeding, its substantive reasons were raised before the court and were even analyzed in the verdict. In his reasoned decision, the minister noted that the Second Amendment undermines the social-societal purpose of the days of rest – violating the rights of Sabbath-observant small business owners and workers to equality, freedom of occupation and freedom of religion (paras. 34-42 of the reasoned decision). That is in addition to the infringement on the national-religious purpose and the status quo, which does not allow for “pure, unadulterated” business activity (ibid, paras. 43-47). In the minister’s view, we can accept limited commercial activity that fills a “critical need” for residents, but the Second Amendment deviates widely from that definition – both because of the number of permits that it seeks to grant, as well as because of the characteristics of the relevant businesses (ibid, paras. 51-56). Given the national implications of approving the Second Amendment – which the Minister of Interior believed, for the above-stated reasons, would open the floodgates and lead to a significant and undesirable change in the character of the Sabbath throughout the State of Israel – “the broad perspective that is the purview of the central government” leads, in his opinion, to the conclusion that this amendment should be invalidated (ibid, paras. 57-59).

A study of the verdict reveals that the precedent it set is also grounded in analysis of the substantive position of the minister, as described above – which was expressed in the proceeding by other litigants (see paras. 5-7 [paras. 4-6-trans.] of President M. Naor’s opinion). That is true regarding the appropriate balance between the conflicting rights and purposes (ibid, paras. 24-28 [paras. 23-27-trans.]; paras. 4-5 of Justice D. Barak-Erez’s opinion) and also regarding the question of the scope of autonomy that is granted to municipal authorities in this context (para. 25 [para. 24-trans.] of President M. Naor’s opinion; para. 3 of Justice D. Barak-Erez’s opinion). Considering that the Minister of Interior’s substantive position was present in the prior proceeding, arguments were argued over it and normative determinations were made about it, I do not see an obstacle to addressing it in the framework of the further hearing – and this time with the formal status as a reasoned decision regarding the fate of the Second Amendment.

In the absence of a procedural obstacle to addressing the merits of the reasoned decision, I do not think that the delay which it was received – without minimizing its severity – justifies ignoring its content. Even if I assume that we could have avoided holding a further hearing in the verdict, once the Deputy President ruled positively on that issue – the very holding of the procedure, on all elements of the verdict, is the departure point requiring the panel to render an opinion. The judges on the panel have a broad spectrum of discretion regarding the result of the further hearing, from accepting it to rejecting it. Having said that, it had already been decided to hold a further hearing. I respect the procedural position of the President, but for the reasons I discussed, that it is not the only possible way to deal with the procedural hurdle that the delayed decision of the Minister of Interior puts before us. Indeed, my view is also that there is meaning – if you will, a limit – to the Minister of Interior’s conduct. Thus, for example, we should not have considered, in this proceeding, the minister’s decision, had it been received after the verdict was rendered.However, once the decision was made and signed before the verdict was rendered, in such a way that it would have been possible to bring it before the court, I am willing to accept the argument that we should not accord decisive weight – certainly not for such a sensitive and loaded issue such as the status of the Sabbath – to the delay in receiving it. We should not minimize the obligation of the administrative agency to act with appropriate speed, but in light of the importance of the issue before us, the flaws in its conduct do not overshadow the reasoned position. Sometimes, the subject of the hearing and its essence affect procedural considerations (compare, only for purposes of analogy, this court’s approach regarding the flexibility we should exercise in applying the rules of procedure to adoption issues; Leave App Fam Mot 2205/09 Jane Doe v. Attorney General, [unpublished], paras. 6-7 of President A. Grunis’s opinion (April 22, 2009)). In any event, once the further hearing was granted, in my opinion, that provides a consideration and a certain guidance in favor of discussing the issue on its merits, even if we are not obligated to do so.

5. We therefore must decide whether the reasoned decision deviates far enough from the zones of reasonableness and proportionality to justify invalidating it. My colleague President M. Naor answered that question in the affirmative. In her opinion, the Minister of Interior’s position – believing that there should be a sweeping prohibition against opening businesses on the Sabbath that do not fulfill an “essential need” – undermines the purposes of the Authorizing Law and ignores the municipality’s autonomy and the legislator’s intention to create a balanced, compromise arrangement. My view is different. Even though the Minister of Interior could have reached a different result, the result he actually reached does not deviate from the zone of reasonableness. At the root of the disagreement between the President and me is the question of the relationship between the Hours of Work and Rest Law and the Authorization Law – a question that affects the interpretation of the latter and the scope of the discretion of the local authority and the Minister of Interior regarding by-laws that address the opening or closing of businesses on the Sabbath and Jewish holidays.
6. A study of the relevant provisions of the Hours of Work and Rest Law Law teaches us that it contains two different norms regarding days of rest: the first, also chronologically, prohibits employing salaried employees during their “weekly rest”, which is determined by their religious affiliation –

“7. (a) An employee’s weekly rest shall be not less than thirty-six consecutive hours in the week.

(b) The weekly rest shall include –

(1) in the case of a Jew, the Sabbath day;

(2) in the case of a person other than a Jew the Sabbath day or Sunday or Friday, whichever is ordinarily observed by him as his weekly day of rest.

9. An employee shall not be employed during his weekly rest, unless such employment has been permitted under section 12.

The second level of the obligation of rest, which is of central importance in our case, was added in the Hours of Work and Rest Law (Amendment), 5729-1969, and it imposes an obligation on business owners to stop working on the “fixed days of rest” in the State of Israel. Unlike its predecessor, which established that the weekly rest of a Jewish employee will include the Sabbath day, but left those who are not Jewish a choice regarding their weekly day of rest (see, for example, App Lbr (nat’l) 396/09 Kisselgof – Mayanei Hayeshua Medical Center [unpublished], para. 16 of Justice A. Rabinovich’s opinion and para. 2 of Justice I. Itah’s opinion (November 9, 2010)), this layer creates a different arrangement. It requires that –

“9A (a).  On the prescribed day of rest, within the meaning of the Law and Administration Ordinance, 5708-1948, the owner of a work-shop or industrial undertaking shall not work in his workshop of [sic] undertaking and the owners of a shop shall not do business in his [sic] shop.

[…]

 (c) A non-Jew may – in respect of his workshop, industrial undertaking or shop, situated in the area of a local authority whose non-Jewish inhabitants, according to the determination of that authority, are at least 25 per cent of its total population – observe the prohibitions imposed by this section, at his option, either on the aforesaid days of rest or on his own Sabbath and holydays. The same shall apply in a quarter of a local authority if the area and the proportion - not less than 25 per cent - of the non-Jewish inhabitants of that quarter have been determined for this purpose by that authority.” (emphasis added).

 

  In other words – the rule is that the business owners that Article 9A addresses are not permitted to work or engage in commerce in their businesses on the Sabbath or during Jewish holidays – which are defined, in Article 18A(a) of the Law and Administration Ordinance as “the fixed days of rest in the State of Israel” – irrespective of their personal religious identity. That conclusion derives not just from the text of Article 9A(a) of the law, which is phrased in a sweeping manner, but also from the exception contained in Article 9A(c) of the Hours of Work and Rest Law – according to which a non-Jewish merchant can choose whether to engage in commerce in his shop on the Sabbath if it is located in an area in which a considerable part of the population is not Jewish. Thus when a shop – or workshop – is within a substantially Jewish area, commerce or work is forbidden in that place even if the owner is not Jewish. That is, as noted, in contrast to the arrangement of “the weekly rest” which allows non-Jewish salaried employees to choose their day of rest.

7. The variation I noted testifies to the deep and substantial difference between the two arrangements that address days of rest. While Article 9 of the Hours of Work and Rest Law focuses on protecting the religious and social rights of the individual employed as a salaried employee – and guarantees him “a weekly rest” – Article 9A includes an additional dimension. In addition to expanding the personal protection, so that it also applies to a business owner who is not an employee, the article attaches significant weight to the public interest in maintaining the unique character of the Sabbath and Jewish holidays. It is concerned not just with guaranteeing individual rights, but also with shaping the character of the Jewish public space during the national days of rest. For that reason, in substantially Jewish areas, even a non-Jewish business owner is required to stop working on the Sabbath and during Jewish holidays – and he cannot freely choose his days of rest. Of course, such a person is also entitled to stop working on the days of rest of his religious community, but he cannot use them to exchange the obligation not to work or engage in commerce on the Sabbath and Jewish holidays – for example, to engage in commerce on the Sabbath and to stop working on Friday or Sunday – even though such an exchange would fully realize the individual social purpose. The emphasis is on “fixed days of rest”, which have a national character, and not on the “weekly rest”, which derives from the individual religious identity of each employee. Opening a shop for commerce in a substantially “Jewish” area is viewed as infringing on the status of the Sabbath in that space, and therefore Article 9A forbids it, irrespective of the religion of the shop owner. An interpretation that ignores the national-public element of Article 9A of the Hours of Work and Rest Law would be hard-pressed to explain negating the right of choice of a non-Jewish shop owner – in contrast to the employee who may freely choose his weekly day of rest – just because of the location of his shop.
8. The inevitable result of this textual and purposive interpretation is that the prohibition that Article 9A of the Hours of Work and Rest Law imposes on working in a workshop and industrial factory or engaging in commerce in a shop, is not a “gevara” prohibition – meaning a personal prohibition against the business owner working in the place.  Indeed, this element of the law creates a “heftsa” prohעקibition (object-based prohibition on opening the business) [gevara and heftsa are Aramaic terms in Jewish law for prohibitions relating to persons or objects respectively -trans.] – meaning a prohibition on opening industrial factories, workshops or shops in Jewish residential areas on the fixed days of rest – and prevents activity in these businesses irrespective of the worker’s specific religious identity. Not just the owner of the business is not permitted to work in the place, but also his salaried employees – Jews and non-Jews – because otherwise the national-social purpose of the law would be thwarted. It is would be inconceivable for a non-Jewish owner of a shop to be personally barred from engaging in commerce in a shop located in a substantially Jewish space, but for his non-Jewish salaried employees to be permitted to take his place – even though the influence on the public space would be identical.

According to the interpretive picture sketched here, the relevant provisions of the Hours of Work and Rest Law can be described as having three focal points: worker; business owner; and the business itself. Article 9 of the law focuses on the worker and prohibits his employment during the weekly days of rest that derive from his religious identity. In contrast, Article 9A of the law regulates the obligation to rest in relation to the two additional focal points and requires the business owner (who fits the categories enumerated in the article, which I will discuss below) as well as the business itself to stop working during the fixed days of rest in the State of Israel, namely the Sabbath and Jewish holidays.

9. Having said that, the prohibition relating to the third focal point mentioned – opening businesses on fixed days of rest – is not absolute, and does not apply to all business activity. As President M. Shamgar clarified in HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993), “the above-stated law does not include a general provision regarding closing places on days of rest”. Instead –

“In establishing the principle of observing a weekly day of rest and designating it on the Sabbath, the legislator sought to achieve two integrated goals: first, a social goal, that a weekly day of rest should be designated for each person to rest from his work, spend time with his family or in the company of friends and have time for holiday and entertainment, according to his choices and preferences” (ibid, 207-208, emphasis added).

Consistent with President Shamgar’s analysis, we should strictly interpret the prohibition in Article 9A of the Hours of Work and Rest Law, to apply not just to activity of an industrial nature (work in a “workshop” or “industrial factory”) or commerce. In contrast, closing businesses used for holiday, recreation or entertainment would betray one of the primary goals that the legislator sought to promote and would place workers in a Catch 22: they would indeed get to rest from their work on the Sabbath, but they would not be able to engage in the holiday and entertainment they prefer. Therefore, according to both the text of Article 9A as well as its purposive interpretation, the article seeks to impose a limited prohibition on engaging in industry and commerce. Opening and operating restaurants, coffee shops, theaters or cinemas – as well as additional institutions that contemporary Israeli society considers to be places of recreation – is therefore not prohibited in itself; indeed, according to this perspective, I may help realize the purpose that the legislator pursued in setting days of rest (See and contrast Crim Case (Jerusalem Magistrate) 3471/87 State of Israel v. Kaplan [unpublished] (2) PM 26 5748 (1987), para. 4G).

Furthermore, for the reasons I stated, we should be cautious in interpreting the terms “will engage in commerce” and “shop”. A furniture shop is different from a stand offering passers-by ready-made food, and a multi-faceted shopping center is different from a “convenience store” offering clients of a gas station incidental refreshment. It is highly doubtful that the legislator, who sought to allow citizens to take advantage of their Sabbath rest to go to theaters or cinemas, would have insisted to prevent them from acquiring essential food items at a small grocery store or to refresh themselves at a gas station on their way to a place of recreation (See and compare Crim App 217/68 Izramex Ltd. v. State of Israel, 22(2) PD 343, 358-360 (1968), in which the justices in the majority narrowly interpreted the term “shop” in Article 249(20) of the Municipalities Ordinance – and held that a gas station is not included in the term, even though technically commerce does indeed take place in it).

10. This interpretation of the Law of Work and Rest House, creating a substantial distinction between engaging in industry and commerce on the Sabbath and Jewish holidays and recreation and holiday activities and which is primarily positively received – is consistent with the principles that Prof. Ruth Gavison and Rabbi Yaakov Medan formulated in the Gavison-Medan Contract (see Yoav Artsiali, Amanat Gavison-Medan: Ikarim Viekronot [Gavison-Medan Contract: Essences and Principles] 40-45 (2003)). According to the contract, “Government offices, educational institutions, industrial factories, banks, services and commercial institutions will be closed on the Sabbath”. However, “Restaurants and recreational establishments will not be prohibited from operating on the Sabbath […] a limited number of small grocery stores, gas stations and pharmacies will not be prohibited from operating on the Sabbath”. That, as Prof. Gavison explained, is out of a desire to preserve the uniqueness of the Sabbath in the Israeli public sphere, with the understanding “that the operation of restaurants and recreational establishments on the Sabbath is not exceptional but rather is necessitated by the character of the Sabbath” (ibid, p. 42). This sharp distinction between commerce and industry and entertainment and holiday is also expressed on a different level –interpreting the discretion that Article 12(a) gives the Minister of Labor to grant a permit to employ workers during their weekly rest. It was held that –

“This broad power that was given to the […] is intended to extend the power to grant permits not only to the supply of essential physical necessities, but also in order to ensure essential necessities of the public or of parts thereof in spiritual matters and the spheres of culture, art, leisure and entertainment. It is intended to ensure the individual’s quality of life in a free society that has freedom of religion and freedom from religion. It is intended to allow a person to realize in a proportionate manner the social aspect of the Sabbath in accordance with his tastes and his lifestyle, and to give expression thereby to customs, lifestyles and the various cultures in the many strata of Israeli society” (the Design case, para. 3 of Justice A. Procaccia’s opinion).

 

As an aside, I will add that this narrow interpretation of Article 9A of the Hours of Work and Rest Law is also appropriate for external reasons, given its infringement on the constitutional right to freedom of occupation and the criminal sanction that attaches to its violation (see para. 43 of President M. Naor’s opinion).

Note that the distinction between commerce and industry and business activity in the field of recreation and entertainment derives from two sources. On the normative plane, it is based on the text of Article 9A of the Hours of Work and Rest Law and on the position the case law takes regarding the purposes of days of rest, as was presented above. Indeed, this position may raise difficulties from the traditional Jewish law point of view regarding the appropriate character of the Sabbath and Jewish holidays. For that reason, I attach primary importance to the secondary source – namely, the Gavison-Medan Contract. The beauty of the contract in my opinion is that it is a sincere and real attempt of respected and prominent leaders of the hawkish ideological camps – Rabbi Yaakov Medan, among the leaders of the Har Etsion Hesder Yeshiva, and Prof. Ruth Gavison, winner of the Israel Prize in law, who specializes in issues of religion and state and does not come from the world of Jewish law – to reach a necessary compromise on the sensitive issue of the status of the Sabbath in the public sphere (and at the broader level, of the relations between religious and the State of Israel). In my perspective, only a true compromise in which both sides give up the aspiration of “all mine” regarding the public sphere – and certainly the personal sphere – suits the complexity of the social fabric, the national as opposed to the personal, if you will – an expression of the fact that the State of Israel is a Jewish and democratic state.

11. Against the background of this interpretation of the Hours of Work and Rest Law, the question arises of how to interpret the authority granted the municipality, in Articles 249(20)-(21) of the Municipalities Ordinance –

“(20) To regulate the opening and closing of shops, factories, restaurants, coffee shops, tea houses, drinking establishments, cafeterias, canteens and other institutions of this kind, and of cinemas, theaters and other places of public entertainment or other kinds, and to supervise their opening and closing, and to determine – without infringing on the generality of the authority – their hours of operation on any given day; However, the validity of this passage is subject to any exemption that the Minister creates in an order;

(21) A municipality may use its authority pursuant to paragraph (2) within its jurisdiction or in part of its jurisdiction regarding days of rest, taking into consideration reasons of religious tradition and regarding the day of Tisha B’av; “days of rest” – as detailed in Article 18A of the Ordinance on Governance and Law Organization, 5708-1948, on this issue, the Sabbath and Jewish holidays – from the start of the Sabbath or Holiday until their conclusion; ‘the day of Tisha Ba’av’ – in its meaning in the Law Prohibiting Opening Places of Entertainment on Tisha Ba’av (Special Authorization), 5758-1997”.

 

The combination of these clauses would appear to create explicit authorization granting the local authorities broad discretion for all that concerns opening and closing businesses on the Sabbath – be they shops and workshops or restaurants and coffee shops. However, this interpretation creates a problem, because it puts Articles 249(20) and (21) of the Municipalities Ordinance on a collision course with Article 9A of the Hours of Work and Rest Law, which prohibits, as noted, opening workshops or shops on the Sabbath and Jewish holidays in areas with a substantial Jewish population.

12. As a theoretical matter, we could deal with this apparent contradiction using three different models: First, allowing the earlier norm to prevail, for the reason that the later norm does not address the same issue, and therefore there is no contradiction between them. In our case, the substantive similarity between Article 9A of the Hours of Work and Rest Law and Articles 249(2)-(21) of the Municipalities Ordinance is too great to allow us to choose this path. Second – allowing one of the norms to prevail, according to the rules of conflict of laws that give supremacy to the later norm (lex posterior derogate priori) or the specific norm (lex specialis derogate generali). Given the centrality of the Hours of Work and Rest Law, this position does not seem appropriate in our case – because it is hard to argue that Article 249(21) of the Municipalities Ordinance sought to cancel, implicitly, such a substantive arrangement. That is especially true, given the Explanatory Notes of the Local Authorities Bill (Prohibition on Opening and Closing Businesses on Days of Rest), 5748-1988, H.K. 1872, 134, which became (in the framework of the Law to Amend the Municipalities Ordinance (No. 40), 5751-1990, S.H. 1336, 34) Article 249(21) of the Municipalities Ordinance. These explanatory notes make it clear that “the goal of the proposed law is to remove the above-stated doubt [regarding the power of local authorities to regulate the opening and closing of businesses on days of rest; N.H.] and to preserve the ‘status quo’ for that issue” (emphasis added). Because Article 9A of the Hours of Work and Rest Law, which was passed in 1969, constitutes a later norm relative to Article 249(2) of the Municipalities Ordinance (from 1964), then preserving the status quote actually means not infringing on the Hours of Work and Rest Law. It would therefore appear that in our case, we should adopt the third model, which contemplates an interaction between the later and earlier norms, which together form a harmonious common arrangement. This model is also appropriate because of the important normative status of the Hours of Work and Rest Law, including its Articles 7-9A.

Preferring this model is consistent with the position of the learned former President A. Barak, according to which:

“The presumption should be in favor of legislative harmony within a legislative system, in such a way that the meaning given to a piece of legislation will be woven ‘faithfully into the embroidery of the legislation and will form together with it a single, whole entity’ […] one who interprets any particular provision interprets the entire body of legislation, and the meaning given to any particular provision must integrate into the meaning given the rest of the legislative provisions” (Aharon Barak, Parshanut Bamishpat – Parshanut Hahakika [Interpretation in Law - Legislative Interpretation] Vol. 2, 327-328 (1993)).

 

In other words, before an interpreter resorts to conflict of laws rules, which determine which of the competing norms will prevail – he should evaluate whether “the contradiction is real or imagined”, where “he is guided by the interpretive perspective that seeks to guarantee normative coherence and systemic consistency”. Only after the interpretive attempt to create legislative harmony fails, and it becomes clear that the contradiction between the norms is real, is there room to move to the second phase and evaluate which norm enjoys supremacy – either because its normative status is higher or because it is a specific or later norm relative to its rival (Aharon Barak, Parshanut Bamishpat – Torat Haparshanut Haklalit [Interpretation in Law, General Theory of Interpretation], Vol 1, 540 (1992)). Faithful to that principle, we must seek, therefore, the interpretation that allows Articles 249(2) and (21) of the Municipalities Ordinance to live together under the same roof as the prohibition that Article 9A of the Hours of Work and Rest Law imposes on opening shops and workshops during the fixed rest days.

13. It seems that we can resolve the apparent contradiction between the above-mentioned norms using the distinction between a situation of “default” that Article 9A of the Hours of Work and Rest Law creates – closing businesses that operate in the areas of industry and commerce, and the absence of a prohibition on opening others – and the authority given to local authorities to deviate from that arrangement: if you wish, to allow a certain scope of industry and commerce; if you wish, to prohibit even the opening of places of entertainment.

In other words, Article 9A of the Hours of Work and Rest Law creates a national-state-wide arrangement, establishing that on the Sabbath, workshops or industrial factories will not be opened and there will be no commerce in shops, except in the framework of the exception grounded in Article 9A(c). However, based on the same rationale that prevents imposing a prohibition on operating places of entertainment at the national level – in other words, recognition of the existence of divergent approaches to the desired practical character of the Sabbath, and of the need to allow expression for groups whose worldviews reject the Jewish law model – the local authorities have been given the possibility to deviate from the general norm and create municipal arrangements. Thus, it is possible to balance the competing rights in the best way possible, while according weight to the unique characteristics of each urban area – including the preferences and worldviews of its residents. Sometimes, these characteristics will lead to relaxing the restrictions on business activity on the Sabbath and will permit a certain scope of commerce, and sometimes the result will be the opposite – to the point of limiting activities of recreation and entertainment.

This interpretive journey, which absolves us of the necessity to resort to conflict of laws rules, leads to the conclusion that in the absence of a relevant by-law, the nation-wide prohibition on business activity belonging to the categories in Article 9A of the Hours of Work and Rest Law will apply – and only on that business activity. It is clear that a local authority that wants to do so may deviate from the national arrangement, subject to the general restrictions imposed on municipal discretion.

14. The normative picture arising from this interpretive journey has great meaning, because it leads to the conclusion that – in contrast to other contexts in which the legislator authorized the local authorities to regulate a certain issue at the municipal level – in our case the authorities have been given relatively narrow discretion. I will demonstrate the uniqueness of the case before us using a comparison with the Local Authorities Law (Special Authorization), 5717-1956, which authorizes a local authority “to enact a by-law that limits or prohibits sale of pork and pork products intended for consumption” within its jurisdiction or in parts of it. As this court noted in the Solodkin case (HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 610 (2004) (hereinafter the Solodkin case) –

“Unlike the prohibition of the raising of pigs, with regard to which a national arrangement was adopted, a local arrangement was determined for the prohibition of selling pig meat and meat products. The purpose was therefore that the balance between the conflicting purposes — the considerations concerning the protection of religious and national sensibilities, on the one hand, and the consideration of individual liberty, on the other — would not be made on a national level, according to a principled balancing that the legislator determined. Instead, the purpose was to make a balancing at a local level” (emphasis added).

The legislator therefore deliberately refrained from setting a general norm regarding sale of pork, and left the issue, with the value-laden decisions it implicates, to the exclusive regulation of the local government – just as it did in the context of opening places of entertainment on Tisha Ba’av (Law Prohibiting Opening Places of Entertainment on Tisha Ba’av (Special Authorization), 5758-1997). Therefore, this court could have concluded that the municipal level had been granted broad discretion, and the legislator sought to give it – and not the central government – the choice among different solutions that are within the zone of lawfulness (Solodkin case, 620). However, that is not the situation in our case. As noted, the legislator chose to create a national arrangement regarding the existence of business activity on the Sabbath, and disclosed its opinion regarding the appropriate balancing model between freedom of religion, freedom from religion, freedom of occupation and the right to equality -- imposing a prohibition on commercial and industrial activity.

Under these circumstances, while the local authorities indeed have the authority to deviate from the national-country-wide arrangement that the legislator set - their discretion is relatively narrow. And the relativity regards the Minister of Interior, as I will explain. The authorities are not operating in a normative vacuum, and they should view the balance that the legislator created on the national level as a kind of anchor, or point of departure, for conducting the balances at the municipal level (It should be noted that a similar model, sketching general principles and leaving the local government space for discretion in its implementation, was also adopted in the framework of the Gavison-Medan Contract; See art. 14 of the principles [pp. 41-42] and the explanatory notes of Prof. Gavison [p. 43]). The zone of lawfulness within which the authorities operate to regulate business activity on the fixed days of rest is limited, therefore, relative to the one in which they operate in the context of selling pork and pork products. The mirror image is that the Minister of Interior has a much broader sphere of intervention in our case – certainly when he believes that the influence of a particular local arrangement will spill over beyond the four corners of the relevant authority and may eat away at the provision of Art. 9A of the Law of Work and Rest Ours at the national level.

To summarize – the local authorities have broad discretion, and they may deviate from the provisions of Article 9A of the Hours of Work and Rest Law. However, this is not a situation in which the legislator refrained from making a normative decision and left the issue for determination at the municipal level – as it did regarding the sale of pork or opening places of entertainment on Tisha Ba’av. On the contrary, a general norm prohibiting activities of industry and commerce on the Sabbath has unequivocally been established. In this state of affairs, the autonomy granted the local government for the issue at the focus of our case leaves room for more intensive oversight by the central government. A decisive part of that oversight is analyzing the ramifications of the local decision for the national arena – and the extent of infringement on the principled normative arrangement that the legislator adopted in Article 9A of the Hours of Work and Rest Law.

To that I add that the justification for more comprehensive oversight of the central government also derives from the substantive purposes of the days of rest – which deviate from the symbolic realm (similar to, let’s say, the prohibitions on selling pork or engaging in public entertainment on Tisha Ba’av), and it concerns the fundamental rights of the workers. These rights, which the Minister considered in his reasoned position, influence the scope of the discretion of the local authorities regarding opening businesses on fixed days of rest.

15.  Given the principled ruling regarding the scope of the Minister of Interior’s intervention in decisions of the local authorities under Articles 249(20)-(21) of the Municipalities Ordinance, I accept the Attorney General’s position (presented in Paragraph 15 of the opinion of my colleague, President M. Naor), that the decision to invalidate the Second Amendment does not suffer from extreme unreasonableness – even though the Minister could, of course, have arrived at a different result. I will explain.

My colleagues, President M. Naor (paras. 26-27 [paras. 25-26-trans.] of her opinion) and Justice Y. Amit (paras. 2, 4 and 8 of his opinion) believe that the decision to invalidate the Second Amendment suffers from extreme unreasonableness, because it does not give sufficient consideration to the autonomy of the local authority. However, the normative picture that I presented offers, in my view, a response to that. It teaches that the legislator didn’t authorize the municipal level to act in a vacuum – but rather presented the nation-wide arrangement set in Article 9A of the Hours of Work and Rest Law as a departure point for exercising the authority. The autonomy granted, therefore, to local authorities is relatively limited – in a way that inherently increases the scope of the Minister of Interior’s legitimate intervention (compare with para. 8 of my colleague Justice Y. Amit’s opinion). In the case before us, the Minister of Interior explained his invalidating the Second Amendment with the concern that the supposedly local arrangement would erode the nation-wide arrangement that the legislator outlined – and would shape, de facto if not de jure, a reality that contradicts his value judgment (paras. 57-58 of the reasoned decision). In other words, it is not the balance that the Tel Aviv-Jaffa Municipality chose in itself that led to invalidating the Second Amendment – but rather its presumed influence on the national arena, beyond the borders of Tel Aviv. This explanation would appear to be at the heart of the Minister of Interior’s legitimate intervention, given the delicate system of balances between the two levels of the arrangement: national and local.

Furthermore, a study of the reasoned decision indicates that the minister did not sweepingly negate any opening of shops for selling food on the Sabbath. We should remember that the First Amendment permitted the opening of convenience stores in gas stations, the selling of food items in pharmacies – and even allocated three urban sites in which commerce is permitted. Beyond that, in his decision, the Minister of Interior took into account the number of businesses that would be permitted to open pursuant to the Second Amendment (para. 53 of the reasoned decision); their size (ibid), and the scope of discretion given to the Tel Aviv City Council regarding a future increase in the quotas (ibid, para. 56). In other words, the decision doesn’t completely negate the municipality’s ability to confer on the Sabbath a unique local character – but rather seeks a more appropriate balance between that character and the legislator’s normative determination regarding the national arena. Even if it would have been possible to arrive at a different decision, we should remember “that the appropriate solution is actually in the balance, and not in the complete negation of one world view in favor of another (para. 24 [para. 23-trans.] of President M. Naor’s opinion in the verdict). We cannot define a result that allows the unique character of Tel Aviv to be expressed – albeit in a balanced way, without completely discarding the value judgment that Article 9A of the Hours of Work and Rest Law reflects – as deviating in an extreme way from the zone of reasonableness.

Viewed in this way, the Minister of Interior’s decision does not constitute “intervention” in the municipality’s affairs. The model established is that the municipality’s position is a first decision, but it is subject to the Minister of Interior. The latter is the one authorized to approve or invalidate the by-law (“If the Minister delays the publication of a by-law […] he may do one of the following: (1) Order a cancelation of the delay; (2) Invalidate the by-law for reasons he will enumerate; (3) Return the by-law with his comments to the council for reconsideration”; Article 258(d) of the Municipalities Ordinance). Of course, he may take local considerations into account, but national considerations are not beyond the zone of his discretion – and are not an illegitimate consideration. Naturally, the range of the Minister of Interior’s discretion depends on the subject. My opinion is that, given the existing legislative picture – namely, the legislator’s decision to create a guiding national arrangement for the issue; as well as the public, moral, symbolic and practical importance of the Sabbath, including its ramifications for the substantive, fundamental rights of those who engage in the work, the local authorities’ discretion is limited. Consequently, the space for the Minister of Interior’s intervention in their decisions in this area is broader than usual. The starting point – in other words, the position of the authority – need not be the ending point. I note that Minister Deri’s decision is explained well, is thorough, and presents a consolidated position not just regarding the Sabbath but also regarding the legal situation.

Again, I emphasize, we are dealing with judicial review of the Minister of Interior’s decision. There is no dispute that the minister could have arrived at a different result, and could have approved the Second Amendment. Had he done so, I would have refrained from intervening for the very same reasons – recognition of the broad discretion granted him on the issue. Regarding the balance he chose, and review of that balance, caution is appropriate. In every decision requiring a balance between different considerations, one could arrive at a broad spectrum of results. For example, in general, one could accord equal weight to a number of considerations, or attach greater weight to a particular consideration. The decision by the executive branch to accord greater weight to a particular consideration does not necessarily render the result unreasonable – or even less reasonable. I think that the decision to invalidate the second amendment, due to considerations of protecting the nation-wide arrangement that the legislator outlined for the issue, is in the heart of the zone of reasonableness and proportionality, and there is no cause to intervene in it.

16. Following these words, the opinions of the rest of the members of the panel came to me for consideration, including various additions. I again pondered the issue, and I will say this:

In the past, in various Jewish diasporas, in Poland, Morocco, and in the old settlement of Safed, Jews observed the Sabbath according to religious law. Today, in the 21st century State of Israel, Jews argue about the Sabbath. That is especially true regarding the Sabbath in the public sphere. This argument, which is appropriate in character and image, preserves, at first glance paradoxically, the relevance of the Sabbath and guarantees that it will constantly change its shape, but will remain a unique day in the Israeli-Jewish public experience. To paraphrase the famous words of Ahad Ha’am, cited above, we can say that “More than the Jewish people kept the argument over the Sabbath, the argument kept the Sabbath and its status in the State of Israel.”

The truth must be told, and it is apparent. In the State of Israel, a large group observes the Sabbath according to Jewish law, and another large group does not do so. The range between the extremes is broad and rich. Concerning the character of the Sabbath in the public sphere, there is considerable debate among the groups and even within them. And yet, and this would be a sad irony if specifically in the State of Israel, there would be an infringement on the social-spiritual component of rest on the Sabbath, which is grounded in the Hours of Work and Rest Law. That is because the Jewish religion is the one that brought the social revolution into the world – maybe the first of its kind – that is latent in the Sabbath. The idea at the foundation of the weekly day of rest was accepted and implemented by humanity in its entirely. The angel of rest whispers into the ear and tells the worker: You are a worker but not a slave. Indeed, you shall eat bread earned through your sweat, and the work is difficult and essential, but it should not be allowed to swallow the human being and his personality. Simultaneously, the angel of rest whispers into the ear and says to the employer: You are the strong party, but for one day of the week there is equality between you and the worker, who is exempt from your affairs. Values of equality, rest and the freedom of the spirit that the Sabbath represents are strongly tied to the religious origin and history of the Jewish people and reasons of tradition.

Our framework is legal. As judges, our role is to rule according to the law of the State of Israel. Indeed, from a birds-eye perspective, and theoretically, the various opinions show that it is possible to interpret the Hours of Work and Rest Law and the Authorizing Law in different ways. However, that situation itself may constitute, in my opinion, an additional reason for the caution required regarding the court’s intervention into the delicate issue placed before us. In any event, and without diving into the details again, my interpretive position is that the existing legal framework is built on an interaction between the local and the national, the religious and the social, individual liberty and recognition of the special public status of the Sabbath, and the city council’s powers and the powers of the Minister of Interior. The interpretation that seems correct to me, for the reasons enumerated, is that at the start of the game, the ball is in the city council’s court, but it later passes to the Minister of Interior’s court. Given the implications of municipal decisions about the rest of the worker, the employer and the business on the Sabbath – not to mention the status of the Sabbath as a national cultural symbol – the local authorities have not been granted exclusive discretion on the matter. The law authorizes the Minister of Interior to approve or invalidate by-laws. In my opinion, what emerges is the conclusion that the rest of the worker, the employer and the business on the Sabbath constitutes an issue that is not just local. In addition, it is hard to accept that the legal ruling in our case would not affect different places in Israel, beyond the borders of Tel Aviv-Jaffa. We should recall that the Minister of Interior is a member of the government chosen through parliamentary elections. Had the Minister of Interior chosen another position, I would think that the law would require refraining from intervening. In contrast to the majority position and the position of my colleague, Justice N. Sohlberg, I think that the outline of the law allows for broad interpretation, which could lead to two results. On the one hand, the law authorizes the local authorities to permit commerce on the Sabbath, and on the other hand it imparts to the Minister of Interior broad discretion in which we should not rush to intervene. Given the Minister of Interior’s position, which is reasoned and to the point, my opinion is that we should respect it, and this court should not intervene.

17. Were my opinion to prevail, then, we would order the motion for a further hearing granted so far as the Second Amendment is concerned – in the absence of a cause for intervening in the reasoned decision of the Minister of Interior in our case. Given the result, and the way the proceedings have played out, I would not order court costs.

 

•  

 

Justice N. Sohlberg

I read the important opinion of my colleague, President M. Naor, and I considered its reasons, but I do not agree with it.

1. Two central questions have been set before us: first, were the amendments to the Tel Aviv-Jaffa By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 enacted pursuant to authority in law? Second, does the Minister of Interior’s decision not to approve these amendments rise to the level of extreme unreasonableness? Note: the question of authority precedes the question of reasonableness; in the absence of authority, there is no need to address the question of reasonableness. However, in her opinion, my colleague places reasonableness before authority.

According to her methodology, the principle of local autonomy means that the discretion over opening and closing businesses on days of rest should be first and foremost given to the local authority. That is the principled point of departure for my colleague, the President, in her opinion – from the beginning and in the end – and it seamlessly weaves together the opinions of my male and female colleagues who joined the majority opinion. In their approach, “it is

2. The dispute between my colleague and me – similar to the dispute that emerged between us recently in FH HCJ 5026/17 Gini v. Chief Rabbinate [unpublished] (September 12, 2017) (hereinafter: Gini Further Hearing) – is not just the question of what is the interpretation of the law; the root of the dispute is deeper, and it is entrenched in the question of the way in which the law should be interpreted. My colleague, it seems to me, interprets the law ‘from top to bottom’, according decisive weight to the fundamental, value-laden perspectives that are suitable (in our case, the desired division of authority between the central government and the local government); as a consequence, the desired law takes the place of the law in fact, and fundamental perspectives are what shape, de facto, the correct interpretation. According to my approach, interpretation of the law should be done ‘from bottom to top’, through the work of ‘digging’, which is sometimes exhausting, from the foundation to the rafters. It is not (just) perfuming ourselves with fundamental principles and constitutional rights, but rather analyzing the law and all its parts, from its legs to its guts.
3. Before we address the merits of the issue –  a brief comment on the justification for holding a further hearing. According to the methodology of my colleague, the President, “the procedure of a further hearing is intended for clarifying a rule that was decided in a verdict, and not for discussing what the verdict does not contain” (para. 17) [para. 16-trans.], and therefore there is no room to address the Minister of Interior’s position in the context of the further hearing before us, “which was not submitted to the panel in the proceeding that is the subject of the further hearing” (ibid). According to her position, that is sufficient to warrant rejecting the motion for a further hearing, and her addressing the merits of the Minister of Interior’s position is therefore ‘not required by law’. As far as I’m concerned, there is no justification for saddling the petitioners with the Minister of Interior’s omissions. In any event, even without addressing the question of whether the Minister of Interior’s position in itself warrants holding a further hearing (given the date it was submitted), the motion for a further hearing is based in more than just that position alone. In addition to the Minister of Interior’s position, we have been presented with a question of the interpretation of the provisions of Article 9A(a) of the Hours of Work and Rest Law, 5711-1951 (hereinafter also: the Law), of the provisions of Articles 249(2) and 249(21) of the Municipalities Ordinance [New Version] (hereinafter also: The Ordinance), and the relationship between them. As counsel for the Attorney General noted in their response – “Concerning the honorable court’s determination in Paragraph 22 of the verdict [that is the subject of the further hearing – N.S.] regarding the normative relationship between Article 9A of the Hours of Work and Rest Law and Articles 249(2)-(21) of the Municipalities Ordinance – this is a new and important precedent” (para. 25 of the response). My colleague, the President agrees, in her ruling that this issue needs to be decided (para. 41 of her opinion [para. 40-trans.]), and I agree. I will now address the question at hand.

 

The Authority

4. Does the Tel Aviv-Jaffa Municipality have the authority to order the opening of businesses on the Sabbath? In order to answer that question, we must address the correct interpretation of the provision of Article 9A(a) of the Hours of Work and Rest Law, and of the provisions of Articles 249(2) and 249(21) of the Municipalities Ordinance, and the symbiotic relationship between them.

Article 9A(a) of the Law of Work Hours and Rest

5. According to my colleague’s position – “the Hours of Work and Rest Law does not address the question of opening or closing businesses on the day of rest, but rather the personnel question of work on the day of rest” (para. 43 of her opinion [para. 42-trans.]). My colleague learns this from the text of the provisions of Articles 9 and 9A of the law and from their captions, as well as from the explanatory notes to the draft law through which Article 9A was added. To borrow from the world of yeshiva erudition: my colleague believes that the provision of Article 9A(a) creates a “gevara” prohibition – hinging only on the shop-owner; as opposed to a “heftsa” prohibition – whose application is on engaging in commerce in the shop itself. This division, which is also relevant on the conceptual level, may also have a certain hold in the text of the law; in any event, in my opinion, it cannot withstand an evaluation of the purpose of the law – subjective and objective alike. As will be clarified below, the purpose of Article 9A is to prohibit a shop-owner from engaging in commerce in his shop on the days of rest; either personally or not personally.
6. As noted, according to my colleague, the text of Article 9A and its caption indicate that its application is personal. As for me, I think the text of the article (“A shop owner shall not engage in commerce in his shop”) and its caption (“Prohibition on Work During the Weekly Rest”) do not help our case; both are consistent with the two interpretive possibilities before us. The term “work” and the phrase “shall not engage in commerce” can be interpreted as a personal act, as well as a description of general activity. Thus far, the court has not had to directly address the interpretation of Article 9A, and in any event not to rule on it. It is true that we can find statements about the article and tiny hints about the relationship between it and the Authorizing Law, but only as obiter dictum, because there was no need for an exhaustive, in-depth discussion of the interpretation of the law’s provisions. That was true for the Israel Theaters case (HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993) (the verdict addressed cinemas, and as will be clarified below, there is no dispute over the fact that Article 9A does not apply to them); that was also the case for the Design case (HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38, 63 (2006) [sic-trans.]. There is therefore no ‘precedent’ on the issue, and that is why we have convened. I will evaluate the intention of the legislator, as reflected in the legislative history, in case it can shed light on the correct interpretation of the article (on the importance of legislative history as a primary interpretive source, see my opinion in the Gini Further Hearing, paras. 4-11).
7. In bringing the draft law through which Article 9A was added to The Law before the Knesset plenary for the first reading, then-Minister of Labor Yigal Allon began by presenting the bill as such:

“I am satisfied that this time I can submit to the Knesset a bill that can expand the application of the obligation of rest on additional kinds of workers, without violating the status quo regarding religion.

As far back as the debate that emerged in the last government, I opined that instead of legislating a law having a religious character, which could infringe on freedom of recreation, we should amend the Hours of Work and Rest Law, which blends a social principle with recognition of the days of rest traditional to members of each religion.

While at the start of this century, there was a conception that labor laws are intended to protect only manual wage laborers, this conception has expanded, and there is no dispute today that the state should extend its protection to every worker as such – a manual laborer and an office clerk, a salaried employee and an independent contractor.

The draft law before you seeks to establish that what is accepted for the Sabbath and Jewish holidays rest for salaried employees in manual labor and industry will also apply to independent contractors and members of cooperatives in those same sectors. Similarly, commerce in shops will be prohibited.

[…] In general, labor laws seek to ground existing practices, to improve the situation while setting legal determinations. In this case, too, the proposed legislation gives a legal imprint to the existing situation. Currently, private, cooperative factories and workshops throughout Israel and in the agricultural settlements also stop working. That is true for commerce in the shops. The concept of shop does not include guest houses, restaurants, coffee shops, places of entertainment, clubs, gas stations, beaches, swimming pools, sports facilities, etc. For these issues, the situation remains as it is today, both legally as well as in terms of the reality.

[…] It is hereby proposed to expand the application of the Hours of Work and Rest Law without infringing on the accepted status quo” (D.K 30, 2157-2158 (5726); emphasis added – N.S.).

8. It is clear: the provision of Article 9A was not passed in a vacuum, but rather against the background of the existence of a ‘status quo’, in which people stop working on days of rest in factories and workshops, and shop owners cease their commerce; at the same time, businesses that meet needs for culture, entertainment and leisure are allowed to continue to operate as usual, even during days of rest. Excepting these kinds of businesses (called “places of entertainment”) from the prohibition grounded in Article 9A(a), in order to preserve “recreational freedom”, provides an indication about the bounds of the general prohibition. Infringing on ‘recreational freedom’, which the legislator feared, would happen only if places of entertainment were closed. If the application of Article 9A is indeed personal, how is it relevant to a violation of the status quo? If businesses – commerce or entertainment – can remain open independently through non-Jews, what is the point of distinguishing between the owners of this and the owners of that?
9. Furthermore, the interpretation that the application of Article 9A is personal and does not seek to prohibit the commerce itself within the shops on days of rest appears to be inconsistent with the explicit words of then-Minister of Labor Yigal Allon, who said “commerce in shops will be prohibited” (ibid). Note: that was not an aside, but rather a faithful expression of the substance of the legal arrangement. Inter alia, comments made during the various debates of the draft law – both in the Knesset plenary as well as in the Labor Committee – clearly testify to the fact that the members of Knesset and the legal advisors related to the prohibition in Article 9A – clearly and simply – as a prohibition on commerce itself, which therefore requires closing businesses on days of rest. Thus, for example (and this is just a ‘tiny taste’ of the examples), in a debate held in the Labor Committee on January 1, 1969, Menahem Harniv, the legal advisor of the Ministry of Labor, said that “the provisions of the law require Jews to close their shops on the Sabbath”; Later in the debate MK Moshe Aram, the committee chairperson, noted that “this law guarantees that a Jew will not open his shop on the Sabbath” (Transcript of Meeting No. 185 of the Labor Committee, 6th Knesset, 13-14 (January 1, 1969). Similarly, during the debate on July 3, 1968, one of the committee members asked the legal advisor of the Labor Ministry, will the law require closing businesses that were open prior to its entering into force? His answer was as follows: “If there is currently a local authority in which shops are open – because there is no by-law that closes – let’s assume theoretically there is a city in which shops are open on the Sabbath – and this will obligate the shops even without the local authority doing anything” (Transcript of Meeting No. 154 of the Labor Committee, 6th Knesset, 14 (July 3, 1968) (hereinafter: Transcript of the July 3, 1968 debate).
10. We can find another unequivocal expression of the legislator’s intention in comments made during a debate in the Labor Committee over Article 9A(c), which provides as follows:

“A non-Jew may – regarding his workshop, industrial factory or shop that is within the jurisdiction of a local authority or in a quarter of the local authority where the number of non-Jewish residents are at least one third of all residents of the authority or quarter, depending on the circumstances – observe the prohibitions of this article on the above-stated days of rest or on his Sabbath and holidays, as he chooses”.

11. This article, which creates an exception to the provisions of Article 9A(a), teaches us that a non-Jew may open his shop on the days of rest, provided that it is in an area where the number of non-Jewish residents constitute at least one third of the residents of that area. The deputy legal advisor of the Ministry of Religious Affairs said, against the background of the enactment of this article:

 

“The trend is in fact a compromise between two opposing interests. In general, it is in the interest of every person to observe the days of rest in his religion freely, and in the State of Israel there is freedom of religion for all who desire it, for all the religious communities. On the other hand, we should ensure that a small minority living in the same quarter or city will not disturb the Sabbath or holiday rest of the large majority of people living in the same area. Therefore we made this formula of compromise, of two thirds and a third. That means if the minority in that same place is large enough to constitute more than a third of the residents, then we should take it into consideration. It is already a factor, even though it is still a minority. It might be only 40%, but it is a large enough minority that we should take it into consideration and give it the possibility to choose its days of rest according to its religion. But if the minority is small, let’s say 20%, in my opinion it would infringe on the large majority, the 80% of residents, if that 20% would open their businesses on the Sabbath. That is what the law seeks to prevent […]

Were we not to make this limitation, every person would be able to open his business without any limitation – let’s say if there were just 5% non-Jews in an area of a Jewish community, without taking into consideration the 95% Jews there – we might even encourage fictions, of Jewish business owners fictitiously, or through other arrangements, selling their businesses to non-Jews in order to open them on Sabbath days. That is what the law explicitly seeks to prevent and therefore established residents of that same area and not business owners as a criterion for opening or closing the shops (Transcript of Meeting No. 162 of the Labor Committee, 6th Knesset, 9 (July 31, 1968); emphasis added – N.S.).

12. The consequence of the above is that the purpose of the prohibition established in Article 9A is also aimed at preserving the character of the public sphere on days of rest by closing commercial establishments on the Sabbath, because if that were not the case – why would the legislator set a limitation related to the composition of the population?

Furthermore, setting this limitation is also embedded in the fear of a fiction, in which Jewish business owners would sell their shops to non-Jews and thus (“or through other arrangements”) bypass the prohibition on opening the store on days of rest. Note well: the same fiction that the legislator feared would be brought in by Jewish shop owners through the “back door” – my colleague, the President, seeks to bring in through the “front door”; It would be sufficient for a Jewish shop owner to engage in commerce in his own shop through a non-Jewish employee, and he would not have to make the effort to “sell” his shop.

13. We have before us explicit and unequivocal expressions of legislative intent. Had counsel for the Attorney General not argued that “It is difficult […] to know the subjective intention of the legislator at the time it enacted the above-mentioned Article 9A” (para. 54 of the Attorney General’s response; in my opinion it is not so difficult, it is our obligation in interpreting a law to deal with all its aspects), I would barely have bothered to expand on the issue. I have brought only the conspicuous examples, which can enlighten us and give us a clear explanation. One who wishes to learn and go into depth can read the various transcripts, and he will come to know that the debates over the draft law – explicitly and implicitly – are all based on understanding the prohibition as relating to the very commerce in the shop, and not just the labor of the shop owners.
14. Beyond the unequivocal intent of the legislator (and even if I were to accept the approach that its weight in legislative interpretation is not great; see the position of my colleague in the Gini Further Hearing, para. 19 of her opinion), we will address the fundamental internal contradiction created by approaching Article 9A, with its subsections, as dealing with the personal question of work on the day of rest. As is known, “Every legislative unit is evaluated against the background of the entire piece of legislation in which it appears and from which we can learn the purpose that the legislator sought to achieve. We should aspire to achieve harmony among the various parts of the law (Aharon Barak, Parshanut Tachlitit Bamishpat ]Purposive Interpretation in Law[ 402 (2003); emphasis added – N.S.). We should therefore interpret the prohibition established in Article 9A(a) in a way that is consistent with the provision of Article 9A(c), and we should not abide by an interpretation that places them in a state of contradiction (see also HCJ 6494/14 Gini v. Chief Rabbinate [unpublished], para. 34 of my opinion (June 6, 2016)). As the Minister of Interior noted in his letter of June 26, 2017 to the Attorney General (which was submitted for our consideration under the heading ‘Position of the Minister of Interior’; emphasis in original): “Adopting the interpretation [according to which the application of the prohibition set in Article 9A is personal – N.S.], would lead to an absurd situation in which a non-Jew would be prohibited from working as an independent business owner on the Sabbath in most cities in the State of Israel (insofar as they don’t have ‘at least a quarter of the authority’s residents’ who are non-Jews, pursuant to Article 9A(c-d) of the law), amazingly, he would be permitted to work as an employee for a Jewish business owner. Does a fundamental contradiction like that make sense?”; It is a good question, and it has no answer – neither in the response of the Attorney General nor in the opinion of my colleague, the President.
15. The intention of the legislator, as well as a logical and harmonious reading of Article 9A of the Hours of Work and Rest Law, with its subsections, indicates that the prohibition grounded in it does not apply just to the work of shop owners, but rather to the very fact of commerce in shops on the days of rest.
16. Note: if indeed, as my colleague concluded, the application of the prohibition set in Paragraph 9A(a) of the law is personal, and the point of departure is that it is permissible for commercial establishments to be opened on the days of rest (by non-Jews), then we would, it seems, close the discussion at this stage, because what would be the value of the Authorizing Law? My colleague adopts the argument of counsel for the Attorney General, namely that “we are dealing with provisions of a law that cover various issues, which we can compare, metaphorically, to two stories completing each other to form one building. One who enters the first floor – the licensing floor – would find himself facing the power of the local authority to regulate the opening and closing of businesses on the Sabbath. Once he leaves the first floor, holding a license to open a business, he approaches the second floor – the floor of the non-waivable labor laws. There the business owner discovers he is obligated to observe the prohibition against employing Jews and Jews working on the Sabbath, together with all the other provisions of the Hours of Work and Rest Law” (para. 68 of the Attorney General’s opinion; para. 40 [para. 39-trans.] of the President’s opinion). Think about it: If the default set in Article 9A is that the entirety of businesses is permitted to open on days of rest, why do we need two stories? Why should the business owner bother entering ‘the first floor’? It would be enough to approach ‘the second floor’, which allows him to open his business through a non-Jew, even in the absence of the Authorizing Law. However, to the extent that Article 9A prohibits the very act of commerce in shops during days of rest, then we must evaluate the bounds of the power granted the local authority pursuant to Articles 249(2) and 249(21) of the Municipalities Ordinance (quoted in para. 39 [para. 38-trans.] of the President’s opinion) and the relationship between it and the above-mentioned prohibition. I will address that now.

 

The Authorizing Law

 

17. According to my colleague, “the Authorizing Law explicitly authorizes the local authorities in Israel to enact provisions in their by-laws that address opening businesses in their domains on the Sabbath […] The above-referenced article [Article 249(21) – N.S.]  explicitly refers to Article 249(21), which addresses ‘the opening and closing of shops’ […] I cannot accept the argument that a law that authorized, inter alia, ‘regulating the opening […] of shops and factories […]’ was intended to apply only to places of entertainment or only to regulating the closure of businesses. That argument is incompatible with the clear text of the law” (ibid; emphases in original). According to my colleague, even if we accept the interpretation that Article 9A articulates a sweeping prohibition against opening businesses on the Sabbath, “it would be a contradiction between the Authorizing Law and the Hours of Work and Rest Law, meaning provisions that are on the same normative plane. Under the non-interpretive standards we use […] the Authorizing Law prevails as a law enacted after the Hours of Work and Rest Law […] and in any event it is a more specific law that specifically grants authority to the local authorities in Israel in a targeted way, in contrast to the generality of the Hours of Work and Rest Law” (para. 44 [para. 43-trans.] of her opinion). 
18. It cannot be denied. The broad language of Article 249(20), on which Article 249(21) rests, apparently contradicts the provision of Article 9A of the Hours of Work and Rest Law. In order to deal with this contradiction, we must evaluate how things developed chronologically. As I will clarify below, according to the non-interpretive standards that my colleague discussed, the Hours of Work and Rest Law is the later, and also the more specific law regarding the power granted the local authority pursuant to the Municipalities Ordinance.
19. The Municipalities Ordinance [New Version] was enacted in 1964, based on the Mandatory Municipalities Ordinance. Article 249 of the ordinance establishes the powers granted to the municipality, including the general authority to regulate “the opening and closing of shops” (caption of art. 249(20) of the ordinance). Based on that authority, together with the authority granted the municipality to enact by-laws pursuant to Article 250 of the ordinance, local authorities have, throughout the years, enacted by-laws regulating the opening and closing times of various businesses in their jurisdictions on days of rest.
20. In 1969, the Hours of Work and Rest Law was amended, and Article 9A was added to it, which set, as aforementioned, a prohibition on commerce in shops on days of rest, with a distinction drawn between commerce and places of entertainment. The question of the meaning of “shop” as stated in the article, and the need to define it, were debated at length within the Labor Committee; during the debate on July 3, 1968, a letter signed by the Minister of Justice, The Minister of Religion and the Minister of Labor was presented, in which they proposed to add to Article 9A the following clarifications:

“(a) To add a definition of the term ‘shop’ as follows: a shop for purposes of this article – a place of business whose primary business is selling goods to be consumed outside the place. Excepting pharmacies and gas stations.

(b) To add a provision establishing that in order to remove doubt, it is hereby clarified that each local authority will be authorized to enact by-laws adding, within the jurisdiction of the authority, a prohibition on running, on the weekly day of rest, a business whose running is not prohibited by this article” (Transcript of the July 3, 1968 debate, p.2; emphasis added – N.S.).

 21. From the above we learn two things relevant for our case: First, in legislating Article 9A, the legislator had in mind the local authority’s power to enact by-laws regarding opening and closing times for businesses on days of rest. The clarification that the legislator considered adding on this issue was only “to remove doubt”; Second, the provision of Article 9A sought to establish an arrangement that set a threshold of closing businesses on days of rest, to which the local authority would be allowed to add a prohibition regarding “a business whose running is not prohibited by this article” (meaning – an entertainment establishment), but not to subtract from it (meaning – to permit the opening of commercial establishments). The words of Menahem Harniv, the legal advisor to the Ministry of Labor, as he clarified the need for the addition proposed in the ministers’ letter, are instructive regarding the scope of the municipality’s authority under the amendment to the Hours of Work and Rest Law and thereafter:

“For those who think that the local authorities have the power to prohibit [opening businesses – N.S.] – this only adds. It says the same thing that already exists, and in fact does not change something. For those who, by the way, want to say: If I prohibit, then I can also permit […] then there’s no need to accept the whole law. Then there’s no need for a state law. We can leave it as is. Every local authority – if it wants, may prohibit, and if it doesn’t want – may permit” (ibid, p. 12).

22. We thus see that prior to the legislation of Article 9A, the local authority’s power in regulating the opening and closing of commercial and places of entertainment on days of rest was quite broad – if it wanted, it prohibited, if it wanted, it permitted. Article 9A of the law narrowed the bounds of that power, and essentially negated the power of the local authority to enact a by-law that permits the opening of ‘shops’ that had been prohibited from opening on days of rest. Note: Unlike my colleague, Justice N. Hendel, I do not think that Article 9A defines a ‘default’ from which the local authority may deviate (para. 13 of his opinion). In my opinion, this article, which was, as noted, enacted out of recognition of the power of the local authorities to regulate the opening and closing of ‘shops’ in their jurisdictions on days of rest, in practice limited such power. To complete the picture, I note that at the end of the day, it was decided not to add the above-mentioned clarifications from the ministers’ letter (because, inter alia, the main points were clarified in the transcript), but that does not alter the fact that Article 9A was enacted while the legislator had in mind the power granted to the local authorities pursuant to Article 249(2).   
23. I will therefore repeat what I said at the start: Indeed, the arrangement grounded in Article 9A of the Hours of Work and Rest Law stands in contradiction to the text of Article 249(2) of the Municipalities Ordinance. However, the arrangement in Article 9A is the later in time, it is the more specific of the two, and therefore it narrows the broad authority imparted to the municipality under Article 249(20).
24. Having clarified the relationship between Article 9A and Article 249(2), we can evaluate the substance of the amendment that was done by adding Article 249(21) to the ordinance. As my colleague the President noted in her opinion (para. 38), the basis of the Authorizing Law in the Magistrate Court’s verdict in Crim Case (Jerusalem Magistrate) 3471/87 State of Israel v. Kaplan [unpublished] 5748(2) PM 26 (1987) (hereinafter: the Kaplan case), in which it was held that local authorities may not order the closing of places of entertainment on days of rest for religious reasons. Given that, the Municipalities Ordinance was amended, and Article 249(21) was enacted, which sought to permit the local authority to also consider religious considerations in exercising its power under Article 249(2) of the ordinance. In bringing the draft bill before the Knesset plenary for a second and third reading, the committee chairperson, MK A. Lein, emphasized that, “this is not a special law, that is the authorizing law; what is before us is an amendment to Article 249 of the Municipalities Ordinance […] this law is not about changing an established and accepted legislative norm. We have here a decision of a Magistrate Court in Jerusalem, which has created confusion about the meaning of the law” (Transcript of Meeting No. 241 of the 12th Knesset, 3, 8 (December 17, 1990); emphasis added-N.S.). The consequence of the above is that the addition of Article 249(21) was not intended to establish a new power of the local authority to regulate the opening and closing of businesses in its jurisdiction on days of rest, but rather explicitly to clarify that the power granted the local authority at the outset, under Article 249(2), could also be exercised “taking into consideration reasons of religious tradition”. As the committee chairperson noted: “The central and most important change in the draft bill before you is encompassed in the provision that says that opening and closing businesses and places of entertainment in Israel may be done, by explicit authorization, also for reasons of religious tradition. That is the central, principled and exclusive change included here in the draft bill” (ibid, p. 5; emphasis added- N.S.). In my opinion, Article 249(2) clarified what is already clear.
25. To summarize this part: Article 249(20) grants the local authorities power to regulate the opening and closing times of businesses in their jurisdiction, including during days of rest. Article 9A of the Hours of Work and Rest Law established a specific arrangement, later in time, for the opening and closing of businesses on days of rest. That arrangement, in practice, narrowed the broad power that had been granted to the local authorities under Article 249(2). Article 249(21), which was worded by reference to Article 249(20), sought explicitly to clarify that this power of the local authority can also be exercised for religious considerations. In any event, Article 249(21) does not seek to change the bounds and substance of the authority, which is still subject to the arrangement set in Article 9A.

 

Social Purpose

26. An evaluation of the Hours of Work and Rest Law from a broader perspective also supports the conclusion that the local authority lacks the power to order the opening of commercial establishments on the days of rest. As is known, “There are two purposes that underlie the arrangements concerning the hours of weekly rest in the Hours of Work and Rest Law, and these complement one another” (the Design case, p. 57). One purpose is a social-societal purpose, “that a weekly day of rest should be designated for each person to rest from his work, spend time with his family or in the company of friends and have time for holiday and entertainment, according to his choices and preferences. Establishing the day of rest was also intended to protect the health of the worker and guarantee fair labor conditions” (Israel Theaters case, 207-208). The second purpose is religious-national, “which regards the observance of the Sabbath by Jews as a realization of one of the most important values in Judaism that has a national character. In a similar spirit, designating other days of rest for persons who are not Jewish realizes their religious outlook” (Design case, p. 58; On the national, spiritual and cultural importance of the Sabbath see the beautiful words of my colleague, Justice N. Hendel, in paragraph 2 of his opinion).
27. The prohibition on opening commercial establishments on the Sabbath, which dictates – and to a large extent compels – a unitary day of rest for the entire economy, with some infringement on freedom of occupation, constitutes a central means of achieving the purposes of the law, and it is what allows business owners to rest from work without worrying about their livelihoods: “This violation — which is mainly a prohibition of working on the Sabbath — applies in principle equally to all owners of businesses, and therefore prima facie it cannot give an unfair competitive advantage to one competitor or another” (Design case, p. 63). If we accept the interpretation that permits the opening of commercial establishments on days of rest, we would, in practice, negate the ability of business owners who wish to do so to stop working on their day of rest; they were crying in grief under the weight of their work on the Sabbath, and their cry for help rose up. Thus, the owner of a commercial establishment who decides to make his own Sabbath, meaning to open his shop on the Sabbath (through a non-Jew) acquires for himself – and according to my colleague, lawfully so – a competitive advantage over the commercial establishments operating nearby. The latter, who fear incurring financial loss – both in terms of loss of profits as well as the ‘leaking’ of their customer base – would be forced to open their shops, too, in order to avoid ‘being left behind’.  Therefore they will have to hire non-Jewish workers (see Articles 9 and 7(b) of the Hours of Work and Rest Law), but the ability to do so is reserved particularly for the owners of large businesses, who have the financial resources required to do so. A small business-owner, on the other hand, who cannot afford to hire a non-Jewish worker to work in his place on the day of rest, will throw his hands up in the air. The small business owners don’t even have the possibility of giving up their day of rest and competing: On one hand, they can’t afford to hire a non-Jewish worker; on the other hand, they are not permitted to engage in commerce in the shop themselves. The small merchants are the ones expected to absorb the financial loss stemming from opening commercial establishments on the days of rest (see and compare the words of Justice (as he was then called) E. Rubinstein in App Adm Pet 2469/12 Bremer v. Tel Aviv-Jaffa Municipality (unpublished) (June 25, 2013), para. 3). Clearly, such a result is not desirable, and it is completely opposed to the social purpose of the Hours of Work and Rest Law.
28. We should now ask: if the social purpose is indeed so important, why distinguish between commercial establishments and places of entertainment, as the legislator did? Shouldn’t – from both a national and social perspective – places of entertainment also stop their work? I think we can actually find an answer to that question in the words of my colleague the President (para. 50 [para. 49-trans.]):

“Communal life is not ‘all or nothing’ but rather is based on tolerance for a divergent opinion, mutual respect and mutual compromise. Communal life is not ‘black and white’ but rather a spectrum. It is responsive to the recognition that human beings are free creatures who design their life stories, but also to the recognition that they do so within the framework of society and not on a deserted island. It is based on the understand that each of us bears responsibility for society as a whole, but that does not mean giving up on fundamental components of our identity or the uniqueness of each of us. It is not a perspective of ‘I won’t sign on to desecrating the Sabbath’ but rather recognition of the indispensability of the perspective, ‘Live and let live’.

29. The social purpose has two layers: The first layer is concerned with rest from labor and relaxation from travail; the second layer stands on the back of the first, and it is concerned with the quality of that rest. Specifically, due to the great importance of days of rest, we should recall that the character of the rest varies among people. For one person, the Sabbath delight is in prayer, the blessing over the wine, a feast, and rest within the bounds of Jewish law; another person, in contrast, seeks to delight in a museum exhibition, a family outing to the cinema or resting on the seashore. We should therefore allow each person to shape his day of rest according to his world view and belief:
30. Alongside the protection of Sabbath observance from the national-religious aspect, the law leaves the social aspect of the day of rest open to be shaped in accordance with the variety of different lifestyles and tastes in the many sectors of Israeli society. Indeed, there are many different ways in which people decide how to act on the day of weekly rest given to them, each person in accordance with his way of life, belief and lifestyle [...] Within the framework of the social aspect of the Sabbath we require a recognition of the needs to depart from the prohibitions of employment where this is essential in order to allow the Sabbath to be shaped as the day of rest for the general public in a free, pluralistic and tolerant spirit, without causing disproportionate harm to other social groups, and without uprooting the unique national character of the Sabbath from among the Jewish people. We should thereby recognize that in order to realize the individual character and leisure culture of the individual, we also need public frameworks that will assist and allow this, including public transport that will allow the public to move freely, the opening of museums and cultural institutions, the activity of theatres and cinemas, the holding of lectures and congresses, and the like” (Design case, pps. 66-67).

 

30. A person’s right to shape his day of rest in his image is not unlimited; additional values and interests hang in the balance, and we must balance between them. Opening commercial establishments on the Sabbath is different than opening places of entertainment – from both the point of view of the shop owners as well as the consumers’ point of view. The absence of a prohibition on opening places of entertainment on the Sabbath does indeed inflict a certain harm to the Sabbath day profits of owners of places of entertainment who seek to stop their work, but that harm is of a more limited quality and nature:

“A person who buys a pair of shoes on the Sabbath will not buy another pair during the week. Therefore, if some shoe stores are open on the Sabbath, those interested in closing on the Sabbath will lose part of the proceeds that would have otherwise accrued during the week, had all the shops been closed on the Sabbath. This loss would apparently be considerable, in light of the fact […] that the proceeds that would be received at this kind of business on the Sabbath would be considerably greater than the proceeds received during the week. Consequently, opening one shoe store on the Sabbath exerts significant pressure on all the owners of shoe stores in the area to open their businesses and work on the Sabbath. The situation regarding places of entertainment is different: a person who sits in a coffee shop or goes to the cinema on the Sabbath will not, for that reason, refrain from sitting in a coffee shop or going to the cinema again during the week. Therefore, the loss caused to one who chooses to close his coffee shop on the Sabbath will not substantially influence his proceeds during the week” (Gidon Sapir, “’Vikaratem Lashabat Oneg?’ Avoda Mis-char Vibilui Bishabat Biyisrael Mekom Hamidinia Viad Hayom [‘And Call the Sabbath a Delight?’ Work, Commerce and Leisure on the Sabbath in Israel from the Founding of the State to the Present]”, 31 Mehkarei Mishpat 169, 222 (forthcoming 2017)).

31. There is also a substantial difference from the point of view of the consumers. As noted, the social purpose supports the right of consumers who want to experience pleasure according to their viewpoints, belief and preferences. That is not the case concerning commercial activities. Commerce is concerned with buying and selling, its main point is financial profit, functional needs that are not related to rest or leisure. Furthermore, the functional nature of commercial activity is expressed, inter alia, in the fact that there is no advantage to engaging in shopping particularly on the day of rest. Making purchases at the grocery store or similar place can also be done before or after the Sabbath. That is different from activities of leisure and rest, which by their nature can take place particularly on the Sabbath, the day of rest, when all family members have stopped working together and are perfecting their rest with joint activities. I will clarify and emphasize: there is no doubt that opening commercial establishments on the Sabbath constitutes a significant addition of convenience for a broad community of consumers. That should not be dismissed at all. Convenience, while it is not a fundamental constitutional right, is not a vulgar word. A person’s desire to have the chance to buy milk and eggs and soy sauce (and also clothing and furniture) on the Sabbath is understandable and legitimate. However, that desire is not the whole story; hanging in the balance is also the fundamental right of the owners of the commercial establishments who want to stop their work on the day of rest. The addition of comfort likely to stem from commercial consumption on the Sabbath does not justify such significant harm to the small-scale merchants.
32. Furthermore, excepting places of entertainment from the bounds of the prohibition set by Article 9A of the law allows the owners of places of entertainment – small and large, rich and modest – who choose to give up their weekly rest, to operate their businesses themselves, without relying on salaried employees. It should also be noted that the distinction between commercial establishments and places of entertainment is deeply rooted and accepted in the discourse about the image of the Sabbath in the State of Israel; it is not by chance that, for years, it has taken root in draft laws and various public contracts (Ruth Gavison and Yaakov Medan, Masad Liamana Chevratit Chadasha Bein Shomrei Mitzvot ViChofshiim Biyisrael [Foundation for a New Social Contract between the Religious and Secular in Israel], 223-237 (5753); Sapir, pps. 217-222; Elyakim Rubinstein and Noam Sohlberg, “Dat Vimidina Biyisrael Bishnat Hayovel [Religion and State in Israel in the Jubilee Year]”, Manhe Liyitzhak; Kovetz Mamarim Lichvodo Shel Hashofet Yitzhak Shilo Bigvurotav [Mediator for Yitzhak: Collected Articles in Honor of Judge Yitzhak Shilo in his Courage] 399 (eds. Aharon Barak and Menashe Shava, 5759), also printed in Elyakim Rubinstein’s book, Nitivei Mimshal Umishpat [Paths of Governance and Law[ 196, 214-218 (5763)).
33. The key word: Balance – between the rest of the merchants and the rest of the consumers. It is not a perspective of “I won’t be party to desecrating the Sabbath” but also not a perspective of “I will buy milk and eggs on the Sabbath for spite”. “Live and let live,” my colleague said; and I say – “Rest and let rest”. How appropriate for our issue are the words of the Jewish-American philosopher and theologian, Abraham Joshua Heschel, in his monumental book, ‘The Sabbath’:

“Someone wishing to reveal the sanctity of the day is tasked with abandoning the alienation that exists in the vulgar commerce of life, and his being trapped under the yoke of his labor and sweat. He should walk far from the strident voices of the other days, from the tensions and greed of acquisition […] he should detach from his work, and understand that the world has already been created and will survive even without the help of humankind. Six days a week we wrestle with the world, wringing profit from the earth; on the Sabbath we especially care for the seed· of eternity planted in the soul […] Six days we strive to master the world, and on the seventh day we should be wise enough to master our selfhood” (Abraham Joshua Heschel, Hashabat [The Sabbath] 33 (trans. Alexander Ibn Hen, Yediot Ahronot 2003)).[SB1] 

 

On the Sabbath, the darling of days, we ‘should be wise enough to master our selfhood’ , to exit the trap of “the yoke of labor and swea[SB2] t’; so that we can relax, rest, and fulfill the words of the prophet Isaiah (58; 13) ‘And call the Sabbath a delight”, and to distinguish, as the law instructs, between commerce and pleasure.

34. The subjective purpose of the above-mentioned law’s clauses, as clearly reflected in the legislative history; the reciprocal relationship between them over the axis of time; and also the objective purpose, which relates to the social considerations at the foundation of the Hours of Work and Rest Law – lead to the conclusion that the local authority does not have the power to order the opening of commercial establishments on days of rest.

 

In the Margins: The Reasonableness of Reasonableness

35. At the heart of my opinion – the question of the power of local authorities to order the opening of commercial establishments on the Sabbath. Once I reached the conclusion that such authority does not exist, I need not address the question of the reasonableness about which my colleague expounded, but it is impossible to remain exempt, without saying anything. I will say only this: according to my colleague, the Minister of Interior’s position suffers from extreme unreasonableness, because it “did not appropriately consider the uniquely autonomous status of the Municipality” (see par. 25 [para. 24-trans.] of her opinion; emphasis added – N.S.). I saw the words of my colleague, the President, and I was reminded of the words of President (ret.) A. Grunis; his words are logical, and we should set them in our sights:

“The court’s expertise in general, and in the field of administrative law in particular, relates to questions of authority and procedural flaws [...] By contrast, the court has no special advantage or expertise on the subject of unreasonableness [...] the ground of unreasonableness has undergone a change and has almost developed into a kind of ‘supreme norm’ […] In the course of this development, it has swallowed up, like a person whose appetite is insatiable, specific grounds for judicial scrutiny that were recognized in the past (for example, the grounds of irrelevant purposes and irrelevant considerations). The great disadvantage of this ground in its current scope lies in its high degree of abstraction. The high degree of abstraction expands the role of judicial discretion and thereby increases legal uncertainty. It creates a huge disparity between its exalted position in the legal universe and its application in a concrete case […] Often use is made of the concept of weight in order to emphasize the concrete application of the ground of unreasonableness. Thus it has been said on more than one occasion that a decision will be set aside for unreasonableness even if the authority that made the decision took into account all of the relevant considerations, where it gave the wrong weight to one or more of the considerations that were taken into account […] Admittedly metaphors, such as weight, are an accepted tool of legal language. The imagery helps the court to analyze, develop its thoughts and convey the reasoning to the reader. At the same time, the use of metaphors may sometimes make the reasoning vaguer rather than clearer. The use of the image of weight in the context of unreasonableness admittedly helps to some extent. But we cannot ignore the fact that a determination of unreasonableness is almost entirely based on an examination of the end product, i.e., the outcome of the decision. In other words, the use of the metaphor of weight with regard to considerations that the competent authority making the decision took into account can sometimes, it would seem, be used to disguise disagreement with the result” (HCJ 5853/07 Emunah National Religious Women’s Movement v. Prime Minister, 62(3) PD 445 (2007), para. 9 of his opinion; See also the words of President M. Landau in HCJ 389/80 Dapei Zahav Ltd. v. Broadcasting Authority, 54(1) PD 421, 431-32, who as far back as nearly fifty years ago expressed his concern about the misunderstandings that using the concept of reasonableness risked creating).

36. Reasonableness has many faces, and what is appropriate also depends on the eyes of the beholder (HCJ 43/16 Ometz Movement: Citizens for Good Governance and Social and Legal Justice v. Government of Israel [unpublished], para. 15 of my opinion (March 1, 2016). What one might consider to be extremely unreasonable is seen by another as reasonable and appropriate. That is true in general, and specifically when the issue at hand is value-laden and general, part of a long-running public discussion. Our issue is proof of this. We should continue to strive to focus the cause of reasonableness into minute details, into standards, and even to clip its wingspan, as part of a trend “to dispel the cloud of vagueness, to add to clarity and to constrict the space of uncertainty in which reasonableness lives, also in a forward-looking way” (ibid).

 

The Social Purpose as a Bridge

37. We cannot conceal the truth. The argument over the image of the Sabbath is profound, ideological, principled. That is true of additional issues concerning the relationship between religion and state and the fundamental values of the State of Israel as a Jewish and democratic country. No side is willing to give up on its holy of holies – religious holiness or secular ‘sanctity’. There is a reason I sought to rely on the important words of my colleague, the President, in her opinion (see para. 28 ibid [para.27-trans.]), regarding the principled approach that should guide our path. Doing so can illustrate that the dispute between us is not broad, deep and principled as might otherwise seem. We do not disagree on the point of departure: there is no perspective of ‘all or nothing’, ‘black or white’, but rather tolerance for a different opinion and mutual concessions. We will not obscure the dispute between us – over authority and reasonableness and interpretation, but we neither will we exaggerate it; this is not “religious” against “secular”, “north” against “south” or periphery against “the State of Tel Aviv”.  I wrote at length above about the social purpose, one of the two purposes at the foundation of the Hours of Work and Rest Law. I think that reasonableness can unite all of them, without paying the price of giving up on religious or secular ideology. On the issue of the Sabbath, rather than serving as another bone of contention, the social-societal consideration can act as a cornerstone of agreement.

Epilogue

38. Prohibiting work on the Sabbath under Article 9A of the Hours of Work and Rest Law applies to commercial establishments but not to places of entertainment; the prohibition is not merely personal but rather applies to the fact of commerce in the shop; the Authorizing Law does not grant power to the local authority to order the opening of commercial establishments. From my point of view, therefore, the motion for a further hearing – should be granted.

 

Justice

Justice E. Hayut

1. In the verdict that is the subject of this further hearing, I joined the opinion of my colleague, President M. Naor, that there is no flaw at the level of authority or discretion that justifies intervening in the By-Law of Tel-Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 2), 5774-2014 (hereinafter: Amendment No. 2). Hearing the arguments that the parties raised again in the further hearing has not changed my mind.
2. The Law Amending the Municipalities Ordinance (No. 40), 5751-1990 (hereinafter: the Authorizing Law) applies, also to days of rest, the power granted to the local authority under Article 249(2) of the Municipalities Ordinance [New Version] (hereinafter: the Ordinance) to regulate “the opening and closing of shops, factories, restaurants, coffee shops, tea houses, drinking establishments, cafeterias, canteens and other institutions of this kind, and of cinemas, theaters and other places of public entertainment or a type of it”. Thus the Authorizing Law anchored the special-autonomous status of the authority also concerning days of rest, and allowed it to use by-laws, according to its discretion, to shape activity in the public sphere on these days, within its area of jurisdiction. As early as 1993, this court, in the opinion of President Shamgar, addressed the significance of the Authorizing Law and the bounds of the power it imparts to the local authority (HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993), hereinafter: the Israel Theaters Case and also see on this issue para. 28 [para. 27-trans.] of the opinion of my colleague, the President).

My colleague the President repeated and emphasized these words when she noted that “the authority to make the value judgment within the framework of the by-laws belongs to the Municipality, not to the Minister of Interior.The Minister of Interior should not evaluate whether that judgment is optimal, in his opinion, but rather whether it is within the zone of reasonableness …A decision by the Minister of Interior is intended to supervise the lawfulness of a decision by the Municipality, not to replace its discretion” (para. 29 [para. 28-trans.] of her decision. I share this position. For the reasons my colleague the President detailed in her opinion, I also take the position that the Hours of Work and Rest Law, 5711-1951 (hereinafter: Hours of Work and Rest Law), including its Article 9A(a) does not address the question of opening and closing businesses on the day of rest but rather with the personal question of work on that day. Therefore, to my way of thinking, we don’t find within the Hours of Work and Rest Law a prohibition on opening businesses on the day of rest, and in any event there is no clash between its provisions and the provisions of the Authorizing Law and the by-laws that were enacted pursuant to it.

3. In his decision to grant the motion for a further hearing, Deputy President E. Rubinstein (ret.) noted that “the Sabbath, whose status in the Jewish world needs no elaboration, deserves to have its case considered and clarified when all positions are before the Court”.

Indeed, the Sabbath has been adorned with many crowns, and there is a special place reserved for it in the heart of every Jewess and Jew, even if they do not fulfill the commandment of observing the Sabbath according to Jewish law. The national poet H.N. Bialik said about the Sabbath that “it is the most genius invention of the Hebrew spirit” (Sefer Hashabat [Book of the Sabbath] (Dvir Publishers, 5708, p. 517)) (hereinafter: Book of the Sabbath), and many others have reified the wonderful blending of religious values and social values (Book of the Sabbath, p. 521; Leave App Crim Handyman Do It Yourself Ltd. v. State of Israel, 57(3) PD 1, 6 (2003)). But with its founding, the State of Israel raised the banner of Jewish and democratic values together, and the need to integrate the state’s Jewish contours with its democratic contours requires us to walk the path of balance and compromise. That is the case in general, and that is the case regarding the Sabbath.

4. In the Israel Theaters case, President Shamgar addressed the purposes at the foundation of the Hours of Work and Rest Law:

“In establishing the principle of observing a weekly day of rest and designating it on the Sabbath, the legislator sought to achieve two integrated goals: first, a social goal, that a weekly day of rest should be designated for each person to rest from his work, spend time with his family or in the company of friends and have time for holiday and entertainment, according to his choices and preferences … second, designating the day of rest on the Sabbath takes place against the background of the commandment of religious law and Jewish tradition” (ibid, 206-207).

The effort to integrate these two goals, while allowing certain economic activity for places of entertainment and commercial establishments on the days of rest, as well, was expressed in the Authorizing Law. According to this law, as noted, the local authority was imbued with power to order, inter alia, “the opening and closing of shops and workshops…” on the days of rest, but it was emphasized that the authority must exercise this power while taking into consideration “reasons related to religious tradition” (arts. 249A(20) and (21) of the ordinance). The legislator thus did not completely prohibit the local authorities from regulating the opening and closing of shops and workshops on the days of rest but outlined for them a clear standard of consideration for reasons related to religious tradition, and in doing so chose the path of balance and compromise (see para. 31 [para. 30-trans.] of the opinion of my colleague, the President). My colleague Justice Sohlberg seeks to establish the balance point in this context as the distinction between places of entertainment and commercial establishments. However, this distinction has no basis either in the text of the Authorizing Law, and as my colleague the President described so well, or in the law’s legislative history. It therefore cannot be accepted. Having said that, I accept the position that we should be very cautious with provisions that permit the opening of shops and workshops on the days of rest, and that provisions that allow that with “too generous a hand” risk upsetting the delicate balance that must be preserved in this context between the State’s Jewish values and its democratic values.

5. In his opinion that was submitted to us at the stage of the further hearing, the Minister of Interior expressed concern over creating a precedent that would create a fissure in the status quo and change “the appearance of the Sabbath and its character throughout the country”. First, I note that there is merit in the ruling of my colleague, the President, that this is a decision that was not submitted and in any event was not addressed in the procedure that is the subject of the further hearing (see paras. 17-20 [paras. 16-19-trans.] of her opinion). For that reason, I doubt that we can address it now. However, even on the merits of the issue, I did not find a justification, under these circumstances, for the concern that the minister expressed in his decision over a sweeping infringement on the appearance of the Sabbath and its character at the national level, to the point where he would believe there is cause for invalidating Amendment No. 2 of the Tel-Aviv Jaffa [sic] Ordinance. That is the case, given the very limited scope of the sites and the businesses whose opening was permitted in Tel Aviv on the Sabbath, both according to Amendment No. 1 and according to Amendment No. 2, which exemplify a reasonable and proportional balance between the existing interest in observing the character of the Sabbath as a day of rest while allowing for the possibility of some economic activity that suits the city’s character, with its various neighborhoods and its diverse population.

For these reasons, I concur with the position of my colleague, the President, in the further hearing as well.

                                                                                                                                Justice

 

Justice D. Barak-Erez

1. Should we respect the choice of the Tel Aviv-Jaffa Municipality city council to amend its by-law in such a way as to allow the opening of grocery stores on Sabbath days holidays? That, in essence, is the question that again was placed before us. That – and not additional questions, although additional questions were wound up in the parties’ arguments. As I noted in the verdict that is the subject of the further hearing, we are not addressing the question of whether, at the level of norms and viewpoints, we should prefer arrangements that take the side of broadly closing businesses on the Sabbath or those that regulate ways of opening them. We are also not addressing the question of what is the optimal application of the national and social ideal of the Sabbath. I believed in the past, and I still believe, that we should respect the decision of the city council, and allow the value-laden dispute in the background to continue to take place in the arena that is appropriate for it – the public arena. For that reason, I concur with the opinion of my colleague, the President, also in the further hearing, and for the reasons she provides. Having said that, in light of the dispute that has erupted between my colleagues, Justices N. Hendel and N. Sohlberg and the rest of the colleagues on the panel, and while focusing on the question of the authority of the municipality to permit the opening of stores on the weekly day of rest, I seek here to present the details of my position.

 

Further Hearing and Not a Retrial

2. Before I dive into the merits of the issue, I will add that, like my colleague, the President, I also think it important to be punctilious in not permitting a further hearing of a verdict to become a platform for a retrial. Finality in litigation is an important value in our system, and actually in every legal system. That is particularly important, in light of the fact that giving a government agency a chance to present a new position, that would be addressed on the merits after the legal proceedings have ended risks incentivizing strategic behavior – at first presenting one position, and if it is not accepted, it can present another position.
3. Truth be told, I agree with my colleague, the President, that this reason is sufficient to justify denying the motion for a further hearing. However, given that the scope of discussion has been broadened, I will continue and also address the merits of the issue. However, it is important to emphasize that the reasons behind the late decision of the Minister of Interior should not be at the center of the discussion, but rather the question of the lawfulness of the Tel Aviv-Jaffa’s by-law, including its amendments – both in terms of authority as well as in terms of discretion.

 

A Municipality’s Authority to Permit the Opening of Businesses on the Sabbath

4. The petitioners’ arguments in the further hearing were largely based on the legal position that Article 9A of the Hours of Work and Rest Law, 5711-1951 (hereinafter: the Hours of Work and Rest Law) should be interpreted to completely prohibit activities by businesses belonging to the category of “shops” on the Sabbath, and therefore, in any event, the authority of the municipality to permit the opening of businesses would be limited to regulating the opening of places of leisure and recreation – hotels, restaurants and cultural institutions – what are often called “places of entertainment”. My colleague, the President, rejected this argument. In contrast, my colleagues, Justices N. Hendel and N. Sohlberg, reached a different conclusion on this issue. According to them, a reading of Article 9A of the Hours of Work and Rest Law reveals that the law creates a prohibition on the activities of shops, workshops and factories on the Sabbath. My colleague, Justice Hendel, believes that the resulting conclusion is that the local authority has extremely limited discretion to permit businesses to open on the Sabbath, while the Minister of Interior has broad oversight powers over its decisions on the issue. My colleague, Justice Sohlberg, takes the point even further, finding that the municipality acted ultra-virus and lacks the authority to permit the opening of businesses in the category of “shops” on the Sabbath.
5. In this dispute, I agree with my colleague, the President. I believe, with all due respect, that the opposing position does not reflect the correct interpretation of the Hours of Work and Rest Law – neither in terms of its text and legislative purpose, nor in terms of its relationship to other provisions in the very same law and to provisions of the Municipalities Ordinance [New Version] (hereinafter: Municipalities Ordinance or the Ordinance), and not even in terms of its legislative history. When it is evaluated more broadly, including, inter alia, the way people have understood the law to amend the Municipalities Ordinance (No. 40), 5751-1990, known as “The Authorizing Law”. I will explain my position.
6. In order to address the interpretation of Article 9A of the Hours of Work and Rest Law, whose caption is “

1. On the prescribed days of rest, within the meaning of the Law and Administration Ordinance,, 5708-1948, the owner of a workshop of [sic] industrial undertaking shall not work in his workshop of undertaking and the owners [sic] of a shop shall not do business in his shop
2. On the aforesaid days of rest, a member of a cooperative society shall not work in a workshop or industrial undertaking of the society; a member of an agricultural cooperative society shall not work in a workshop or industrial undertaking of the society unless the work is connected with the services necessary for its farm.
3. A non-Jew may, in respect of his workshop, industrial undertaking or shop situated in the area of a local authority whose non-Jewish inhabitants, according to the determination of that authority, are at least 25 per cent of its total population, observe the prohibitions imposed by this section, at his option, either on the aforesaid days of rest or on his own Sabbath and holydays. The same shall apply in a quarter of a local authority if the area and the proportion - not less than 25 per cent - of the non-Jewish inhabitants of that quarter have been determined for this purpose by that authority.

7. The opposing view focused on the provision that says “the owner of a shop shall not do business in his shop”. According to this position, the prohibition set in Article 9A applies to activity in the business in general, in contrast to the activity of the shop owner himself on his weekly day of rest. We disagree with that.
8. A reading of the Law of Work Hours and Rest sharpens the clear distinction that it contains between the terms “will work” and “will employ”. The law ordinarily regulates the issues of employers and their employees.  In contrast, there are prohibitions on someone who is a shop owner to “employ” workers through a formula that deviates from the law’s dictate. The law therefore clearly distinguishes between the “work”, which is the activity of the worker himself, and the “employment”, which is the employer’s part of it. Accordingly, Article 9A of the law says that the owner of a workshop and the owner of a factory shall not “work” in his workshop or factory – “shall not work”, and not “shall not employ”.
9. Against that background, I think that Article 9A was intended to extend the obligation of rest on Sabbath days and holidays to non-salaried workers, including workshop owners and shop owners (see: HCJ 347/84 Petah Tikva Municipality v. Minister of Interior, 39(1) PD 813, 821 (1985) (hereinafter: Petah Tivka Municipality case). In other words, the legislator sought to take care of independent business owners by imposing an obligation of rest on them, to take care of them and their family members, too, as it had already done in regulating this forced rest (as a welcome personal arrangement) for salaried employees. From that alone we should not conclude that the legal provision is intended to require the absence of activity in the business itself. Indeed, pursuant to the reality at the time the legislator enacted the law, namely that most commerce was retail commerce, and workshops were mostly small, the Sabbath rest of the owner of the business would be expected to end the operation of the business itself. That is even, from my point of view, a result that in many cases brings a social blessing. However, from a legal point of view, it is not a necessary outcome.
10. In my opinion, this interpretation is required not just by the text of Article 9A of Hours of Work and Rest Law, but also by its purpose. As we know, the Hours of Work and Rest Law is, first and foremost, a protective labor law whose purpose is to regulate the rights of workers and to guarantee their rest, whether they chose it or not (see: HCJ 6522/06 Kochavi v. National labor Court in Jerusalem [unpublished], para. 17 (April 22, 2009); FH HCJ 10007/09 Glutan v. National Labor Court [unpublished], para. 11 of then-Justice S. Jubran’s opinion (March 18, 2013)). Broad areas of regulating the national character of the Sabbath deviate from the bounds of this law, and that is without detracting from the national-identity purpose of the law, which is expressed in the choice of Sabbath days and Jewish holidays as the primary days of rest (See Leave App Crim Handyman Do It Yourself Ltd. v. State of Israel, 57(3) PD 1, 6 (2003) (hereinafter: the Handyman case); HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38,  (59) (2005) (hereinafter: the Design 22 case).
11. My colleague, Justice Sohlberg, cited statements made during the process of enacting Article 9A of the Hours of Work and Rest Law, with the goal of understanding its subjective purpose. However, I think that a complete reading of the debates that took place in the Knesset and the committees raises a more complex and even different picture. Of course, legislative proceedings always include many speakers and participants, and in any event some of the participants’ statements in the debates express their own positions and do not necessarily indicate the “legislative intent” (see: Aharon Barak, Parshanut Bamishpat – Parshanut Hahakika [Interpretation in Law, Legislative Interpretation] Vol. 2, 265 (1993) (hereinafter: Legislative Interpretation).  That is particularly true when we are dealing with a subject that is in social-public dispute such as the subject of the Sabbath, such that the Knesset debates over it reflect a broad spectrum of positions (for more on this, see Gidon Sapir, “’Vikaratem Lashabat Oneg?’ Avoda Mis-char Vibilui Bishabat Biyisrael Mekom Hamidinia Viad Hayom [‘And Call the Sabbath a Delight?’ Work, Commerce and Leisure on the Sabbath in Israel from the Founding of the State to the Present]”, 31 Mehkarei Mishpat 169, 173-184 (2017) (hereinafter: Sapir)).
12. Even before I address statements made during the debates, we should begin with the draft law’s explanatory notes, where it is explicitly written that “the Hours of Work and Rest Law … currently applies to salaried employees only. The proposed amendment seeks to apply its provisions regarding days of rest to factory owners, members of cooperative societies and shop owners, too, with certain caveats” (Explanatory Notes for the draft Hours of Work and Rest Law (Amendment), 5726-1966, HH 136). If that is so, the explanatory notes of the draft bill that includes Article 9A establish, as noted, that the intent of the legislator was to apply the law to independents, as well. That – and no more. There is no mention of broader aspects of ceasing the activity of businesses on the Sabbath as an objective in itself.
13. My colleague quoted the words of then-Minister of Labor Yigal Allon, in the Knesset plenary at the time he brought the amendment that included Article 9A for a first reading. My impression is that reading the statements made by Minister Allon in the plenary can actually indicate the emphasis that Article 9A puts on regulating employment and not the opening of businesses: “I am satisfied that this time I can submit to the Knesset a bill that can expand the application of the obligation of rest on additional kinds of workers, without violating the status quo regarding religion” (D.K. 5726, 2157). He went on to say: “While at the start of this century, there was a conception that labor laws are intended to protect only manual wage laborers, this conception has expanded, and there is no dispute today that the state should extend its protection to every worker as such – a manual laborer and an office clerk, a wage laborer and an independent contractor” (ibid. Emphasis added). This language, which presents to the reader the employee and the employer – and not the business – is, as noted the same language used in the Hours of Work and Rest Law itself, and it is the language that is compatible, as explained, with law’s objective purpose as a protective labor law.
14. This conclusion becomes stronger/more plausible when we examine statements by Adv. M. Harniv, the legal advisor of the Ministry of Labor, during the debates over the amendment in the Knesset Labor Committee. For example, he explained: “In bringing this law before the Knesset, the Minister of Labor did not hide the fact that this law is an outcome of the coalition agreement; having said that, he added that the law is part of the development of labor legislation throughout the world. If labor legislation was initially intended to protect the wage laborer, as time passed, the perspective that the independent contractor should also be protected developed further and further. Article 9 of the original law prohibits employing a worker on his day of rest, and this draft law seeks to impose such prohibition on the independent contractor as well” (Transcript of the Knesset Labor Committee of November 16, 1966). In my opinion, the following statement of his is particularly enlightening:

“When I debate this law I look at it as a social law and not just as a religious law. That was the foundation, and I participated in coalition negotiations over it, and I know. In many other previous governments, there was a coalition agreement that promised to enact a “Sabbath law”. In this law, the word “Sabbath” is not even mentioned. And when it was agreed upon, the Minister of Labor required two things: first, that if this is a Sabbath law and a religious law, why does it have to be part of the Hours of Work and Rest Law? And second – then the Minister of Religious Affairs would have had to be responsible for it … I call your attention to the fact that this law does not discuss the Sabbath but rather the weekly day of rest … it’s a social law. As we do for salaried employees, that is how we shall do for independents, who are also workers. From the point of view of the national legislation, they will have a day of rest” (Transcript of Labor Committee of July 3, 1968).

15. My colleagues, Justices Hendel and Sohlberg, find support for their interpretation in Article 9A(c) of the Hours of Work and Rest Law, which forbids a non-Jew from opening his shop on the Sabbath in an area where there is a decisive Jewish majority. For them, that article indicates the legislator’s intention not to allow the opening of businesses in Jewish areas on Saturdays, even if those who work in the business as a practical matter are not Jewish. I do not think that the above resembles a piece of evidence. At the heart of those words, there could be an alternative explanation to the one that my colleagues propose, one that is based on simple market logic. What does that mean? In my opinion, with Article 9A(c), the legislator sought to prevent a situation in which the “vacuum” created in a certain area – in which all the Jewish-owned businesses were closed on the day of rest – would be exploited by non-Jewish business owners, who are not required, under the law, to stop working on the day of rest (See, e.g. statements by Member of Knesset T. Sanhadrai in the transcript of the Labor Committee of November 22, 1967).
16. As an aside, I will note that I do not agree with my colleagues’ position regarding the interpretation of the term “shop” as it appears in Article 9A of the law. For them, this term is limited to businesses that sell products, as opposed to places of entertainment. It would appear difficult to interpret Article 9A as necessarily intending to refer to a “shop” in the narrow sense. This interpretation is inconsistent with the social purpose of Article 9A, because it leaves open the question of whether it applies to many other businesses that are not a “shop” in the narrow sense and are not a “workshop” or “factory”. What about offices that supply professional services such as accounting, legal representation or medicine. Are they workshops? Or should we say that the prohibition does not apply to them at all? Furthermore, I believe that the positions presented regarding the interpretation of the term “shop” in the statements made during the legislative debates do not necessarily express the appropriate interpretation of that term, primarily if we pay attention to the fact that repeated requests to add a definition of that term were repeatedly rejected, deliberately, inter alia, for reasons that were defined as “relating to the governmental coalition” (See, e.g. D.K. 5729 1904). In any event, I do not think we need to address the full range of the above-mentioned aspects in our case, given the conclusion that Article 9A of the law does not include a prohibition on opening businesses on the Sabbath, but rather imposes restrictions on the work of those for whom it is their weekly day of rest, including the business owners themselves.
17. Similarly, I want to point out that the interpretation proposed by the opposing position puts the Hours of Work and Rest Law on a direct collision course with the Authorizing Law. As we know, Article 249(2) of the Ordinance imparts the local authority with power to regulate “the opening and closing” of shops, workshops, places of entertainment and additional institutions, and “to determine … their opening and closing hours on any given day”. Article 249(21) of the Ordinance adds and explicitly clarifies that the local authority may exercise such power in respect of the weekly day of rest, too, taking into consideration reasons of religious tradition. My colleagues tried to resolve this difficulty through various interpretive paths. I think the solution is much simpler: there is no contradiction between the Hours of Work and Rest Law and the Municipalities Ordinance, and in any event there is no interpretive tension that needs to be bridged. Article 9A of the Hours of Work and Rest Law is a protective law that guarantees the Sabbath rest for those who work as independent contractors, while the Municipalities Ordinance regulates the scope of what is permitted for opening businesses, and each of those kingdoms remains within its own domain.

 

The Post-Legislative History: Implementation of the Law Throughout the Years and New Proposed Laws

18. In addition to the aforesaid, I want to emphasize that the interpretation of Article 9A of the Hours of Work and Rest Law cannot be done as if we were reading a blank slate. As we know, as part of the method of purposive interpretation, we should examine the legislative history of a piece of legislation. In that context, one examines both the pre-legislative history (the legal and social background that led to the act of legislation, as well as the stages that the law passed on its way to enactment) and the post-legislative history, meaning the events that occurred after the act of legislation that are relevant to it (See: Barak, Legislative Interpretation, pps. 351-352).
19. We have in the record decades in which the Hours of Work and Rest Law has been discussed and implemented in the rulings of this court. In each case, the legal proceedings were based on the fundamental assumption that the Hours of Work and Rest Law does not per se prohibit opening businesses on Saturdays and holidays, in contrast to employing workers on their days of rest in these businesses (See, e.g., the Petah Tikvah Municipality case, pps. 821-822). Thus, in the two central judgments in which this court addressed arguments against the prohibitions on employing salaried workers on the Sabbath – the Handyman case and the Design 22 case – the proceedings were entirely based on the assumption that it is possible to operate the business itself, and the discussion was over the restriction on employing Jewish workers in the business on the day of rest. This state of affairs becomes clearer, as noted, if we examine the Bremer  case, in which most of the judges on the panel concurred with the result, including then-Justice E. Rubinstein, who granted the motion for a further hearing in this case. The Bremer case essentially referred the leaders of the Tel Aviv-Jaffa Municipality to enact a new by-law that would take a clear position about the operation of businesses on the Sabbath (ibid, paras. 52-56 of then-Deputy President Naor’s judgment). Was that ruling intended to direct the city’s leaders toward a path that is blocked in advance? I would be astonished if that were the case.
20. It is worth noting that many of the petitioners for the further hearing, who reified the argument based on the interpretation of Article 9A of the Hours of Work and Rest Law, were essentially the appellants in the Bremer case. Despite that fact, they did not move for a further hearing after the verdict in case and did not argue that directing the Tel Aviv-Jaffa City Council toward the path of enacting a by-law regarding the operation of businesses on the Sabbath was a new and difficult precedent, which allegedly contradicts the law, as they are arguing now. This kind of procedural conduct would seem to arouse wonder and even discomfort. In contrast to an appeal, which can be filed only by one who wants to challenge the operative result of the verdict, a motion for a further hearing is intended to restore the law to its proper path.
21. Furthermore, we should note that interpreting Article 9A to completely prohibit opening businesses on the Sabbath is inconsistent with the practice in which local authorities have engaged for many years. Many authorities – excluding the Tel Aviv municipality – enact by-laws pursuant to their authority under the Municipalities Ordinance in which they regulate the issue of opening and closing businesses on the Sabbath (for more on this, see: Gidon Zaira and others, Achifat Hahoraot Bidvar Ptichat Asakim Visgiratam Bimei Hamenucha Al-Yidei Harishuyot Haekomiot [Enforcing the Provisions on Opening and Closing Businesses on Days of Rest by the Local Authorities] (Haknesset, Research and Information Center, 2014)). Without addressing the question of the intensity of the enforcement of these laws – which is a separate question – one wonders why many local authorities need to regulate, in detail, the question of closing and opening businesses on the Sabbath using by-laws, if the assumption is that in any event the law sweepingly prohibits it? In my opinion, that fact demonstrates that the above-mentioned interpretation does not reflect the consensus among the local authorities.
22. It is worth noting that an examination of the permits issued for work on the Sabbath under Article 12 of the Hours of Work and Rest Law (on the list available on the Ministry of Economy’s web site) indicates that in practice, these are permits for employing workers. Were the Ministry of Economy to instruct itself to follow the interpretation proposed ty the opposing position, each time it issued a permit for employment on the Sabbath, it would have had to issue, in parallel, a permit for the operation of the business itself – based on the assumption that employing a worker is like operating the business. It did not do so.
23. Furthermore, the draft laws that were submitted in recent years seeking to adopt a clear distinction between the law that applies to businesses in the area of commerce and that applying to cultural and recreational institutions are all based on the assumptions that this is an innovation worthy of being introduced – as opposed to a reflection of the current legal state of affairs (see, e.g. Draft Law Weekly Day of Rest, 5776-2015, P/20/2112; Draft Sabbath Law, 5776-2016, P/20/3340. See also Sapir, pps. 230-231).
24. We can say the same thing, with the necessary adjustments, about the way my colleague, Justice Hendel, relates to the principles outlined in the document called “the Gavison-Medan Contract”. This contract is a comprehensive proposal for a new status quo, which seeks to present a new compromise on issues of religion and state (see: Yoav Artsiali, Amanat Gavison-Medan: Ikarim Viekronot [Gavison-Medan Contract: Essences and Principles] (2003)). It has no normative force, and its fundamental assumption is that it does not reflect the current state of affairs. I say that without addressing the details, for example the fact that the document includes additional agreements regarding the Sabbath, such as limited operation of public transportation on the Sabbath (as part of a new social agreement on the subject).
25. Having said all that, I believe that there is no basis for the argument that the interpretation of Article 9A in the President’s judgment is a “new” interpretation. In my opinion, the opposite is true: the interpretation on which the opposing position is based is an interpretation that is inconsistent with previous rulings and with the de facto conduct in the field.

 

On the Autonomy of the Local Authority and the Minister of Interior’s Supervisory Role

 

26. If this is the case, I agree with my colleague the President that the local authority is authorized to regulate the issue of opening and closing businesses on the Sabbath within its jurisdiction, by enacting by-laws. We should evaluate the considerations that the Minister of Interior may consider regarding by-laws from the perspective of the general reciprocal relationship between the local government and the central government, as the legislation designs it, and for our case, primarily the Municipalities Ordinance.
27. As is clear from the Municipalities Ordinance, the body that is tasked with establishing the organization of life in the municipality is the city council. This principle stems from the fundamental perspective viewing local authorities as the governmental bodies that express the autonomy of the community and democracy that has enhanced representative mechanisms (See further: HCJ 3791/93 Mishlev v. Minister of Interior, 47(4) PD 126 (1993); HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 620 (2004) (hereinafter: the Solodkin case) and the references it contains; Itzhak Zamir, Hasamchut Haminhalit [Administrative Authority], Vol. 1 446-447 (2nd expanded ed. 2010)). In contrast, the Minister of Interior has an oversight function, which is supposed to reflect protection of the general public interest, but not to replace the municipality’s discretion at the outset (HCJ 7186/06 Malinovsky v. Holon Municipality [unpublished], paras. 60 (December 29, 2009) (hereinafter: the Malinovsky case)). As I noted in the verdict that is the subject of the further hearing – “the Minister of Interior’s decision is supposed to oversee the lawfulness of the of the authority’s action, to ensure that it is not tainted by aspects of negative externalities vis a vis other authorities, and to give expression to the system’s common values (subject to the principle that their implementation is not supposed to be uniform throughout the entire country)” (ibid, para. 3 of my opinion). I will therefore seek to repeat what I wrote in this context and to clarify it.
28. One of the clear aspects necessary for the Minister of Interior’s oversight relates to the required coordination between local authorities and cooperation between them. This is coordination that can be termed horizontal coordination. Thus, for example, there is a concern over unfair competition between authorities, which would require intervention by the minister. Indeed, such competition could have positive aspects, in the sense of allowing people to choose among different and diverse services that each authority offers, according to their preferences and how they wish to shape their lives (See: Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956); Ishai Blank, “Mikomo Shel Ha’mekomi’: Mishpat Hashilton Hamekomi, Bizur Vi-I Shivyon Merchavi Biyisrael [The Place of the ‘Local’: the Law of Local Government, Decentralization and Spatial Inequality in Israel”, 34 Mishpatim 197, 208-210 (2004) (hereinafter: Blank)). However, having said that, competition between authorities has certain limitations, considering, for example, the difficulties related to moving between them and information gaps regarding the attributes and character of a particular local authority (See, e.g.: Blank, p. 209). I have written in the past that action within a competitive paradigm can lead to a situation in which a local authority will avoid weighing broad considerations, for example considerations of distributive justice at the regional or even national level (See e.g. HCJ 7425/09 Tuttnauer Ltd. v. Minister of Interior [unpublished], para. 31 (January 3, 2013). An additional concern that arises in this context is about externalizing the costs of one authority to another (ibid, paras. 32-25). In that vein, in our context, we might imagine a difficulty wound up with the fact that a municipal council might order the opening of businesses on the Sabbath particularly close to a quiet residential (or even religious) neighborhood of another city, in such a way as to infringe on the quiet it enjoys or to influence its character. The Minister of Interior’s broad gaze can prevent such situations.
29. On another level, it is important to consider the question of whether this is an area in which both the local and central governments have been granted authority to act in parallel. This is coordination that can be termed vertical coordination. Addressing issues of security and public order is an example of an area of this type. Local authorities are authorized to act in this area to a certain extent (pursuant to Article 249(29) of the Municipalities Ordinance), but that is also a core area of activity for police and other security agencies belonging to the central government. If that is the case, where parallel authority exists for the local government and the central government to regulate a particular area, there is space for the Minister of Interior to exercise his supervisory power.
30. Having said that, there are areas whose regulation is primarily assigned to the local authority, and for these, one should accord substantial weight to its autonomous space. Designing the local authority’s public space is a clear example of an area in which one should, to a great extent, cede to the local authority, because it is close, double-meaning intended, to the residents and the environment in which they live, and can express human diversity (See: Blank, p. 211). It is not by chance that the legislator chose to authorize the local authorities to regulate various areas concerned with religion and state, as will be detailed below.

Arrangements for Opening Businesses on the Sabbath from the Perspective of the Authorities’ Autonomy

31. Further what has been said thus far, the legislator’s choice to impart the local authorities with the authority to regulate the opening of businesses on days of rest was not made unintentionally. It reflects the historical complexity of the relationship between religion and state in Israel. As far back as the founding of the state, Israeli society struggled to reach comprehensive arrangements in the area of Sabbath observance, and therefore it was decided to set a number of framework principles, but to leave great space for decisions reflecting local tradition – instead of setting a general governmental policy. In essence, this choice of the legislator is based on the traditional perspective that views the issue of opening and closing shops on Sabbath days and holidays as a primarily local issue (See: Crim App 858/79 Lapid v. State of Israel, 44(3) PD 386 (1980)), except for certain kinds of businesses, such as gas stations (See Crim App 217/68 Izramex Ltd. v. State of Israel, 22(2) PD 343 (1968)). In that, it differs from the choice that characterized the regulation of other subjects related to the Sabbath, such as oversight of public transportation (See: Article 71(7A) of the Transportation Ordinance [New Version] and Regulation 386A of the Transportation Regulations, 5721-1961).
32. It is worth noting that this choice of delegating decisions to the local level also characterized, at least in the past, additional areas of regulation that relate to issues of religion and state. We can see a prominent example of this in the authorization to enact local municipal ordinances on the subject of the pork prohibitions under the Local Authorities Law (Special Authorization), 5717-1956 (see the Solodkin case on page 620). See also: Dafna Barak-Erez, “Gilgulo Shel Chazir: Mesemel Leumi Liinteress Dati? [The Evolution of Pork: From a National Symbol to a Religious Issue?]”, 33 Mishpatim 403 (2003); Dafna Barak-Erez, Chukim Vichayot Acherot [Laws and Other Animals] (2015)). In truth, the legislators had in mind the success of this bizarre model in the symbolic area of pork prohibitions when they sought to establish an additional authorizing provision concerning by-laws on the subject of the Sabbath, thirty years later.
33. Nothing said here detracts from the recognition that the issue of the Sabbath has an important national aspect. This recognition is integrated in the view that there are subjects that have both local aspects and national aspects (See generally: Yisachar (Isi) Rosen-Zvi, “Mahuto Shel ‘Hamekomi’ – Hirhurim Al Mekomiut Biakvut Bagatz 10104/04 Shalom Achshav v. Yosef [The Essence of the “Local” – Musings on Locality Following HCJ 10104/04 Peace Now v. Yosef]”, 12 Mishpat Umimshal 333 (2010). Similarly, we are not holding that the central government has no authority to intervene in regulating activity on the day of rest. As noted, there is no absolute partition between “local” areas and “national” areas, and we can imagine extreme cases in which the local authority’s decision would give so little weight to the general-national consideration in the framework of the balancing it conducts, that the minister’s intervention would be justified. Thus, for example, the broad perspective of the central government could be expressed in the cases in which the local authority completely ignores the national value of observing the Sabbath as a day of rest. However, that is not the case before us, and it is even far from it.
34. My colleague, Justice Hendel, says that the uniqueness of the subject of the Sabbath justifies regulating it at the national level, as opposed to the local level. That is a possible approach. However, we can also imagine an approach that says that actually, the difficulty in reaching a decision on this issue at the national level justifies decentralizing the decision to the different communities. In any event, that is currently the approach that the legislator chose for all that concerns opening businesses on Sabbath days (as opposed to the subject of employment during those days), and we must respect it.

Back to the Minister of Interior’s Updated Position

35. Having said that, we return to the concrete issue before us. A reading of the Minister of Interior’s position that was submitted in advance of the further hearing indicates that it does not reflect the customary legislative hierarchy. Thus, the Minister of Interior presents an organized world view but barely addresses the local authority before us – the City of Tel Aviv-Jaffa – and its special characteristics. In essence, these characteristics are not mentioned or discussed at all, except for mentioning that, according to the formulation of the current by-law, sale of food is permitted in convenience stores, pharmacies and three distinct sites. The autonomy of the local authority essentially is treated only by way of negation: “I am not persuaded, despite the weight that should be given to respecting the autonomy of the local authority, that the by-law as proposed by the Tel Aviv Municipality justifies the infringement …” (para. 17 of the Minister of Interior’s Position). The local authority’s autonomy therefore remains a saying, even lip service, as opposed to a value that has actuality.
36. The diminishing treatment accorded to the consideration of autonomy of the local authority in the Minister of Interior’s position is also expressed in the way it contrasts “need”, which is presented as a legitimate consideration, with the consideration of “will”. The position says that such will “is based on making the convenience of this or that arrangement a priority and nothing more (para. 13 of the Minister of Interior’s position). If that is so, the evaluation is purely instrumental – what is a “need” and what is “convenience”. There is no respectful mention of the fact that this is a choice of the community, who chose their public officials as the product of a political process that expressed debate and thought, and not just the will of the “residents”.
37. If that is so, the approach that arises from the Minister of Interior’s position is that he is tasked with forming policy on the subject from a nation-wide perspective. This approach transgresses the legislative arrangement, and it is opposed to the point of departure we discussed above. I therefore concur with the conclusion that my colleague, the President, reached, namely that there was no room for the Minister of Interior to intervene in the by-laws that the Tel Aviv-Jaffa City Council enacted. In this context, I wish to note that I also concur with the words of my colleague, the President, regarding the cause of reasonableness (para. 58  of her opinion), following the comment of my colleague, Justice Sohlberg on this issue. As my colleague noted, I also think that the cause of reasonableness is a central and critical tool for exercising judicial review of the administration, and in any event, throughout the years, our case law has enshrined guiding rules for exercising and implementing it, while being scrupulous about respecting the space for the discretion that the authority has been given in law. These principles become even more important in cases in which the flaw in the activity of the local authority rises to the level of completely ignoring a relevant consideration (See and compare: FH HCJ 3299/93 Wechselbaum v. Minister of Defense, 49(2) PD 195 (1995).
38. I will add that I do not see much in the concern that the Minister of Interior expressed, that authorizing opening shops in the city of Tel Aviv would become “the new standard” for opening businesses in other authorities, as well, in such a way as to redesign the character of the entire nation. There is no basis for thinking that all local authorities will necessarily rush to open businesses on the Sabbath, to the extent of what was decided in Tel Aviv. Each city has its own characteristics, and in that vein, we actually might expect variety in the decisions that will made on the issue. I will add, beyond what is necessary, that I personally believe that the public status of the Sabbath is strong in the hearts of many citizens in Israel. Why assume that this position will not be given serious consideration by public officials in the local authorities, each authority according to its characteristics?

 

On Social Justice and the Sabbath Rest

39. We should acknowledge: Choosing to open businesses on the Sabbath is not devoid of dilemmas. The Sabbath is a national symbol whose status and dignity should be preserved in the State of Israel. Furthermore, the Sabbath rest is a precious social asset whose protection we should safeguard – in general, and especially for disempowered populations in the labor market. These arguments presented by the petitioners, who are thoroughly convinced of them, do not fall on deaf ears. However, as was explained at length, the Hours of Work and Rest Law chose to protect these values without establishing a sweeping prohibition on opening businesses on the Sabbath. I wish to add two important clarifications on this issue.
40. First, protecting the special status of the Sabbath in the public space of the State of Israel is not the same thing as observing the Sabbath according to Jewish law. This is true not just regarding the operation of places of entertainment (recreational and cultural institutions and coffee shops and restaurants), as the petitioners noted, but also regarding opening other businesses.
41. Second, the petitions did not lay out a sufficient factual basis for the argument that their position is essential for protecting disempowered workers. Indeed, it is possible that opening businesses on the Sabbath will expose disempowered workers to work on their weekly day or rest, against their will and in violation of the law. However, the way to combat that is by appropriate enforcement of labor laws. During the hearing, no real basis was presented for the argument that opening grocery stores on Saturdays in the scope defined in the municipal law would create a special risk for disempowered workers – more than do the many restaurants and coffee shops in the city or the hotels on its beaches, which operate on a broad scale on Saturdays. In these establishments, one should be scrupulous about the workers’ weekly day of rest, and the authorities should prepare for that. Furthermore: to the extent we are talking about protecting small business owners who struggle, as was argued before us, to withstand the competition of businesses open on the Sabbath, we should add and evaluate the weight of opening businesses on the Sabbath versus other economic pressures that may be larger, for example, competition with businesses that operate continuously. If that is so, we should protect the special place of the Sabbath, but some of the social struggles lie in other places. To a certain extent, one gets the impression that this is one of those cases in which the petitioners “are looking for the coin under the lamppost” and not in its place.

In Conclusion: An Historical Look at the Sabbath Arrangements in Tel Aviv

42. As I briefly noted in my opinion in the verdict that is the subject of the further hearing, we cannot view the dispute before us disconnected from the historical continuum on which it is located. I think that evaluating the issues from that perspective as well indicates that we should not see in the by-law an expression of a process of “continuous erosion” of the image of the Sabbath, but rather an expression of a lively debate that has taken place throughout the years on this issue (on the different perspectives regarding the characteristics of the Sabbath day among the founding generations of the Zionist movement, see further: Tzvi Tsameret, “Mordim Vimamshichim – Itzuv Hashabat Lifi Y.H. Brenner, A.D. Gordon, G. Katzenelson, S.H. Berman, E. Schweid Vi M. Eyali [Rebelling and Continuing – Designing the Sabbath According to Y.H. Brenner, A.D. Gordon, G. Katzenelson, S.H. Berman, E. Schweid and M. Ayali]”, Hayashan Yitchadesh Vihaddash Yitkadesh – Al Zehut Tarbut Viyahadut, Asufa Lizichro Shel Meir Eyali [The Old Will Be Renewed and the New Will Be Sanctified – On Identity, Culture and Judaism, A collection in Honor of Me’ir Ayali] 347 (2005)). In the hearing before us, the beautiful and moving saying of Ahad Ha’am was repeated: “More than the Jewish people kept the Sabbath, the Sabbath kept them” (from his article, “Shabbat Tzionut [Sabbath and Zionism]”), which was also mentioned in the opinion of my colleague, the President. Specifically for that reason, it is worth mentioning the context in which those words were written, whose force was directed at the time against those who wanted to replace the Sabbath with rest on another day, and the author was lending his ear to the “voice of protest of the national sentiment against canceling the Sabbath”. They thus expressed opposition to canceling the national status of the Sabbath, and did not address the specific content of how it would be observed.
43. These words also apply, with the necessary changes, to the City of Tel Aviv-Jaffa itself. The petitioners sought to present to us a picture of a “Tel Aviv status quo” based on consensus founded on a “division of labor” that distinguishes between opening places of entertainment on days of rest and opposition to opening other businesses. According to this narrative – opening grocery stores “broke” that agreed upon status quo, and that alone is reason enough to restore the situation to what it was. However, a deep examination of the issue exposes a much more complex picture. In essence, a historical look indicates that the appropriate scope of observing the Sabbath in the City of Tel Aviv-Jaffa was the subject of disputes as far back as the city’s early days, and that these disputes have continued to the present time. In essence, even opening places of entertainment and recreation was not without controversy. And I will emphasize that this is not merely an anecdote. Examining the subject from the perspective of a number of decades helps to better understand the issue before us.
44. In my opinion in the verdict that is the subject of the further hearing, I addressed the fact that the first by-law limiting the opening of businesses on the Sabbath within the City of Tel Aviv was enacted during the British Mandate, as far back as 1926, and it was invalidated by the Supreme Court of the Land of Israel in 1928 (Attorney General v. Altshuler (1928) 1 P.L.R. 283). Afterward, an updated by-law was enacted on the subject of the opening and closing times of businesses in 1932. That by-law did not include restrictions on opening businesses on the Sabbath (By-Law Regarding Opening Shops Within the Jurisdiction of the Area of the Tel Aviv Local Council, I.R. 1932, Ann. 2, 225). The continued public debate on the issue led to its replacement in 1937 with another by-law that imposed limitations on opening businesses on the Sabbath and indeed distinguished between coffee shops and restaurants and shops (By-Law (Opening and Closing of Shops), 1937, I.R. 1937, Ann.2, 664. See also Y. Frankel, “Hashabbat Umoadei Yisrael Bamishpat Hai Bazman Hazeh [The Sabbath and Jewish Holidays in Israeli Law at this Time]”, 2 Haparklit 107, 110 (1945)). However, the by-law from 1937 also did not end the disputes on the issue, and did not bring about the total closure of commercial activity, of peddlers for example (See: Anat Helman, “Torah, Avoda Ubatei Café: Dat Vifarhasia Bitel-Aviv Hamandatorit [Bible, Work and Coffee Shops: Religion in Public in Mandatory Tel Aviv]”, Katedra 85 (5763); Anat Helman, Or Viyam Hakifuh – Tarbut Tel Avivit Bitkufat Hamandat [Sun and Sea Surrounded It – Tel Aviv Culture During the Mandate Period],  91-99 (2007)). It is worth noting that already at that time, public intellectuals such as Bialik did not approve of the characteristics of the public space in Tel Aviv on the Sabbath (ibid, p. 99). In essence, the disputes extended throughout the years, despite the opening of cultural institutions, and we recall in this context the decision of the mayor of Tel Aviv in 1979, barring the holding of a production in the Kamari Theater on the Sabbath eve (See: HCJ 11/79 Mirkin v. Minister of Interior, 33(1) PD 502 (1979)).
45. This is not, therefore, a “state of nature” that was violated, but rather an ongoing public dialogue, and its internal balances change periodically, according to the times – and subject to the consensus that the Sabbath needs to be different and distinct from weekdays.
46. These issues are noted here, of course, in brief, and the goal is just to show that we are not dealing with a rule and deviation from it, but rather a dynamic development of city life. As noted, our case is not a question of what is the correct way to mark the Sabbath in the State of Israel, but rather what can the local community determine for itself.

 

Looking to the Future

 

47. From my point of view, concern over eroding the traditional image of the Sabbath in the public sphere in the State of Israel is out of place. These are more complex processes. It is well known, for example, that in residential areas in which the religious population is in a clear majority, there are restrictions on driving vehicles on the Sabbath and holidays, even if that was not the case in the past, because the composition of the population there was different. The legal arrangements reflect the current needs of society and its widespread points of view, together with preserving principles that do not vary with the changing winds. Having said that, the details may change, just as life itself changes. By-laws that negate the special status of the Sabbath would be out of place. However, there is certainly a place for by-laws that respect the Sabbath in different ways, commensurate with the local community’s ways of life. One should hope that the discussion of this subject will continue in the appropriate place – the public arena.

 

Justice

 

It was decided by majority opinion (President M. Naor and Justices E. Hayut, Y. Danziger, Y. Amit and D. Barak-Erez, against the dissenting opinion of Justices N. Hendel and N. Sohlberg), as stated in the judgment of President M. Naor, to deny the motion for a further hearing and to uphold the verdict that is the subject of the further hearing. No costs are imposed on the parties.

 

Decided today, 6 Heshvan 5778 (October 26, 2017)

President                            Justice                                  Justice

Justice                                  Justice                                  Justice

Justice

 

 

HCJ 8213/14

 

 

Petitioners:                  1. Batya Kahana Dror

                                    2. "Mavoi Satum" Association

                                    3. Na'amat Movement of Working Women and Volunteers

                                    4. WIZO Women's International Zionist Organization

 

v.

 

Respondents:              1. Minister of Religious Services

                                    2. President of the Great Rabbinical Court

 

 

The Supreme Court sitting as High Court of Justice

(Aug. 15, 2017)

Before: Deputy President (Emeritus) E. Rubinstein, Justice U. Shoham, Justice M. Mazuz

 

                                               Petition for a decree nisi

 

Israeli Supreme Court cases cited:

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

[2]       HCJ 8134/11 Moshe Asher, Adv. and Acct. v. Minister of Finance, Dr. Yuval Steinitz (Jan. 29, 2012).

[3]       HCJ 6407/06 Doron, Tikotzky, Amir, Mizrahi, Advocates v. Minister of Finance (2007).

[4]       HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221 (1998).

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

[6]       HCJ 3856/11 Anonymous v. Supreme Sharia Court of Appeal (2013).

[7]       HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security (June 13, 2017).

[8]       HCJ 453/94 Israel Women's Network v. Government of Israel, IsrSC 48(5) 501 (1994).

 

Attorneys for the Petitioners:  Adv. Gali Etzion; Adv. Irit Gazit, Adv. Batya Kahana-Dror

Attorneys for the Respondents: Adv. Avinoam Segal-Elad; Adv. Yonatan Zion-Mozes

 

 

 

J U D G M E N T

 

Deputy President (Emeritus) E. Rubinstein:

 

1. The petition before us addresses the procedure for selecting the Director of the Rabbinical Courts, while focusing on the possibility that a woman be appointed to the position.

 

Background and Chain of Events

 

2. In recent years, this Court has addressed the issue of the procedure for appointing the Director of the Rabbinical Courts in a series of petitions that requested one thing: Permitting the selection of a woman to the position, either by interpreting sec. 13 of the Dayanim Law, 5715-1955[1] (hereinafter: the Dayanim Law or the Law), under which the Director of the Rabbinical Courts is appointed, as permitting women to apply for the position, or by overturning that section of the Law for alleged unlawful infringement of a woman’s constitutional right to equality.

 

3. Section 13 of the Dayanim Law states:

(a)        The Minister shall, with the consent of the President of the Great Rabbinical Court, prescribe in regulations or in administrative rules, as applicable, the administrative procedures of the Rabbinical Courts, and shall appoint one of the dayanim or a person who is qualified to be elected as a Municipal Rabbi, to be responsible for their performance; the appointment under this subsection of a person who is qualified to be elected as a Municipal Rabbi is subject to the approval of the Appointments Committee.

(b) The appointment of a Director of the Rabbinical Courts who is not a dayan shall not require a public tender, and he shall be regarded, for the purposes of section 17 and the Holders of Public Office (Benefits) Law, 5729-1969, as a dayan.

 

Thus, the section provides that the Director of the Rabbinical Courts can be one of two: a dayan of a Rabbinical Court, or a person who is qualified to be elected as a Municipal Rabbi whose appointment was approved by the Committee for the Selection of Dayanim. The qualifications for election to the position of a Municipal Rabbi are set out in regs. 4 and 5 of the Jewish Religious Services (Election of Municipal Rabbis) Regulations, 5767-2007 (hereinafter: the Regulations or the Religious Services Regulations), which state as follows in this regard:

 

4. The following are qualified to be elected as a Municipal Rabbi:

(1)       A person who presides or presided as a dayan or a person who possesses a valid certificate of ordination pursuant to the Dayanim (Conditions for Ordination and Procedures) Regulations, 5716-1955, and is qualified to be appointed as a dayan;

(2)       A person serving or who served as Chief Rabbi of the Israel Defense Forces;

(3)       A person serving or who served as a Military Rabbi of a Command or a Corps, and was ordained as a rabbi by the two Chief Rabbis of Israel, and the Chief Rabbinate Council decided that he is qualified to serve as a Municipal Rabbi;

(4)       A person who has a valid certificate from the Chief Rabbinate Council attesting that he is qualified to preside as a Municipal Rabbi (hereinafter: a "Certificate of Qualification)".

5.         (a) The Chief Rabbinate Council shall grant a Certificate of Qualification to a person who meets the following requirements:

1. His lifestyle and character befit, in its opinion, his status as a rabbi in Israel;
2. He passed examinations in Talmud and Jewish law decisors. These examinations shall be prepared in writing, by a committee of three or more rabbis appointed by the Chief Rabbinate Council;
3. He signed an affidavit that he shall fulfill any decision of the Chief Rabbinate Council.

(b)       If the Chief Rabbinate Council is convinced that a person is an outstanding scholar who is proficient, inter alia, in all of the Jewish laws related to the fulfillment of the position of Municipal Rabbi, it may exempt him from the examinations stated in sub-regulation (a)(2), provided that the Chief Rabbis of Israel were among those who voted in favor of the exemption…

 

The proper interpretation of these legislative provisions, and its implications for the possibility of women standing for the position of Director of the Rabbinical Courts are the focus of the petition. We shall now summarize the relevant facts and the proceedings before this court.

4.         Resolution 1154 of the 32^nd Government regarding "Limiting the Tenure of Senior Officials in the State Service" was adopted on December 27, 2009. The resolution set a four-year term limit upon the Director of the Rabbinical Courts, with an option of a four-year extension. Thereafter, on June 11, 2010, the Dayanim Appointment Committee decided that Rabbi Eliyahu Ben Dahan – who had then served as the Director of the Rabbinical Courts for 21 years – would finish his term in office on August 11, 2010 (hereinafter: the Committee's Decision).

 

5.         Following the Committee's Decision, a petition was filed with this Court on July 29, 2010 (HCJ 5720/10 Ruth and Emanuel Center for the Advancement of the Status of Women v. Minister of Justice), that petitioned for remedies in regard to the procedure for appointing the Director of the Rabbinical Courts, and primarily that this Court construe sec. 13 of the Dayanim Law as permitting a woman to be appointed to the position, or alternatively, that it declare the provision void due to its alleged unconstitutionality. On August 17, 2010, the petition was denied in limine (Justices A. Grunis, M. Naor, and U. Vogelman) as premature, because the ramifications of sec. 13 for the appointment of a woman as Director of the Rabbinical Courts had not yet been addressed by the appointing authorities.

 

6.         In the interim, on August 15, 2010, the then presiding Minister of Justice – who was then responsible for appointing the Director of the Rabbinical Courts – appointed former Great Rabbinical Court Dayan Rabbi Shlomo Dichovsky as the acting Director of the Rabbinical Courts. On March 1, 2011, with the consent of the President of the Great Rabbinical Court, and with the approval of the Dayanim Appointment Committee, Rabbi Dichovsky was appointed permanent Director of the Rabbinical Courts, until August 15, 2014, and he held that position for that period.

 

7.         On January 6, 2011, an additional petition was filed with the Court (HCJ 151/11 Ruth and Emanuel Rackman Center for the Advancement of the Status of Women v. Minister of Justice), arguing that the procedure for appointing Rabbi Dichovsky suffered material defects that justified its cancellation. The petitioners reiterated their requests for the same remedies in regard to sec. 13 of the Dayanim Law, with the purpose of promoting the appointment of a woman to the position of Director of the Rabbinical Courts. The petition was denied on December 27, 2011 (Justice (Emer.) E. Levy, and Justices H. Melcer and Y. Danziger), primarily on the grounds that in view of Rabbi Dichovsky's appointment as permanent Director of the Rabbinical Courts, the petition had become theoretical. There was no dispute as to his suitability to the position and no material flaws were found in the procedure for his appointment.

 

8.         On May 8, 2014, towards the end of Rabbi Dichovsky's term as Director of the Rabbinical Courts, Petitioner 1 – the Director General of the Mavoi Satum Association, which addresses the matter of Israeli women who are denied a get [Jewish writ of divorce] and agunot – submitted her candidacy for the position of Director of the Rabbinical Courts. On August 14, 2014, after no consensus candidate had been found to replace Rabbi Dichovsky, the Minister of Justice charged the Director General of the Ministry of Justice, Adv. Emi Palmor, with the administrative responsibility for the administration of the Rabbinical Courts.

 

9.         The present petition was filed on December 2, 2014, requesting that the Court to instruct the Respondents to refrain from appointing a permanent Director General of the Rabbinical Courts until sec. 13 of the Dayanim Law is amended in a manner that will permit women to contend for the position. Alternatively, identical remedies to those requested in the two previous petitions with regard to sec. 13 of the Law were requested, so that women, including Petitioner 1, would be allowed to "genuinely contend" for the position of Director of the Rabbinical Courts. An interim order instructing to refrain from appointing a Director of the Rabbinical Courts pending the judgment in the petition, was also requested. A few days later, before the procedure of appointing a permanent Director of the Rabbinical Courts was completed, the Knesset dispersed (see: Dissolution of the Nineteenth Knesset Law, 5775-2014). Elections for the twentieth Knesset were held a few months thereafter.

10.       Following the elections, the 34^th Government adopted Resolution no. 180 (hereinafter: the Resolution) on July 5, 2015, in the framework of which the responsibility for the Rabbinical Courts was transferred from the Ministry of Justice to the Ministry of Religious Services. Additionally, authority under the Dayanim Law, including the appointment of the Director of the Rabbinical Courts, was also transferred to the responsibility of the Minister of Religious Services (hereinafter also: the Minister). Three days after the Resolution, on July 8, 2015, the Minister of Religious Services appointed Adv. Rabbi Shimon Ya'acobi, who had served as legal advisor to the Rabbinical Courts for many years, as Director of the Rabbinical Courts by a temporary appointment for a period of three months. At this point it should be noted, with no offence intended to Rabbi Ya'acobi, that his appointment violated the State's undertaking to the Court of December 15, 2014, that the Court would be notified of any intention to appoint a Director of the Rabbinical Courts (see the decision of Justice D. Barak-Erez of December 16, 2014). In light of the procedural defects in Rabbi Ya'acobi's appointment, the State informed the Court, on July 23, 2015, that his appointment is to be deemed void. However, eventually, and with Court's consent and encouragement, as shall be explained below, the State retroactively ratified the acting appointment for a period of four months, with the approval of the Dayanim Appointment Committee. In practice, due to the prolongation of the proceedings, Rabbi Ya'acobi continues to serve as acting Director of the Rabbinical Courts, with the Court's consent, until the present day.

11.       Returning to the matter at hand, we held four hearings on the petition. Prior to the first hearing, which took place on July 27, 2015, the State gave notice that, in light of the sensitivity of the matter, it has not yet succeeded in formulating its position regarding the Petitioners' arguments. In our decision at the end of the hearing, we instructed the State to inform us as to its position by September 20, 2015. We also suggested to its representatives that given the need for an appointment, and in view of the prolongation of the proceeding and the absence of a Director of the Rabbinical Courts, it consider appointing Rabbi Ya'acobi as a temporary Director of the Rabbinical Courts, subject to a conflict of interest arrangement. As noted, this suggestion was adopted by the State. It should further be noted that the case was addressed, in part, together with HCJ 6691/14, in the different context of appointing dayanim to the Great Rabbinical Court, however on August 1, 2016, that petition was dismissed by consent as its objectives were exhausted.

12.       In its response, which was filed – following postponements – on November 12, 2015, the State argued that the petition should be dismissed. It explained that, in the opinion of the Attorney General, sec. 13 of the Dayanim Law can be construed as allowing the appointment of a woman as Director of the Rabbinical Courts. According to the Attorney General, women can also be included in the scope of the term "a person qualified to be elected as a Municipal Rabbi" for the purpose of candidacy for the position of Director of the Rabbinical Courts, provided they pass the Municipal Rabbi examinations in Talmud and religious law decisors, or their equivalent, in accordance with reg. 5(a)(2) of the Religious Services Regulations. In order to give that interpretation practical effect, the Attorney General instructed the Ministry of Religious Services and the Chief Rabbinate to hold such Jewish law examinations – for both men and women – so that all will be able to contend for the position of Director of the Rabbinical Courts. The Attorney General's position was – and continues to be – based on the presumption that a person serving as Director of the Rabbinical Courts must not only have managerial capabilities, but also "must have deep familiarity with the substantive law under which cases are adjudicated in the Rabbinical Courts", even though, in his opinion, "this is not a position that is intrinsically a religious position, but is rather a strictly administrative position". A position taking exception to appointing a woman was presented on behalf of the Chief Rabbis, including the President of the Great Rabbinical Court, and on behalf of the Minister of Religious Services, arguing that what is concerned is a religious position that is, therefore, subject to the exception under sec. 7(c) of the Equal Rights for Women Law, 5711-1951, that the provisions of that law shall not apply to an appointment to a religious position in accordance with religious law.

13.       In response, the Petitioners argued that, for all practical purposes, the Attorney General's interpretation of sec. 13 of the Law frustrates the possibility of appointing a woman to the position of Director of the Rabbinical Courts, in light of the demand to pass examinations in Jewish law that require many years of study in religious institutions, which is not ordinarily available to women, and in light of the fact that the Certificate of Qualification that would allow a woman to apply for the position would be issued by the Chief Rabbinate, which already expressed its reservations regarding women vying for the position of Director of the Rabbinical Courts.

14.       On December 31, 2015, the Respondents informed us of their consent that the petition be heard as though an order nisi had been granted. On January 7, 2016, the second hearing of the petition was held. In our decision following the hearing, we stated: "We have no doubt, in principle … that the position of Director of the Rabbinical Courts should be perceived… as an administrative position that a woman can perform, of course after meeting certain threshold conditions that include a proper understanding of the subject of the Rabbinical Courts and their work.” We clarified that we do not see the position of Director of the Rabbinical Courts as being a religious or judicial position, and therefore sec. 7(c) of the Equal Rights for Women Law does not apply to the present case. As for the option of administering examinations in Talmud and decisors for women similar to those held for serving as a Municipal Rabbi, we stated that based on reasons of practicality and fairness, the Attorney General must examine an option of a different format of examinations, so that they would also be appropriate for women who did not have a yeshiva education. We also raised the option of adding an additional track to the four Municipal Rabbi qualification tracks appearing in reg. 4 of the Religious Services Regulations that would treat only of qualification for the purpose of sec. 13 of the Dayanim Law, and would prescribe qualifying conditions that would apply to both men and women. We instructed the Attorney General to state his opinion of the proper track within 30 days. We also noted that under the circumstances, and in light of the anticipated expiration Rabbi Ya'acobi's temporary appointment, we see no impediment to his continuing to serve as temporary Director of the Rabbinical Courts.

15.       On February 28, 2016, the Attorney General informed us that in accordance with the Court's recommendation, the Minister of Religious Services decided to promulgate regulations by virtue of the Dayanim Law, in the framework of which an additional qualification track will be added for the purpose of sec. 13 of the Law. It was also noted that a draft of the said regulations was already distributed to all the relevant entities at the various government offices, and that it is expected that the text of the regulations will be presented for discussion by the Knesset's Constitution, Law and Justice Committee (hereinafter also the Constitution Committee or the Committee) – for its approval pursuant to sec. 27(b) of the Dayanim Law – "in the coming weeks". That discussion eventually took place many months after the notice.

16.       Only on May 11, 2016, was a draft of the regulations sent to the Constitution Committee, and concurrently to the Petitioners. We shall now present its original version:

 

Dayanim (Qualification of the Director of the Rabbinical Courts) Regulations, 5776-2016

 

By virtue of the power and authority vested in me under sec. 27 of the Dayanim Law, 5716-1955, and with the approval of the Knesset's Constitution, Law and Justice Committee, I promulgate these regulations:

 

Qualification

 

1. Notwithstanding what is stated in reg. 4 of the Jewish Religious Services (Election of Municipal Rabbis) Regulations, 5767-2007, for the purpose of the qualification of a Director of the Rabbinical Courts, a person shall be deemed qualified to serve as a Municipal Rabbi also if all of the following terms and conditions are met:

1. He is a resident of Israel;
2. He is a lawyer, and in addition holds one of the following: a license as a rabbinical pleader or a master’s degree in Jewish law.
3. He passed the examination administered by the Ministry of Religious Services by an examining committee appointed by the Minister of Religious Services, with the consent of the President of the Great Rabbinical Court, including an examination in the practical field of the profession;
4. He has at least 5 years of experience in appearing before the Rabbinical Courts;
5. In terms of his character and lifestyle, he is worthy of serving in the position of Director of the Rabbinical Courts.

 

17.       The essence of the arguments in the Petitioners' response to the draft regulations was that they incorporate obstacles and stumbling blocks that could prevent any real possibility for women to compete for the position of Director of the Rabbinical Courts, inter alia, in light of the threshold requirements that relate to the candidate's education and the need for an examination in the "practical field of the profession", the nature of which is ambiguous.

18.       On February 15, 2017, following adjournments, the Constitution Committee held its first discussion of the draft regulations. As emerges from the State's response (no minutes of the discussion were prepared), the Committee discussed various reservations that were raised with respect to each of the proposed regulations, except that which requires that the Director of the Rabbinical Courts be a resident of Israel. However, prior to the Committee's second meeting, which was held on May 10, 2017, reg. 1(2) was amended, with the apparent intention that it would also allow persons with a master’s degree in Talmud or Oral Law to apply for the position of Director of the Rabbinical Courts (in the words of the proposed regulation: "He is a lawyer, and in addition he has one of the following: a license as a rabbinical pleader or a master’s degree in the field of Jewish law in the framework of legal, Talmud or Oral Law studies”; and see in this regard, Minutes no. 378 of the Twentieth Knesset's Constitution, Law and Justice Committee, dated May 10, 2017, page 3 (hereinafter: the Committee's Minutes)). The issue of the threshold requirements for submitting candidacy for the position of Director of the Rabbinical Courts was discussed by the Committee, at the end of which the Chairperson pro tempore of the Committee, Knesset Member Revital Swid, concluded that the amendment to the draft regulations that was prepared in preparation for the discussion "is not an amendment that in any way or form materially changes the fact and the difficulties placed before a woman to be appointed to the position" (Committee's Minutes, p. 36). It was concluded that the Respondents would consider additional changes to the regulations, in accordance with the Knesset Members' remarks in the discussion, and particularly in all that relates to the conditions of education and professional training required of the candidates.

19.       An additional Committee meeting was held on June 6, 2017, but the Respondents did not submit an updated version of the draft of the regulations. Again, the Committee did not reach a decision, and no vote on the draft regulations was held. The Chairperson of the Constitution Committee, Knesset Member Nissan Slomiansky, announced that he would act within approximately two weeks vis-à-vis the government representatives in an attempt to formulate an agreed version of the regulations, which would be presented for the Committee's approval. On June 26, 2017, the State informed us that Knesset Member Solmiansky's attempts were unsuccessful. In our decision dated July 2, 2017, we instructed the State to once again provide an update as to the status of the Committee's approval of the draft regulations, and we clarified that following the update, a judgment on the petition would be delivered. A notice submitted on behalf of the State on July 24, 2017, reported that no significant progress had been made regarding the approval of the draft regulations by the Constitution Committee. The State reiterated that in light of the Attorney General's interpretation of sec. 13 of the Dayanim Law, the petition should be dismissed.

 

Prior to Ruling: Incidentally – The Appointment of a Female Deputy Director General of the Rabbinical Courts

20.       Before ruling on the issue at the focus of the present matter, we will briefly address a subsidiary issue – which is important to the this matter – that arose while addressing the petition, and which concerns the appointment of a female Deputy Director General of the Rabbinical Courts. During the first hearing of the petition, on January 7, 2016, the Director General of the Ministry of Religious Services informed us that he would act to appoint a woman to the position of Deputy Director General of the Rabbinical Courts, as suggested by this Court. As stated in our decision of September 19, 2016:

 

The Rabbinical Courts system, in which inequality is deeply embedded due to the fact – which we are not addressing at the moment – that there are no women dayanot, while it is undisputed that 50% of those who require the services of the Rabbinical Courts are women… It is clear that a woman's presence in the Rabbinical Courts' senior administration is vital to enhancing the trust of the women who turn to the Rabbinical Court.

 

We are not concerned here with any particular gender ideology, nor even with equality in its basic format.

We will not set out the details of the State’s responses to this matter in the months following the hearing. We will but note that on several occasions we were informed that despite the declaration of the Director General of the Ministry of Religious Services, it had not succeeded in appointing a female Deputy Director General for various reasons related to appointment procedures in the public service. In these circumstances, we were required to issue a large number of decisions in order to promote that which was desired. Later update notices filed by the State informed us of attempts to facilitate such an appointment procedure in various ways, whether by upgrading a slot already staffed by a woman in the Rabbinical Courts system to the level of deputy director general, or by adding a deputy director general position by virtue of a Government resolution in accordance with sec. 15A(b)(2) of the State Service Law, or by means of an inter-ministerial transfer through which a woman who is serving as a deputy director general at another governmental agency would be appointed as Deputy Director General of the Rabbinical Courts. When these attempts failed and no solution appeared on the horizon despite the said promise, on April 3, 2017 – after we held an additional hearing on the petition – an decree nisi was granted instructing the Respondents to explain "why a woman will not be appointed to the position of Deputy Director General of the Rabbinical Courts".

21.       On May 1, 2017, following lengthy – and it must be said, with all due respect, excessively so, given the scope of the matter – exchanges between the Court and the State, we were informed that after consultations among the senior echelons of the Public Service Commission, the Attorney General, the Ministry of Religious Services and the administration of the Rabbinical Courts, it was decided to effect an inter-ministerial transfer in accordance with sec. 15A(b)(1) of the State Service (Appointments) Law, 5719-1959 (hereinafter: the State Service Law), and sec. 10.232D(d) of the State Service Regulations. On June 29, 2017, after a number of update notices in the matter, the State informed us that the appointment of Ms. Michal Goldstein to the position of Deputy Director General of the Rabbinical Courts was approved on June 15, 2017. On July 24, 2017, the State informed us that Ms. Goldstein is scheduled to take up her position as Deputy Director General of the Rabbinical Courts on September 1, 2017, and the matter was resolved. The outcome, of course, should be commended, and we have already noted that this may be significant both in the interface with the world of the Rabbinical Court judges and in the interface with the public that needs the Rabbinical Courts. Therefore, the order nisi in this regard, dated April 3, 2017, is rescinded. We wish Ms. Goldstein every success and godspeed. We will now address the primary issue raised by the petition – that of the appointment of the Director of the Rabbinical Courts, which is the main issue, although some of our statements regarding the matter of the deputy director general are, of course, a fortiori, relevant to the matter of appointing a director general.

 

Decision

22.       In the hearings before us in the course of the ongoing handling of the case, we encouraged and urged the State to find a solution that would make our decision superfluous. However, when there was no significant progress for too long in the sensitive matter on the agenda, and when it became clear that the decision makers do not deem addressing the matter as particularly urgent, and that no further date had even been set for discussing the draft  regulations – in one version or another – in the Constitution Committee, we are left with no choice but to rule on the petition, as we stated in the past. After review, we have concluded that the Petitioners are correct in principle. We therefore make the order nisi absolute, in accordance with the outline that will be set out below.

23.       As stated, we view the position of Director of the Rabbinical Courts as one that is essentially an administrative management position. The Attorney General is also of the opinion that it is a "clearly administrative" position and not a religious one. Therefore, in light of the fundamental principles of Israeli law, and primarily the principle of equality, which is a "fundamental principle of governance – standing head and shoulders above all other principles " (HCJ 2671/98 Israel Women's Network v. Minister of Labor and Social Affairs [1], 650 per Justice M. Cheshin (hereinafter: the Israel Women's Network case)), and the provisions of sec. 6C of the Women’s Equal Rights Law, which requires that "in a public body… there shall be proper representation of women, given the circumstances of the matter, in the types of positions and the various levels among the employees, the management…" (emphasis added – E.R.), and of sec. 15A(a) of the State Service Law, which prescribes that "Among the employees in the State service, at all levels in all professions, in any office and any auxiliary unit, proper expression shall be given, to the extent that circumstances allow, to the representation of members of both sexes…", we are of the opinion that there is no legal impediment to appointing a woman as Director of the Rabbinical Courts, if and to the extent she is be found suitable for the position in accordance with the terms and conditions that will be specified. This conclusion is consistent with various legislative acts, including the Basic Laws regarding human rights, the Women’s Equal Rights Law, and the Employment (Equal Opportunities) Law, 5748-1988, and with the need for proper representation of women in the public sector in general, and in the administration of the Rabbinical Courts in particular, as we will be set out below.

24.       We will reiterate fundamental principles: When considering candidates for the position of Director of the Rabbinical Courts, the Minister of Religious Services acts as a public trustee, and he is subject to the entire scope of rules of administrative discretion. He must reach his decision reasonably, after weighing all of the relevant material considerations on the question of the candidate's personal and professional suitability to the position, while striking a proper balance among them (compare with HCJ 8134/11 HCJ 8134/11 Moshe Asher, Adv. and Acct. v. Minister of Finance, Dr. Yuval Steinitz [2], para. 12 of the opinion of Deputy President E. Rivlin; HCJ 6407/06 Doron, Tikotzky, Amir, Mizrahi, Advocates v. Minister of Finance [3], para. 6 of the opinion of Justice E. Arbel and the supporting references there). The fact that a candidate is a woman, in and of itself, is a foreign, irrelevant consideration in the matter of her suitability to the position, and the Minister may not take it into consideration as a disqualifying criterion of candidates for the appointment. The words of Deputy President M. Elon, in a context similar to the case at hand, regarding the possibility of electing a woman as a member of a Religious Council, are appropriate::

… the exclusion of a female candidate from appointment to a religious council because she is a woman, clearly contradicts a fundamental principle of Israeli law that prohibits discrimination on grounds of sex. This fundamental principle was laid down in the Declaration of Independence, and is among those that have gone beyond recognition in the case law to become enshrined in legislation (HCJ 153/87 Shakdiel v. Minister of Religious Affairs [4], 240).

            It is well-known that religious systems are conservative, especially in all that concerns the status of women. However, over the years these obstacles have been overcome (see for example the Shakdiel case; HCJ 953/87 Poraz v.  Mayor of Tel-Aviv-Jaffa [5]; HCJ 3856/11 Anonymous v. Supreme Sharia Court of Appeal [6] ).

25.       I will not deny that in the present case,  the high road might have been for the legislature to have amended sec. 13 of the Dayanim Law, such that it would be crystal clear that the position of Director of the Rabbinical Courts is open to all. Amendment of the Regulations could also have been possible. However, once we have concluded – as did the Attorney General – that sec. 13 of the Law should be interpreted as allowing a woman to be appointed to the position, we no longer deem it necessary to address the amendment of the Regulations, and leave that as an aspiration for the future. In light of the above, and in accordance with our proposal from January 7, 2016, to which the Minister of Religious Services agreed in principle, we thus instruct, as a matter of purposive interpretation of sec. 13, the objective of which is to find the preferred Director of the Rabbinical Courts, that an additional qualification track be added under sec. 13 of the Dayanim Law that will apply to both men and women. The outline of the said qualification track will be in the spirit of the draft of the regulations, with certain modifications that we believe are required due to the nature and substance of the position of Director of the Rabbinical Courts, and due to the need to be certain that a woman's candidacy to the position be considered by those concerned with an open heart and mind, all as will be specified below. We will add that we also decided to wait no longer because the position of Director of the Rabbinical Courts has not been filled by a full appointment for some three years, and we say this with no offence intended to the acting Director of the Rabbinical Courts, Adv. Rabbi Ya'acobi, but rather as a normative matter.

26.       After considering the matter, we have concluded that for the purpose of sec. 13 of the Dayanim Law – and in the matter at hand, for the purpose of being appointed as Director of the Rabbinical Courts –  a person can be deemed qualified to serve as a Municipal Rabbi if they meet all of the following conditions:

1. He is a resident of Israel;
2. He has a license as a rabbinical pleader, or is a lawyer with a master’s degree in Jewish law or Talmud; preference to be given to a lawyer who is also a rabbinical pleader;
3. He has at least 7 years of experience appearing before the Rabbinical Courts;
4. In terms of his character and lifestyle, he is worthy to serve in the position of Director of the Rabbinical Courts.

 

Clearly, and to allay any doubt, the conditions are directed to both females and males. Attention should also be drawn to the fact that the said conditions are the result of our interpretation of sec. 13 of the Dayanim Law, and the Minister of Religious Services must examine candidates for the position of Director of the Rabbinical Courts in accordance with them. It is the authority's obligation to act within its authority within a reasonable period of time, a fortiori when what is at issue is a fundamental right that has been unlawfully infringed, and the lack of proper representation in the Rabbinical Courts system has been extremely conspicuous for some time (compare with HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security [7], para. 119 of my opinion), and where an important position has not been filled by way of an ordinary appointment.

            We will now briefly address the reasons why we deemed it fit to prescribe threshold conditions that are slightly different from the last version of the draft regulations that was submitted to the Constitution Committee.

27.       As for the education condition, and considering the nature of the position of Director of the Rabbinical Courts, we are of the opinion that it is inappropriate to prevent a licensed rabbinical pleader who is not a lawyer from submitting candidacy for the position. It is reasonable to assume that a person who met the threshold conditions for such a license – which include studies at a yeshiva or an educational institution recognized by the Great Rabbinical Court, alongside examinations, including in the practical field of the profession (see sec. 2 of the Rabbinical Pleaders Regulations, 5761-2001) – is sufficiently familiar with religious law to vie for the position of Director of the Rabbinical Courts. However, a rabbinical pleader who is also a lawyer will have an advantage. Additionally, we agree with the State that a lawyer who wishes to submit candidacy for the position must possess "something more", in the form of relevant religious education. To this end, we deemed it appropriate to state explicitly that a master’s degree in Jewish law or Talmud are sufficient, however it is clear that this is not a closed list and the Respondents, of course, may consider candidates with other degrees that in their view meet the required familiarity with religious law (regarding the education condition, see our decision dated August 3, 2016, where we stated with respect to the original draft regulations, that "in our opinion, there are matters that require clarification (such as the question whether it is not appropriate to have the qualification alternatives be a lawyer or rabbinical pleader, with the lawyers (and not pleaders) being required to take examinations…"). Having said that, it is clear that the candidates must have a real familiarity with the Rabbinical Courts system, and therefore, after taking the Petitioners' proposal in this matter into consideration, we deemed it fit to prescribe that they must have at least 7 years of experience in appearing before the Rabbinical Courts, and not to suffice with five years as appeared in the draft regulations. It should be noted in this context that similar preconditions that can attest to a candidate's familiarity with the legal system are also prescribed for the appointment of judges (see secs. 2-4 of the Courts [Consolidated Version] Law, 5744-1984). Having said that, we do not find any reason to set a threshold condition regarding passing examinations – both theoretical and practical – in order to qualify to serve as Director of the Rabbinical Courts. Such examinations do not exist in corresponding positions in the public service. The Director of the Rabbinical Courts does not make decisions on the basis of religious law and is not required to have extraordinary knowledge of Halakha that needs to be put to a test. It is presumed that candidates who meet the education condition, and who have significant professional experience of more than a few years in appearing before the Rabbinical Courts, will bring the necessary expertise to the position of Director of the Rabbinical Courts, even without examinations on Halakha, which, as noted, by their nature place women at a disadvantage. It should be noted in this regard that there are no threshold requirements regarding knowledge of religious law in the religious courts of other religious communities (see sec. 16 of the Druze Religious Courts Law, 5723-1962, and sec. 10(a) of the Qadis Law, 5721-1961). Moreover, in the civil courts system, the law requires the appointment of a Director of the Courts "who may or may not be a judge" (see sec. 82(a) of the Courts [Consolidated Version] Law, 5744-1984). Given the appointing body and its position on the matter of women's qualification to serve in this position, we also found it appropriate to instruct, without casting suspicion or aspersion on anyone, that the procedure of appointing a Director of the Rabbinical Courts be accompanied by the Attorney General, who will be able to confirm a person’s administrative qualification, if necessary. We will further add, without derogating from this ruling as it stands, that for the sake of good order and transparency, it would be appropriate for the Minister of Religious Services to consider grounding this ruling in regulations.

28.       In our view, the said qualification conditions reflect the kind of professional skills that are required of the candidates for the position of Director of the Rabbinical Courts, including the necessary familiarity with the entire Rabbinical Courts system. These conditions also facially grant equal opportunity to women and men to vie for the position, and what we stated in para. 20 above and are a fortiori relevant here.

29.       Therefore, and considering the "inherent inequality" in the Rabbinical Courts system, it seems to me that it is appropriate to also mention and emphasize sec. 6C of the aforementioned Women’s Equal Rights Law, which provides that "in a public body … there shall be proper representation of women, given the circumstances of the matter … provided that if for the purpose of effecting this provision it is necessary to prefer a woman, such preference shall be given if the candidates of both sexes have similar qualifications" (emphasis added – E.R.), as well as the aforementioned sec. 15A(a) of the State Service Law, which provides that "among the employees in the State service … proper expression shall be given, to the extent that circumstances allow, to the representation of members of both sexes …" (and see the words of Justice Cheshin in the Israel Women's Network case [1]: "… in attempting to achieve proper representation of women in public entities, a real duty is imposed on the competent authority to search for suitable female candidates" (ibid., at p. 668)). Below are the words of Justice E. Mazza, which concern the interpretation of sec. 18A of the Government Companies Law, and which are relevant, mutatis mutandis, to the case at hand:

… the burden of proof that in the circumstances of a specific case it was not possible to appoint a woman rests with the appointing minister. This burden is not a light one. In order to discharge it, the appointing minister must show that he examined the possibility of appointing a suitable female candidate, but discovered that, in the circumstances of the case, this was impossible. Even his duty to make such an examination is not simple. In order to discharge it, the minister must adopt reasonable measures to locate a suitable female candidate. The scope of these measures depends on the type of appointment in question … This does not mean that the minister must seek, at any cost, to locate an unknown female candidate who has the necessary qualifications. But he also will not have done his duty by making a “formal” search for any female candidate. In order to do his duty properly, he must adopt reasonable measures designed to lead to the discovery and appointment of a suitable female candidate. (HCJ 453/94 Israel Women's Network v. Government of Israel [8], 529; and compare with the Israel Women's Network case [1], para. 52 of Justice Cheshin's opinion).

 

30.       At this (fortunate) time when women have a respectable presence in a variety of positions in the public service, it is unreasonable that women should not be given proper representation in the administration of the Rabbinical Courts. As noted, opening the gates of the Rabbinical Courts to women to serve in administrative positions is of great value not only to women , but also for the sake of reinforcing the Rabbinical Courts' status, given that public trust is vital for its proper functioning. We would note that while Ms. Goldstein's appointment to the position of Deputy Director General of the Rabbinical Courts should be applauded, the possibility of there being a woman at the head of the administrative pyramid, as the Director of the Rabbinical Courts, in a system in which the central administrative positions comprise a large male majority, is important in and of itself, and realizes the value of equality in its material sense. Of course, in stating this we do not mean to express an opinion regarding any candidacy for the position.

31.       In conclusion, we therefore order that the qualification defined as qualification to serve as a Municipal Rabbi for the purpose of sec. 13 of the Dayanim Law, can also be in accordance with the conditions set out above in para. 26. If the Minister of Religious Services choose to appoint a "person qualified to be elected as a Municipal Rabbi" (as opposed to a Dayan), he has a duty to consider candidates in accordance with these conditions, in addition to the conditions prescribed in regs. 4 and 5 of the Religious Services Regulations. As stated, in this sense the order is made absolute. The Respondents will pay the Petitioners’ costs in the amount of NIS 15,000 (inclusive).

 

 

Justice M. Mazuz:

            I concur.

 

Justice U. Shoham:

            I concur in the clear, comprehensive judgment of my colleague Deputy President (Emer.) E. Rubinstein, and I am also of the opinion that an order absolute should be granted as proposed.

            Due to the importance of the matter, I will add the following. First and foremost, I wish to join in congratulating Ms. Michal Goldstein on her appointment as Deputy Director General of the Rabbinical Courts, and I wish her every success in her new position.

As my colleague made clear in para. 26 of his opinion, the necessary qualifications for the appointment of a male or female Director of the Rabbinical Courts must be established by the interpretation of sec. 13 of the Dayanim Law, 5729-1969. However, it would be preferable if the Minister of Religious Services would attend to grounding those qualification conditions in regulations, without derogating therefrom or adding anything thereto, as my colleague stated "for the sake of good order and transparency".

                                                                         

Decided as stated in the opinion of Deputy President (emer.) E. Rubinstein.

 

Given this 23^rd day of Av 5777 (August 15, 2017).

 

 

HCJ 5444/13

 

Petitioners:                  1.  Yonit (Yoneleh) Erez

                                    2.  A.

                                    3.  Center for Women’s Justice

                                                            v.

Respondents:              1.  The Special Conversion Court

                                    2.  Great Rabbinical Court of Appeals

                                    3.  Rabbinical Courts Administration

                                    4.  Chief Rabbi Shlomo Amar

 

The Supreme Court Sitting as High Court of Justice

 (Dec. 17, 2014)

Before: Deputy President M. Naor, Justice E. Hayut, Justice N. Hendel

Petition for an order nisi

 

Israeli Supreme Court cases cited:

[1]       CA 4682/92 Estate of Salim Ezra Shaya, Deceased v. Beit Taltash Ltd., IsrSC 57(3) 366

(2003).

[2]       CA 254/58 Ingster v. Langfus, IsrSC 13, 449 (1959).

[3]       CFH 4546/96 Hof Gai v. Mekorot Ltd. (May 14, 1997).

[4]       CA 9369/12 Ivi v. Z.A.M.A. Gas Transport Ltd. (July 7, 2014).

 

Judgment

Justice N. Hendel:

1.         Are there situations in which the Special Conversion Court can revoke the conversion of a person who was converted by that court? That is the question raised by the Petitioner in the present matter.

2.         The Petitioner was born to a Christian family in Romania, and converted to Judaism in Israel before Respondent 1 (hereinafter: the Special Court). Two years later, the Special Court revoked the conversion. This was primarily due to doubts that arose concerning the sincerity of the Petitioner’s intention at the time of her conversion. This is the basis for the present petition that argues that the Special Court lacks authority to revoke a conversion, and that its decision infringes the rules of natural justice. As opposed to this, the State is of the opinion that the revocation was within the Special Court’s authority, and was also justified on the merits.

3.         In the civil law, a court has inherent power to set aside its own final judgment, in exceptional cases. The case law clearly states that setting aside a judgment – the practical meaning of which is the conducting of a quasi-appeal before that same instance – constitutes a conspicuous deviation from the principle of finality. It must, therefore, be done sparingly and with discretion. The causes for setting aside a judgment are very limited. Foremost among them is fraud, i.e., where the court is convinced that its original decision was based upon an act of deceit – for example, the presenting of incorrect information by one of the litigants (see: CA 4682/92 Estate of Shaya, Deceased v. Beit Taltash Ltd. [1], 371; CA 254/58 Ingster v. Langfus [2], 453-456; CA 9369/12 Ivi v. Z.A.M.A. Gas Transport Ltd. [4]). It should be noted, for the sake of comparison, that the legislature arranged for the possibility of a retrial in criminal cases, inter alia, if it be found “that any of the evidence produced in the matter was based on a falsehood or forgery and that there is reason to believe that the absence of such evidence might have altered the outcome of the case in favour of the sentenced person” (sec. 31(a)(1) of the Courts Law (Consolidated Version), 5744-1984).[1]

            Our starting point in the present case is that the Special Court was competent, in the first place, to determine the question of the Petitioner’s conversion. The question is whether it was competent to revoke the conversion thereafter. At the relevant time, neither the law nor the regulations established rules governing this authority. However, we are of the opinion that we may be assisted in this regard by the aforesaid rule in civil proceedings. In other words: just as a civil court holds inherent power to set aside a final judgment– in rare, exceptional cases – so does the Special Conversion Court. Were we to say otherwise, we would find ourselves permitting a fundamentally flawed judgment to stand for eternity. As Prof. Zaltzman states in regard to civil proceedings: “There is no doubt that the legal system will not willingly accept the continued existence of a judgment that is so severely tainted, while permitting a litigant to benefit from his wrongdoing” (Nina Zaltzman, Res Judicata, 598-600 (1991) (Hebrew). Indeed, it would appear that the even the Petitioner agrees that an exceptional case of fraud can justify returning to the Special Court (sec. 101 of the petition).

            We do not think it appropriate, in the present procedural framework, to establish a list of concrete causes for which the Special Court might revoke a conversion. It should suffice to say that in the present case, the Special Court found – as a matter of fact – that the Petitioner dramatically changed her lifestyle very soon after her conversion, such that in practice “nothing remained of the religious observance that she [the Petitioner] had assumed”. The Special Court concluded from this that the Petitioner had originally made a false declaration before the court in the course of the conversion proceedings, and that she actually had never intended to undertake religious observance. The Special Court reached its factual findings after examining the pleadings and conducting a hearing in the presence of both parties. It should also be noted that the Petitioner was represented by a rabbinical pleader in the Special Court proceedings. Under these circumstances, in which the Special Court acted in fundamental good faith in reaching its factual conclusion that the original judgment – the Petitioner’s conversion – was granted on the basis of misrepresentation, the Special Court’s authority to revoke its judgment should not be denied.

            To complete the picture, it should be noted that the Chief Rabbi at the time, Rabbi Shlomo Amar, established the procedural rules for conversion requests. Those rules regulate the work of the special conversion courts. The rules provide, inter alia, that “in exceptional cases in which the court is of the opinion that there is reason to consider annulling of the conversion of a convert”, the court may summon the convert’s appearance in order to examine the question of annulment. The rules further set out the manner for conducting the hearing on the matter of annulling a conversion, as well as the appeal process. It should be emphasized that these rules post-dated the decisions of the Special Court that are the subject of this petition, and are mentioned only to complete the picture.

4.         Before concluding, we would note that the chain of events in these proceedings is somewhat problematic. In the same judgment in which the Special Court ordered the annulment of the Petitioner’s conversion, it added that “we establish her [the Petitioner] status as a dubitable convert”. An appeal was filed in the Great Rabbinical Court, which noted that “the judgment of the said court should be deemed as not final, and whose substance is in doubt”. The Great Rabbinical Court ordered the Special Court to conduct a further hearing, before a panel of five judges, in the hope that “in the expanded hearing, the question of the fitness of the conversion will be clarified, and that the judgment that will be rendered will be absolute and not in doubt”. Pursuant to that, in January 2004, there was also a hearing of oral arguments in the Great Rabbinical Court in the matter of the Petitioner. Since that time, no expanded panel has been convened, the Special Court has not issued a judgment, and the Great Rabbinical Court has not handed down a final judgment on the appeal.

            This chain of events raises a question. One would have expected that the issue of the Petitioner’s status – after her conversion was declared void – would have been decided one way or the other. Nevertheless, we have chosen not to address the issue, inasmuch as the Petitioner emphasized that she “does not request a hearing before an expanded panel of five judges, and does not even seek the remedy of a judgment in her matter after a decade” (sec. 55 of the petition). In other words, the Petitioner chose to focus her arguments specifically on the authority of the Special Court to revoke the conversion, and refrained from requesting operative remedies for the purpose of conducting a hearing before an expanded panel or obtaining a final judgment in her matter. That is, of course, her right.

5.         In light of the above, the petition is denied. We make no order for costs in the circumstances of the present proceedings.

 

Deputy President M. Naor:

            I concur.

            I wish to emphasize that this decision relates only to a conversion obtained by fraud. It should not be concluded from this judgment that the authority of the Special Conversion Court to revoke conversions extends to other cases.

 

Justice E. Hayut:

I concur, and join the comment of Deputy President M. Naor.

 

Decided in accordance with the opinion of Justice N. Hendel.

Given this day, 25 Kislev 5775 (Dec. 17, 2014).

 

 

 

HCJ 143/62

 

           

 

The Petitioner:            Henriette Anna Katerina Funk Schlesinger

 

                                    v.

 

The Respondent:         Minister of Interior              

 

Attorney for the Petitioner - Y. Ben Menashe

Attorneys for the Respondent – State Attorney Z. Bar Niv, Deputy State Attorneys Z. Terlo and Dr. M. Cheshin

 

 

Abstract

 

The Petitioner, a Christian woman and Belgian national, married Mr. Israel Schlesinger, a Jewish citizen of Israel, in Nicosia, Cyprus, in a civil ceremony in December 1961, as shown by a copy of the marriage register, confirmed by the Cyprus Minister of Interior. The Belgian Consul General in Limassol entered the Petitioner’s marriage in her Belgian passport. The registration in the personal status register of the Belgian Embassy testifies to her marriage in Nicosia in reliance upon the marriage certificate issued to her by the district officer there and on the said entry in her passport. Several days after the said marriage ceremony, the Petitioner arrived in Israel as a tourist. Her request to be granted a visa for permanent residency was denied. After submitting a request to the Inhabitants Registry for a certificate of identity, she was told she could not be granted a certificate of identity showing her as married, an accordingly, the name “Schlesinger” would not appear. An order nisi was issued against the Minister of Interior. In his response, the Respondent granted the Petitioner’s request for permanent residency, but maintained his refusal to register her as married, arguing that the Petitioner and Mr. Schlesinger are not a married couple in accordance with the applicable personal status laws.

 

The Supreme Court, by a majority, made the order nisi absolute, holding:

 

1. The complex issue of the validity of the Petitioner’s marriage under the applicable law should not have been raised in the context of her registration in the Inhabitants Registry.

 

2. (1)        The role of the registration officer under the Registration of Inhabitants Ordinance, 5709-1949,[1] is merely that of a collector of statistics for the purposes of administering the Register of Inhabitants, and he holds no judicial authority.

 

(2)        The above officer’s considerations are strictly administrative and he is not charged with implementing religious instructions.

 

c.         (1)        According to the instructions given to registration officer by the Minister of Interior, a citizen who appears before an administrative authority is presumed to be speaking the truth.

 

(2) Having been presented with prima facie evidence, the officer must suffice with this evidence, because – being an administrative authority – he must not intrude into an area that is not his own in order to determine a legal dispute. Should he not wish to become the arbiter, he must register the details as presented by the requesting party, even if it is not convinced of their correctness.

 

4. The above Ordinance does not confer upon registration in the Register of Inhabitants the force of evidence or proof of anything. The information in it may or may not be true, and no one vouches for its correctness.

 

5. For the purposes of registering the family status of the Petitioner in the Register of Inhabitants, the marriage ceremony is conclusive, and prima facie evidence is sufficient to prove it. Examination of the marriage’s validity is not a matter for the registration officer. It is presumed that the Legislature did not task a public agency with a duty it is unable to fulfill.

 

f.          (1)        The instructions that order the registration officer to pass on a matter of interfaith marriage to the “determination of the department” are unfounded as there is nothing for the department to determine.

 

(2).       The validity or invalidity of an interfaith marriage is an extremely weighty matter, and when a couple askes to register under the above Ordinance, it cannot be said how the issue may ultimately be determined. The registration officer cannot speculate as to which court may address the matter, how the President of the Supreme Court may exercise his authority under art. 55 of the Palestine Order-in-Council 1922, and cannot predict whether the validity of the marriage will be recognized.

 

(3)       As long as the Petitioner’s marriage has not been invalidated in a judicial proceeding, she is deemed a married woman for the purposes of the Inhabitants Registry.

 

Israeli cases cited:

[1]        MApp 39/57 S. v. S, IsrSC 11, 921, 922 (1957)

[2]        CA 26/51 Shimon Kotik v. Tzila (Tzipa) Wolfson, IsrSC  5, 1341 (1951)

[3]        CA 191/51 Leib Skornik v. Miriam Skornik, IsrSC 8, 141 (1954)

[4]        HCJ 237/61 Peer Hadar Co. Ltd. v. Head of the Land Registration and Arrangement Dept. et al., IsrSC 16, 1422 (1962)

[5]        CA 85/62 Calling-Up Officer under the Defence Service Law v. Avraham Nahari, IsrSC 16, 2813 (1962)

[6]        HCJ 145/51 Sabri Hassan Abu-Ras et al. v. Military Governor of the Galilee et al., IsrSC 5, 1476 (1951)

[7]        HCJ 155/53 Salem Ahmad Kiwan v. Minister of Defence et al., IsrSC 8, 301 (1954)

[8]        CA 238/53 Aharon Cohen and Bella Buslik v. AG, IsrSC 8, 4, 36 (1954)

 

 

Palestinian cases cited:

[9]        C.A. 186/37 Rivka Cashman v. Lindsay Gordon Cashman,  P.L.R. 4, 304 (1937) S.C.J. 2, 422; (1937)  Ct.L.R. 2, 132

[10]     C.A. 119/39 Pessia Nuchim Leibovna Shwalboim v. Hirsch Zvi Shwalboim, (1940)  P.L.R. 7, 20; (1940) S.C.J. 1, 38; (1940) Ct. L.R. 7, 55

[11]      C.A. 9/40 Eliyahu Bichovsky v. Nitsa Lambi-Bichovsky, (1940), P.L.R. 7, 228; (1940) S.C.J. 1, 184; (1940) Ct. L.R. 7, 173

[12]      C.A. 11/41 Eliyahu Bichovsky v. Nitsa Lambi-Bichovsky, (1941) P.L.R. 8, 241; (1941 S.C.J. 1, 230; (1941) Ct. L.R. 11, 238

[13]      C.A. 158/37 Leib Neussihin and ors. v. Miriam Neissihin, (1937) P.L.R. 7, 373; (1937) S.C.J. 1, 391; (1937) Ct. L.R. 2, 210

[14]      Misc. App. 20/43 Dr. Asher Apte v. Jehudit Gross (Apte) and an., (1943) P.L.R. 10, 124; (1943) A.L.R. 1, 12

 

English cases cited:

[15]      Mette v. Mette, [1859] 164 E.R. 792; 1 Sw. & Tr. 416; 28 L.J.P.&M. 117; 33 L.T.O.S. 139 sub nom. In the Goods of Mette; 7 W.R. 543

[16]      Brook v. Brook, (1861) 1 1 E.R . 703, 704, 711; ( 1861 )  9 H.L . Cos. 193; 4 L.T. 93, 99, 101 , 98 ; 25 J.P. 259; 7 Jur. N.S. 422; 9 W.R. 461, H.L.

[17]      Ogden v. Ogden (otherwise Philip), (1908) P. 46, 52, 61, 66, 67, 75; 77 L.J.P. 34; 97 L.T. 827; 24 L.T.R. 94, C.A.

[18]      In re Paine, (1940) Ch. 46, 49, 50; 108 L.J. Ch. 427; 161 L.T. 266; 55 T.L.R. 1043; 83 Sol. Jo. 701

[19]      Pugh v. Pugh, (1951) P. 482, 494; (1951) 2 L.T.R. 806; 95 Sol. Jo. 468; (1941) All E.R. 680

[20]      Sottomayer v. De Barros, (1879) 5 P.D. 94; 49 L.J.P. 1; 41 L.T. 281, 282; 27 W.R. 917

[21]      Lepre v. Lepre, (1962), see: The Law Times, vol. 233, December 6, 1962

[22]      Gray (otherwise Formosa) v. Formosa, (1962) 3 All E.R. 419, 423; (1962) 3 W.L.R. 1246

[23]      Spivak v. Spivak, (1930) 142 L.T. 492; (1930) L.J.P. 52; 94 J.P. 91; 46 T.L.R. 243; 74 Sol. Jo. 155; 28 L.G.R. 188; 29 Cox, C.C. 91

[24]      Dalrymple v. Dalrymple, (1811) 161 E.R. 665, 669; 2 Hag. Con. 54

[25]      In re Peete, Peete v. Crompton, (1952) 2 All E.R. 599; (1952) 2 T.L.R. 383; 96 Sol. Jo. 561

[26]      Middleton v. Janverin, (1806) 161 E.R. 797; 2 Hag. Con. 437

[27]      Simonin v. Mallac, (1860) 2 L.T. 327, 330; (1860) 2 Sw. & Tr. 67; 29 L.J.P.M. & A. 97; 6 Jur. N.S. 561; 164 E.R. 917

[28]      Hay v. Northcote, (1900) 82 L.T. 656; (1900) 2 Ch. 262; 69 L.J. Ch. 586; 48 W.R. 615; 16 T.L.R. 418

[29]      Baindail (otherwise Lawson) v. Baindail, (1946) 174 L.T. 320; (1946) P. 122; (1946) 1 All E.R. 342; 115 L.J.P. 65; 62 T.L.R. 263; 90 Sol. Jo. 151, C.A.

[30]      Chetti v. Chetti, (1909) P. 67; sub nom. Venugopal Chetti v. Venugopal Chetti, 78 L.J.P. 23; 99 L.T. 885; 25 T.L.R. 146; 53 Sol. Jo. 163

[31]      Brook v. Brook, (1858) 65 E.R. 747

[32]      Cheni (otherwise Rodriguez) v. Cheni, (1962) 3 All E.R. 873; (1962) 12 C.L. 112

 

American cases cited:

[33]      Ruth Loughran v. John Loughran, (1934) 78 L. Ed. 1219

[34]      Hastings et al. v. Douglas, (1918) F. 378

[35]      Alecia McDonald v. James McDonald, (1936) 58 P. (2d) 163; 104 A.L.R. 1290

 

English Statutes cited:

Age of Marriage Act, 1929 (9 & 20) Geo. 5, c. 36)

Matrimonial Causes Act, 1857 (20 & 21 Vict. C. 85) s. 22

Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 32

Marriage Act, 1949 (12 & 13 Geo. 6, c. 76)

 

Jewish Law sources cited:

Kiddushin 15b; 68b

Rashi, Kiddusin  68b, s.v. “Lo”

Leviticus 18

 

Catholic Canon Law cited:

Codex Juris Canonici, 1917, ss. 1014, 1070(2), 1070, 1071, 1133-1141, 87, 1099(2)

 

 

 

 

 

The Supreme Court sitting as a High Court of Justice

 

Before: Justices Silberg, Sussman, Berenson, Witkon and Manny

 

 

An objection to an order nisi dated 24 Iyar 5722 (May 28, 1962) ordering the Respondent to show cause why he continues to refuse to recognize the Petitioner as a married woman, whose name is Schlesinger, and register her accordingly in the Register of Inhabitants, and why he continues to refuse to issue a certificate of identity in accordance with the requested registration, as well as a permit for permanent residency. The order nisi was made absolute by a majority opinion, against the dissenting opinion of Justice Silberg.

 

 

Order

 

Justice Silberg:

1.         This is an objection to an order nisi granted by this Court, which concerns recognizing the Petitioner as a married woman, whose surname is Schlesinger, and so registering her in the Register of Inhabitants on the basis of a civil marriage between her and Mr. Israel Schlesinger in Cyprus, on December 21, 1961. The Petitioner is a Christian woman of Belgian nationality, and Mr. Israel Schlesinger is an Israeli Jew, and a permanent resident of the State of Israel. The Respondent’s refusal stems from the fact that he does not recognize the validity of the above marriage.

 

2.         Two questions stand before us in this matter. The Petitioner’s attorney attempted to intertwine them, “joined together” in his hands [Ezekiel 37:17]. We shall not follow his lead, but rather separate them and discuss them individually. Were we not to do so, we would lose our conceptual train of thought in the zigzag, and find ourselves unable to resolve the problem or problems.

 

The questions before us are:

1. Whether a marriage performed between a Jewish man and non-Jewish woman is valid according to the laws of the state?
2. If we find that it is not legally valid – can the registration officer , indeed must the officer, register the Petitioner as married based on the civil marriage ceremony performed between the couple in Cyprus.

 

I emphasized above, according to the laws of the state, because according to Jewish law, there is no doubt whatsoever that such a marriage is not legally valid.

 

And any woman who cannot contract kiddushin with that particular person or with others, the issue follows her status. This is the case with the issue of a bondmaid or a gentile woman” (TB Kiddushin 66b).

…. How do we know it in regard to a gentile woman? Scripture says, “You shall not intermarry with them” (TB Kiddushin 68b).

You shall not intermarry with them: The law of marriage will not apply to them” (Rashi, Kiddushin, ad loc., s.v. lo).

 

“The law of marriage will not apply to them” – no marital relationship can exist between a Jewish man and a gentile woman. Therefore – it is indisputable, except by the Petitioner’s attorney in one of his arguments – the marriage of a Jewish man and a non-Jewish woman is invalid under Jewish law, whether it was conducted in a Jewish marriage ceremony or in a civil ceremony.

 

3.         The question is, therefore, whether such a marriage is valid under the laws of the state. It is interesting and quite curious that no Israeli tribunal can dissolve this marriage. The rabbinical court cannot, because it has no jurisdiction over a marriage in which one spouse is not Jewish, MApp 39/57, IsrSC 11, 921, 922 [1]. The District Court also cannot, because the woman is a foreign national, and under art. 64 of the Palestine Order-in-Council, the District Court is not authorized to issue a decision dissolving the marriage of a foreign national (see and note: art. 2(f) of the Palestine Order-in-Council (Amendment) 1935, together with CA 186/37 [9]). And I think it greatly doubtful that – for reasons that need not be elaborated here – the Respondent can make recourse to art. 55.

 

But the fact that no tribunal has jurisdiction to dissolve the marriage does not mean that the marriage stands. The law precedes the judge, and it has its own reality. But the fact is that we are not concerned here with dissolution or validation of a marriage – as we lack jurisdiction for either – but with an incidental decision on its invalidity or validity for the purpose of deciding upon the mandamus petition before us. We, like any court, are competent to make incidental decisions under the provisions of sec. 35 of the Courts Law, 5717-1957.

 

4.         And so we return to the question at the beginning of the previous section: Is the marriage entered into by the Petitioner and Mr. Schlesinger in Cyprus valid under the laws of the State of Israel?

 

The primary argument of the Petitioner’s attorney is that whatever the validity of this marriage may be in regard to the man, Mr. Schlesinger, from the perspective of the woman – the Petitioner before us – and for the woman, it is nevertheless valid. This is because under art. 64(ii) of the Palestine Order-in-Council, the validity of a marriage of a foreign national is determined in accordance with the national law that applies to her, and under Belgian law there is no flaw or defect in the marriage of a Christian woman and a Jewish man. In other words, Mr. Schlesinger is not married to the Petitioner, and he is a bachelor, whereas the Petitioner is a married woman, who is married to Mr. Schlesinger.

 

This is a serious argument, but it would seem that it must ultimately be rejected. I am not at all overwhelmed by the absurdity of this idea – a married woman who is married to a bachelor! – because in the vast, factious field of private international law that is so full of contradictions and inconsistencies, such wonders do exist. Consider, for example, a country that permits its citizen to marry a woman who is not eligible for marriage under her national law, and it (the state) also maintains the married woman in her pre-marriage citizenship. When that couple arrives in Israel, they may find themselves in such a paradoxical situation. This is not because Israeli law looks favorably upon such a half-married and half-single couple – indeed, as we shall see below, Israeli law objects to such divisions – but because the explicit provision of art. 64 of the Palestine Order-in-Council requires that the court view the spouses through different prisms: the husband (in the example above)  is viewed through the prism of his national law, which deems them both married, while the woman is viewed through the prism of her national law, which deems them both single.

 

5.         My response to that argument will be presented in the next two sections. First, I will examine the relevant legal situation in English Common Law, which is imported into our law through art. 46. I will then examine the view of Belgian law, which may lead us to art. 64.

 

6.         As for the Common Law: an important rule of British private international law jurisprudence states that a marriage has no legal effect unless it is valid under the personal law of each of the spouses. This is termed the “cumulative system,” as opposed to the “distributive system” that addresses such an issue by “allocation”, that is, it determines the validity of the marriage of each spouse separately, in accordance with the law of his domicile alone.

 

The cumulative system, according to which the invalidity of the marriage in regard to one spouse renders the marriage invalid for the other spouse as well, has been the common thread in English case law for a hundred years or more – some of which expresses it explicitly, while in some it becomes absolutely clear through careful analysis. Below are the prominent cases that addressed this issue directly or indirectly. I shall present them in chronological order:

 

(a) Mette v. Mette, (1859) 164 E.R. 792 [15]:

In this earliest case, a marriage was invalidated for both parties because of the lack of capacity of one spouse, the husband, under the law of his domicile. The husband, a resident of England, married his sister-in-law (the sister of his late wife), who was a resident of Germany prior to the marriage, in Frankfurt. Under English law at the time, the marriage of a brother-and-law and sister-in-law was void, while under German law it was valid. The Court voided the marriage, stating:

 

There could be no valid contract unless each was competent to contract with the other ([15] at 795-96).

 

(b) Brook v. Brook, (1861) 11 E.R. 703 [16]:

This case, decided two years later, also concerned the marriage of a brother-in-law and sister-in-law solemnized in a foreign country that permitted such marriage (Denmark). The House of Lords voided the marriage for violating English law. Halsbury (Simonds) vol. 7, p. 91, comment (r), presents this decision as evidence of the rule that a marriage is void unless it is valid under the antenuptial domicile law of both spouses. But that is mistaken, inasmuch as an examination of the Brook case shows (at p. 704, in the middle of the page), that the antenuptial domicile of both the husband and the wife was England, and in any event this does not show that the marriage would have been voided under the cumulative system, even if – as in the Mette case – only the domicile law of one party would have voided the marriage. But this decision indeed provides additional proof that in the matters of capacity to marry, English law follows the domicile and not the place of solemnization, and it (the above decision) of course does not contradict the said cumulative system.

 

As a living illustration of a modern Gretna Green in nearby Cyprus, it is apt and interesting to take note of a quote from the Brook case, in which Lord Campbell states:

 

It is quite obvious that no civilised state can allow its domiciled subjects or citizens, by making a temporary visit to a foreign country to enter into a contract, to be performed in the place of domicile, if the contract is forbidden by the law of the place of domicile as contrary to religion, or morality, or to any of its fundamental institutions (p. 711).

 

(c) Odgen v. Ogden (otherwise Philip), (1908) [17], p. 46:

A 19-year-old French domicile named Philip married an English domiciled woman. Under French law at the time, a man under the age of 25 could not lawfully marry without parental consent – which Mr. Philip did not have. Under the laws of England, a 19-year-old does not require parental consent. When the English woman heard that her husband, who had left her, had been granted an annulment in France, she went ahead and married her second husband, in England, whose name was Ogden. After a while, conflicts arose between the lady and her second husband, and Mr. Ogden filed suit against his wife for a decree of nullity of marriage, on the grounds of bigamy, because – despite the French decision – his wife was still married to the above Mr. Philip. The question was whether the first marriage of Mrs. Philip-Ogden was valid or void, and the issue was which law should be applied to the first marriage – the English law of the wife, which deemed the marriage valid, or the French law of the husband, which deemed the marriage void, and which actually annulled it by judicial order due to the absence of parental consent.

 

The English court, applying the laws of England to the first marriage, deemed it valid, and therefore annulled the second marriage as bigamous.

 

This decision seemingly contradicts the cumulative system as, in validating the first marriage, it sufficed with its validity under the wife’s law of domicile. But when we reviewed this precedent in depth, read the pleadings by the attorneys, the comments of judges, the text of the decision and the views of English legal scholars on the matter (see: Ogden, [17] pp. 52, 61, 66, 67, 75; Wolff, Private International Law, 2^nd ed., pp. 328-29; Cheshire, Private International Law, 3^rd ed., p. 288; Dicey’s Conflict of Laws, 7^th ed., p. 235) we learned that the ratio decidendi of the Ogden decision was that parental consent for their son’s marriage was a requirement of “form” rather than of “substance” – inasmuch as the two young spouses are not ineligible to be married to one another – and as we know, any matter of form is decided under the law of the place where the marriage was solemnized (les loci celebrationis), which was in the Ogden case – coincidentally – also the law of the wife’s domicile. In effect, the only value of the Ogden decision is in the fact that the classification or distinction between the terms “form” and “substance” was made according to the lex fori, the law of the location of the court, and under  English law, parental consent is a matter of form, as the “Gretna Green” cases confirm! “Gretna Green” marriages have been performed for centuries. Very young English couples who required the consent of their parents to marry would cross the border to a nearby Scottish village, stay there for several hours, and marry there before the blacksmith and his assistant at the customs office. And why were these youthful elopements useful? Because Scotland did not require parental consent, and thus the marriage was valid under the law where the marriage was solemnized, and thus also valid upon return to England.

 

As we can see, the reasoning in Ogden is not only consistent with the cumulative system, it even supports it. This is because were the marriage of Mrs. Ogden to her first husband invalid under his law of domicile – not for a flaw of form but for a flaw of substance – the English court would have found it void for the other partner, that is the English wife, as well. In the case before us, it is unnecessary to elaborate on this, because the flaw in the marriage of a Jewish man and a non-Jewish woman – were Jewish law to apply, which we will discuss below – is a flaw of substance, of actual competence, because there can never be a lawful marriage between a Jewish man and a non-Jewish woman under Jewish law, as we have seen above.

 

(d) In re Paine ; (1940), Ch. 46 [18], provides clear, explicit authority for the above cumulative perspective. The discussion there concerned the provisions of a particular will. Incidentally, a question arose as to whether the parents of the children mentioned in the will were legally married. The marriage was solemnized in Germany. The wife was the husband’s sister-in-law (the sister of his late wife.) His domicile was in Germany, her domicile was in England, and the court held that the marriage was void due to a flaw under the wife’s law of domicile, because – said the judge – “the marriage must be a good and legal marriage according to the law of the domicil of both contracting parties at the time of the marriage” (pp. 49-50).

 

(e) Pugh v. Pugh, (1951),  P. 482 [19]:

A resident of England married a Hungarian-born 15-year-old girl in Austria – which was permitted under the laws of Austria and Hungary, but prohibited and void under the English Age of Marriage Act, 1929. The court voided the marriage, stating:

 

In view of those authorities it is clear that the marriage under consideration here was not valid, since, by the law of the husband’s (emphasis added) domicil it was a marriage into which he could not lawfully enter (p. 494).

 

The court did not bother to enquire into the question of the wife’s domicile because – so it would appear – it deemed it irrelevant, since even a flaw regarding one of the parties voids the marriage entirely under the above cumulative system.

 

(f) Sottomayor v. De Barros, (1879) 5 P.D. 94:

This case is, as far as I am aware, the only exception to the cumulative system. However, it, too, would be of no importance but for the special coincidence with the case before us. A Portuguese man, resident in England, and a woman who was a Portuguese national and resident, married in England. The two were first cousins, and under the laws of Portugal, such relatives cannot marry without a dispensation from the Pope. The English court declared the marriage valid, despite the substantive flaw under the wife’s law of domicile. This decision is surely inconsistent with the cumulative system. However:

 

(a).       It is insignificant in view of the many decisions handed down in the past hundred years in favor of the cumulative system, and it should be deemed overturned by the later decisions in Ogden, Paine, and Pugh as mentioned above.

 

(b).       In Sottomayer, the validating law was the lex fori, the law of the state where the presiding court convened, and the invalidating law was the foreign law, and the court rejected the foreign law in favor of the local law. The case before us is the reverse: the local law, which is identical to the common law, invalidates the marriage at hand – were we to apply Jewish law – whereas the law that validates it is the foreign (Belgian) law. There is no precedent for validating such a case, even in the above Sottomayer case.

 

7.         Here, one might argue: You have applied the Anglo-Israeli Common Law – but not the Belgian law! Were it to become clear that Belgian law actually follows the distributive system, we would be compelled – in terms of the wife – to reject art. 46 in favor of art. 64, and to validate the marriage in her regard.

 

My response is as follows: Based on Arminjon (Precis de Droit International Prive, pp. 45-46), which was cited before us by the Respondents’ attorney, it seems that Belgian law, too, follows the cumulative rather than the distributive system. But even were we not consider the words of this author as clear evidence of the Belgian law, we would arrive at the very same outcome. This is because when a party argues for the application of a foreign law but does not prove it, the “doctrine of processual presumption” immediately applies and the court assumes that the foreign law is identical to the law of the forum. Or – as the most recent editors of Dicey state – the court in this instance simply applies the law of the forum (Dicey’s Conflict of Laws, 7^th ed., p. 1116).

 

And since the law of the forum in this case is, under art. 46,  English Common Law, we again return to the cumulative system, which requires marriage eligibility under the personal law of both spouses.

 

As a result – assuming that Jewish law is the personal law of Mr. Schlesinger – his marriage to the Petitioner lacks legal validity both for the husband and for the wife, because one of the spouses, the husband, lacked the capacity to marry the Petitioner.

 

8.         We thus reach the additional question: Is Jewish law indeed the “personal law” under which the civil court must adjudicate the matter of Mr. Schlesinger’s personal status, in accordance with the aforementioned provision at the end of art. 47 of the Palestine Order-in-Council?

 

The answer to this is yes, certainly, and without a shadow of  doubt. The Mandatory Supreme Court so ruled in CA 119/39 [10], and in CA 11/41 Bichovsky v. Lambi-Bichovsky, (1941) P.L.R. 8, 241 [12], and the Israeli Supreme Court so ruled in CA 26/51 Kotik v. Wolfson, IsrSC  5, 1341 [2], and CA 191/51 Skornik v. Skornik, IsrSC 8, 141 [3], and so rule the Israeli courts each and every day without any misgivings, in hundreds and thousands of judicial decisions.

 

9.         The Petitioner’s attorney made a last-minute argument on this point immediately after we informed him of an English decision handed down several weeks ago in Lepre v. Lepre, (1962) [21], which was reported in The Law Times on December 6, 1962. This decision essentially relies upon an earlier decision handed down by the English Court of Appeal in the matter of Gray (otherwise Formosa) v. Formosa, (1962) 3 All E.R. 419 [22]. In summary, both decisions hold that English courts will not recognize a foreign court’s annulment of a marriage due to the different faiths of the husband and wife, because such nullification is inconsistent with English principles of natural justice. The Petitioner’s attorney argues that we, too – as a civil, secular court – must ignore Jewish law to the extent that it prohibits the marriage of Jewish man and a non-Jewish woman, because that flaw offends the sense of natural justice of Israeli public, as well.

 

This claim is incorrect. A court in state A can say that the laws of state B infringe its sense of justice, and completely ignore them. But a judge presiding in state B itself cannot say that the laws of the state infringe his sense of justice and that he is, therefore, unwilling to uphold them. The laws of every state, and all the more so a democratic state with a parliamentary legislature, befit – or is deemed to befit – the accepted principles of natural justice of that state, otherwise the laws would not have been enacted, and if enacted – would have been repealed under public pressure. Lord Denning could say in the Formosa case ([22] p. 423) that were a person off the street in England asked whether a marriage between a Catholic man and an Anglican woman was valid or not, that person would have answered: Valid! But it certainly cannot be said that any person in Israel, off the street or from the garret, would have responded in the affirmative to the question whether the marriage of a Jewish man and a non-Jewish woman should be recognized as valid. I believe that the vast majority of our public would answer in the negative. That is, not only are we, the presiding judges, not permitted to ignore existing laws so long as they are in force, but in reality, and in truth, our religious personal laws do not contradict the view of the Israeli general public.

 

10.       My conclusion is, therefore, that the marriage of the Petitioner to Mr. Schlesinger is null and void for both spouses, because the personal law of Mr. Schlesinger is Jewish law, which binds this Court under art. 47 of the Palestine Order-in-Council, as aforesaid.

 

11.       This brings us to the second question of whether, despite the marriage’s invalidity, the registration officer was required to register the Petitioner as married. The Petitioner’s attorney argued that the registration officer only records what the registering party reports, and must not further enquire into the citizen’s legal personal status.

 

I am willing to agree that if, for example, the registration officer believes that the citizen applying to him is married, he may register the citizen as such, and is not required to seek expert advice in order to root out any doubt he may have about the matter. But when he is convinced that the person is not married, he may not register anything that he believes to be a complete lie. Since the registration questionnaire inquires as to the legal family statues of the registering person, rather than the bare fact of whether that person had a marriage ceremony or not – as argued before us by the Petitioner’s attorney – I wonder whether I can order the Respondents to register the Petitioner as married, after I have stated my opinion, in this very decision, that she is not married.

 

I therefore reject the second argument, as well, and recommend that we rescind the order nisi and deny the Petition.

 

12.       This concludes my opinion, but I wish to direct a few words to the legislature, and draw its attention to the fact that the case before us is but a sad part of a much broader problem, which urgently requires a clear statutory arrangement. I testify before heaven and earth that I was but a hair’s breadth from a converse ruling. For were only one detail of the many details in the present case different, I would have been obligated, as a judge of a civil court, to find in favor of the validity of this marriage.

 

I shall clarify. In the present case – which we shall call hereinafter the Schlesinger case – no evidence was presented as to the whether Belgian law adopts the cumulative or distributive approach to the spouses’ personal law. We imputed the cumulative system to Belgian law on the basis of the “presumption of identity”, after showing the position on this matter of the Common Law, and of Israeli law pursuant thereto. But there are various legal scholars who argue in favor of the distributive system. The opponents of the cumulative system point to its absurd outcome that the marriage is sometimes voided because of the wife’s pre-marital domicile, whereas were the marriage not compromised,  the saw would exalt itself against him who saws with it [Isaiah 10:15], and the marriage itself would void the domicile that voids it. This is because, as we know, the domicile of the married woman follows the domicile of the husband. However, if clear, explicit evidence demonstrated in the Schlesinger case that the Belgian legislature follows the distributive approach, then we would have been required to recognize the validity of the marriage in regard to the Belgian subject,  and to order the Respondents to register her as married.

 

Or change a different detail, which also would have reversed the result of the judgment. English judges are divided on the question of what is this “law of domicile” that determines the validity of the marriage? Is it the law of the antenuptial domicile of each of the spouses, or is it the law of the domicile of both spouses following the marriage that prevails, or – in other words, and perhaps by a different intention – “the intended matrimonial domicile”. This question should not be determined as a matter of course, as there are arguments and authority for both alternatives, although most of the case law seemingly tends toward the former.

 

In the Schlesinger case, we did not address this question at all, as it was not material. The State of Israel was both the antenuptial domicile of the husband, as well as the intended matrimonial domicile, as appears from the all the circumstances, and thus the marriage is in any case invalid.

 

But let us imagine a different “Schlesinger case”, which is slightly different in terms of this detail. The man, a Jewish resident of Israel, travels to Cyprus for a short period of time, where he marries a non-Jewish woman in a civil ceremony, and returns with her to Israel in order to prepare papers and documents for the purpose of immigrating to England – a country that, as we have seen under the Lepre matter [21], does not prohibit marriage because of differences in the partners’ faith, regardless of the position of the laws of state of domicile on the matter. Were this the case, we would have been required to first get into the thick of the aforementioned dispute in the case law. Then, were we to determine in favor of the intended matrimonial domicile – we would have to find that the marriage was valid under our civil law, both for the non-Jewish wife and for the Jewish husband.

 

Moreover, in our country, as we know, there is no general territorial law on matters of personal status (aside for some morsels such as the distribution of an estate and guardianship of children under the Woman’s Equal Rights Law, 1951) and at times – as I have written elsewhere – the law is a “function” of the adjudicator.

 

For example: a Jewish man, resident of the United States, enters a civil marriage there with a divorced Jewish woman who married her previous husband in a Jewish ceremony and divorced him by a civil divorce. The spouses immigrate to Israel and enquire as to their personal status and whether they are married or single. Were the issue brought directly before the Rabbinical Court under sec. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, the decision of the court would be that they are not married, as according to Jewish law, she would still be married to her previous husband, and a marriage to a married woman is invalid. On the other hand, should the woman apply to the District Court prior to the Rabbinical Court’s decision, in a suit for maintenance from the man under sec. 4 of the above statue, the court would incidentally find (under sec. 35 of the Courts Law, 1957), that the plaintiff is lawfully married to her husband by virtue of the Common Law rules that establish the validity of the marriage under the law of the couple’s domicile at the time of the solemnization of the marriage, and would order the defendant to pay maintenance. The question then arises: what should the registration officer properly do when asked to register the above couple’s personal status?

 

Another example: Jewish spouses, who reside permanently in France, marry there in a Jewish ceremony in accordance with Jewish religious law and then move to Israel. The Rabbinical Court would recognize the validity of the marriage retroactively from the day of its performance, as it is valid under the Jewish law (compare CA 158/37 Nosse Chen v. Nosse Chen) [13]. The civil court – were it not to accept the dissenting opinion of my honorable colleague Justice Agranat in the Skornik appeal, CA 191/51, IsrSC  8, 141 [3], 175-78 – would void that marriage (while considering it incidentally), relying on another ruled of English private international law which states that the form of the ceremony is considered, for better or for worse, according to the location where it is celebrated, and the laws of France – if my memory serves me right – do not recognize the validity of a religious marriage ceremony. This case is the inverse of the previous case: there the marriage is invalid in the eyes of the religious court and valid in the eyes of the civil court; here it is valid in the eyes of the religious court and invalid in the eyes of the civil court. Is this not a case of the law becoming a “function” of the judge?! And again the question arises, how must the registration officer proceed in registering the personal status of the above couple?

 

I, therefore, offer the following simple suggestion that would effectively remove the painful sting form the vast majority of difficult cases. When the marriage was solemnized abroad, the registration officer should be permitted and even obligated to add the words “in a civil ceremony” or “in a religious ceremony” after the word “married”, as the case may be. This innovation requires an explicit statutory provision, because as the law presently stands, the registration officer must register the legal family status of the person registering, which presents him with a complex web of legal questions from which he may not always be able to extricate himself. Clearly, what is recorded in the certificate of identity will not obligate or bind the religious or the civil court if they later adjudicate – directly or incidentally – the issue of the marriage’s validity. But it shall provide some small but important satisfaction to spouses whose marital status is in doubt, and would spare them shame and considerable discomfort whenever they must present their certificate of identity. Let us not further strain the already tense relations between the religious and the “free” sectors of the population, nor pour oil on the fire that might erupt around this issue in Israeli society.

 

Therefore, I found it necessary to make the above comments, in hope that the Israeli legislature consider them when it addresses this painful question.

 

My opinion, as presented at the end of the previous paragraph, is that the order nisi should be rescinded and the petition denied.

 

Justice Sussman:

 

The Petitioner, a Christian subject of Belgium, married Mr. Israeli Schlesinger, a Jewish citizen of Israel, on December 21, 1961. The marriage was solemnized in a civil ceremony in Nicosia, Cyprus, and was evidenced by a copy of the marriage register confirmed by the Cypriot Minister of Interior. After marrying Mr. Schlesinger, the Petitioner went to the Belgian Consul General in Limassol, who registered her marriage in her Belgian passport. He further registered that due to her above marriage, her name was changed to Schlesinger, her husband’s name. The Petitioner did not suffice with this registration. On July 26, 1962, she presented herself at the Belgian embassy and made a declaration that was registered in the Embassy’s personal status register (Registre matricule). The registration details the Petitioner’s personal details and attests to her marriage in Nicosia, in reliance on the marriage certificate issued to her by the district officer in Nicosia, and in reliance on the registration in her passport by the Belgian Consul, as noted.

 

2.         On December 12, 1961, the Petitioner arrived in Israel as a tourist. She initially sought a permit for permanent residency, however her request was denied, and she was permitted to remain in Israel only until March 17, 1962. Two days after that, on March 19, 1962, she applied to the Tel Aviv registration office for a certificate of identity. To this end, she submitted all the information required under the Registration of Inhabitants Ordinance, 1949. The outcome of the application was that the Petitioner was summoned to the said office for “clarification”. The purpose of the “clarification” was to inform the Petitioner that she could not be issued a certificate of identity that would state that she was married, and accordingly, the name “Schlesinger” could not be entered. This notice was given to the Petitioner orally, and her request that she be given written notification went unanswered. An additional request for a certificate of identity, submitted by the Petitioner’s attorney to the Ministry of Interior in Jerusalem on April 30, 1962, received no response. The Petitioner therefore brought her matter before this Court, which granted an order nisi instructing the Respondent – the Minister of Interior – to show cause why he maintains his refusal to recognize the Petitioner as a married woman whose name is Schlesinger, and why he maintains his refusal to issue her a certificate of identity as requested, as well as a permit for permanent residency.

 

Only in its response to the order nisi did the Respondent grant the Petitioner’s request for a permanent residency permit, so that one issue has now become moot. Still, the Respondent maintains his refusal to register the Petitioner as a married woman, arguing that according to the laws of personal status that apply to the Petitioner and her husband, they are not a married couple. In this context, it should be noted that the Petitioner’s husband was registered in the Register of Inhabitants as married, on the basis of that same marriage ceremony celebrated between him and her in Cyprus, but the Respondent’s investigation into the Tel Aviv registration office revealed that this registration was made in error, and that the officer who registered the husband’s marriage was not familiar with the web of contradictory instructions given over the years by his superiors.

 

3.         It would not be superfluous to emphasize already at this stage – at the outset of our remarks – that we are not concerned here with the validity or voidance of the marriage. The issue before us is the question that arises from the what was stated in the order nisi, that is: whether there is justification for the refusal of the registration officer to register the Petitioner as a married woman who, as a result of her marriage, bears the name of her husband.

 

4.         In order to respond to the above question, we shall turn to the Registration of Inhabitants Ordinance, 1949. According to sec. 2 of the above Ordinance, a Register of Inhabitants was established in the territory of the state, and the roles of the registration offices are defined in sec. 3 of the Ordinance. These duties are:

1. To keep a Register of Inhabitants containing the particulars of registration enumerated in section 4;
2. To issue, renew and enter changes in certificates of identity;

…

 

As an “inhabitant”, according to its meaning in sec. 1 of the above Ordinance, the Petitioner must, under sec. 5(a), provide the registration office with the details listed in sec. 4 of the Ordinance. These details include, inter alia, her name (sec. 4(a)), and her family status (sec. 4(d)), and there is no doubt that she is required to provide correct details, as providing incorrect details is punishable under sec. 12(a)(2) of the Ordinance. These are the details which the registration officer must register, and issue the inhabitant a certificate of  identity according to them, as stated in sec. 7 of the Ordinance.

 

5.         In the course of the hearing, my honorable colleague Justice Berenson raised the question: what is the registration officer to do when a person comes before him and provides, for the purpose of registration, details that are not acceptable to the registration officer, such as when a person wishes to register his son as five years old, and the registration officer sees the boy and believes that he may be twenty years old?

 

Section 6 of the Ordinance speaks of the “procedure of notification”, and instructs that anyone providing details of registration must, at the request of the registration officer, “produce any relevant document” as well as “affirm, either orally or in writing, the correctness of the particulars furnished or produced by him”.

 

The learned State Attorney, who argued on behalf of the Respondent, did not touch on this question, except for a single incidental comment. He said that a public officer is not under a duty to enter incorrect information in a register that he maintains, and in any event, this Court will not order him to do so, as we held in HCJ 237/61 [4]. I accept this argument, but it concerns an incorrect registration that is manifest and not subject to reasonable doubt. I do not question that a public officer must not exercise his authority in order to be a party to an act of deception. When a person who is undoubtedly an adult presents himself and wishes to register as a five year old child, what doubt is there here that the registration is false and this person’s act is fraudulent? In such a case, the registration officer is correct to refuse to register the details, and this Court certainly will not exercise its power, under sec. 7 of the Courts Law, 5717-1957, to require the registration officer to “falsify” the Register of Inhabitants.

 

But consider a different case, in which the officer indeed has suspicions as to the age of a person, but the matter is uncertain. Recently,  a matter came before this Court concerning a person of Yemenite origin who, according to his certificate of identity, was already 18 years old, and thus, in accordance with his registered age, he was subject to military conscription. He reported for a medical examination in accordance with the Defence Service Law, 5719-1959, and the medical committee that examined him found that he was only 14 or 15 years old. The boy’s father, too, supported the finding of the medical committee, but nevertheless did not object to his son be conscripted immediately, apparently in the belief that it would be best that when the son is 18, he would already be exempt from the obligation for regular service and could assist him in his work or business. In light of the finding of the medical committee, the calling-up officer petitioned the District Court, in accordance with sec. 4 in the Appendix to the said law, for a declaration as to the age of the person reporting for military service. The District Court collected testimony and declared the registration in the certificate of identity was correct and the boy was 18 years old. The  calling-up officer appealed to this Court, and we held that the registration was incorrect and that the boy was still 14 years old (CA 85/62 [5]).

 

6.         The same question that worried the calling-up officer may arise before the registration officer when registering a resident under the above Ordinance. When that same person I discussed in sec.. 5 above presents himself and asks to register his son as 15, and the officer believes, according to what he sees, that the boy is already 17 years old, what is he to do? Needless to say, such cases are possible, whether because of a false registration was made in order to allow a person to avoid military service, or for any other purpose. When the registration officer wishes to determine the age of a person when the issue may cut both ways, the question arises: who authorized you? The matter in dispute may be difficult and complex, as the difference of opinions between the two courts in the above matter demonstrates. Have registration officers been granted judicial authorities? Has the Ordinance authorized them to decide upon matters of registration? It is clear beyond doubt that the task of the registration officer, under the above Ordinance, is but that of a collector of statistical information for the purposes of keeping the Register of Inhabitants, and he holds no judicial authority. What, then, is a registration officer to do in such a case? Should the registration officer register despite doubts as to the correctness of the registration – whether in terms of age or in terms of a different matter, such as one’s family status – or should he refrain?

 

It would appear that the registration officer was given “instructions” in this regard by the Ministry of Interior, but those instructions were changed from time to time. The instructions that were in effect until March 1958, were replaced at that time by other instructions given by the Deputy Director General for Immigration and Population in the Ministry of Interior, with the approval of the Minister of Interior (exhibit M2). These instructions also include provisions in regard to the registration of family status. On January 1, 1960, things changed again, and the Minister of Interior personally ordered the cancellation of previous instructions for registering mixed marriages. On May 2, 1962, the above Deputy Director General in the Ministry of Interior ordered, pursuant to this order of the Minister of Interior to the district commissioners, that “since the registration of mixed marriages…requires examination on a case by case basis”, registration officers must accept the notifications of requesting parties, but they must refrain from registering this in their certificate of identity and personal documentation and “transfer the personal file of the couple to the department for determination.”

 

7.         The determination of the department in regard to the Petitioner’s marriage was made on March 15, 1962, and it was passed on to the Immigration and Inhabitants Registration Office in Tel Aviv, as follows:

 

(2)… It should be clear that the civil marriage performed between him and Miss Funk is not valid for him. The personal law that applies to him is the Rabbinical Courts Jurisdiction Law, and this statute does not permit mixed marriages.

 

(3) Since the marriage is not valid, Miss Funk must not be considered his wife and she must not be registered as married. The parties – should they wish to do so – may apply to the District Court for a determination on the matter by way of a motion for granting an order. The background for the decision should be explained to Dr. Schlesinger.

 

This determination of the Registration of Inhabitants Department in the Ministry of Interior is flawed in at least two ways. First, I wonder what source the Respondent or his subordinates found specifically in the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law,  5713-1953,[2] – it and none other – that “does not permit mixed marriages.” Section 2 of the above Law states:

 

Marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law.

 

The law addresses the marriage of Jews, and only a marriage conducted in Israel. The Petitioner is not Jewish, and her marriage was conducted outside of Israel. Second, if a judicial decision is required, why should the Petitioner specifically turn to the District Court? Could she not submit the matter for decision by a competent religious court?

 

I think it appropriate to note, at this point, that the authority of the Minister of Interior to instruct the registration officers as to when to perform a registration and when not to was not disputed before us. There is no mention of such authority in the above Ordinance itself, and the Respondent did not argue that he relied upon regulations he made by virtue of sec. 10 of the Ordinance. However, in light of the position taken by the Petitioner’s attorney, I will assume that the Respondent was empowered to issue such “instructions”.

 

What was said in the instructions?

 

Exhibit M2 – that is, the instructions given by the Respondent on March 10, 1958, in accordance with the opinion of the Attorney General – states, inter alia, as follows:

 

            1. Defining the Role of the Registration Officer:

The registration officer is solely an administrative authority and he must, therefore, register the personal details of a person required to provide them for registration according to the above statutes, both for himself and for his minor children.

The registration officer is not the judicial authority that determines the personal status of the person, and it is not for him to determine legal or religious questions.

If every determination of a legal question is beyond the scope of the role and competence of the authority tasked with implementing the laws – then that is certainly so for a determination of a religious nature. Whether one converted according to Jewish law, or married a wife according to Jewish law, or whether one was divorced by her husband according to Jewish law, or whether one may be considered Jewish under Jewish law – these are all religious questions, and their determination is within the purview of the religious authorities.

 

The considerations of the registration officer are solely administrative, and he is not charged with the implementation of religious law.

 

                        The civil administrative authorities are not ordered, are not able, and thus are not even permitted to carry out religious law or determine what is permitted or forbidden under religious law.

 

2.         What is the Registration Officer to Register?

The registration officer only registers what the citizen who is required to register tells him to register.

 

3.         The Duty of Investigation and Examination of the Registration Officer

The registration officer must not be charged with a duty to investigate and inquire that he cannot and should not meet before registering the details provided to him by the resident who must register.

It is true that the registration officer must exercise caution in fulfilling his duties. But “it (that is, this caution) is not but that same caution required of any public servant when fulfilling his administrative role.

 

4.         The Duty of Warning by the Registration Officer

The Registration officer shall warn the person required to register that he registers only what he is told, and that the registration does not serve as legal evidence of the truthfulness of the registered details, but only evidence of meeting the obligation to register. It must be explained to the declaring person that any court or tribunal, and even any administrative authority, may reject the details as a finding, and even disregard them.

In particular, he must be warned that, according to the standing rules of the Chief Rabbinate and the Ministry of Religion of 1950, rabbis who serve as registrars of marriages are obligated not to rely only on the information registered in the certificate of identity, but to investigate themselves those who come before them to marry, or to demand that they submit a certificate that they are unmarried from an authorized rabbi or religious court. In practice, rabbis follow these instructions all the time.

 

5.         The Registration Officer’s Duty to Register the Details

After the registration officer has given the above warning, he must register the details provided to him:

1. If he sees no prima facie reason to doubt the details provided to him.
2. If, after any doubt arose as to a particular detail, he requested evidence and the details were prima facie proven to him.

 

                                          The registration officer must always bear in mind that he is not a judge and that he is not an arbiter, but that he is solely a registration officer, and he registers only what the citizen required to register tells him to register. The law authorizes the registration officer to refuse to register what seems to him as false or misleading. For this purpose, he is granted the authority to demand from the person required to register documents and other evidence to prove what he claims ought to be registered. But when the registration officer sees no prima facie reason to doubt the details provided to him by the person required to register, or – after such doubt has arisen and he has demanded such evidence – should he be satisfied that these details were prima facie proven to him, then the registration officer must register them. The fact that the certificate he issues as to the registration will be deemed valid, and that it may serve to prove its content, is of no consequence to him at all.

 

6.         The Citizen’s Declaration – Presumption of Truth

The registration officer must presume the citizen’s declaration to be true, and particularly if he has warned the citizen. The registration officer may not raise unsubstantiated suspicions. Doubt must be based on a reasonable foundation.

 

This is a rule: the registration officer is required to respect the citizen, but he is not required to suspect him.

 

7.         What is a Reasonable Foundation for Suspicion?

A reasonable foundation may be based upon the conduct of the declaring citizen, inconsistencies in his declarations, apparent flaws in his documents, knowledge the officer has in regard to the citizen or the documents – and so forth.

 

8.         Anyone Seeking Amendment bears the Burden of Proof

When a person seeks to amend the registration – he must prove that there is indeed a mistake that requires correction and should be corrected. Here, the registration officer is not generally permitted to forego the evidence.

 

9.         An Official Document Presumed to be Valid

In the absence of special reasons (see below) to rebut the presumption of validity, the registration officer must not second guess an official document, but must act to register in accordance with it.

What constitutes an official document –

Any document created by a public servant (government, legal or administrative, civil or religious, in Israel or abroad) in the course of his duties, and in this regard, anything recorded in the  Register of Inhabitants and the certificate of identity itself, is presumed true.

                        Therefore, the authorities competent to execute the laws may and must presume the validity of any official document, whether from Israel or from abroad, that is presented to them as proof of a certain fact, and it is immaterial whether the document is a birth certificate or a passport or a marriage certificate or a divorce decree or a death certificate or probate order. Such documents prove prima facie not only the underlying fact for which they were issued (such as a marriage certificate or a divorce decree), but also all the other details written in them. The agency issuing the document is presumed not to have issued a document in which it recorded something that is incorrect.

 

10.       Rebutting the above Presumption

However, this presumption is rebuttable. It is only prima facie evidence. For example, should the registration officer sense a forgery of a document (uncertified additions or amendments or redactions), the officer may demand additional evidence.

 

11.       The Value of Decisions by the Registration Officer

The decisions of the registration officer are valid and binding only for the purpose of implementing the Registration of Inhabitants Ordinance (or one of the other above statutes). They have no binding legal force for the implementation of other statutes.

Even in those cases where the registration officer demanded evidence to prove a certain detail, the satisfaction of the registration officer does not bar a court or any other administrative authority from rejecting that very same evidence and to not be persuaded thereby.

 

……

 

16.       The Marriage of Spouses, One of whom is not Jewish, before a Consul

A consul has no authority to perform a civil marriage ceremony for a couple where both partners are Jewish, but the said consul retains authority to perform a civil marriage ceremony for a couple when one partner is not Jewish, provided that the consul is so authorized by the laws of his state to perform the marriage ceremony.

Any certificate issued by a foreign consul in Israel in regard to any person who is a citizen of the country that the consul represents, and which concerns the personal status of that person (such as marriage, birth and so forth, but not divorce), must be accepted as a basis for registering that detail that the certificate addresses.

 

9.         I agree with what is been presented above from exhibit M2, which also includes

the answer to the question how the registration officer is to proceed when he harbors doubt as to the accuracy of the details that the declaring citizen provided to him. Section 3 of the above regulations aptly states that the registration officer must act with caution, and I have already called attention to sec. 6 of the Ordinance, which establishes that he may investigate and inquire. But once the officer is presented with prima facie evidence, he must suffice with it, because being an administrative authority, he would exceed his authority should he seek to determine a legal dispute. And should he not seek to be an arbiter, then he must register the details as presented by the requesting citizen, even if he is not persuaded of their accuracy. Should a citizen seeking registration, as in the example in sec. 6 above, insist that his son is 15 years old, the registration officer shall register him as declared by the requesting citizen.

 

As said in the instructions above, a citizen coming before an administrative authority is presumed to speak the truth, and the registration officer must not forget that should he seek to exercise judicial authority and make a determination in a matter that he believes requires determination, he has not been granted the tools to do so. And since the above Ordinance requires the citizen to submit details for registration, and requires that the officer register them and issue a certificate of identity, the matter cannot end in a draw. There is no choice but to say that the registration officer must register what the citizen tells him.

 

The above Ordinance did not attribute to the registration in the Register of Inhabitants the force of evidence or proof of anything. The purpose of the Ordinance is, as was said in HCJ 145/51 [6], to collect statistical information. This material may be correct or incorrect, and no one guarantees its accuracy. In order to establish one’s age for the purposes of conscription into the military, the registration in the Register of Inhabitants serves as prima facie evidence, not by force of the above Ordinance, but by force of the Appendix to the Defence Service Law, 5719-1959. A certificate of identity is issued to a resident, according to sec. 7 of the Ordinance, as a “means of identifying.” But no one is obligated to act according to it, and no one is obligated to identify the holder of a certificate of identity by means of that document. Holding a certificate of identity grants its holder no right whatsoever (HCJ 155/53 [7]).

 

Just as registering an age in the certificate of identity does not serve as proof of age except to the extent established by a statute, the same holds true for the registration of family status, inasmuch as which law – like the Defence Service Law, 5719-1959, for the purposes of proving an age – permits a person to use his certificate of identity to prove whether or not he is married? Section 4 of the M2 directives says that according to the standing rules of the Chief Rabbinate and the Ministry of Religion, a marriage registrar does not rely on the registration for purposes of fulfilling his duties, and may act accordingly. Who, then, must rely on the registration?

 

10.       Consider the case of some Jewish man who married some Catholic woman in a civil service in some country, and who presents a marriage certificate to the registration officer. A civil court would establish the sufficiency of the ceremony under the law of the country of solemnization. However, that would not be the case in a religious court, which would not recognize a civil ceremony. How must the registration officer form his opinion, according to the district court or according to the religious court? I dare say that for the purposes of the validity of such a mixed marriage, no one in Israel can predict in advance whether or not it is valid.

 

Let us even assume that the man is an Israeli citizen, and the woman (like the Petitioner) is not. The District Court is not authorized to invalidate this marriage, in light of the restriction in art. 64 of the Palestine Order-in-Council, while MApp20/43 [14] held that this restriction denies the court the authority to declare this marriage void ab initio by reason of the spouses being ineligible to marry each other. But not only can the matter come before the District Court in a different action that would require it to rule on the question of the marriage’s validity, but there are two religious courts in the country that, while not competent to invalidate the marriage, can declare its existence and validity. Their authority would be contingent upon the consent of the parties to be judged by a religious court, and the President of the Supreme Court would then exercise his authority under art. 55 of the Palestine Order-in-Council to determine which court would be authorized to hear the matter. In light of art. 65 of the Palestine Order-in-Council, there is no bar to a foreign citizen consenting to the jurisdiction of a religious court (MApp 39/57 [1]. In this case, the validity of the marriage will depend upon how the President of the Supreme Court exercises his discretion, because once the authority of the religious court has been established, so has the substantive law that applies to the matter, as the law follows the judge (CA 238/53 IsrSC 8, 4, 36 [8]).  Were the President of the Supreme Court to authorize the Rabbinical Court to rule on the matter, it would invalidate the marriage, since Jewish religious law does not recognize civil marriage, and certainly not a mixed marriage between a Jewish man and a Christian woman. But the President of the Supreme Court might authorize the Catholic Court to adjudicate the matter, and were he to do so, the validity of the marriage would be determined according to the Catholic religious law. And what would the Catholic Court rule? The law of the Catholic Church is established by the Codex Juris Canonici of 1917. According to sec. 1014 and sec. 1070(2) of the above Codex, the Catholic Church, like a civil court, also follows the rule of semper praesumitur pro matrimonio (see Spivack v. Spivack (1930), 142 L.T. 492 [23]; and CA 191/51, IsrSC 8, 141, 149 [3]), and presumes every marriage to be valid as long and the opposite has been demonstrated. It is true that the law of the Catholic Church also requires, though not with the same severity of Jewish law, solemnizing a marriage in a religious ceremony. Additionally, according to sec. 1070 of the above Codex, the Church bars a mixed marriage between Catholic and Jewish partners, by reason of disparitas cultus, but this is not an absolute prohibition. According to sec. 1070 of the above Codex, it is possible to secure a dispensation from the prohibition on mixed marriages, and the questions and answers collected in the Canon Law Digest, vol. 3, p. 420ff. reveal that such dispensation is not such a rare occurrence. Moreover, even were the mixed marriage solemnized without obtaining a dispensation, the marriage would not inherently be void, but only flawed for violating the prohibition of disparatis cutus, and the priest is authorized to cure the flaw and “heal it in the root” (sanatio in radice) by retrospectively forgiving the sinner, according to secs 1138 to 1141 of the above Codex. And once he has done so, the marriage is given validity in retrospect, see Eichmann-Morsdorff, Lehrbuch des Kirchenrects, 5th ed., sec. 161 (2) (b) at p. 286. And as for form, even the duty to hold a religious ceremony does not originate from the scriptures, but is “rabbinic”,[3] because before the decrees of the Council of Trent in the 16^th century, the Catholic Church, too, recognized not only the validity of a marriage ceremony be expressing consent to marry per verba de praesenti without religious format, but also the sanctity of a marriage conducted in this manner (sacramentum), see Dalrymple v Dalrymple (1811), 161 E.R. 665, 669 [24].

 

But even now, although the Church establishes the principle of a religious ceremony for solemnizing a marriage, it does not completely rule out a marriage for not meeting the religious requirements. Once the flaw is made known to a religious authority, it has the primary responsibility not to bring about the invalidation of the marriage, but rather, to the extent possible, to seek its validation, see Eichmann-Morsdorff, ibid., sec. 159, at p. 281. And even this flaw may be corrected in retrospect by means of “healing in the root”, ibid., sec. 161, p. 287.

 

11.       Let us now slightly change the facts of the above example, and assume that the woman was a Protestant at the time that she married the man, but that she converted after her marriage and joined the Catholic Church. We can disregard the provision of sec. 4(2) of the Religious Community (Conversion) Ordinance, whether by assuming that the woman converted prior to arriving in Israel, or whether due to the fact that the Protestant church does not seek its own jurisdiction, but leaves jurisdiction to the state and has not established its own courts. For the purpose of jurisdiction, the situation at the time of initiating the action is determinative, and thus the President of the Supreme Court may authorize the Catholic Court to adjudicate the matter of this couple as well. Because of its “catholicism”, that is, its universality, the Catholic Church accepts into its fold anyone baptized into Christianity (sec. 87 of the Codex), but it is lenient with a Christian who is not a Catholic, and exempts him, under sec. 1099(2) of the Codex, from the obligation to solemnize a marriage ceremony in accordance with its law, and suffices with the civil ceremony that was held, see Eichmann-Morsdorff, ibid.,, sec. 132, p. 146. But not only is the religious form not required, but such a mixed marriage is not at all flawed, and there is no need for forgiveness or sanation by way of “healing in the root”. Preventing the marriage, for reasons of disparitas cultus, according to sec. 1070 above, was established only for a case where one of the spouses was a Catholic. If he was not, but was a Christian of another faith and married a Jew, the marriage would be completely valid, ibid., sec. 141, at p. 186.

 

12.       I have expanded on the different possibilities for addressing mixed marriages as valid or invalid in order to show that the question of their validity or their invalidity is extremely weighty, and once a couple approaches the registration officer in order to be registered according to the Registration of Inhabitants Ordinance, 5709-1949, it is impossible to know how the matter would be decided. The registration officer cannot anticipate which court would decide the matter, or how the President of the Supreme Court may exercise his authority under art. 55 of the Palestine Order-in-Council, and he cannot predict whether the marriage’s validity would be recognized or not.

 

Furthermore, my honorable colleague Justice Silberg conducted in-depth research into the validity of the marriage, and reached the conclusion that it is invalid. However, in sec. 12 of his opinion, he testifies before heaven and earth that only a but a hair’s breadth stood between him and a converse ruling. When this is the declaration of a Supreme Court justice, is it conceivable that an administrative clerk, such as the registration officer, would even consider such a problem? Were you to say yes, then the conclusion must be that only one who is an expert in the rules of conflicts of law – which are among the most complex of jurisprudence – may be appointed as a registration officer under the above Ordinance. Had the legislature intended this, I wonder why it honored the holder of such duties merely with the modest title of “registration officer”.[4]

 

I tend to the opinion that when registering the family status of a resident, it is not the duty of the registration officer to consider the validity of the marriage. The legislature is presumed not to have charged a public agency with a duty it is not capable of fulfilling. It suffices that, for the purposes of fulfilling his duties and registering the family status,  the registration officer was presented with evidence that the citizen held a marriage ceremony. The question of the validity of that ceremony may, at times, cut both ways, and determining its validity exceeds the scope of the Inhabitants Registry.

 

We should explain that the marriage register maintained by the Rabbinate only testifies that a Jewish marriage ceremony was held between a man and a woman. The document testifies to the conducting of the ceremony (compare In re Peete (1952) [25]).  It is possible that a properly performed ceremony was void ab initio, and possible that it was valid. The registration demonstrates neither one nor the other. The presumption of the legitimacy of the marriage, which I discussed in a different context, that is, the presumption of the validity of the marriage, results from the conducting of the ceremony rather than from the registration that the ceremony was conducted, or from a document attesting that fact, and it is rebuttable. If this is the case for the marriage register maintained by the Rabbinate, it is all the more so the case for the Register of Inhabitants of the Inhabitants Registry. And there is no need to say that if the duty of the registration officer for purposes of registering the family status is limited to checking whether a marriage ceremony was held, there should be no concern whatsoever that the Register of Inhabitants may comprise inaccurate information and attest to a valid marriage where it was void ab initio due to a substantive defect or flaw. As we see, the definition of the purpose of the Register of Inhabitants, and preserving the boundaries of the role of the registration officer are sufficient to prevent mishaps. The result is that under no circumstances must the requesting resident supply the registration officer with more than prima facie evidence. The Petitioner presented the registration office with the marriage certificate. She secured the confirmation of the Belgian Embassy, which registered her marriage in the embassy’s personal status record, as well as in her passport. What more could she have done in order to satisfy the burden of proof? As long as the marriage has not been found void in a judicial process, the Petitioner must be considered a married woman for the purpose of the Register of Inhabitants.

 

I shall here allow myself the liberty to say that not only is there no statutory source for investigating and inquiring to uncover a flaw in the marriage, but it is also improper form an administrative perspective that a citizen coming to provide details for statistical purposes, and whose only sin is that his marriage is invalid, must stand before a suspicious officer who will delve into the depths of his past. There are marriages that are voidable and yet the spouses live together in peace until the end of their days. What interest does the administration have in raising problems as to its validity? Needless to say, the instructions from May 2, 1962, which instruct the registration officer to pass the matter of mixed marriages on to the “determination of the department”, are unfounded inasmuch as the department has nothing to determine.

 

13.       The conclusion I have reached absolves me from the need to address the question whether the marriage was indeed invalid on the grounds of the spouses’ ineligibility to marry one another, and I will only make as few comments on this issue:

 

(a)        The State Attorney did not argue before us that the marriage was invalid because it was performed in a civil ceremony. There was no place for this argument since this Court has already ruled that we follow the law of the place of the ceremony in regard to the form of the marriage (CA 191/51[3]), and in the absence of evidence to the contrary, a ceremony conducted in a foreign country is presumed to have been conducted lawfully.

 

(b)        Were the question of the marriage’s validity to be raised because of questions as to incapacity to marry, it would first be necessary to decide upon the proper law in the matter. For such purposes we cannot make recourse to the provision of art. 64(ii) of the Palestine Order-in-Council, which refers us to the “the law of the nationality of the foreigner concerned”, because the parties have no single national law. The law that would apply in such a case would be determined by the rules of conflicts of laws.

 

(c)        The State Attorney argued for the English rule that follows the parties’ domicile for purposes of their capacity to marry, but honestly noted that American law establishes one law for the form and the substantive validity of the act, and the law of the location where the marriage was solemnized applies for both of them, see Restatement, Conflict of Laws, sec. 121; Loughran v. Loughran (1934) [33[; Hastings v. Douglas [34].

 

(d)       Not only is the American rule easier to apply and more practical, because it prevents the need to split the discussion when the spouses did not have a single domicile (a split that might lead us to the strange outcome, as my honorable colleague Justice Silberg noted, where the husband would be married to his wife, whereas she would not married be to him), but the American rule is actually the English Common Law rule, which remained in its original form in the United States, whereas it transformed in England itself. Indeed, it is the rule that was followed by the Ecclesiastical Courts that held jurisdiction over matters of marriage until the enactment of the Matrimonial Causes Act, 1857. In England itself, different rules applied as to the form and in regard the capacity of the parties, see: Dalrymple v. Dalrymple (1811), 161 E.R. 665 [24]; Middleton v. Janverin (1802) [26]; Simonin v. Mallac (1860) [27].

 

(e)        The change in the English rule can already be discerned, in effect, in the decision of the Court of Appeal on the matter of Sottomayer v. De Barros (1879) 41 L.T. 281, 282 [20], where Justice Cotton said as follows:

                        The law of a country where a marriage was solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted, but as in other contracts, so in that of marriage, personal capacity must depend on the law of domicil.

 

(f)        This rule was, as Professor Beale put it in his article The Law of Capacity in International Marriages, 15 H.L.R. 382, 286 – “an ignorant error.”

 

I have cited these words in the name of their author, but in defense of Justice Cotton, it can be said that hints in support of his view are found in the opinions of Lord Campbell and Lord Cranworth in the matter of Brook v. Brook (1981) 4 L.T. 93 [16]. However, the remaining justices in the matter of Brook joined the conclusion of their colleagues for other reasons (see p. 99, 101, [16] ibid.). For more on the Sottomayer rule, see Sottomayer v. De Barros (No. 2.) 1879, 41 L.T. 283, 285 [20]; Ogden v. Ogden (1907) [17]; Hay v. Northcote (1900) [28]. In all three, the courts refrained from ruling according to Justice Cotton, though they employed more temperate language than Professor Beale.

 

(g)        The said change in the rule is inconsistent with the provision of sec. 22 of the Matrimonial Causes Act, 1857, which has since been replaced by sec. 32 of the Supreme Court of Judicature Act, 1925, because according to it, the court was required to continue to decide upon matters of marriage as the Ecclesiastical Courts would have ruled when they still held jurisdiction. And as was already made clear, the Ecclesiastical Courts decided marriages under one law for the form and for the capacity of the parties.

 

(h)        When the Israeli Court sets out to determine the Israeli rule, we are not required to adopt the English rule specifically. And for my part, I do not see myself as obligated to correct the English rule which – even if the result of a mistake – is now accepted in England, though it has yet to be tested in the House of Lords. If the English rule suits our needs, we can accept it as the rule in Israel. However, it is possible that the American rule is more suitable. The English judges who considered the issue relevant to our matter cited the words of American commentators and judges at length, see Brook v. Brook (1861) [16], and Ogden v. Ogden (1907) [17], and many others as well. If English courts do so, why would we not do the same, and draw inspiration also from common law sources outside of England?

 

(i)         It would not be superfluous to note that the incapacity of a Jewish man to marry a Christian woman, even if it is a lack of capacity, is not an actual “status”. Schlesinger’s status is that of an adult man, and he is competent for any legal act, including marriage. Only the religious law that applies to him invalidates his action if he marries a Christian woman, and such marriage would be a nullity. In this regard, Professor Martin Wolff states in his book  Private International Law, 2nd ed., sec. 259, at p. 278:

To be married is a status; to be married to Mr. X is not.

 

He terms such inability to marry a particular woman  “relative incapacity”. In the meantime, the idea of the uniformity of one’s status for all purposes has been done away with in England. It was already decided in the matter of Baindail v. Baindail (1946) [29] that a person may be married for the purposes of barring a second marriage, and at the same time may not be married for the purposes of granting a divorce decree. Such relative incapacity was addressed by the court in the matter of Chetti v. Chetti (1909) [30], from which it arises that there are times when the law does not consider it. Should  the Petitioner, for example, seek maintenance from her husband in the District Court, I am not at all certain that such relative incapacity would lead the court to absolve the husband from the obligation to support his wife.

 

(j)         When a man lacks legal capacity in his domicile, he will also be barred from performing any legal act in any other location, according to the statement of Justice Cotton in Sottomayer, which is not limited to capacity for marriage. As a result, if a 23 year-old person, who has yet to reach the age of majority in his domicile, were to arrive in Israel and make some transaction, the transaction would be invalid. However, in that regard, sec. 77 of the Capacity and Guardianship Law, 5722-1962, provides that while the validity of such a transaction would indeed be subject to the law of the minor’s domicile, a person in Israel who was unaware of the minor’s incapacity may be entitled to the defense under sec. 77(1), and the transaction may remain in effect despite the person’s minority.

 

From the above law’s provision we learn that the Israeli legislature intends to follow the law of the domicile, but subject to exceptions, rather than in every case.

 

14.       In the matter of Brook v. Brook (1861) [16], and in the matter of Mette v. Mette (1859) [15], the marriage of a widower who married the sister of his late wife abroad was ruled invalid. Such a marriage was then prohibited in England under an explicit statute that purported to reflect Divine law, deeming the marriage as incestuous in violation of Leviticus 18 (as was mistakenly interpreted by way of expansion in the Christian tradition).

 

There was no general incapacity to marry here, as was already clarified in sec. 13(h) above, but in light of the English statute, the marriage was in violation of English moral sensibility, and recognizing it was in violation of public order. The fact that in the matter of Brook, the court relied upon the opinion of Judge Creswell in that same matter in the trial court proves this (Brook v. Brook  (1858) 65 E.R. 747 [31]). In addressing the question of the capacity to marry, the same judge said in the matter of Simonin v. Mallac, (1860) 2 L.T. 327, 330 [27] as follows:

           It is very remarkable that neither in the writings of jurists nor in the arguments of counsel, nor in the judgments delivered in the courts of justice, is any case quoted or suggestions offered to establish the proposition that the tribunals of the country where a marriage has been solemnized in conformity with the laws of that country should hold it void because the parties to the contract were the domiciled subjects of another country where such a marriage would not be allowed.

 

Every legal system refuses to recognize the validity of a legal act if it may harm the public order in that country, and even the United States, despite its liberal attitude to the validity of a marriage, is no exception to this rule. In sec. 132(b), the Restatement denies the validity of a marriage that was valid in the location where the marriage was solemnized, in this case:

 

… incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil.

 

This is none other than the English rule that derives from the judgments in Brook [16], Mette [15], and others.

 

15.       Does Israeli public order demand the denial of the validity of mixed marriages? This is a question that the courts may be be required to consider when the time comes, but I would argue that we not jump to a hasty conclusion as a result of the English Brook [16] precedent. There are several rationales for this.

 

Any country that wishes to live among the family of nations must, to that end, forgo the implementation of some of its legal rules when a foreign element arises and intervenes in a legal act. For example, we do not believe that a surety must be found invalid because it was given orally, and the prevailing law regarding Jews in Israel does not require the determination of a court in order to dissolve a marriage, but rather the granting of a get [a Jewish bill of divorce – ed.] and its acceptance suffice. In other countries the law is different, but this difference does not infringe public order in Israel, and just as we ask other nations to recognize Israeli law, we do not invalidate a transaction that is subject to foreign law that is different from our law. When the rules of conflict of laws refer us to foreign law, Israeli law yields. But there are cases – exceptional cases – where giving effect to a foreign law and to its outcome would significantly infringe the public order by which we live, and only when a foreign law stands in contrast to the sensibilities of justice and morality of the Israeli public would we be required to invalidate it. This is the well-known distinction of the learned Savigny in System des Roemischen Rechts, vol. 8, p. 35, that led to the distinction between ordre public interne that yields before the rules of conflict of laws, and ordre public externe (international,) which yields to nothing.

 

The fact that Jewish religious Jewish invalidates mixed marriage does not necessarily compel the conclusion that when we come to consider a person’s matter according to foreign law, we will invalidate the marriage because it is a mixed marriage. The marriage would be found invalid if its invalidation is required for reasons of external (international) public order, as we explained above, that is, when an Israeli judge, giving expression to the sentiments of the Israeli public, would be compelled to say that the validity of such a marriage does not comport with our way of life, wherever the ceremony was solemnized. When in doubt – the validity of the act must benefit from such doubt.

 

The invalidity of the marriage according to religious law would be a very weighty consideration, but it must not be the sole consideration. The Israeli public is currently divided into two camps. One camp, which observes the religious precepts – or most of them – stands opposed to a different camp which stresses the difference between a state under the rule of law and a state under Jewish religious law. The views of the two camps are in direct opposition to one another. Public order in Israel does not mean that the judge would compel the view of one camp upon the other. Life requires an attitude of tolerance for the other, and consideration for his different views, and thus the judge must be guided by balancing all of society’s prevailing views.

 

In the matter of Brook [16], the court emphasized (ibid., p. 98) that the unlawfulness of an incestuous marriage does not stem from God’s law but from what Parliament has explicitly pronounced, mistakenly or not, as God’s law. A similar question recently stood before the English court. Another man, a Jew, married his brother’s daughter. Such a marriage is still prohibited in England, on the grounds of consanguinity, according to the Marriage Act, 1949. And it was proven to the court that this is not the Christian approach alone, but that a similar approach has been adopted by Islam and in India. But the marriage was lawful in Egypt, where the spouses were married, and the prohibition against such marriage within England – so held the court – does not necessarily establish the demands of public order for purposes of addressing a ceremony conducted outside of it (Cheni v. Cheni (1963) [32]).

 

16.       Section 2 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, is the law of the land, but it only provides for the marriage of Jews in Israel. This is the internal public order, that is the public order that prevails within the country. But what is the public order when the marriage was not solemnized in the country?

 

Since this Court held, in CA 191/51 [3], in regard to the form of the ceremony, that the law of the location where the ceremony was performed is determinative, there are hundreds – perhaps thousands – of couples in Israel who did not enter into a Jewish marriage but rather married in a civil ceremony. The state recognizes this, but the religion does not. I fear that from the perspective of an observant Jew, this is an offense that is no less serious than that of a mixed marriage. Recognizing the validity of such a marriage is inconsistent with his world view and is an egregious offense to his sensibilities. But this is a compromise required from such a Jew in exchange for the compromise required from the other camp for the sake of a common life as one nation. The stream of immigration continues to bring to Israel couples from all the countries of the world, among them some who did not marry in accordance with Jewish law in their countries of origin. Should the public order of such a country of immigrants interfere with the welfare of such families and declare all of these cases as simply concubinage? This is a weighty question that requires consideration, but the answer is not required for the matter before us.

 

I will only say this: neither English law nor American law invalidates a marriage on the grounds that the couple went abroad to solemnize a marriage that they could not celebrate in their own country. See Simonin v. Mallac (1860) ibid., [27], McDonald v. McDonald (1936) [35].

 

In the present case, it is clear that the Petitioner’s husband traveled to Cyprus and married her there because he could not marry her here, but we do not invalidate a marriage for that reason alone.

 

In conclusion:

1. For the purpose of registering the family status of the Petitioner in the Register of Inhabitants, the marriage ceremony that was performed is determinative, and investigation into the validity of the marriage is not the concern of the registration officer.
2. Prima facie evidence of the ceremony is sufficient in order to require the registration officer to register a marriage ceremony that was performed.
3. In addition, it cannot be determined with certainty that when the question of the validity of the marriage comes before a civil or a religious court – a mixed marriage would be found to be invalid.

 

I would, therefore, make the order nisi absolute.

 

Justice Berenson:

I agree that the order nisi must be made absolute for the reasons given by my honorable colleague Justice Sussman in the first part of his opinion, addressing the question of the status, duties and authorities of the registration officer. I, too, am of the view that the instructions assembled in document M2, presented in their entirety in the opinion of my honorable colleague, provide a correct response to this issue. The registration officers would, therefore, do well to continue to keep these instructions in mind, and follow them, even though they apparently do not yet constitute official directives of the Minister of Interior.

 

Justice Witkon:

I, too, concur in  the opinion of my honorable colleague Justice Sussman that for the purposes of registering the Petitioner in the Register of Inhabitants, there was no reason to raise the complex question as to whether her marriage is valid or invalid in terms of the law to which she is subject. With this, I, like my honorable colleague Justice Berenson, leave the answer to this question for future consideration.

 

Justice Manny:

I concur in the opinion of my honorable colleague Justice Sussman that is neither the function, nor within the capability of the registration officer to decide as to the validity of a marriage proven to be legitimate by prima facie evidence presented to him by the party seeking its registration. For this reason, I, too, am of the view that the order nisi should be made absolute.

 

Decided by a majority to make the order nisi absolute.

 

The Respondent will pay the Petitioner a sum of IL 250 as costs for the petition and attorney’s fees (in total).

 

Given this day, 28 Shevat 5723 (February 22, 1963).

 

The Supreme Court

 

CFH 2121/12

 

 

Petitioner:                                  Anonymous

 

                                                            v.

 

Respondents:                          1.  Dr. Ilana Dayan Orbach

                                                2.  Telad Studios Jerusalem Ltd.

 

 

Further Hearing on the judgment of the Supreme Court of Feb. 8, 2012, in CA 751/10, CA 1236/10, and CA 1237/10 (Deputy President E. Rivlin, and Justices U. Vogelman and Y. Amit).

 

Before:  President A. Grunis, Deputy President M. Naor, Justice (Emerita) E. Arbel, Justice E. Rubinstein, Justice S. Soubran, Justice Y. Danziger, Justice N. Hendel, Justice U. Vogelman, Justice Y. Amit

 

Judgment

 

President A. Grunis:

 

1.         The underlying tension of defamation law is expressed in full force in this Further Hearing before the Court. On one side stand the dignity and good name of the person harmed by a publication, and on the other side stand freedom of speech and freedom of the press, with all their significance for the individual journalist and the public at large. The legal questions raised in this proceeding go beyond the borders of the particular case that engendered them. Inter alia, we must address questions concerning the nature of “truth” in the legal sphere, the role and duties of the press in a democratic society, and striking a proper balance among the rights and interests concerned in the specific context before us. We will address all of these in this Further Hearing.

 

Factual Background and History of the Proceedings

2.         On Nov. 22, 2004, the television program “Uvda” [“Fact”] with Ilana Dayan” (hereinafter: Uvda) aired an investigative report (hereinafter: the report) prepared and delivered by Dr. Ilana Dayan-Orbach, Respondent 1 (hereinafter: Dayan). The report was preceded by “promos” by Respondent 2, Telad Studios Jerusalem Ltd., which was the Channel 2 concessionaire at the time (hereinafter: Telad). The report and the promos concerned an incident that occurred in an IDF installation in the Gaza Strip in 2004. The details of the incident were addressed at length in the prior proceedings, and in additional legal proceedings, and certain aspects continue to be disputed. Therefore, I will suffice with a very brief description of the matter, based upon the findings of the courts that addressed these proceedings. On Oct. 5, 2004, a suspicious entity was spotted near the installation, which was at a high state of alert. After the fact, it turned out that it was a girl named Iman Al-Hams, a resident of Rafah, who was thirteen years and ten months old (hereinafter: the deceased). There was weapons fire from the installation, the alarm was sounded, and the public address system was turned on. The deceased threw down her bag, fled, and took cover behind a sand berm. The commander of the company manning the installation at the time – the Petitioner – was alerted, and he ran toward the entity. It should be noted that at the time of the incident, shots were fired from the vicinity of Rafah in the direction of the Petitioner and his soldiers. The Petitioner fired two shots in the direction of the deceased, and retreated. He then retraced his steps, and fired a burst toward the area to the east of where she lie. As a result of the shots fired in the course of the event, the deceased was killed.

3.         The report, which was some 18 minutes long, addressed the said event, which was termed “the kill confirmation affair”. The report was described in detail in the prior proceedings, and I will, therefore, only summarize its main points. The report described the unfolding of the event from the moment the suspicious entity was identified by the installation; the gunfire in her direction from the installation; her flight; the assault in her direction by the force led by the Petitioner to “confirm the kill”; the Petitioner’s fire at her; and, ultimately, the removal of the deceased’s corpse from the area. Among other things, the report noted that the incident concerned a little girl who was on her way to school. In addition, the report described the identification of the deceased by the installation’s spotters, the soldiers’ conjectures as to her age, as well as in regard to her being hit, and her condition. The report also stated that the installation was in a evident state of security readiness and tension, and that the soldiers, including the Petitioner, thought that they were concerned with a terrorist event. In addition, Dayan pointed out that the recording from the communication network ended “with these words, that for some reason it was urgent for the company commander [the Petitioner – A.G.] to communicate now with the HQ”.  Then the Petitioner was heard stating over the communications network: “This is leader. Anyone that moves in the area, even if it is there years old, has to be killed. Over.” The report made use of recordings from the installation’s communications network, video clips recorded by the installation’s security towers at the time of the incident, and testimony of soldiers serving in the company. Illustrative pictures and videos clips showing company life, recorded by the soldiers in various contexts, were also included. In this context, a video clip was presented that shows a kind of party held by the soldiers in their room, and it was stated that these pictures appeared immediately after the shooting incident on the videotape recorded by the soldiers.

4.         The report also addressed developments and investigations that followed the incident. It criticized the army’s investigation of the incident, which found that the Petitioner had acted appropriately. In this regard, it mentioned claims by soldiers that they lied in the investigation out of fear of the Petitioner. In addition, the report described the ugly state of affairs in the company. It was noted that “when they [the Petitioner’s soldiers – A.G.] see him shooting at the little girl’s corpse, they are sure that he carried out a kill confirmation”. In this regard, it was stated that “it is not certain that this story would have gotten out were it not for the state of affairs in the company”. It was further noted that the Petitioner was placed under arrest, and that he was interrogated by the Military Police, and video clips of that interrogation were shown in which he explained, among other things, that he acted to neutralize a threat. It was also reported that an information was filed against the Petitioner in the military court on the day of the report was broadcasted. Finally, the responses of the Military Spokesperson and the deceased’s family were shown. It was also stated that the Petitioner had not yet been given permission to be interviewed, although the representatives of Uvda asked to interview him.

5.         In the broadcast of Uvda that was aired a week later, Dayan added a number of clarifications and emphases in regard to the report. Inter alia, it was emphasized that the installation was operating under threat warnings, and the threats under which the soldiers were operating were mentioned. In addition, further clips from the communications network at the time of the incident were aired. Among them were estimates as to the deceased’s age, and it was noted that one of the questions to be answered is who heard that. Dayan emphasized that the report accurately portrayed the events, but clarified that there was one mistake in the report. According to her, the video clip in which a soldier is seen shooting from a position in the installation was not related to the incident. Nevertheless, it was stated that there is no dispute that there was heavy fire from the positions in the installation, which continued for an extended period.

6.         On July 5, 2005, in an end-of-season review of Uvda, a four-minute summary of the report that is the subject of these proceedings was broadcasted. It was accompanied by remarks by Dayan at the beginning and the end of the report, in which, inter alia, she presented an update of the developments since the original broadcast (hereinafter: the review report). The content of the review report will be described at length below. I would already state that the editors of Uvda approached the Petitioner prior to the broadcast of the review report. In response, the Petitioners attorneys claimed that the broadcast was defamatory, and demanded that the review report not be aired, or in the alternative, that their full response be presented.

7.         As noted, on Nov. 22, 2004, an information was filed against the Petitioner in the Military Court on five charges: unlawful use of a firearm, for the two shots fired in the direction of the deceased; unlawful use of a firearm, for the burst he allegedly fired at her; obstruction of justice; deviation from authority creating a life-threatening danger as a result of the rules of engagement that he allegedly issued to his soldiers; and conduct unbecoming. On Nov. 15, 2005, the Military Court acquitted the Petitioner on all counts. The Petitioner then filed suit against the Respondents in the District Court, under the Defamation Law, 5765-1965 (hereinafter: the Law, or the Defamation Law).

 

The Judgment of the District Court

8.         The Jerusalem District Court (Judge N. Sohlberg) found in favor of the Petitioner, in part (CA 8206/06 of Dec. 7, 2009). It held that the report constituted defamation of the Petitioner, who was presented as having acted in a cruel and evil manner, and the soldiers under his command were presented as having maintained heavy fire at the deceased without regard for the possibility that she might be killed. It was held that this was done in a manner that affected the Petitioner’s good name. In addition, the court ruled that the report gave the impression that the Petitioner forced his soldiers to lie in the military enquiry, that the suspicions against him were whitewashed in the enquiry, and that he feigned innocence in his interrogation and refrained from presenting a consistent version of the events. The District Court held that this, too, constituted defamation of the Petitioner. It was held that the Respondents could not claim the plea-of-truth defense under sec. 14 of the Law, nor the plea-of-good-faith defense under sec. 15 of the Law. Therefore, they were ordered to pay damages to the Petitioner in the amount of NIS 300,000, and it was ordered that the Uvda program would correct the impression that the report created. In that context, the Respondents were ordered to report the fact of the Petitioner’s acquittal, as well as the main points of the Military Court’s judgment, to explain that the report had conveyed a mistaken impression in regard to the Petitioner and in regard to the incident, and to report the outcome in the District Court. All of the parties appealed the decision.

 

The Judgment on the Appeals

9.         On Feb. 8, 2012, judgment was handed down on the appeals (CA 751/10, Deputy President E. Rivlin, and Justices U. Vogelman and Y. Amit; hereinafter – the Appeals Decision or the Decision). All of the justices of the panel agreed that the report that was broadcasted constituted defamation of the Petitioner. However, they were of the opinion that liability should not be imputed to Dayan, inasmuch as she enjoyed a defense under the Law. The justices were divided as to which defense applied. Deputy President Rivlin and Justice Amit were of the opinion that the report met the conditions of the plea-of-truth defense under sec. 14 of the Law. They held, pursuant to CFH 7325/95 Yediot Aharonot Ltd. v. Krauss, 52 (3) 1 (1998) (hereinafter: CFH Krauss), that the first condition of this defense – the truth of the publication – was met in the sense that the publication was “true at the time”. Deputy President Rivlin explained that “the picture of reality as portrayed by the report as a whole is not substantially different from the truth as it was known at that time, as best as could be ascertained with the investigative tools available to a reasonable journalist” (para. 97 of his opinion). That was the case, inter alia, considering that the facts grounding the report at the time of the broadcast also served as the grounds for the charges brought against the Petitioner. Justice Amit concurred with Deputy President Rivlin on this point. He emphasized that the media cannot be demanded to meet “an absolute standard of pure truth” (para. 14 of his opinion). He was of the opinion that in this case, the condition of truthful publication was met, inasmuch as the report reflected the truth as it was known to the investigating authorities and the prosecution at the time of the broadcast. Both justices held that the second condition of the truth defense – a public interest in the publication – was also met. Justice Vogelman, however, was of the opinion that Dayan could claim the good-faith defense under sec. 15(2) of the Law, in circumstances in which the relations between the publisher and the audience to which the publication was addressed “imposed on him a legal, moral or social duty to make the publication”. The Appeals Decision held that the time had come to recognize, in the framework of sec. 15(2) of the Law, a broader journalistic obligation than that previously recognized in CA 213/69 Israel Electric Corporation Ltd. v. Haaretz Newspaper Ltd., IsrSC 23 (2) 87 (1969) (hereinafter: the First Haaretz case). This, while establishing appropriate conditions for the application of the defense. Justice Vogelman was of the opinion that such an obligation would arise upon meeting two conditions. The first is the presence of a significant public interest in the publication, and the second, that the publication is the result of careful, responsible journalistic work. Additionally, Justice Vogelman made a non-exhaustive list of auxiliary tests as aids in ascertaining the meeting of these criteria.

10.       The result was that Dayan’s appeal was granted (CA 1236/10), and the judgment of the District Court in her matter was reversed. As opposed to that, the Court held that the defenses under the Law did not apply to the program’s promos. That being the case, the Court did not find grounds for intervening in regard to Telad’s liability. As a result, the Court decreased the damages awarded against it to NIS 100,000, and rescinded the obligation to publish a correction. Telad’s appeal (CA 1237/10) was granted in part. The Petitioner’s appeal in regard to the damages awarded to him (CA 751/10) was denied.

 

The Petition for a Further Hearing

11.       Following the Appeals Decision, the Petitioner submitted a petition for a Further Hearing. After considering the petition and the responses of the Respondents, on Oct. 3, 2012, I ordered a Further Hearing on the Appeals Decision, in accordance with my authority under sec. 30(b) of the Courts [Consolidated Version] Law, 5744-1984 (hereinafter: the Courts Law). In my decision of Nov. 25, 2012, the issues that would be addressed in the Further Hearing would be as follows:

(a) Can the phrase “the matter published was true”, in sec. 14 of the Defamation Law, also be construed to mean “true at the time”, and if so, under what conditions?

(b) Can the requirement, under the above sec. 14, that “the publication was in the public interest” not be met when legal proceedings are pending in the matter that is the subject of the publication?

(c) Can a journalist, as a journalist, enjoy the defense under sec. 15(2) of the Defamation Law, 5725-1965, and if so, under what conditions?

Pursuant to that, the parties submitted supplementary pleadings, and a hearing was held before us. Following are the main arguments of the parties.

 

…

 

Justice Rubinstein

…

On Defamation in the Jewish Law Ethos

3.         Before doing so, I would first recall where, in my opinion, the historical ethos of Jewish law stands in this area – as we are a Jewish and democratic state, and Jewish law holds an important place among the sources of Israeli law, see: Aharon Barak, Purposive Interpretation in Law, 452-453 (2003) (Hebrew) [English: Aharon Barak, Purposive Interpretation in Law, (Princeton: Princeton University Press, 2005)]; Aharon Barak, The Judge in a Democracy, 290 (2004) (Hebrew) [English: Aharon Barak, The Judge in a Democracy, (Princeton: Princeton University Press, 2006)]; and see my article, “Malkhut Yisrael Le’umat Dina deMalkhuta,” 22 (2)  Mekhkarei Mishpat 489, 496-498 (Hebrew). No proof is required of the fact that our exposure to various kinds of electronic and virtual communication, including television, radio, internet, in addition to the print media, is tremendous, unforeseen by our predecessors, and continuously growing. What seemed like high waves before the internet age, is now an unfathomable ocean and a rising spring. It is an appropriate time for a brief study of the approach of Jewish law and halakha to defamation, and further on, I will return to the Jewish law approach to the defenses. I would first note that Jewish law served as one of the sources of the Defamation Law, 5725-1965, see the Defamation Bill, 5722-1962, H.H. 504 (5722) 142, 145, 147; and see: LCA 531/88 Avneri v. Shapira, IsrSC 42 (4) 20, 25-26; and see: N. Rakover, Jewish Law in Knesset Legislation, 631-639 (1988) (Hebrew), and the references there. The late Professor Elon noted that “this is an example of a respected halakhic institution that served as inspiration for legislation in the criminal field, not in terms of its details, but rather in terms of its general approach” (M. Elon, Jewish Law: History, Sources, Principles, 1380 (1973) (Hebrew) [English: M. Elon, Jewish Law: History, Sources, Principles (Jewish Publication Society, 2003)]).

            Indeed, much of what is openly declared in public is protected by Israeli law as part of freedom of expression, or under other defenses provided by the Defamation Law. Even if that does not mean that a person whose reputation is tarnished has no legal remedy – and there are no few possibilities under the Defamation Law – still, especially where the media is concerned, those remedies are becoming fewer and fewer as a result of judicial interpretation. Jewish law is meticulous in regard to a person’s dignity – human dignity, and respect for a person in the plain sense – including in regard to one’s reputation, and thus its view of disparagement is more extreme than that of the Defamation Law. Its rules concerning defamation form a significant chapter, and the District Court addressed this in the matter before us, in the context of “constructive defamation”, as I shall explain.

4.         The Hafetz Hayim, Rabbi Yisrael Meir Hakohen of Radun, a leading Jewish personage in Russo-Poland in the 19^th-20^th centuries, until his death in 1933, and author of the books Hafetz Hayim and Shemirat Halashon placed the subject of lashon hara [literally: “evil speech”, i.e., defamation –trans.] at the center of his toraitic works (he would also write the Mishne Berura, which may be described as the authoritative commentary to the Shulhan Arukh: Orah Hayim, and more) and endeavors. His book Hafetz Hayim (which was initially published anonymously in the early 1870s) presents the rules of lashon hara in comprehensive detail, while his book Shemirat Halashon, which compliments it, and which was published in the latter half of the same decade, provides aggadic [non-halakhic, rabbinic exegetical texts – trans.] sources and moral insights in regard to the prohibition of defamation and rumor mongering. At the beginning of his book Hafetz Hayim, [literally: “Desires Life” – trans.], which draws its name from the verses “Which of you desires life, and covets many days to enjoy good?  Keep your tongue from evil, and your lips from speaking deceit. Depart from evil, and do good; seek peace, and pursue it” (Psalms 34:13-14), the author lists seventeen negative commandments, fourteen positive commandments, and four instances of “cursed be” that a person may transgress in the framework of lashon hara and gossip.  Hafetz Hayim examines the laws of lashon hara and gossip in detail, and provides an accompanying commentary (“Be’er Mayim Hayim”), while Shemirat Halashon [lit. “Guarding the Tongue” – trans.], whose title is a reference to the verse “He who guards his mouth and tongue, guards himself from trouble” (Proverbs 21:23), completes it, thus constituting an indispensable pair of compositions for anyone who seeks to observe the halakha in this area (many summaries have been written over the years, e.g., Ikarei Dinim by Rabbi Shmuel Huminer). The Hafetz Hayim deemed guarding one’s tongue as possible, despite the widespread phenomenon of defamation, or at least of “quasi-defamation” [“avak lashon hara”, literally “dust – i.e., a “tinge” or “trace”— of lashon hara”—trans.] and gossip, on the presumption that the Torah does not impose obligations and prohibitions that cannot be observed.

5.         The primary, direct prohibition in the Torah is to be found in the verse “You shall not go up and down as a talebearer among your people: neither shall you stand against the blood of your neighbor” (Lev. 19:16). Rashi explains (ad loc.): “since all those who instigate disputes and speak lashon hara go into their friends’ houses in order to spy out what evil they can see, or what evil they can hear, to tell in the marketplace”. And as the Hafetz Hayim (Negative Commandments 1) explains, following Maimonides (Hilkhot De’ot 7:2): “Who is a gossiper? One who collects information and goes from person to person, saying: This is what so and so said about you, and this is what I heard that so and so did to you. Even if the statements are true, they bring about the destruction of the world. There is a much more serious sin than this, which is also included in this prohibition, which is lashon hara, that is also comprised by this prohibition, and which is relating deprecating facts about another, even if he speaks the truth. But one who tells a lie, defames his colleague’s good name” (emphasis added – E.R.). And further on (Lashon Hara, Principle 5:2), the Hafetz Hayim states: “And needless to say, if the matter is false or partly true and he exaggerates it more than it is, this is surely a very great sin, which is more severe than plain lashon hara, and it is in the category of defaming a person’s name, because he humiliates his friend by his lies. Even if it is the absolute truth, all the Rishonim [halakhic scholars active in the 11^th-15^th centuries, prior to the publication of Joseph Karo’s Shulhan Arukh – trans.] have established that … it is lashon hara even if it is true”. This is intended to remind us that we are not concerned with a solely moral issue, as one might mistakenly imagine, but rather with a clearly halakhic issue. And note that the Torah compares gossip, which is the lowest level in the laws of defamation, to standing “against the blood”, and no less, and that lashon hara is prohibited even if true, and thus Jewish law is, as noted, more strict than the prevailing Israeli law.

            The Gemara (TB Arakhin 15a-b and 16a-b) addresses lashon hara. The Mishna that is the basis for the discussion (15a) states: “Thus we also find that the judgment against our ancestors in the wilderness was sealed only because of their evil tongues, as it is written: you have tried me these ten times … (Numbers 14:22).” Those words referred to the affair of the ten spies who spoke ill of the Land of Israel, and R. Eliezer b. Perata says (ibid.), “Come and see how great the power of an evil tongue is. Whence do we know? From the spies [the spies that Moses sent, and who spoke ill of the Land of Isral – E.R.]: for if it happens thus to those who bring up an evil report against wood and stones, how much more will it happen to him who brings up an evil report against his neighbor”. We also find there: “Of him who slanders, the Holy One, blessed be He, says: He and I cannot live together in the world” (ibid., 15b). And on the verse “Death and life are in the power of [literally: “in the hand of” – trans.] the tongue” (Proverbs 18:21) the Talmud states (ibid.): “Has the tongue a hand? It tells you that just as the hand can kill, so can the tongue … One might say that just as the hand can kill only one near it, thus also the tongue can kill only one near it, therefore the text states: ‘Their tongue is a sharpened arrow’ (Jeremiah 9:7) [in other words, lashon hara reaches and causes harm even at a distance – E.R.]”.

            The Sages also said that all are guilty of “avak lashon hara” [“the tinge of defamation” – trans.] (TB Bava Batra 165a), in other words, no one (or at least, almost no one) is entirely innocent of lashon hara. Pursuant to the Gemara in Arakhin (ibid.), Maimonides states (Hilkhot De’ot 7:3): “Our Sages said: There are three sins for which retribution is exacted from a person in this world and he is denied a portion in the world to come: idolatry, forbidden sexual relations, and bloodshed, and lashon horah is equivalent to them all … Our Sages also said: Lashon hara kills three, the one who speaks it, the one who listens to it, and the one about whom it is spoken. The one who listens to it more than the one who speaks it.” Maimonides is of the opinion that transgressing this prohibition may lead to bloodshed – “A person who collects gossip about a colleague violates a prohibition, as it says: Do not go around gossiping among your people. And even though this transgression is not punished by lashes, it is a severe sin and can cause the death of many Jews. Therefore, it is placed next to: Do not stand against your neighbor's blood …” (Hilkhot De’ot 7:1; and see: Sefer Mitzvot Gadol (R. Moses b. Jacob of Coucy, France, 13^th cent.) Prohibitions 9). According to Sefer Hahinukh (R. Aaron Halevy of Barcelona, 13^th cent.), the justification for the prohibition is that “God wishes the good of His creations, and instructed us by this that there should be peace among us, because gossip leads to dispute and strife” (ibid., Commandment 236), in other words, preventing arguments and disagreements in society, and see: I. Warhaftig, The Right to Privacy in Jewish Law, 233-235 (2009) (Hebrew); S. Aharoni-Goldenberg, “On-Line Privacy from Jewish Law Perspective,” 52 (1) HaPraklit 151, 162-164 (2013) (Hebrew). On lashon hara, also see my article Bad Reports – On the Continuing Struggle for the Dignity and Good Reputation of Others, Parashat Hashavu’a Bereshit (A. Hacohen & M. Vogoda eds.), 211 (Hebrew), also published in my book Paths of Government and Law, 336 (2003) (Hebrew); N. Sohlberg, On Lashon Hara, “Lashon Tova”, and Damages – Money isn’t Everything, ibid., Vayikra 117 (Hebrew); M. Vigoda, Do Not Stand Upon Your Neighbor’s Blood – The Duty to Rescue and its Limits, ibid., Vayikra 150, 151 (Hebrew); N. Sohlberg. The Right to Reputation – Freedom of Expression and Defamation for a Constructive Purpose, ibid., Bemidbar 59 (Hebrew); M. Vigoda, How Beautiful are Your tents O Jacob – Privacy and Freedom of Expression, ibid., 208 (Hebrew); Rabbi Y. Unger & Prof. Y. Sinai, Exposing the Identity of a Suspect before filing an Information, (Center for the Application of Jewish Law, Netanaya Academic College, Elul 5774).

6.         In his monograph The Defense of Privacy (2006) (Hebrew), Professor Rakover notes that “anything that can cause a person sorrow falls within the scope of lashon hara, even if it is not denigrating in any way” (p. 31). He adds that “a broad definition of the prohibition of gossip and lashon hara can even comprise a violation of a person’s privacy, inasmuch as every person is sensitive to intrusions into his personal life, and does not consent to his private matters being in the public domain” (ibid., p. 32).

            In his well-known letter, R. Elijah of Vilna wrote that “…as our Sages said (Tosefta Pe’ah 81), the sin of lashon hara in its entirety … ‘and lashon hara is equivalent to them all’, and what need is there for me to elaborate on this sin that is the worst of all transgressions”.

            In his writings, the Hafetz Hayim went above and beyond, and as R. Israel Salanter, one of the founders of the Musar Movement, wrote of him, “he took … one Torah verse, and created an entire Shulhan Arukh around it”. And note that that Hafetz Hayim’s approach did not oppose freedom of expression, but rather sought to combat its abuse, with deep understanding of the complexity of the human experience, but in his view “the prohibition upon lashon hara is so great that the Torah prohibited it even in regard to the truth and in every form …” (Hafetz Hayim, Principle 3:16). Moreover, according to him – and let us think of the media in this regard – “the greater the number of listeners, the greater the sin of the speaker (Hafetz Hayim, Hilkhot Issurei Lashon Hara, Principle B:1). Thus, as noted, Jewish law goes to the extreme.

7.         In a eulogy of the Hafetz Hayim, one of his students said that “his circumspection in speaking was beyond human understanding … and he never made any expression of anger or even avak lashon hara…” (quoted in Rabbi Israel Joseph Bronstein, Hanhagot HaHafetz Hayim, 279 (5767) (Hebrew)). Many stories are told of him, like, for example, that he went so far as to refuse to stay in a home in which he heard lashon hara (ibid., 280-281). His son-in-law, Rabbi Menachem Mendel Zaks, related that “he told me several times, ‘Thank God that I was always careful in regard to avak lashon hara’” (ibid., 280). In other words, the Hafetz Hayim lived as he preached. Rabbi Yehudah Segal of Manchester, one of the most ardent activists for distributing the book Hafetz Hayim, said that a person who is circumspect in his speech acquires the Hafetz Hayim as his advocate. No less.

            Indeed, Jewish history is full of incidents in which lashon hara “killed” people. For example, Rabbi Meir Leibush Wisser, the Malbim (1809-1879), was forced to leave his position as Chief Rabbi of Romania when a public smear campaign depicting him as a dark, boorish character, and the enemy of progress and Jewish integration in general society led to his dismissal. Rabbi Jonathan Sacks (former Chief Rabbi of the United Hebrew Congregations of the Commonwealth) wrote in The Plague of Evil Speech (Metzorah, 5768) [http://rabbisacks.org/covenant-conversation-5768-metsorah-the-plague-of-...

For a people of history, we can be bewilderingly obtuse to the lessons of history … Jews have continued to excoriate, denounce, even excommunicate those whose views they did not understand … Of what were the accusers guilty? Only evil speech. And what, after all, is evil speech? Mere words …Words wound. Insults injure.

            The number of people now studying the Hafetz Hayim’s books Hafetz Hayim and Shemirat Halashon has increased. It would seem to me that even if it is difficult to completely free ourselves of lashon hara in a world like ours in which the possibilities for expressing lashon hara are so great, and so many are harmed for no reason, and only the rare few can succeed,  we may still benefit from its study. In my opinion, contending with this is, in sum, the challenge before the Court in this case as in other defamation cases, and the question is whether or not we will contribute to creating a more decent, moderate society.

8.         In addition, the prohibition upon causing embarrassment is another aspect of protecting a person’s reputation. Of this it was said that a person who embarrasses his fellow in public has no place in the world to come (Mishna Avot 3:11), and “when a person who embarrasses his fellow in public, it is as if he has shed blood” (TB Bava Metzia 58b), and it is also said that “It is better for a man that he should cast himself into a fiery furnace rather than that he should put his fellow to shame in public” (TB Berakhot 43b). And see: The Talmudic Encyclopedia, vol. 9, s.v. Halbanat Panim; and see: A. Cohen, Have Everyone withdraw from Me, Parashat Hashavua (5767) 273 (Hebrew). However, despite the great weight and importance attributed to reputation, even the prohibition upon lashon hara in Jewish law is not absolute, and as the Hafetz hayim states in the preface to his book Hafetz Hayim, if the approach were absolutely strict “it would not be possible to live in this world in this regard, without entirely withdrawing from worldly matters”. Even in Jewish law, the laws of defamation do not exist in a vacuum, and there may be cases – exceptions – in which the prohibition upon publishing lashon hara will retreat before other vital interests.

 

On Freedom of Expression in the Jewish Law Ethos

9.         Jewish law indeed recognizes the great importance of freedom of expression against the government, and as Deputy President Elon pointed out: “The prophets of Israel and their prophecies have long served as the paradigm of impassioned and uncompromising rebuke of governmental abuse of might and power, and of a corrupt public or individual. They condemn oppression of the poor and exploitation of the widowed, the repression of individual and community rights, and deviation from the spirit and substance of the Torah and halakha. The firm stand and struggle of the prophets of Israel, even when they evoke severe and angry reactions, has been an inexhaustible source of inspiration in the struggle for freedom of expression and for contemporary enlightened democratic regimes” (EA 2/84 Neiman v. Chairman of the Central Elections Committee, IsrSC 39 (2) 225, 294 [English: http://elyon1.court.gov.il/files_eng/84/020/000/Z01/84000020.z01.pdf]; and see CFH 7383/08 Ungerfeld v. State of Israel (2011)), paras. 2-3 of my opinion; A. Cohen, Jewish Law and Freedom of Expression, Parashat Hashavua (5765) 205 (Hebrew); H. Cohn, On Freedom of Opinion and Speech in Jewish Law, Parashat Hashavua (5762) 78 (Hebrew)). Here is but one example from among many. In the first chapter of his book, the prophet Isaiah, incisively criticizing the rulers of Jerusalem, states: “Hear the words of the Lord, you chieftains of Sodom … devote yourselves to justice, aid the wronged, uphold the rights of the orphan, defend the cause of the widow … Your rulers are rogues, and cronies of thieves, every one avid for presents and greedy for gifts; they do not judge the case of the orphan, and the widow’s cause never reaches them” (Isaiah 1:10, 17,23). Harsh criticism, without fear. In LCrimA 10462/03 Harar v. State of Israel, IsrSC 60 (2) 70, 92 (2005), I stated that “the idea of freedom of expression is not, in my opinion, conceptually at odds with the approach expressed in Jewish sources in regard to euphemistic language”. However, despite the importance that Jewish law attributes to freedom of expression, there is no denying that the default position – when lashon hara is concerned – is refraining from publication, except in exceptional cases in which the lashon hara is intended to be constructive, to which I will return. Indeed, in our world, refraining from publication is an impractical utopia, but with the help of the courts, it is possible to restrict lashon hara, except when it is constructive, and not broaden it.

…

25.       As noted, the judgment that is the subject of the Further Hearing held that the rule established in the Ha’aretz case should be changed. It was held (para. 26 of the opinion of Justice Vogelman) that “the phrase ‘moral or social duty’ that appears in sec. 15(2) of the Law is an ‘open canvas’ to which the Court must give meaning in accordance with the proper balance among the conflicting rights, values and considerations”, and that the Ha’aretz rule “no longer reflects the proper balance between freedom of expression and freedom of the press, and the right to dignity, reputation and privacy”. It was further stated that the proper solution “is protection of good-faith publication by the media that is of a significant public interest, when it is a publication that meets the strict standards of responsible journalism” (emphasis original). This holding was based, as arises from what I stated above, primarily upon a change in the conception “in regard to the status of freedom of expression in Israeli law, which has been recognized as being of constitutional status” (para. 5 of the opinion of Justice Vogelman), and the change that has occurred in England and the Common Law countries in regard to the application of the “obligation to publish” in regard to factual publications in the media (para. 14). Deputy President Rivlin noted (para. 119) that in view of this conceptual change – in the context of which freedom of expression was recognized as being of constitutional supra-legal status, together with the recognition of the importance of the free press – the Ha’aretz rule has largely become obsolete. In the view of Justice Amit (para. 17 of his opinion), the change of the rule is required in view of the “changing times, and the vicissitudes that have taken place over the last decades, both on the normative-legal plane and in the communications media”. That is, essentially, also the view of the President and those who concur with him in the Further Hearing.

26.       With all due respect, I take a different view. I am of the opinion that even the changes and vicissitudes that have occurred in the world do not justify a change of the Ha’aretz rule, and it would not be superfluous to say that the force of the matter before us – defamation of an IDF officer in a case concerning nothing less than human life – is more serious than the situation in the Ha’aretz case, as described, without taking that affair lightly. I am, as stated, of the opinion that even in the balance between a person’s – any person – right to his good name and freedom of expression, the latter should not be preferred a priori. The grounds for my position are to be found in the exalted value of human dignity, which has been raised to the level of a Basic Law over two decades ago. Human dignity, and a person’s right to his reputation are also related to the approach of Jewish law to lashon hara, as described above. In my opinion, the rule established in the judgment that is the subject of this Further Hearing, and that arises from the opinions of my colleagues in the Further Hearing, may lead – even though this is clearly not the intent – to the trampling of the dignity and reputation of a person, to a “doormat”, as Justice E. Goldberg put it in CFH 7325/95 Yediot Aharonot Ltd. V. Krauss, IsrSC 52 (3) 1, 106 (1998) (hereinafter: CFH Krauss). I will now turn to address the balancing of interests and rights in the Defamation Law – the right to one’s good name on one side, and freedom of expression and freedom of the press on the other. But before proceeding, I would note that in my opinion – absolutely clearly – the Ha’aretz rule should not be viewed as being “archaic”. Is it archaic to hold that in the legal framework of defamation, the purpose of the press, as important as it may be, does not rise to the level of a duty that permits telling a falsehood? My colleagues who are of that opinion surely refer to the strengthening of the status of the media and to developments in the general and legal world. But do values that hold fast to the remnants of reputation and defend human dignity in its plain sense belong in the archives? I do not think so. The justices of the Supreme Court in the sixties and seventies were not conservative dinosaurs that could not see the light. The strengthening of the media does not imply a weakening of the need to insist upon the truth. There are values that are steadfast, for what have not changed at all in the last forty years are the nature and the errors of humanity, which remain as they were since Creation, while the means have become more developed, and what was once available only to the relatively few, now spreads like a brush fire in the electronic and virtual world.

…

30.       On the other side of the scales is freedom of expression, the importance of which is undeniable. Freedom of expression is one of the central, most important values of a democratic regime. It has been described as a “superior right” (HCJ 73/53 “Kol Ha’am” Company Ltd. v. Minister of the Interior, IsrSC 7 (2) 871, 878 (1953) [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior]), and as the “apple of democracy’s eye” (CrimA 255/68 State of Israel v. Ben Moshe, IsrSC 22 (2) 427, 435 (1968)). Thus it was prior to the enactment of Basic Law: Human Dignity and Liberty, and so it is thereafter (see, among many, the Szenes case [HCJ 6126/94 Szenes v. Broadcasting Authority, IsrSC 53 (3) 817, [http://versa.cardozo.yu.edu/opinions/szenes-v-matar]], at pp. 828-830, para. 9 of the opinion of Barak P.); the Ben Gvir case [LCA 10520/03 Ben Gvir v. Dankner – trans.], at para. 13 of the opinion of Procaccia J). For my part, I had the opportunity to point out that “freedom of expression is a supreme right of a citizen in a democratic society, in order to free the human spirit, and combat tyranny and silencing opinions, to facilitate public discussion in the marketplace of opinions, to help liberty conquer oppression and totalitarianism” (LCrimA 10462/03, above, at p. 90). Of course, first and foremost is its importance for criticizing government.

31.       Freedom of the press derives from freedom of expression (CA 723/74 Ha’aretz Newspaper v. Israel Electric Corporation, IsrSC 31 (2) 281, 298 (1977) [http://versa.cardozo.yu.edu/opinions/haaretz-daily-newspaper-ltd-v-israe...). This Court has addressed the importance of freedom of the press in many decisions. Thus, for example, in CFH Krauss, at p. 53, Justice Zamir wrote that “a free press is not only a necessary result of democracy, but a necessary condition for democracy. It is a necessary condition for a representative regime, for good, proper governance, and for human rights. In practice, it can serve as a litmus test of democracy: if there is a free press – there is democracy; if there is no free press – there is no democracy. One of the main tasks of the press in a democracy is to continuously and efficiently monitor all of the state institutions, first and foremost the government”. In LCrimA 761/12 State of Israel v. Makor Rishon HaMeuhad (Hatzofe) (2102) [http://versa.cardozo.yu.edu/opinions/state-v-makor-rishon-hameuhad-hatzo... (hereinafter: the Makor Rishon case)), I wrote: “The press is meant to function as the long arm of the public, and is charged with gathering and publicizing information; the free exchange of opinions is a fundamental condition for a democratic society … A democracy that wishes to enjoy ongoing public debate and discussion of national issues cannot be satisfied with freedom of expression that exists only in theory; the state authorities, including those involved in the criminal and administrative fields, must limit the exercise of their powers, in order to enable the practical exercise of the constitutional right” (para. 73). However, as I noted in my article Stains in the Press (Hebrew), “The problems in the field of freedom of expression that now face us are different from those we have become accustomed to confronting in the past. Today, the competition is not – primarily – between the right to freedom of expression and governmental interests for which the government wishes to limit that right. Today, we can say that in the relationships between the individual and the government, freedom of expression has attained an established status in our society and legal system. The historical fear of government that tyrannically shuts mouths is no longer – not in the electronic media (ever since the Broadcasting Authority Law), nor in the print media. The power of censorship has been reduced incredibly in the era of Basic Laws, and even enforcement in regard to the exposure of secrets is quite rare” (pp. 199-200). Who can seriously say that there is no freedom of the press in Israel? Indeed, criticism of the government is rooted in our national ethos. As noted, the Prophets of Israel raised their voices against the government, and even with the reservation, i.e. that the Prophets spoke as God’s mouthpiece and not of their own (see: A. Hacohen, On the Principles of Freedom of Expression and its Limits in Jewish Law, Parashat Hashavua Vayikra 137, 136), in any case, criticism of the government is not like criticism of an individual. And as Prof. A. Barak wrote (Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, p. 723 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)], “…the scope of the individual’s right of expression against the state is more comprehensive than an individual’s right to freedom of expression against another individual”; and see ibid., 588-599: “an individual’s right too human dignity in regard to the state differs from that individual’s right to human dignity in regard to another individual. Against the state, the individual’s right to human dignity applies in to the full extent of the ideal it is meant to achieve. But against another individual, the individual’s right is subject to a process of balancing and limiting in view of its engagement with other constitutional rights or the public interest”; and see Justice Sohlberg’s opinion in CA 8954/11 Anonymous v. Anonymous (April 4, 2014), para. 122. Indeed, in these contexts, Jewish law, at the very least, sets boundaries for freedom of speech, as A. Hacohen describes in the aforementioned essay, and see the references there.

…

 

40.       Thus, Basic Law: Human Dignity and Liberty expressly established human dignity, including the right to reputation, as a constitutional right, and in my opinion, the time has come to reexamine the balance struck prior to the Basic Law in the Avneri case, so as to reinforce reputation. The clear, express words of Basic Law: Human Dignity and Liberty cannot remain merely declaratory, and remain without practical effect. The Court is required to defend human rights, rights that include the right to one’s good name. It must stand up to the erosion of human dignity not only in respectful, beautiful words. In other words, it must ensure that every woman and man know that a person’s good name is not a doormat. Once the legislature established – in express words, and by all that is holy, and no one can possibly argue that a person’s dignity does not, first and foremost include his reputation – that a person’s right to a good name is a constitutional right, we must give that real, practical content. In my opinion, real content in the context with which we are concerned – the laws of defamation – would mean changing the balance, and returning to the balance rule established in the Further Hearing in the Electric Corporation case, i.e., freedom of expression should not be deemed a superior right that stands above the right to a good name, but on the contrary, where there is doubt, it would be better to err in favor of a good name. I would stress that I have no desire to harm freedom of expression and freedom of the press, which are held undisputedly high in Israeli law and reality. On the contrary, I hold them in high regard. They have a very important role in protecting democratic society, and I am the last who would not contribute to that. However, in my opinion, “freedom of expression is not an unbounded, theoretical concept. The prohibition of defamation is one of the significant boundaries, and the question is how to interpret defenses and licenses in regard to defamation. I believe that Basic Law: Human Dignity and Liberty should play a part in that” (LCA 1104/07 Hir v. Gil (2009), para. 29 of my dissent). “Freedom of the press also applies to biting journalism, but that does not mean that the freedom is unlimited … the basic presumption of freedom of the press is also responsible journalism. A person’s good name is not at forfeit” (the Makor Rishon case, para. 73). The approach protecting a person’s good name is my consistent approach, even when I am in the minority (see my opinion in LCA 4447/07 Mor v. Barak E.T.C. (1995) (hereinafter: Mor v. Barak). A person’s good name is a constitutional right of the highest order, and as such, we are required to accord it its rightful place. This is particularly the case when we are speaking, as in this case, of a suit concerning a story/report that has been published, and not – as was the case in in the Avneri case – a restraining order to prevent publication (on the distinction between preventative relief and retroactive sanctions in these contexts, see CA 409/13 Keshet Broadcasting Ltd. v. Cooper (April 11, 2013) para. 16 of the opinion of Grunis P.). I would reiterate that, in my opinion, freedom of expression, which  is necessary for the oversight of governmental authorities (as see, inter alia, Re’em Segev, Freedom of Expression against Governmental Authorities (Israel Democracy Institute, 2001), is not, as noted, identical – and certainly not necessarily so – to freedom of expression against a person who is not a governmental personage, and see para. 31 above. Indeed, Israeli law protects untrue publications when there is a legal obligation, no less, to publish them (sec. 15(2) of the Defamation Law). Has freedom of journalistic expression attained the level of an obligation that permits untruth and defamation? In my view, it has not. Before explaining why, in my opinion, a journalistic obligation should not be read into sec. 15(2), I will present the Jewish law approach to constructive lashon hara (which, in some cases, may attain the level of an obligation).

 

Constructive Lashon Hara

41.       Indeed, there are possible situations in Jewish law in which refraining from lashon hara may cause harm, and the prohibition upon lashon hara is overridden in such situations due to the attendant benefit: “And know that in interpersonal matters, such as gezel [theft], oshek [exploitation], nezek [damage], tza’ar [suffering], and boshet [shame], and ona’at devarim [verbal deception], one may inform others, and even a pious individual will tell, in order to help the guilty party, and from a devotion to truth” (Sha’arei Teshuva by R. Jonah b. Abraham Gerondi (Spain, 13^th cent.) 3:221); “Along with His [God – E.R.] command against gossip, came the proviso that you shall not stand against your neighbor’s blood, so that if one see that a group wishes to commit murder, he must inform the interested party in order to save his life, and should not think that this is gossip, as if he does not tell his fellow and he is killed, the warning of you shall not stand is abrogated, etc. We can learn from the story of Gedaliah ben Ahikam (Jeremiah 40) who was told, but when he did not heed, what happened (that is, Gedaliah ben Ahikam was warned that he was in danger, but he did not believe the warning, and was ultimately murdered – E.R)]” (and see: Or HaHayim (R. Haim ibn Atar,  a.k.a. Or HaHayim HaKadosh, 17^th-18^th cent.) Vayikra, Kedoshim 19:16 (Hebrew)). It would seem that in such circumstances, the case of Gedaliah ben Ahikam raises the matter to the level of a duty.

42.       The Hafetz Hayim ruled that “if someone witnessed another person harming his fellow, by theft or exploitation, or injury – whether or not the victim of the theft or the harmed person is aware of the damage or theft or not – or by shaming, or causing him suffering, or exploiting him, and the witness knows that the offending party did not return the theft, pay damages, or request forgiveness, etc., even if he was the sole witness, he may discuss the incident with others in order to help the guilty party and also to publicly denounce such evil behavior. However, he must take care that the seven conditions that follow are met” (Hafetz Hayim, Hilkhot Lashon Hara 10:1), that is, conditions were established in order to limit the possibility of unnecessary harm. The Hafetz Hayim warns (ibid., 15): “Now see, my brother, how carefully one must weigh how to relate the matter. For when he speaks he is in grave danger of transgressing the laws of lashon hara, if he is not careful in regard to all the details”. In The Right to Privacy in Jewish Law (p. 244), the learned Dr. Itamar Warhaftig summarizes the Hafetz Hayim’s provisos for permitting lashon hara: the speaker must carefully weigh whether harm may be caused; must not exaggerate, i.e., not make the wrong appear greater than it was; that his intention be only to help; that he must make sure that there is a reasonable possibility that his actions will, indeed, be helpful; that there is no alternative for preventing the harm; that his words will not cause substantive harm to the person about whom he tells lashon hara; and that what he says is in regard to what he has clear knowledge, and not hearsay (in greater detail, see: Hafetz Hayim, Hilkhot Lashon Hara, Principle 10, and Hilkhot Rechilut, Principle 9 (Hebrew)); And see: Rabbi Z. Greenwald, Taharat Halashon – Madrikh Lehilkhot Lashon Hara uRekhilut, 109 (Hebrew) [English: Ze’ev Greenwald, Taharas Halahon – A Guide to the Laws of Lashon Hara and Rechilus (David Landesman, Trans.) (Feldheim, 1994)]. For further reading on the provisos, see N. Sohlberg, A Person’s Right to Good Name, Freedom of Expression and Constructive Lashon Hara, Parashat Hashavua 29 (5761) 29 (Hebrew)). Constructive lashon hara may serve educational purposes, or deterrence from the commission of offenses, under the above conditions (also see: Rabbi Y. Unger & Prof. Y. Sinai, Exposing the Identity of a Suspect before filing an Information (para. 5, above). For my part, I would stress the proviso that permission is granted in a situation in which lashon hara may be constructive, “but if in his estimation it will certainly not be of benefit … even if all the details are verified, it is still forbidden to say anything” Hafetz Hayim, Hilkhot Lashon Hara, Principle 10:4).

43.       The learned Prof. N. Rakover (On Lashon Hara and its Punishment in Jewish Law (5722) (Hebrew)) gives several examples of exceptions to the prohibition of lashon hara for constructive purposes: telling lashon hara in order to save the victim, and lashon hara out of a commitment to truth; telling lashon hara to prevent damage; telling lashon hara by means of a complaint; telling lashon hara about a recidivist offender. According to him, “There are occasions when a person may relate the matters, and may even be obliged to make them public. Such situations also provide the framework for a legal, moral or social obligation to publish lashon hara”; see additional examples in Warhaftig, pp. 244-258, and see Rabbi M. Bareli, Publishing Lashon Hara about Elected Officials, 33 Tehumin 136 (5773) (Hebrew), according to whom there may even be an assumption of forgiveness for the publication of criticism of elected officials, since there would appear to be implied consent on their part, provided that there is benefit in the publication (and see the conflicting view of Dr. I. Warhaftig, ibid., p. 149); on the problematics, also see Rabbi A. Katz, Lashon Hara in Public Databases and Archives, 27 Tehumin 180 (5767) (Hebrew)).

44.       Thus, there may indeed be cases in which permission to convey lashon hara may become an obligation – an obligations of expression. In general, this is the case in which telling lashon hara is necessary to save another person from harm or injury. Maimonides ruled: “Whenever a person can save another person's life, but he fails to do so, he transgresses ‘Do not stand against the blood of your neighbor’. Similarly, when a person sees another drowning at sea or being attacked by robbers or a wild animal, and he can save him himself or can hire others to save him, but does not save him, or he hears gentiles or informers conspiring to harm him or planning to entrap him, and he does not notify him of the danger, or when a person knows of a gentile or a belligerent man who has a complaint against another, and he can appease the aggressor on his behalf but he fails to do so, and in all similar instances, a person who acts thus transgresses the commandment: ‘Do not stand against the blood of your neighbor’” (Maimonides, Mishneh Torah, Hilkhot Rotze’ah uShemirat Hanefesh 1:14). We are not concerned only with saving lives, but also with preventing damage. Thus, the Hafetz Hayim ruled: “If one knows that his friend wishes to do something with someone else, and he believes that his friend would definitely incur some harm by this bad thing, he must inform his friend in order to save him from that harm” (Hafetz Hayim, Hilkhot Rekhilut 9:1), all subject to the aforementioned conditions.

45.       Dr. M. Vigoda summarized the approach of Jewish law in his aforementioned essay “Privacy and Freedom of Expression,” Parashat Hashavua Bemidbar 208, 214-215 (Hebrew):

The scope of freedom of expression in matters concerning other persons is very limited, and exists only in regard to generic matters the exposure of which would not be likely to cause either emotional or monetary harm to the other. Inasmuch as such matters are very rare, it may be concluded that Jewish law severely restricts permission to reveal matters concerning another. As opposed to this, at times, it requires that a person reveal something whose non-disclosure is likely to cause harm to a third party. In such matters, we are not speaking of freedom of expression, but rather of an obligation of expression, inasmuch as in such situations, silence is wrongful.

…

On the Absence of Humility and Modesty

60.       Lashon hara has a sister – arrogance. All the justices of the panel in the judgment that is the subject of this Further Hearing, each in his own way, addressed the message conveyed by the television program, which was presented most forcefully and absent any modicum of modesty. Indisputably, the media, printed, virtual, and particularly electronic – television – has tremendous power. “The medium is the message,” said Marshall McLuhan. It is easy for the media to fall into the trap of “my own power and the might of my own hand” (Deut. 8:17), “I am, and there is none but me” (Isaiah 47:8), and the Bible also states (Psalms 36:12) “Let not the foot of the arrogant tread on me”, and our Sages said (Ethics of the Fathers 4:4) “Be exceedingly lowly of spirit”, and see (TB Sota 4b). Every human being is given to arrogance, particularly those whose words travel from one end of the earth to the other in a matter of seconds (“Sin crouches at the door” (Genesis 4:7). The opposite of this in Jewish morality and law is humility. Our Sages said: “What wisdom makes a crown upon its head, humility makes a heel beneath its sole (TJ Shabbat 1:3). In his book of morality Ma’alot Hamidot, R. Yechiel b. R. Yekutiel b. R. Binyamin Harofeh (Italy, 15^th-16^th cent.) devotes a chapter to humility, and quotes the Sages: “What is the quality of humility? One with whom all are at ease, and anyone who is not arrogant towards others…” In his renowned letter, Nahmanides (R. Moses B. Nachman, Spain, 13^th cent.) writes that humility is “the best of all qualities, as it is written: The effect of humility is fear of the Lord (Proverbs 22:4)”. R. Moshe Chaim Luzzatto (the “Ramhal”, 18^th cent.) devotes two chapters of his Mesilat Yesharim to humility, as the opposite of arrogance, writing (chap. 22): “For it is wisdom that has a greater tendency to bring a person to arrogance and pride … while a person of common sense, even if he is a great genius, will observe and contemplate and realize that there is no place for pride and arrogance … This is the examination and contemplation that is proper for every person of common sense …then he will be called truly humble, when he is humble in his heart and being”. Rabbi Yochanan said of God (TB Megilla 31a) “In every place that you find God’s grandeur, you find His humility”. On humility and arrogance in Judaism, see: Beral Wein & Warren Goldstein, The Legacy, 78-80 (2012). At his swearing in ceremony (Feb. 21, 2012), our colleague Justice Zylbertal said: “As part of our duty to conduct ourselves with humility, we must recognize error as inherent to the act of judging. President Barak addressed this in his speech in a ceremony swearing in new judges: ‘Only a judge who admits that he is not the epitome of perfection, but that like every human being, he too may err, can correct his judgement and thus approach perfection. Opposite the truth stands error – not lies – and recognizing error brings one closer to the truth’ (A. Barak, On Law, Judging and Truth, 27 Mishpatim 11 (5756)”.

61.       What is good for judges is also appropriate for the media. Of what relevance is this for the matter before us? I, too, am not of the opinion that the story reflected a lack of good faith. But it did reflect an exaggerated self-confidence that resulted in a lack of appropriate sensitivity for the Petitioner. “What is hateful unto you, do not do to your neighbor,” said Hillel the Elder (TB Shabbat 31a). Respondent 1 should ponder how she would like to be treated herself. And the absence of amends for lashon hara, even after-the-fact, makes the problem worse. The words of the Deputy President in para. 123 of the judgment that is the subject of this Further Hearing are appropriate here, as well: “Indeed, some of Dayan’s statements in the course of the broadcast were gratuitous, to say the least. It would have been better had she adopted a greater degree of self-restraint and modesty in view of the inherent problem in seeing the whole picture prior to the broadcast of the story”. Modesty and humility are appropriate for us all.

62.       In my article Stains in the Press (p. 204) I quoted Walter Cronkite, one of the greatest American television journalists of the last generation, who wrote in A Reporter’s Life (p. 289): “Press freedom is essential to our democracy, but the press must not abuse this license. We must be careful with our power. We must avoid, where possible, publicity circuses that make the right of fair trial a right difficult to uphold … Liberty and, no less, one’s reputation in the community are terribly precious things, and they must not be dealt with lightly or endangered by capricious claims of special privilege.” To which I added (ibid.): “Moderation is a good quality indeed, and it is also good for the press. I believe that there is nothing wrong if, a moment before publishing a story, the reporter and editor take a timeout to consider: Is the report sufficiently grounded to risk the harm that its publication may cause this person?” And further on I wrote (pp. 206-207): “… the duty to report on the basis of reliable, verified information, to report the truth, is a basic requirement that every journalist must observe. The public’s right to know is not the end all, nor unrestricted. Trial by the press can lead to tragedy. This raises the issue of the responsible use of the nearly limitless power of the media. At times, one may observe this in terms of ‘judge not others until you have stood in their place’ (Ethics of the Fathers 2:4), when a journalist or editor is the victim of press reports, and his reaction reflects frustration just like that of any other person, as has happened”.

…

64.       I, of course, do not deny that there are also many responsible journalists, and I would not cast aspersions on the media in their entirety, which would, itself constitute avak lashon hara if not more than that. However, I am sure that when some members of the media read the majority opinion in this case, they will smile with relief, and express wonder at judicial naiveté.

65.       My colleague Justice Hendel notes in regard to establishing a duty under sec. 15(2), that “if the journalist sets lying or deceiving as an objective, then clearly the good-faith defense will not serve him”(para. 6). Of course, and I too am of the opinion that the press must not be deterred from criticizing the government. But the question arises in those gray areas in which you – the reader – do not know the true story, while the journalist is aware of background that he does not publish, such that the product presented to the public is nothing but a half truth, which is worse than a lie. We should remember the “coddling” of a particular politician – a tactic that a well-known media personality openly recommended – that is, the “obligation” and the attendant truth are set aside in favor of a political interest, such that certain facts may intentionally be blurred so as not to harm a political objective. Are we acting responsibly when we make many presumptions to the benefit of the media, even to the point of an “obligation”, when they are accompanied by an inadequate ability to protect a person’s good name, and it is swept under the rug? Does the life’s breath of democracy justify that the individual, at times, be “knocked to the canvas”?

66.       My colleague Justice Hendel (paras. 2 and 8) calls for developing an independent “Israeli approach”. He does not explain what that might be. I would like to join him, but explain that, in my humble opinion, the ethos and culture of Jewish law argue for greater sensitivity to a good name than that resulting from this decision. Perhaps we should create a “good name à la Israel”, a Jewish and democratic state. At this point, I will briefly state that I was glad to learn from my colleague of additional Jewish law sources in regard to constructive lashon hara, from which he attempts to show that even when journalistic publications comprise lashon hara, they may be beneficial in certain cases. The sources are alluring, but I fear that they are peripheral to the subject, and my colleague is aware that he raises questions that await answers, and in my opinion it would be difficult to attribute what may derive from his arguments to the core of Jewish law. The sources he presents are fascinating, but are peripheral, and I am very fearful of a slippery slope in the overall context. I would add that pursuant to reading my colleague’s opinion, I read Rabbi Ari Shevet’s interesting article Newspapers and News – Obligation or Prohibition (Hebrew), and I very much appreciated the many sources included there, and the lovely breeze – mixed with a positive innocence and “happy are those whose way is blameless” (Psalms 119:1) – that wafts from it in regard to the positive potential of journalism (as in the words of Rabbi Isaac HaKohen Kook that he quotes), and clearly, wise contemporary Torah scholars cannot ignore the media and their importance in our daily lives, although the Hafetz Hayim (in his book Zechor LeMiriam) warned not to waste time reading newspapers (in their then limited form, so what might we say nowadays). But when the author moves from the light to the shadows, his solutions – imposing a duty of care upon journalists – ultimately lead to the statement (para. 5 of the conclusion): “In the current format, it may be that journalists are to be ‘deemed bearers of lashon hara’,  and it is therefore better to listen to the news over the radio”. And further: “Our suggestion is not, by any means, intended to detract from the severity of the prohibition upon gossip, lashon hara, and bearers of lashon hara. We must remember the words of the Pele Yoetz (R. Eliezer Papo, Greece-Bulgaria, 19^th cent. – E.R.) (Pele Yoetz, s.v. Lashon Hara) that it is better to “flee through one hundred gates of permission so as to avoid entering one gate of prohibition”. I am not naïve, and I am well aware of the power and ability of the media, but I do not believe that opening the gate of “obligation” that arises from the majority decision will benefit reputation and basic human dignity, inasmuch as it comprises too many assumptions, as already detailed. It is easy to foresee the dangers, but will we merit “responsible journalism”?

67.       Finally, my colleague Justice Danziger (para. 5) explains the need for distinguishing the expression of opinion and facts in the media. I agree with that distinction, even if our era is characterized by post-modern “narratives” that combine the two, such that it is sometimes difficult to distinguish.

 

 

Justice N. Hendel

…

            An article published several months ago by the Columbia University School of Law addressed the relationship between freedom of speech and the state of mind or intent of the publisher. The question was raised as to the relevance of these to defamation. The author’s answer was that the prohibition of defamatory speech is not meant to be absolute. Therefore, the system does not suffice in examining only the publication, but also examines various subjective aspects of the publisher. Moreover, and this is the important point for our discussion, emphasis was placed upon the chilling effect of over extending the prohibition of defamation. From this perspective, it is not enough to examine what was published, but also what would not be published if the law were more strict with the publisher – including the journalist (Leslie Kendrick, Free Speech and Guilty Minds, 114 Colum. L. Rev. 1255 (2014); for an example that examines the matter empirically, see Eric Barendt, Laurence Lustgarten, Kenneth Norrie & Hugh Stephenson, Libel and the Media: The Chilling Effect (1997)).

            The position according to which the press would be endowed with the crown of a “social obligation” also imposes a duty upon the journalist. It is not a one-way street that benefits only the journalist at the expense of another publisher. A note must be paid on demand. And what is the demand? First, as my colleagues held, that the obligation relates to a publication that is of significant public interest, and not merely any public interest. In addition, legitimacy was given to the demand that a journalist act responsibly – “responsible journalism” in the words of my colleagues. I will address these matters below.

            In this context, I will briefly address the approach of Justice Rubinstein in regard to the relationship between the right to one’s good name and freedom of expression. According to his approach, despite the importance of the latter, it is a lower level on the constitutional scale than the right to one’s good name. For my part, I would add my voice to that of President Shamgar (FH 9/77 Israel Electric Corp. Ltd. v. Ha’aretz Daily Newspaper Ltd., IsrSC 32 (3) 337 (1978) [http://versa.cardozo.yu.edu/opinions/israel-electric-corp-v-haaretz]), and to that of Justice Rivlin in the appeal (para. 77), according to which, despite the importance of the two values, freedom of expression is principal. Both according to the approach of Justice Rubinstein and the opposing view, that does not mean that one of the rights “subsumes” the other in every collision. But the argument is of importance in borderline cases. My colleague is of the opinion that in a borderline case, the scales should tip in favor of protecting reputation. I disagree, and thus join the opinion of Justice Rivlin in the appeal, that “to the extent that there may be doubt in regard to whether disputed speech is protected, it is better to err on the side of freedom of expression and freedom of the press” (para. 79, citing Justice Harlan F. Stone).

            I will permit myself to add that this argument is somewhat abstract. But the matter is neither abstract nor theoretical. Following the enactment of Basic Law: Human Dignity and Liberty over twenty years ago, it is, in my opinion, appropriate both for the development of Israeli constitutional law and practically, that such issues as these be considered. Moreover, as I explained in detail in the judgment in the matter of the Nationality Law, in the United States constitutional rights are categorized into three levels for the purpose of establishing the strictness of the required judicial review (HCJ 466/07 Galon v. Attorney General, para 4 (Jan. 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]). Lastly, the case before us comprises liminal elements, as the President pointed out in his opinion. The general view in regard to the proper balance between freedom of the press and the right to one’s good name may, in my opinion, explain the different positions adopted in this Court and in the District Court. To illustrate the matter, even justice Rubinstein noted in his opinion that “I, too, am not of the opinion that the story reflected a lack of good faith”. Thus, the dispute concerns the legal test – the existence or non-existence of a social obligation – and not the professionalism of the publication.

            As for my position in all that regards the constitutional hierarchy between the right to reputation and freedom of the press, I will suffice with a few comments. Indeed, “a good name is better than fragrant oil” (Ecclesiastes 7:1). But I would not go so far as to say that a good name and human dignity are one and indivisible (paras. 35-36 of the opinion of Justice Rubinstein). We are not speaking of alternative terms, despite the strong bond between them. That is not the main thing. As my colleague pointed out, the two competitors – good name and freedom of expression – do not expressly appear in Basic law: Human Dignity and Liberty. But they may be said to derive from human dignity (Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, 616, 708 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)]. I would go one step further and say that freedom of expression – especially journalistic – has been recognized as a supra-legal basic right from the earliest days of our legal system. It was held that this right constitutes the source of other rights (the Kol Ha’am case, ibid.).

…

            In Ireland, as opposed to Israel, freedom of expression appears in a somewhat circumscribed form. Thus, article 40.6.1 of the constitution establishes: “the State shall endeavour to ensure that organs of public opinion shall not be used to undermine public order or morality or the authority of the State”. In Australia, there is no constitutional or statutory provision protecting freedom of expression, and it was the case law that developed the subject was (see, for example, in regard to freedom of political speech: Australian Capital Television v. Commonwealth (1992) 177 CLR 106; Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520). As opposed to this, in Canada freedom of expression expressly appears in sec. 2(b) of the Charter of Rights and Freedoms: “Everyone has the following fundamental freedoms: […] (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. This freedom is, of course, subject to the Reasonable Limits Clause (sec. 1). Canadian case law in this regard is most varied. Thus, I would note the Zundel case, which voided sec. 181 of the Canadian Criminal Code that prohibited knowingly publishing a false statement – e.g., denying the Holocaust – because the criminal prohibition improperly violated freedom of speech (R. v. Zundel [1992] 2 S.C.R. 731). Lastly, in South Africa, freedom of expression is expressly anchored in sec. 16 of the constitution. The right is broad. Interestingly, one exception is incitement to imminent violence, and another is advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

            I have presented the matter in a nutshell only to illustrate my view that we must act in accordance with an internal Israeli system, although I agree that examining the situation in foreign legal systems would enrich the discussion. I would add my personal view that much can be learned from the American legal system’s approach to freedom of speech – which is very developed – and the relationship between it and the strength of democracy there is worthy of thought and admiration.

9.         I would make two points in concluding my remarks on the term good faith. The President is of the opinion that in examining a journalist’s good-faith defense, weight should also be given to the motivation for publication – for example, was the motive a desire for increased ratings or to publish a ringing scoop. The President is correct in that it is good that every professional examine his motives so that the desire for success not clash with the sanctity of the work. However, in my opinion, there is a long way between that and finding that considerations of ratings and scoops constitute a legal accessory for ascertaining good faith.

            There is nothing new in saying that a person is a complex being. Often, a person’s motives are mixed: they comprise both the desire to realize some proper, external objective, and the desire for personal success and advancement. The Sages of Jewish law were also aware of this, and observed that “the jealousy of scribes increases wisdom” (TB Bava Batra 22a). “The jealousy of scribes” and the natural desire to succeed more than others were deemed as means or catalysts for increasing Torah scholarship. In that context, Rabbi Mosheh Lichtenstein, Head of the Har Etzion Yeshiva, noted that King Solomon learned how to properly direct his personal ambitions, and devoted his exceptional talent to the building of the Temple (Mosheh Lichtenstein, The Mishkan of God and the Mikdash of Shelomo (http://ftp.vbm-torah.org/en/teruma-mishkan-god-and-mikdash-shelomo).

            Against this background, I am of the opinion that the desire for personal advancement does not, in and of itself, testify to an absence of good faith. However, such an “egotistical interest” may compromise the principle of good faith if expressed in other forms of conduct, for example, not properly checking sources of information. Only then will those other omissions catch the judge’s eye in reaching a decision.

            The other point concerns the disagreement between the President and Justice Vogelman in regard to the “geometric location” of the responsible journalism requirement. I will briefly state that I concur with the approach of the President that it would be better to examine this requirement in the framework of the good faith element, rather than in the framework of the obligation. That is primarily so as not to blur the difference between fulfilling the obligation and the manner of its fulfillment (and see para. 79 of his opinion).

…

E. Jewish Law

11.       A unique characteristic of the Israeli Defamation Law is that it is rooted in Jewish law. Even the name of the tort [lashon hara] reflects this. But we should not suffice with that. Basic Law: Human Dignity and Liberty has achieved primacy in examining basic rights and conflicts between them. It defines Israel as a Jewish and democratic state. My colleague Justice Rubinstein, as is his practice, provided a fine, broad survey of the laws of lashon hara. I can only add my admiration for the range of sources and their clear presentation. For my part, I would like to emphasize a particular aspect of the Jewish law approach: the application of the laws of lashon hara to the press in a democratic society. In my opinion, this aspect requires a broader view for three reasons. First, the precedents of the Torah and the oral law. Second, the exceptions to the prohibition upon lashon hara arising from halakha, including the writings of the Hafetz Hayim. Third, the laws pertaining to the public in general (as opposed to halakhic decisions concerning individuals), and the State of Israel, in particular.

12.       On the basis of the verse “You shall not go up and down as a talebearer among your people” (Lev. 19:16), Maimonides distinguishes three prohibitions. The first – “Who is a talebearer? One who collects information and goes from person to person, saying: This is what so and so said, and this is what I heard about so and so. Even if he tells the truth, it destroys the world” (Mishne Torah, Sefer Hamada, Hilkhot Deot 7:2). A talebearer is, therefore, one who trades in information, even though it is not disparaging (see the commentary of the Kesef Mishne, a scholar of the Land of Israel of the 15^th cent. [sic] [R. Joseph Karo, 1488-1575 — trans.] ad. loc.), and even of no benefit. The second – lashon hara: “and he speaks deprecatingly of his fellow, even though he speaks the truth” (ibid., 7:2). And third: “but one who tells a lie is called a defamer of his fellow’s good name” (ibid.).  It should be emphasized that gossip [tale bearing] and lashon hara concern “telling the truth”.

            Nahmanides disagrees as to the source of the prohibition. According to him, the prohibition is based upon the conduct of Miriam, and the Torah’s injunction: “Remember what the Lord your God did to Miriam on the journey” (Deut. 24:9). That refers to the story in Numbers: “Miriam and Aaron spoke against Moses because of the Cushite woman he had married” (Numbers 12:1). Miriam challenged her brother Moses as to why he did not maintain family relations with his wife as Aaron did with his wife, and Miriam with her husband.

            Nahmanides’ approach includes two interesting points. One:

In my opinion, this is actually a positive commandment, like “remember the Sabbath day to sanctify it”, “remember this day, on which you went free from Egypt” … which are all commandments. If so, this verse, too, is like those, it being an admonition against speaking lashon hara. He commanded by way of a positive commandment that we remember the great punishment that God imposed upon the righteous prophetess who spoke only about her brother for whom she showed mercy and loved as herself. She said nothing to his face that would shame him, nor in front of others, but only in private, between herself and her holy brother. Yet all her good deeds were of no avail to her. And you, too, if “you are busy maligning your brother, defaming the son of your mother” (Psalms 50:20) you will not be saved… And how is it possible that there is no explicit negative commandment against lashon hara in the Torah, nor even a negative commandment derived from a positive commandment, when it is equated to bloodshed? But this verse comprises a great warning to refrain from it both in public and in private, whether or not to cause harm and shame. And this is one of the 613 commandments (Nahmanides’ commentary on Deuteronomy. 24:9).

Like Maimonides, Nahmanides deems the prohibition upon lashon hara as particularly severe. But he wonders why the matter is related in a story rather than as an explicit command. It should be noted that even according to Maimonides, the explicit Torah prohibition is of gossip, whereas lashon hara is a type of subcategory. One might say that the prohibition is introduced by appending it to a story, contrary to the usual biblical practice, in order to emphasize the uniqueness of the prohibition upon lashon hara as one that arises in the context of social interaction. Moreover, the matter is dependent upon circumstances. From the Bible, it appears that Miriam’s intention was constructive – to help her sister-in-law. She raised the matter, together with Aaron, only before Moses. However, in view of Moses’ humility, as is related further on, she should have been less hasty in judging as she did in presenting the matter to Moses.

            Whatever the case may be, the second point is the one relevant to the matter before us, and is expressed in another of Nahmanides’ insights:

In the matter of Miriam, we were commanded to inform our children and tell it for the generations. And even though it would have been proper to conceal it so as not to deprecate the righteous, Scripture commanded that we make it known and reveal it so that the warning against lashon hara will be in their mouths, because it is a great sin and causes many evils, and people always stumble in its regard (Nahmanides’ commentary to Deuteronomy 25:17).

 

            In other words, if the prohibition is so severe, and those involved were only these three sibling prophets, is not the injunction to remember the incident not itself a form of lashon hara? Is this not something of a contradiction? Nahmanides’ answer is that it is important from an educational perspective to present the matter so that we may learn the about the nature of the prohibition, and that is the source for permitting its publication for posterity. The Bible provides many examples of this approach of not refraining from criticizing the nation’s great leaders – even Abraham, David and Solomon.

            An example of the application of this approach can be found in the Talmud. In the parashat Balak [sic][1] in Numbers, we are told of the gatherer of sticks on the Sabbath who was put to death [Numbers 15:32-36]. His name does not appear in the Bible. Rabbi Akiva teaches us that the man was non other than the father of the five women who requested an inheritance, and their request for non-discrimination against women was accepted. The Talmudic sages were not pleased with Rabbi Akiva’s novel idea. As the Talmud states:

Our Rabbis taught: The gatherer was Zelophehad, and it is said (Numbers 15:32): and while the children of Israel were in the wilderness, they found a man [gathering sticks, etc.], while later it is said (Numbers 27:3): our father died in the wilderness, etc. Just as there it is Zelophehad, so here it is Zelophehad. This is R. Akiva's view. R. Judah b. Batera said to him: Akiva, in either case you will have to give an account. If you are right, the Torah hid him, while you reveal him. And if not, you denigrate a righteous man (TB Shabbat 96b).

            Rabbi Judah b. Batera’s claim is that Rabbi Akiva’s statement is merely a conjecture, and the claim that Zelophehad died in the desert as a result of his sin is not necessarily true. In either case, if Rabbi Akiva told the truth, why did he reveal what the Torah had hidden, and if it was not the truth, why impugn Zelophehad? Nevertheless, and even though neither Rabbi Akiva nor any other rabbis reply to Rabbi Judah b. Batera, the view according to which Zelophehad had sinned has been preserved over the generations. This is not unique to that story. Many midrashic narratives and Torah commentaries are not complimentary to a particular person, and are not necessarily based upon some objective, verifiable truth.

13.       As noted, not only biblical precedent, but the laws of lashon hara, as well, open the door for qualifying the prohibition upon lashon hara.

            The first rule is that of “publicly known”. As stated in the Be’er Mayim Hayim: “No proof can be brought … from what is written in Arvei Pesahim … since this may be publicly known, and lashon hara is not applicable” (commentary of the Hafetz Hayim on his book, Hilkhot Lashon Hara 4:41). In other words: “In any case, everyone saw” (ibid. 5:8). This principle is expressed in a situation of “before three”, regarding which Maimonides ruled: “If such statements were made in the presence of three people, it has already become public knowledge. Thus, if one of the three relates the matter a second time, it is not considered lashon hara” (Mishne Torah, Hilkhot De’ot 7:5). According to this exemption, a private discussion differs from a one that has been made public, even if only partly (three people). This exemption is subject to conditions, but it may be relevant to information that, in any case, is in the public domain.

            To this we can add the exemption in regard to preventing harm, and even more so, to prevent harm to many, on the basis of the commandment “you shall not stand against your neighbor’s blood” that is the continuation of the verse “You shall not go up and down as a talebearer among your people” (Lev. 19:16). As the author of Arukh HaShulhan who lived at the beginning of the 20^th cent. [Rabbi Yechiel Michel Epstein, 1829-1908.—trans.] wrote: “When a person sees another drowning at sea or being attacked by robbers or a wild animal, or other types of evil, and he can save him himself or can hire others to save him, but does not save him, or he hears haters conspiring to harm him, and he does not notify him, or when a person knows of a harmful man who wishes harm his fellow, and he can appease him but he fails to do so, and in all similar instances, transgresses the commandment: ‘Do not stand against the blood of your neighbor’ … and all the more so he is obliged to rescue his fellow from any harm or damage that other seek to cause him, and all the more so he is obliged to prevent harm to the many, and must prevent it if he is able to prevent it” (Hoshen Mishpat 426:1) (emphasis added).

            It should be noted that the prohibition upon telling lashon hara, despite its severity, may retreat before another commandment – “Do not stand against the blood of your neighbor”. Last in this context is lashon hara for a constructive purpose, which I will address below. I would note at this stage that none of the four parts of the Shulhan Arukh – one of the primary legal codices – treats of the laws of lashon hara. This can be explained. Although lashon hara constitutes a legal obligation, it is also viewed in terms of a virtue. That would, therefore, appear to be why Maimonides classified lashon hara under the category of hilkhot de’ot [laws concerning matters of personal development – trans.], and the great moral scholars addressed this in their works (see, e.g., chap. 11, “Details of the Virtue of Cleanliness”, in Mesilat Yesharim  by Rabbi Moshe Chaim Luzzatto (the Ramhal, Italy, 18^th cent.)). The merger between halakha and the duty to distance oneself from vices lead to the situation wherein when the two are in conflict, for example, a negative statement for constructive purpose, the prohibition upon lashon hara may be altered and become permissible and even a mitzvah in the framework of a desire to repair.

14.       Notwithstanding the possibility of developing the laws of defamation on the basis of the halakhic tools cited in the previous section, that it not the heart of the matter. In law, including Jewish law and halakha, a precise definition of the question is essential for an appropriate resolution. The Hazon Ish [Rabbi Abraham Yeshayahu Karelitz, 1878-1953 – trans.] stressed that often the main problem in legal decision making is not knowing the law, but rather recognizing the reality and factual aspect of the decision (Iggerot HaHazon Ish 31 (Bnei Brak, 5737) (Hebrew)); and see Rabbi Yehudah Amital, Not Everything is Halakha, 13 Alon Shevut Bogrim 97-98 (5759) (Hebrew)). The laws of lashon hara are well and good, and they can change the social fabric and the relations among the people living in it. Is suffices to recall the statement that because of baseless hatred and lashon hara “the Temple was destroyed [the Second Temple] and we were exiled from our land” (from the preface to Hafetz Hayim). Still, the question before us does not concern the obligations of individuals, although that is the primary halakhic concern and focus of Hafetz Hayim – Shemirat HaLashon.

            The issue before is different. We are concerned with the halakhic limits upon the free press in a democratic society. This is not a question concerning the individual, but the public. In fact, not only the public, but the state. And not just the state, but the State of Israel. The consideration of preventing damage is known to all, and the halakhic considerations are given to change. Halakha recognized the status of the public as a factor in various connections. This would appear to be particularly true when halakhic scholars address the challenges presented by the State of Israel for the law applicable to the public. The religious view is that halakha has the power to adapt itself to changing realities.

            We will suffice with a few examples. Rabbi Shaul Yisraeli – a member of the Supreme Rabbinical Court in Jerusalem, rabbi of Kfar Haroeh, and Head of the Mercaz HaRav Yeshiva, who died some 20 years ago – addressed the issue of police activities of the Sabbath. In the course of raising several authorizations, including several types of ongoing activities, Rabbi Yisraeli emphasized the principle that “it would not be at all unreasonable to say that all agree with the basic principle that the harm of many is equivalent to saving the life of an individual … saving the public from harm … is a consideration of saving life” (Amud HaYemini 17).

            Rabbi Yechiel Weinberg – author of Seridei Eish, who died in Switzerland some 50 years ago – was asked by the Chief Rabbi of Israel, Rabbi Yehuda Unterman, for his opinion on performing autopsies for medical purposes in Israel. Rabbi Weinberg stressed the general prohibition, but wrote that he did not think it proper that a rabbi who did not live in Israel should decide the matter for the Chief Rabbi of Israel. Nevertheless, he was willing to state his personal opinion, adding:

In out day, the question of autopsies is a state question, and a question for those living in that state. This question was addressed by the great Noda BiYehuda [Rabbi Yechezkel ben Yehuda Landau, 1713-1793 – trans.] as a private question, and he was thus correct in his instruction. Today, it is a question for the entire nation, and a question of the state and for its status in the greater world that listens attentively to everything that occurs in the Land [of Israel]. Needless to say that the way the civilized word relates to our new state is one of the important factors that preserve our country, and one of the most important conditions for the security of the state and the people who reside in it (published in 12 Tehumin 382, 384 (5752) (Hebrew)).

            Another aspect of the health system in halakha was addressed in a book published this year by Rabbi Re’em HaCohen, Head of the Otniel Yeshiva and community rabbi of Otniel. The book treats entirely of the issue of pikuah nefesh [saving life]. It explains that pikuah nefesh must be addressed in the context of the public – whether in regard to public systems, the removal of corpses on the Sabbath, and in regard to desecrating the Sabbath for the purpose of treating mental health issues in an emergency situation (Responsa Badei Ha’Aron: Responsa on Contemporary Issues – Pikuah Nefesh) (Hebrew)).

            On the basis of the halakha of the public and the state, Rabbi Ben-Zion Meir Hai Uziel, the first Sephardi Chief Rabbi of Israel, was willing to be lenient in regard to the admissibility of the testimony of a person who was not halakhically Jewish.  Chief Rabbi Isaac Halevi Herzog ruled similarly in regard to the halakha if the Pope were to contact the Ministry of Foreign Affairs requesting to join with leaders of other religions in the war declared against communism. The responsum was published in 1950, in answer to a question posed by the rabbi’s son Ya’akov, who then served in the Ministry of Foreign Affairs (Decisions and Writings, vol. 2, Responsa on the Laws of Orah Hayim, 112) (Hebrew)). These examples demonstrate that, in appropriate cases, the question of the law applicable to the public or the state may be addressed differently, with the decisor taking account of broader considerations. The difference is not in the halakha, but rather in a question that may lead to a different answer.

            Can a similar argument not be made in regard to the rules of lashon hara and the press? Would the definition of benefit necessarily be the same from the perspective of the state as opposed to an individual? Let us not forget that the rabbis throughout of each generation recognized the uniqueness of the press. Rabbi Jacob Reischer, who lived in Prague in the 17^th century, noted that the desire to know what is happening in the state and the world is a human need (Responsa Shevut Yaakov, III:23) (Hebrew)). Rabbi Jacob Emden, who lived in Germany in the 18^th century, permitted reading newspapers on the Sabbath both because prohibiting it would cause suffering, and because there is enjoyment in reading them (Reponsa Yaavetz, I:162) (Hebrew)). Rabbi Isaac HaKohen Kook, the first Chief Rabbi of Israel, encouraged the establishing of a daily newspaper, but turned down an offer to serve as editor in chief due to his many responsibilities (Iggerot HaRav Kook, I:185) (Hebrew). As for the appropriate content of newspapers, Rabbi Kook was of the opinion that it should treat of a variety of matters, “and clearly such an organ should not ignore any aspect of life in its entirety, even those that do not directly concern religion” Iggerot, I:277).  Moreover, like the popular Talmudic expression: “Go forth and see how the public are accustomed to act” – nowadays, even hareidi journalism is thriving, and it is not limited to matters of Torah, but deals with “matters of the world” and “matters of the country”. Is it even imaginable that an investigative report about a public figure would receive no coverage until after the conclusion of his trial? Is such a report, which may uncover wrongs and injustice in regard to some group, not of great benefit?

            This may be of consequence for the boundaries of constructive lashon hara. Some of the rules that have been established may be relevant, including the requirement not to increase the wrong beyond what it is, and that the publisher intend benefit (Hafetz Hayim, Hilkhot Lashon Hara, 10:2) (Hebrew). We should note in this regard a ruling by Rabbi Ovadia Yosef according to which a person who knows that an applicant for a driver’s license suffers from some hidden, undisclosed condition, he must inform the Licensing Bureau of what he knows (Yeheve Daat, IV:60). We would similarly recall the ruling of Rabbi Chaim Halevi, Chief Rabbi of Tel Aviv, who died some 15 years ago, that it is not prohibited to work as an informant for the tax authorities, even for pay (Aseh Lekha Rav, I:70). These questions also relate to public aspects of lashon hara.

            I admit that the matters are very complex. At most, I have indicated different directions for questioning, rather than answers. Much has been written of the subject from the halakhic perspective. See, for example, the article published about a year ago by Rabbi Meir Bareli in 33 Tehumin on the subject of publishing lashon hara about elected officials (p. 136). In the author’s opinion, an exemption can be found in certain situations on the basis of the principle that entering the public arena constitutes implied consent – consensual lashon hara in certain circumstances. And see additional halakhic articles (ibid., fn 2; and see the article by Ari Yitzhak Shevet, which I found very helpful both conceptually and for its extensive bibliography – Newspapers and News: Obligation or Prohibition (Hebrew); Steven Oppenheimer, Journalism, Controversy, and Responsibility: Halachic Analysis, 41 Journal of Halakha & Contemporary Society (2001); Rabbi Alfred Cohen, Privacy: A Jewish Perspective, 1 Journal of Halakha & Contemporary Society 53 (1981). However, it would appear that none of these provide a halakhic ruling. It is not my intention to innovate in this decision, but rather to ask whether it may be possible to consider the issue in broader terms from the perspective of Jewish law. As for the answer, I can only but make recourse to the approach of the Head of the Har Etzion Yeshiva, Rabbi Aharon Lichtenstein, which I have cited in the past in the context of internet theft (CA 9183/09 The Football Association Premier League v. Anonymous (May 13, 2012)). I will state it mutatis mutandis: In the changing technological and social reality in which the press achieves growing influence, and bearing in mind the potential advantages of this tool, its importance and contribution to democratic life, and its broad readership, on the one hand, and the unquestionable prohibition upon lashon hara, on the other, what is the proper halakhic balance? “The question is posed, the authority exists, and eyes are uplifted. If the great halakhic decisors will succeed in making a decision on the matter”, they will make a real social contribution, “and if they succeed, they will simultaneously contribute to admiration of Torah” (A. Lichtenstein, Lectures of Rabbi Aharon Lichtenstein: Dinei DeGarmei, 200 (5760) (Hebrew)).

            In conclusion, I do not believe that the approach of a good-faith defense for responsible journalism in matters of significant public interest contradicts the principles of Jewish law. In my humble opinion, there is a positive aspect to such an approach.

After these Things

15.       After writing my opinion, I had the opportunity to read the comments of my colleague Justice Rubinstein. I will address them in brief.

            My colleague is of the opinion that the Jewish law sources that I cited are peripheral. I would respond that I am not concerned with the margins but with the core. We are concerned with freedom of journalistic expression on subjects of significant public interest. The issue does not concern a question of private halakha. It is part of state halakha, or more precisely, the halakha of the State of Israel. This is a public issue. I pointed out several examples in areas of importance in Jewish law in which the rabbis of the time found that this is a consideration that defines the answer, and that may lead to different results than those concerning individuals. Can the importance of investigative journalism in a democratic society be denied? I also pointed out that in the framework of the question I present, religious society in all its variety, and with the consent of its rabbis, does not reject reading newspapers, and is even involved in journalism from its own perspectives. That journalism comprises not only Torah subjects, but also news and subjects that have not as yet been resolved and are still under investigation. The solutions for discourse among individuals on the private level are not necessarily identical to those applicable to public discourse. It would seem to me, for example, that the approach cited, inter alia, by my colleague, according to which journalists are deemed bearers of lashon hara, and that it is better to listen to the news on the radio, does not reflect the practice of the religious world, does not express the advantages presented by a free, investigating press, and most of all, does not adequately contend with full variety and complexity of the subject.

            Lastly, my colleague referred to my call for the development of an independent Israeli legal approach to the subject, and notes that I do not explain what it might be. I can only refer to what I wrote in my opinion, above. In my view, an independent Israeli legal approach would recognize the necessity of a responsible press, and that we are concerned with a public duty that grants protection to a journalist, subject to an examination of his good faith. Such a development, proposed by my colleague Justice Vogelman in the judgment under appeal, is appropriate to the present. As for the future, this field is dynamic. It is my hope that the Israeli system will succeed in adopting the positive aspects of the American approach, which has proved its ability to integrate a very robust democratic society and freedom of expression, combined with the approach of Jewish law, along with a serious, thoughtful consideration of the halakha applicable to the state, and its influence upon the laws of defamation. There is much to be done. But that is the present reality, and this is the hope for the future, as is appropriate for the State of Israel as a Jewish and democratic state, in accordance with the Basic Law.

 

 

 

CA 6370/00

 

 

 

Appellant:                   Kal Binyan Ltd.

 

                                                v.

 

Respondent:                A.R.M. Raanana Building and Leasing Ltd.

 

 

The Supreme Court as Court of Civil Appeals

[Feb. 17, 2002]

 

Before: President A. Barak and Justices T. Orr and I. Englard

 

Judgment

 

President A. Barak

            A company issues a tender soliciting offers for the performance of some poject. It conducts negotiations with the bidders. It settles all of the conditions with one of the offerors. All that remains is ratification by the company’s board of directors. The board of directors decides not to ratify the transaction. It enters into a contract with an offeror that did not participate in the tender. By its conduct, the company breached its duty to act in good faith. All agree that the bidder that the company did not treat in good faith is entitled to compensation for the harm caused by the negotiations (“reliance damages”). The scope of doubt is whether it is entitled to damages for lost profits due to the contract not being fulfilled (“expectation damages”).

 

The Facts and Proceedings

1.         The Respondent is a company that was involved in building a residential community in Raanana. The Appellant is a company that carries out development and infrastructure projects throughout the country. The Respondent contacted ten contractors (in March 1992), among them the Appellant, to solicit offers for infrastructure work in the Raanana project. The contractors were given various documents, among them a letter stating the date for submitting bids, the address for submitting the bids, the guarantees that should be appended to the bids, and the timeframe for the work. A pamphlet comprising specifications, a quantity survey, a list of plans, and special conditions was appended as well. In addition, a detailed draft of the contract to be signed between the parties to the agreement was appended. A contractors’ visit to the site was also conducted.

2.         The Appellant submitted a bid of NIS 7,149,000. The Respondent conducted appropriate negotiations with the Appellant, as well as with other bidders. In the course of these negotiations, the Respondent insisted that the work be performed at a “target price” of NIS 6,526,000. The Respondent’s representatives (the Respondent’s accountant and project managers) met with the Appellant’s representative in this regard. In the first meeting between the parties, the Appellant’s representative was unwilling to adjust his price to the Respondent’s “target price”, but in a further meeting, the Appellant’s representative informed the Respondent that the Appellant was willing to perform the work at the “target price”. That same day, the Respondent’s board of directors convened. It was apprised of the Appellant’s offer. It was also apprised of the offers of other companies that had not participated in the tender, and which were cheaper than the Appellant’s bid. The board of directors refused to sign the contract with the Appellant. Instead, it signed a contract for the performance of the work with one of the offerors that had not originally submitted a bid.

3.         The Appellant brought suit against the Respondent in the District Court. Its claim was that the parties had signed a binding contract that was breached, or alternatively, that the Respondent’s conduct constituted bad faith in negotiations, and that the respondent had breached the “supplemental contract” between the parties, concerning the norms for conducting private tenders. The District Court dismissed the suit, ruling that there had never been a binding contract between the parties, primarily in light of their knowledge that the very making of the contract was subject to the decision of the board of directors. It further held that there was no breach of the requirement of good faith in negotiations inasmuch as the Respondent is a private company, and is therefore not under a duty to treat the various bidders equally. It was under no formal restriction that it refrain from approaching other companies (that had not participated in the tender), and contract with one of them.

4.         The Appellant appealed that decision to this Court (CA 4850/96 Kal Binyan v. A.R.M. Raanana Building and Leasing Ltd., IsrSC 52 (5) 562). The appeal was granted (on Dec. 23, 1998) in a majority opinion (Justices Strasberg-Cohen and Goldberg). It was held that although there was no binding contract between the parties, the Respondent’s conduct in the circumstances constituted an absence of good faith in negotiations. It was held that the Respondent had decided to contract by means of a “closed, private tender”. The Appellants choice not to conclude the contract with the Appellant, and contract with an offeror who had not participated in the tender, was tainted by inequality and a breach of fair, proper tender procedures. In this regard, Justice Goldberg pointed out that the offeror with which the Respondent contracted had not met any of the conditions of the tender; did not submit a bid by the appointed date, and did not participate in the contractors’ visit. It was granted a real advantage when it submitted its offer after the maximum was extracted from bidders in the tender, who competed against one another. Justice Goldberg added:

By this bad-faith conduct, the Respondent proved that the tender was meaningless from its point of view, and when it was financially advantageous, it was not deterred from contracting with an entity outside of the tender proceedings. In so doing, the Respondent deviated from the norms of fairness to which it had committed itself in regard to the participants in the tender, and for that reason, it is proper that it be obligated to pay damages to the Appellant with which it had concluded final arrangements (ibid., p. 575).

            Deputy President S. Levin (dissenting) pointed out that, in fact, the parties had concluded a binding contractual agreement, under which the winner would be one who had properly submitted a bid in the framework of “the closed private tender”.  That is what arises from the various documents that the Appellant was required to submit, from the testimony of the parties, as well as from the manner that it chose for contracting (a tender). Justice S. Levin further noted that the Respondent conducted the negotiations with the Appellant in bad faith. On that basis, the appeal was granted. The case was remanded to the District Court to decide “the appropriate remedies for a lack of good faith in contract negotiations” in the circumstances of the case. It should further be noted that the request for a Further Hearing on the judgement was denied (CFH 140/99 Kal Binyan v. A.R.M. Raanana Building and Leasing Ltd. (unpublished).

5.         In the District Court (in the second proceeding), the Appellant requested that it be compensated for the injury it had incurred by reason of loss of expected profits to which it would have been entitled had the contract been concluded with it (“expectation damages”). In this regard, the Appellant submitted to the court an accountant’s opinion as to the expected profit, in accordance with the average profit for projects that the Appellant had completed in the past. The Respondent argued before the District Court that the law does not allow for expectation damages, and that the Appellant’s remedy is limited to compensation for its negotiation expenses (reliance damages).

6.         The District Court (Judge Y. Zaft) adopted the Respondent’s position. It noted that the source for the remedy for breach of the duty to negotiate in good faith is sec. 12(b) of the Contracts (General Part) Law, 5733-1973 (hereinafter: the Law). That provision allows only for reliance damages (which it set at NIS 11,975). The court added that if it would be held (on appeal) that expectation damages should be paid, such had not been proven by the Appellant.  It was held that in order to prove such damages, it would be necessary to submit the opinion of an economist or expert engineer, based upon an analysis of expected costs as against the negotiated amount. That was not done, and therefore the damages were not proved.

7.         This brings us to the appeal before us. The Appellant argues that damages under sec. 12(b) of the Law should not be limited to reliance damages alone. There is also nothing to prevent awarding expectation damages under the provisions of sec. 12(a) of the Law. According to its approach, in special cases in which a contract was nearly concluded, the damages for breach of the good-faith requirement should constitute compensation that would place the injured party in the situation in which it would have been were it not for the breach of the good-faith requirement. This should certainly be the case in tender proceedings whose conditions constitute a “supplementary contract” the breach of which should permit expectation damages. According to the Appellant, the negotiations in this case had nearly ripened to a contract. All the conditions were agreed. All that remained was formal ratification (by the board of directors). As far as the extent of damage was concerned, the Appellant argued that it had provided sufficient foundation for proving the profits it was denied.

8.         The Respondent asked that we dismiss the appeal. The only remedy to which the Appellant is entitled is reliance damages. The case before us does not fall within the scope of exceptional cases in which expectation damages may be awarded. The Respondent’s refusal to conclude a contract was legitimate, as ratification by the board of directors was required. It was further argued that no “supplementary contract” was concluded between the parties. It was also argued that sufficient evidence had not been submitted to prove damages based upon expectation damages.

 

The Normative Framework

9.         The key provision is to be found in sec. 12 of the Law, which states:

Negotiation in Good Faith

12.       (a) In negotiating a contract, a person shall act in a customary manner  and in good faith.

(b) A party to a contract who does not act in a customary manner and in good faith shall be liable to pay compensation to the other party for the damage caused to him in consequence of the negotiations or the making of the contract, and the provisions of sections 10, 13 and 14 of the Contracts (Remedies for Breach of Contract) Law, 5731-1970 shall apply mutatis mutandis.

This provision, and its elder sister that requires good-faith in the performance of obligations deriving from a contract (see sec. 39 of the Law,[1] and the expansion of the obligation under sec. 61(b) of the Law[2]), constitute fundamental provisions of the Israeli legal system, in general, and of private law, in particular. It reflects a “royal” doctrine (see HCJ 1683/93 Yavin PLast Ltd. v. National Labor Court, IsrSC 47 (4) 702, 708). It constitutes the “soul” of the legal system (CA 391/80 Lasarson v. Shikun Ovdim Ltd., IsrSC 38 (2) 237, 264). It requires that the individual act justly and fairly (HCJ 59/80 Beer Sheva Public Transportation Services v. National Labor Court, IsrSC 35 (1) 828, 834). It does not costitute a demand for a high level of “piety”; it does not require that the parties treat one another as angels. It is intended to prevent a situation in which people act toward one another like wolves. It tries to impose a normative framework in which people treat one another as people (see A. Barak, Judicial Discretion (1987), 473. I addressed this in one case in stating:

We do not aspire that the relations between the participants in a tender be like those of angels. The level of conduct of homo homini deus is unattainable. But we reject that the relations between participants in a tender be of homo homini lupus. We aspire that the principle that will guide the conduct of the participants in a tender will be that of a person to a person as a person … (CA 207/79 Raviv Moshe & Co. Ltd. v. Beit Yules Ltd., IsrSC 37 (1) 533, 558; and see LCA 5768/94 A.S.I.R. Import Manufacturing and Distribution v. Forum Accessories and Consumer Products Ltd., 54 (4) IsrSC 289, 414).

…

Justice I. Englard

1.         I concur with my colleague President Barak that a person who does not act in a customary manner and in good faith in contract negotiations may be liable to expectation damages in the framework of his obligation to compensate the other party for the damage he incurred due to the non-conclusion of the agreement. However, it cannot be denied that this rule represents an important innovation on the basis of sec. 12(b) of the Contracts (General Part) Law. My colleague the President well described this background, as well as the pertinent reasons for this desirable result in this area, as expressed in his conclusion.

2.         I asked myself whether the solution to the legal question before us represents filling in a lacuna in the sense of Foundations of Law, 5740-1980, which directs us to the principles of freedom, justice, equity and peace of Israel's heritage. It may be that the recognition of expectation damages is already inherent in the provisions of sec. 12 of the Contracts (General Part) Law, but it may be that that provisions only grant reliance damages, although without constituting a negative arrangement that would prevent expectation damages. Under these circumstances – and under the assumption that the obligation of damages should not be expanded from reliance damages to expectation damages on the basis of analogy – we must find the solution in Israel’s heritage. Whatever the legal situation may be in regard to the Foundations of Law, nothing would prevent – and it would even be proper – that we seek inspiration in the principles of the rich Jewish legal tradition, to the extent that it relates to the matter before us. See the call in this spirit in I. Warhaftig, The Undertaking in Jewish Law: Its Validity, Character and Types, pp. 450-451 (2001) (Hebrew).

3.         The duty to conduct negotiations faithfully is so important in Jewish tradition that observing it is the subject of one of the first questions that a person is asked upon entering the next world: “Raba said: When man is led in for Judgment he is asked, Did you deal faithfully?” (TB Shabbat 31a; see Tosafot on Sanhedrin 7a, s.v. “Ela al divrei torah”; Tosafot on Kidushin 40b. s.v. “Ein tehilat dino”; and see Maharsha [Rabbi Shmuel Eidels (1555 – 1631)], ad loc. And for the halalkha, see: Tur, Orah Hayim 156. It was further said: (Mekhilta DeRabi Ishmael (Horowitz-Rabin ed.), Beshallah. Masekhta deVayisa 1: “‘Doing what is upright in His sight’ [Exodus 15:26], this refers to negotiation, teaching that any who negotiates faithfully and people are pleased with him, Scripture deems it as if he had observed the entire Torah”; CA 148/77 Roth v. Yeshufeh (Construction) Ltd., IsrSC 33 (1) 617, 634, per Elon J.). These sources concern the final judgment in heaven, and the big question is whether this standard of conduct also has legal force in this world, as opposed to merely moral force. In other words, is this duty accompanied – in a case of breach – by a threat of sanction in the form physical coercion by a court, or do we suffice with some lesser sanction?

4.         It should be noted that in a religious normative system, like halakha, the distinction between a moral duty and a legal duty is not as sharp as in a civil legal system. The reason for the gradual transition between the two types of obligations in religious law is that the entire system is given by a single lawmaker, that is, the source of legitimacy of entire system of obligations – legal and moral – is one. Moreover, in the view of a religious person, even punishment at the hand of Heaven, in its various forms, is of great significance, and therefore its threat can be no less effective that the threat of a physical sanction by human beings.

5.         The issue before us is a clear example of what we might speak of as the side-by-side existence of legal and moral obligations in religious law. Of course, the halakhic rule is that words alone are insufficient to create a legally valid contractual obligation, and a means of kinyan [a juristic act of acquisition – trans.] is required, such that the result is that in the absence of a general consensual principle, a party to a contract can withdraw from his promise until the performance of an act of kinyan. The negotiation stage is thus lengthened, and with it the period of the obligation to act faithfully toward the other party. Thus, the halakha establishes moral obligations of increasing severity until the transformation into a contractual obligation of legal force. I will begin with the most severe moral obligation, which operates closest to the transformation [of an agreement – trans.] into a legal obligation. The starting point is in the law that establishes that pulling the chattel (which is an act of kinyan) purchases the money, while the money does not purchase the chattel. The Mishna (Bava Metzia 4:2) states in this regard:

For example, if he [the buyer] pulled fruit from him [the seller] into his possession but did not give him money, he cannot renege. If he gave him money but did not pull fruit from him, he can renege. But they [the Sages] said: He who exacted payment [“mi shepara”] from the generation of the flood and the generation of the dispersion [the Tower of Babel – trans.] will extract payment from one who does not stand by his word.

            Following the Gemara in Bava Metzia 48-49, Maimonides, Hilkhot Mekhira 7:1-2; Tur, Hoshen Mishpat 204, the Shulhan Arukh (Hoshen Mishpat 204) rules:

                        Section 1:

            One who gives money but does not take the chattels, even though he has not purchased the chattels, [nevertheless] as explained, anyone who reneges, whether the buyer or the seller, has not acted in a Jewish manner, and must receive mi shepara, even if he only gave him part of the money.

                        Section 4:

How does one receive mi shepara? He is cursed in court, and told He who exacted payment [mi shepara] from the generation of the flood and the generation of the dispersion, and the people of Sodom and Gomorrah, and the Egyptians who drowned in the sea, will exact payment from one who does not stand by his word.

            The Rema [Rabbi Moses Isserles (1520-1572)] adds in his glosses (Hagahot HaRema, Shulhan Arukh, Hoshen Mishpat 204):

And some say that he is told he will exact payment from you if you do not stand by your word … and some say that he is told in public.

6.         Thus, we have before us the imposition of a severe sanction – an official, public curse – upon a person who reneges on his promise immediately prior to the final act of kinyan. The commentators have addressed the meaning of this curse, which relates to evil people who spoke in vain and did not keep their word, contrary to the words of the Prophet Zephaniah (3:13): “The remnant of Israel shall do no wrong and speak no falsehood; a deceitful tongue shall not be in their mouths  …”. See Maharsha, Bava Metzia 49b, s.v. “Mi shepara”. And see the author of the SM”A [(Rabbi Joshua b. Alexander HaCohen Falk (1555 – 1614), Sefer Me'irat Enayim], on Tur, Hoshen Mishpat 204, in the Perisha,[3] s.v. “Sheyomar lo hadayan”, And see Shulhan Arukh, Hoshen Mishpat 204:8, s.v. “MeAnshei dor hamabul”. According to the SM”A, the punishments imposed upon these people testify to Divine providence, and further see the Tiferet Yisrael commentary [Rabbi Israel Lipschitz (1782–1860)] , on Mishna Bava Metzia 4:2 Boaz[4] ss. 1, in which the author explains that all human sins are due to four reasons: sexual desire, as in the generation of the Flood; honor, as in the generation of the dispersion; greed, as the people of Sodom; denial of Divine providence, like Pharaoh. The author of Tiferet Yisrael therefore concludes:

All these four groups were corrupt and corrupted human society, and breached the boundaries of morality by the four above reasons, and four types of terrible punishments were rained down upon them from Heaven. Therefore, one who does not stand by his word, being from one of those four stated reasons, thereby causes the cessation of people’s faith, and the relationship of human society will be torn and disconnected, like wax melting before fire, and therefore he is reminded of all of the above, and he is told that He who exacted payment from those four groups by great and terrible judgment in fire and water, will also exact payment from one who does not stand by his word, for whatever reason that may be.

            And see Shulhan Arukh, Hoshen Mishpat 204:2:

And moreover, there is no reward for a mitzvah or punishment for a sin in this world, and many people do not fear punishment in the next world, and all they desire is the vanities of this world. Therefore, he is told that He who exacted payment from those in this world, will similarly exact payment from you in this world, and that may cause him to regret and keep his promise.

7.         When the breach of faith in negotiations occurs prior to the act of payment, the halakha imposes a less severe moral sanction, declaring the person who reneged on his promise as lacking in faith, rather than imposing a curse upon him. Thus the halakhic rule (Shulhan Arukh, Hoshen Mishpat 204:7) is:

One who negotiates in words alone should stand by his word, even if he took no money, and did not write or give a bailment, and anyone who reneges, whether the purchaser or the seller, although not required to receive mi shepara, is one who is lacking in faith, and the sages are not pleased with him.

            And see the glosses of the Rema, ibid., at the end of sec. 204:

8.         There are many halakhic disagreements on the boundary between a legal obligation and a moral obligation in regard to promises, as well as on the various institutions that suffice solely with a moral sanction, such as the borderline between “mi shepara”, “lacking in faith”, and “grievance”, as opposed to “piety”. For a detailed discussion, see Warhaftig, ibid., pp. 409-445, and the references there, as well as B. Lifshitz, Promise - Obligation and Acquisition in Jewish Law, 387-389 (1988) (Hebrew), and also compare M. Silberg, The Way of the Talmud, 2^nd ed., 118ff. (1984) (Hebrew).

9.         It should be noted that moral sanctions, as defined by Hans Kelsen – as opposed to legal sanctions – can be divided into negative sanctions and positive sanctions. A negative sanction is, in substance, a punishment intended to deprive some advantage or other benefit from the person who breached a moral obligation. Thus, the receiver is threatened with “mi shepara” because he can be expected to be subjected to Divine penalties that will harm him, that is, a threat of a transcendental punishment. As opposed to this, a positive sanction is a reward that will grant some benefit to the person who fulfils his moral obligation, such as, on the worldly plane, social recognition of his status and virtues. Thus, for example, the idea expressed in Mishnah Shevi’it 10:9: “But if he did keep his word, the sages are pleased with him”, is a positive sanction. And compare Maimonides, Commentary to the Mishnah, Shevi’it 10:9: “His lot is that the Sages love him for this, and what he did is proper in their eyes …” (on the distinction between sanctions as reward and sanctions as punishment, see: H. Kelsen, Reine Rechtslere (Wien, 2^nd Aufl., 1960) at p. 26.

10.       Notwithstanding the formal requirement of kinyan, we find a tendency among halakhic decisors to obligate a person solely on the basis of his promise, if that promise caused another person to rely upon it (Warhaftig, ibid.). One salient example of this tendency can be found in regard to copyright, particularly in the case of publishers of the Talmud who sought to obligate subscribers to purchase the entire set without performing an act of kinyan, see N. Rakover, Copyright in Jewish Law, 414-415 (1991) (Hebrew), and see ibid., particularly the responsum of R. Elazar Moshe Halevi Horowitz, Ohel Moshe, II:138; [Rabbi Abraham Yeshayahu Karelitz, (1878-1953)] Hazon Ish, Hoshen Mishpat, Bava Kama 22; the aforementioned responsum in Warhaftig, ibid., p. 418, and in A. Sagi, Judaism: Between Religion and Morality, pp. 128-130 (1998) (Hebrew), according to whom one may learn from this responsum about the view that there is a natural law system parallel to Torah law.  

11.       Nevertheless, it would appear that the basic principle that the breach of a promise made without kinyan will not be subject to legal sanction – as opposed to moral sanction – continues to be accepted by halakhic decisors. See, e.g., File 1/2/705 (Collected Judgments of the Chief Rabbinate of the Land of Israel, Z. Warhaftig, ed., 64 (Hebrew)), in which the halakhic conclusion is summarized as follows:

1.         The lacking-in-faith rule is appropriate only when the matter is conclusive from both sides, and both parties expressed their resolve, that is, that the taker expressed a conclusive decision to buy, and the seller decisively promised to sell to him. “One who negotiates in words alone is deemed lacking in faith”. The wording of this principle shows that it refers specifically to a case in which there were conclusive negotiations, and nothing was lacking other than kinyan alone.

2.         As for the lacking-in-faith rule when there is a change in price, there is disagreement among the decisors, and one who acts strictly will be blessed, but the court is not empowered to decide strictly in a case of doubt, inasmuch as the matter is not actually d’oraita [derived from the Torah].

3.         The court does not attach property solely due to lack of faith in the absence of kinyan. The court is only required to inform the defendant that he is deemed lacking in faith, and admonish him that he should agree to pay damages, but he cannot be ordered to pay damages in a judgment that can be enforced coercively.

4.         We do not compel to act “beyond the letter of the law” when we have not found this expressly in the Sages. (Ibid., at p. 66).

12.       A separate halakhic issue is that of the responsibility of one who reneges on his word for reliance damages. The assumption is that the other party incurred costs or other damage as a result of his reliance on the promise that was not kept. See Warhaftig, ibid., pp. 426-438, and in particular, see Hatam  Sofer [Rabbi Moses Schreiber (1762–1839)], Yoreh Deah 246 (Hebrew), and compare Responsa Minhat Yitzhak [Rabbi Yitzchak Yaakov Weiss (1902–1989)], IV:104 (Hebrew). It should be noted that there is disagreement among halakhic decisors on this issue, as well.

13.       I will now return to the problem before me – the obligation to pay damages imposed upon a person who breached his duty to negotiate in good faith by failing to conclude the contract at the end of the negotiations, and making a contract with another person. The question concerns imposing expectation damages, as opposed to reliance damages. If we examine the case from the perspective of halakha, we can say that the party is lacking-in-faith. There is support for the view that he halakhically owes reliance damages to the innocent party for the costs he incurred in the course of the negotiations. The big question is whether it is possible, in the framework of applying Jewish law to the civil system, to impose expectation damages, which are an expression of a legal duty to perform the contract even though it was not finally signed.

14.       This question points to the dilemmas faced by the civil court when it seeks to apply Jewish law.  Clearly, this Court is not an institution that decides halakha in matters of religious law. M. Elon, Jewish Law: History, Sources, Principles, vol. 1, 117-118 (1973) (Hebrew) [English: M. Elon, Jewish Law: History, Sources, Principles (Jewish Publication Society, 2003)]) and see FH 23/69 Yosef v. Yosef, IsrSC 24 (1) 792, 811-812, per I. Kahan J. Similarly, the civil court is not empowered to impose moral sanctions on a party, and needless to say, it is not empowered to express extreme imprecations (and there is some doubt as to whether “mi shepara” applies to a corporation; 717/3301/כ"ה (T.A.) A. v. Shikun uPituach, Finance and Development Company of Histatrut Agudat Yisrael, Rabbinical Courts Judgments 6 315). And it is not the role of a court to officially declare him lacking in faith. The declaration that the sages are not pleased with him is also inappropriate to a civil court. The result is that the various types of norms of substantive Jewish law cannot comprehensively be applied to this issue.

15.       Against this background, the question arises as to whether, in the framework of adopting Jewish law, it would be appropriate for the civil court to “develop” the solution presented by Jewish law, and impose a legal sanction in place of the moral sanction established in religious law. In other words, at the first stage, the civil court would adopt the Jewish law concept that it is improper for a party to renege on a promise or act in bad faith in the course of negotiations, but in the absence of a possibility of imposing moral sanction, at the second stage, the court would, on its own initiative, impose a sanction of compelling the party to keep his promise or pay expectation damages to the other party, although that remedy is not to be found in the existing religious law.

16.       On the assumption of a positive response to this fundamental question, this “development” of Jewish law by the civil court might produce an interesting result. It is possible that the rule established by the civil court would be recognized in Jewish law as a custom or as dina demalkhuta [the law of the land], which carries obligatory force in the framework of Jewish law itself. See 717/3301/כ"ה (T.A.), ibid., at p. 322.  But, as noted, it is not my place to make halakhic rulings.

            My colleague the President is of the opinion that awarding expectation damages can be derived from the provisions of sec. 12 of the Contracts (General Part) Law by interpretation. Inasmuch as I approve of that possibility, I see no need to decide the aforementioned fundamental questions in regard to the application of Jewish law.

 

Decided in accordance with the opinion of President Barak

Given this day, 5 Adar 5762 (Feb. 17, 2002).