This translation only covers the dissent by Justice Englard and a portion of the response by Justice Turkel.

LCA 6339/97

 

 

Appellants:                              1.  Moshe Roker

                                                2.  Rina Roker

 

                                                            v.

 

Respondents:                          1.  Moshe Solomon

                                                2.  Hanna Solomon

                                                3.  Yair Barker

                                                4.  Yaale Barker

 

 

The Supreme Court as Court of Civil Appeals

[Dec. 23, 1999]

Before: President A. Barak, Deputy President S. Levin, and Justices E. Mazza, N. Cheshin, T. Strasberg-Cohen, J. Turkel, I. Englard

 

Judgment

 

Justice I. Englard:

            We are addressing this request for leave to appeal as if leave were granted, and as if an appeal was filed in accordance with the leave granted.

1.         Before us is a dispute among neighbors in a condominium, which has persisted for over ten years. The reason for the dispute is construction carried out in the common property of the building by the owners of one apartment. After several cycles in the courts, an order was issued against the owners of one apartment (hereinafter: the Appellants), pursuant to the request of the owners of two other apartments (hereinafter: the Respondents), requiring the Appellants to restore the situation ad integrum, and demolish any construction performed by them in the common property, as well as to return joint possession of the entire common property seized by the Appellants to the Respondents. The Appellants were also ordered to pay the Respondents damages for suffering and loss of enjoyment of the common property, in the amount of NIS 10,000.

2.         An appeal was lodged in the District Court against this judgment issued by the Haifa Magistrates Court on Nov. 5, 1996, by Judge R. Tovi-Friedman. That appeal was dismissed on Sept. 28, 1997, in a judgment by President M. Slutzky, Judges S. Finkelman and S. Wasserkrug concurring. The court reemphasized that any change in the common property requires the prior approval of a general meeting of the apartment owners; that any construction in the common property without consent is an infringement thereof, and constitutes a permanent deprivation of its use by the other apartment owners; that any infringement of the common property, even without any attendant damage, is sufficient to justify a restraining order; and that a building permit does not, in and of itself, legitimize construction involving infringement of the property rights of other apartment owners in the common property. The District Court therefore ruled that inasmuch as the Respondents had been harmed by the erection of a structure on the common property without their consent, they are entitled to the remedy of restitutio ad integrum by means of a demolition order, and to being granted the possibility of using the common property. They Respondents were also entitled to damages for suffering.

3.         That judgment of the Haifa District Court is the subject of the appeal at bar. Actually, the Appellants do not dispute the legal presumptions of the trial court. Their main argument is that the circumstances of the matter do not justify an order to demolish the structure unlawfully built on the common property. In other words, their claim is that the court should exercise discretion in regard to the remedy of demolition. Indeed, the questions as to whether a court has such discretion in the case of construction on another’s land – and if so, how to exercise it – are new, and of significant legal importance. Therefore, after hearing the arguments of the parties, the original panel decided that the proceedings would continue before an expanded panel of this Court. In view of the expansion of the panel, the President ruled that the parties would be permitted to submit written summaries of their arguments, and that the decision would be made on the basis of the material in the Court’s file, with the addition of the briefs submitted by the parties, without need for further supplemental pleadings. This was, indeed, done. We reviewed the material in the file, and the briefs submitted by the parties, and decided, as stated, that due to the importance of the subject, leave to appeal would be granted.

4.         The starting point of our examination is that the Appellants’ construction on the common property was unlawful. Therefore, in principle, the Respondents have a right to restititio ad integrum. Thus, exercising discretion by the court to refrain from demolishing the structure is not a matter of course, but rather depends upon the special circumstances of the instant case. Therefore, the details of the case regarding the conduct of the parties, as well as the external circumstances, are of importance. I will present them in brief:

(a)        We are concerned with a four-apartment condominium built in the nineteen fifties. In the early nineteen eighties, it became known that it was possible to increase the floor-area by some 40%, totaling about sixty square meters. The homeowners’ committee held several meetings to consider expanding the various apartments. The Appellants, who were interested in executing a plan to expand their apartment, submitted a request for a building permit in 1986.The Respondents submitted an objection to the plan, and the local committee decided to conduct an inspection of the building, which took place on Nov. 19, 1986. On Jan. 5, 1987, the local committee decided to grant a building permit subject to several conditions, among them that separate storage units would be built for the Respondents in place of the area that they had been using in the existing bomb shelter. It should be noted that the loss of the use of the shelter as a storage area was one of the reasons for the Respondents’ objection to the request for a building permit. The Respondents appealed the decision before the district committee, which decided to deny the appeal on May 14, 1987.

(b)        On June 1, 1987, the Respondents filed suit in the Haifa Magistrates Court for a permanent injunction against the Appellants. The Respondents also filed a motion for a temporary injunction, which was granted on Nov. 16, 1987. The Magistrates Court handed down its decision on Sept. 5, 1989, denying the Respondents’ suit for a permanent injunction, on the grounds that the Respondents had consented in principle to the expansion of the Appellants’ apartment. However, the Magistrates Court left the temporary injunction in place pending appeal. The appeal was filed on Sept. 13, 1989, but a request to extend the temporary injunction was denied by the District Court on Oct. 10, 1989. On Dec. 19, 1989, the Haifa District Court decided to prevent the Appellants from continuing construction beyond what had been completed to that date. However, in the interim period during which there was no injunction in force – that is, between Oct. 10, 1989 and Dec. 19, 1989 – the Appellants succeeded in completing the expansion of the apartment in accordance with the plan.

(c)        The Respondents’ appeal to the District Court was granted on Aug. 29, 1990, holding that there was no basis for the Magistrates Court’s finding in regard to the Respondents’ consent to the construction plan. The result was that, in the framework of this suit, the Appellants were prohibited from performing any further construction. The court added that “this does not represent any finding on the question of whether the Appellants (the Respondents before us – I.E.) can now institute new proceedings for restoring the situation to its original state”. The Appellants were granted leave to appeal by this Court, but ultimately withdrew their appeal, and it was therefore dismissed on March 8, 1995.

(d)       After the conclusion of the first campaign – successfully from their perspective – in the District Court, the Respondents began the current campaign to restore the situation to its original state by demolishing the structure. I will briefly describe the construction. The Appellants are the owners of the apartment on the first floor. Part of the apartment rest on columns, and part on the shelter. The Appellants closed in the space between the columns, attached part of the shelter to it, and added an addition on the side of the building, on the lawn. In place of part of the shelter, they built – in accordance with the requirements of the local committee – two storage units behind the shelter, in conformance with standards, while apparently excavating the property slope. According to an expert estimate from 1995, the cost of removing the construction stands at some NIS 40,000, while restoring the lawn and garden would cost some NIS 50,000.

5.         It is true that the Appellants carried out the construction when there was no injunction in force, and while the judgment of the Magistrates Court permitting the construction still stood. However, upon the overturning of that judgment upon appeal, their construction on the common property became (retroactively) illegal. Moreover, the District Court rightly held in the current campaign that the Appellants cannot claim to have acted in good faith. As stated, the Respondents filed an appeal against the decision of the Magistrates Court ten days after it was given. The Appellants were aware of the determined objection of the Respondents, and therefore good faith cannot be claimed in regard to the construction in the disputed area, not to mention that the judgment in their favor had not, at the time, become final.

6.         I will, therefore, return to the question of principle: Does the court have discretion in regard to the remedy of demolition of the structure under these circumstances of unlawful construction in the common property?

…

21.       However, for the purpose of finding a source for preventing abuse of a right, we do not actually have any need to graze in foreign pastures. This concept is clearly expressed in Jewish legal tradition in the famous principle stating: “kofin al midat s’dom” [“one may be compelled not to act meanly”] ^[1] (Ketubot 103a; Eiruvin 49a; Bava Batra 12b; 59a; 168a). This combination of manner and compulsion is unique to the Jewish conception of the role of the state, which is not limited to the interpersonal area – in accordance with the approach of the liberal state – in preventing harm to another person. Rather, as Maimonides defined it, the Law of Moses is intended to bring the human being to a state of moral perfection and intellectual perfection, where the last is the primary objective of humankind (Guide for the Perplexed, III:54). However, in this area of moral perfection, Judaism, too, was also aware of the Kantian problem of enforcing morals. In Kant’s view, the law, as a normative system of external compulsion, stands in contrast to morality as a normative system that we must obey from a recognition of internal obligation. The Sages, as well, were of the opinion that coercing an individual to act morally is far from moral perfection. It is against the background of this tension between compulsion and personal moral perfection that we can understand the halakhic disagreements concerning the scope of legal compulsion in regard to “midat s’dom”.

22.       As Rabbi A. Lichtenstein pointed out in his deeply illuminating article LeBeirur ‘Kofin al Midat S’dom’, Hagut Ivrit Be-Amerika, vol. I, 362 (1973) (Hebrew), to the best of his knowledge, there is no source in early rabbinic literature that describes this type of conduct [midat s’dom] in abstract, universal terms. One important source that refers to the general nature of midat s’dom as a human characteristic is to be found in the Mishna (Avot 5:10):

There are four types of character in men: He that says “Mine is mine, and yours is yours” – this is the middle [neutral] quality, and some say this is midat s’dom. He that says “Mine is yours and yours is mine” – is an am ha’aretz [uneducated person]. He that says “mine is yours and yours is yours” – is a pious person. He that says “Mine is mine and yours is mine” – is a wicked person.

            It would seem that we have here a tannaitic[2] dispute as to the character of one who says “mine is mine, and yours is yours” – is this morally neutral or midat s’dom? Many scholars have made exerted efforts to clarify the relationship between the two views, and the prevailing approach is to harmonize the two. In principle, “mine is mine, and yours is yours” is the legal approach, and is necessarily value-neutral, inasmuch as its purpose is to preserve the “his” of each person. Rashi may be pointing this out in his commentary to Avot in stating (ad loc., s.v. “zo mida beinonit”): “As we found in regard to Samuel of Ramah, of whom it was said: ‘Then he would return to Ramah, for his home was there’ (I Samuel 7:17)”. It would seem that Rashi’s intention is to refer us to the continuation of the verse: “and there he would judge Israel”. In other words, he had clean hands because he took care not to benefit from others, as he and all Israel testify: “you have found nothing in my possession, and they responded ‘He is’” (I Samuel 12:5). Thus, that is the proper legal value: to protect a person’s rights against harm by another. Notwithstanding the desire for moral perfection, Judaism does not coerce a person to the pious manner of “mine is yours, and yours is yours”. However, in special circumstances, the neutral manner of “mine is mine, and yours is yours” may – as “some say” – become an actual midat s’dom. That would occur when a person who behaves in that manner puts the emphasis on “mine is mine”, while absolutely ignoring the interests of others. A salient example of such a situation is preventing benefit to another in a situation of “this one benefits, and the other loses nothing”, see Rashi, Eiruvin 49a, s.v. “midat s’dom”: “sheli sheli”.

23.       Indeed, in the view of the “Rishonim”,[3] the focus of the Talmudic discussions treating of midat s’dom is on the factual situation – that itself became a legal principle – of “this one benefits, and the other loses nothing”. The conception is that when a person deprives another of benefit, where that benefit costs him of nothing, his conduct is deemed midat s’dom, and the law will compel him to desist. There are many, lengthy disputes among Talmudic sages and later halakhic decisors in regard to the details of the rule, and this is not the place for examining them. For an examination of the subject in modern literature, see, in addition to Rabbi Lichtenstein’s article, N. Rakover, Unjust Enrichment (5748) (Hebrew), A. Weinrot, Abuse of Rights in Jewish Law (“Kofin al Midat S’dom”), 18 Dinei Yisrael 53 (5755-5756) (Hebrew);  Shmuel Shilo, Kofin Al Midat S’dom: Jewish Law’s Concept of Abuse of Rights, 15 Is.L.Rev. 49 [abstract and full text available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2676836].

24.       It would appear that the scope of incidence of the “kofin al midat s’dom” rule in the framework of the principle of “this one benefits, and the other loses nothing” may be broader than that of the accepted doctrine of abuse of rights. While there are many disagreements among halakhic scholars on the question of the existence of a loss by the owner of the property, it would seem that in some cases the status of the “beneficiary” in halakha is preferred to that of the person relying on the doctrine of abuse of right in most, if not all, legal systems. However, the opposite situation – in which the balance of interests on the basis of a utilitarian test does not correspond with the principle of absence of loss according to the halakhic tests – is also possible.  In such a situation, the result may be that the status of the “beneficiary” would be preferred under the doctrine of abuse of right.

25.       For our purposes, I will suffice with one example from halakha according to which a person is permitted to trespass upon another’s property on the basis of the principle of “this one benefits, and the other loses nothing” as an expression of “kofin al midat s’dom”.  I am referring to the rule established by the Shulhan Arukh in accordance with Maimonides – contrary to the objection of Rabbeinu Yaakov Baal HaTurim [Rabbi Jacob Ben Asher, ca. 1269-1343, author of the Arba’ah Turim  [a.k.a. the Tur) – trans.] – in regard to “one who places a small ladder that does not have four rungs in the courtyard of his neighbor or in his field …”. The owner of the property cannot prevent the owner of the ladder from placing his ladder for his own use, as long as it causes no harm to the former. See Maimonides, Mishneh Torah, Hilkhot Shekhenim 7:8; 8:4; 12:1-4. “… however, if he paced a small ladder, he cannot prevent it, since they say to him: you suffer no loss thereby, as whenever you wish, you can remove it”, and see the Magid Mishneh [Rabbi Vidal of Tolosa (14^th cent.)] commentary ad loc: “This is not mentioned in the discussion in the Gemara, but it is mentioned in the Gemara in regard to many rules where as long as this one benefits and the other suffers no loss, kofin oto al midat s’dom …”.  As opposed to this, see Tur, Hoshen Mishpat 153, which adds, after quoting Maimonides: “and this would not seem so, as how can he use his neighbor’s [property] against his will”?!. This objection by the Baal HaTurim is rejected by his commentators the Bayit Hadash [Rabbi Joel Sirkis (1561-1640)] and the Beit Yosef [Rabbi Joseph Karo (1488-1575), author of the Shulhan Arukh] ad loc. The Bayit Hadash notes that “when it involves no invasion of privacy, and his anger is solely due to the trespass, kofin al midat s’dom”. And see: Tur, Hoshen Mishpat 173, and the Bayit Hadash, ad loc., ss. 3. For the halakha, see Shulhan Arukh, Hoshen Mishpat 173:13, and the commentaries ad loc.    

 26.            It is only proper that Jewish law serve as a source of inspiration in interpreting the provisions of sec. 14 of the Land Law, and not just due to its obscure, incoherent language.  In my view, it would be appropriate that the clear moral tendency found in the Jewish legal tradition in regard to the concept of ownership, the purpose of which is to limit a person’s rule over his property, would find expression in the law of the State of Israel as a Jewish and democratic state. I would note that in addition to the personal moral dimension of the rule “kofin al midat s’dom”, the rule also comprises what may a more important social dimension. After all, it was the absence of this moral dimension that sealed the fate of the people of Sodom for whom the principle is named. See: Sanhedrin 1099a, and see Ezekiel 16:49; “Only this was the sin of your sister Sodom: Arrogance! She and her daughters had plenty of bread and untroubled tranquility; yet she did not support the poor and the needy”.

27.       From all of the above, we may, therefore, conclude that the doctrine of abuse of right in land has gained a place in our law, and in that framework, the principle of kofin al midat s’dom, as well. In light of this development, we should reexamine the approach of President Olshan, as expressed in CA 281/61 Shlusser v. Katz, IsrSC 15 2329, 2333. First, President Olshan holds as follows:

If a suit for an injunction is filed against a respondent who is a trespasser, the latter cannot object by claiming that the injunction, if granted, would severely infringe his vital interests …

Therefore, despite the rule that granting an injunction is discretionary, the respondent must first show some grounds for his claim that the complainant must grant him a right to pass through the disputed property. 

And he continues:

A person cannot demand some benefit in another’s property simply because it is convenient for him or because he requires it and the matter does not cause any harm whatsoever to the other, even if this person’s difficulty may lead people to sympathize with him. Moral considerations should not be confused with equitable considerations in the legal sense. When a matter is dependent on the goodwill of the other, “goodwill” should not be imposed upon the other for equitable considerations. We have never heard of such a rule.

…

35.       As noted, the abuse of right doctrine should not be limited to cases of an improper motive by the complainant. The additional test – as we see in the aforementioned Swiss case – is an objective assessment of the mutual interests in light of the circumstances of the case. In weighing the mutual interests of the parties, I am of the opinion that a demolition order would constitute an abuse of the property right in the common property. Demolishing the addition to the apartment, demolishing the storage units built in accordance with a building permit, and restoring the situation to its original state do not stand in a reasonable relationship to the – somewhat abstract – fundamental interest of the Respondents in maintaining the totality of their right in the common property. The balance of interests clearly tends in favor of preserving the existing situation, while awarding damages to the other residents for the infringement of their right to use the common property.

36.       This conclusion is clearly consistent with the spirit of the tests under sec. 74 of the Civil Wrongs Ordinance [New Version], and it is proper that, as far as possible, the considerations for granting parallel remedies according to the two systems, which both serve the objective of directly protecting property interests, be consistent. Moreover, it would appear that the solution of awarding damages rather than ordering demolition is also consistent with the Jewish law approach under the principle of “kofin al midat s’dom”. Although the owners suffer some loss of the use of the common property, in light of the “beneficiary’s” willingness to pay for the use of the common property it would seem that demolition of the structure would, under the circumstances, constitute midat s’dom that might, perhaps, also comprise an element of “bal tashhit” [“do not destroy/waste”]. (See Maimonides, Mishneh Torah, Hilkhot Melakhim 6:10: “Not only trees, but anyone who breaks utensils, tears garments, and destroys buildings … transgresses the command of do not destroy …”. However, it should be noted that takanat hashavim [rehabilitation] does not apply to cases of trespass upon property in the halakhic sense. See: Tur, Hoshen Mishpat 376, Beit Yosef and Bayit Hadash,  ad loc., quoting Rashba (Responsa Rashba, III:188, and particularly see Or Same’ah, II:11.The Author [i.e., R. Joseph Karo, author of the Shulhan Arukh – trans.] disagrees with the Responsa Mabit [R. Joseph b. Joseph di Trani (1505-1585)] III:143, who was of the opinion that a distinction should be drawn in regard to takanat hashavim in regard to real property, whether accidental or willful. The Or Same’ah [R. Meir Simcha of Dvinsk (1843–1926)] also disagrees with this idea, which appears in Sha’ar Mishpat [R. Israel Isser b. Zeev Wolf (ca. 1750–1828)] 360, according to which an accidental trespasser can prevent the demolition of his structure by paying the property owner for his land. The author of Sha’ar Mishpat premises this idea – intended to prevent substantial loss – on the principle of returning lost property in the framework of “swarms of bees” (Bava Kama 114a-b). On this issue in practice, see: Maimonides, Mishneh Torah, Hilkhot Gezeila vAveida 6:14; Tur, Hoshen Mishpat 274, 370; the gloss of the Rema [R. Moses Isserles (1520-1572)] on Shulhan Arukh, Hoshen Mishpat 274. Indeed, even in halakha we find many opinions in regard to the scope of kofin al midat s’dom in the context of “this one benefits, and the other loses nothing”. We would note in this regard, the comments of the Ba’al HaNetivot [R. Jacob b. Jacob Moses Lorberbaum  of Lissa (1760-1832)] in his Mishpat HaUrim commentary on Shulhan Arukh, Hoshen Mishpat, 154:3:

And if one loses a small amount and one a large amount, it would seem that he makes up for him the small loss, as kofin al midat s’dom, but only when it is solely a monetary loss, but if the loss is in the land itself, he can say that land is worth a lot to me, as we see in Bava Kama 12 [b] see there.

            This is not the place to elucidate the distinction between a monetary loss and a loss of the land itself (compare, in general, the abovementioned article by Weinrot, p. 71ff.), nor is it my place to decide halakha. It is sufficient to note that making up for a loss by monetary payment is a consideration in the halakhic sources in the framework of kofin al midat s’dom.

            Therefore, if my opinion were adopted, the appeal would be granted, and the judgments of the Magistrates Court and the District Court would be vacated in regard to the remedy of restitutio ad integrum. Inasmuch as my conclusion is not acceptable to my colleagues, I see no reason to address the question of payment of damages by the Appellants for their use of the common property.

 

Justice J. Turkel

“Ha! he who builds his house with unfairness, and his upper chambers with injustice” (Jeremiah 22:13).

Introduction

1.         I will begin by presenting the main points in utmost brevity. The owners of an apartment in a condominium extended their apartment by building on the common property without the consent of the other apartment owners. The Magistrates Court and the District Court granted the suits of the latter, and ordered that the trespassers restore the situation to its original state by demolishing the structure that they built on the common property, and returning possession to the joint owners. The trespassers were also ordered to pay damages to the other apartment owners for their suffering. In the opinion of my esteemed colleague Justice Englard, for reasons that he presented in detail, the significant expense that would be borne by the Appellants in restoring the situation to its original state tip the scale in their favor, and therefore, the judgments of the lower courts should be vacated. I will put the cart before the horse and say that I utterly reject that conclusion.

…

Kofin al Midat S’dom?

22.       I will briefly address the approach of Jewish law, if only to set the halakha – or what I believe to be the halakha, in my humble opinion – straight, and “to exalt the Torah”.

            The principle of “kofin al midat s’dom” (Mishna, Avot 5:10; TB Bava Batra 12b; 13a; 59a; Ketubot 103a; Eiruvin 49a; Maimonides, Hilkhot Shekhenim 7:8; 12:1-4) – which means: a person is coerced not to act in the manner of the people of Sodom – is an important principle established by the Sages in Jewish law’s rules of equity. But this rule does not have the power to uproot a positive commandment of the Torah. The Torah expressly states: “You shall not move your neighbor’s landmarks, set up by previous generations, in the property that will be allotted to you in the Land” (Deut. 19:14), and Rashi explains: “You shall not move [lo tasig] [your neighbor’s] landmark: A term similar to ‘they shall be turned back [nasogu ahor]’ (Isa. 42:17). That he moves the boundary marker of the land backwards into his neighbor’s field in order to enlarge his own. But has it not already been stated: ‘You shall not commit robbery’ (Lev. 19:13)? What does ‘You shall not move [your neighbor’s landmark]’ teach us? It teaches us that one who uproots his neighbor’s boundary transgresses two negative commandments. One might think that this applies even outside the Land of Israel. Therefore it says, ‘the property that will be allotted to you in the Land’. In the Land of Israel one transgresses two negative commandments, whereas outside the Land of Israel, one transgresses only the commandment of ‘you shall not commit robbery’.” This commandment was also stated in the ceremony of the blessings and the curses on Mount Gerezim and Mount Ebal: “Cursed be he who moves his neighbor’s landmark” (Deut. 27:17). And Rashi explains there: “Who moves back his neighbor’s landmark, moving it back and stealing the land. A term similar to ‘is turned back [vehusag ahor]’ (Isa. 59:14).” (Rashi, Deut. 27:17). Thus, we do not make recourse to the principle “kofin al midat s’dom” to allow an act of uprooting a boundary and stealing land.

            Moreover, an examination of the sources appears to show that this principle was not employed in a manner that infringes rights in real property. It would seem that the only instance that might arguably be seen as an infringement of real-property rights is that of recourse to the principle in order to prevent a person from opening a window in a wall of his house that would overlook his neighbors’ courtyard (TB Bava Batra 59a); Maimonides, Hilkhot Sekhenim 7:8. It should be noted that Maimonides’ approach in this regard was criticized by the most respected halakhic decisors, who took pains to distinguish and restrict the rule. In any case, it would seem to me that, at the end of the day, we may conclude that the view of halakhic scholars is that, as a rule, a person cannot be compelled to waive his property rights and permit others to benefit from his property, even if the matter involves no economic cost whatsoever. And indeed, even according to the approach of those who hold that compulsion is possible in some situations, we do not employ the principle of kofin al midat s’dom in regard to substantive property interests (see Weinrot’s interesting article, Abuse of Rights in Jewish Law (“Kofin al Midat S’dom”), 18 Dinei Yisrael 53 (5755-5756) (Hebrew), and the references cited there and elsewhere. And see CA 538/80 Zarhi (Avrahami) v. Koresh, IsrSC 36 (3) 498, in which the Supreme Court, per Sheinbaum J., rejected the use of the principle in a similar case).

            Thus, the principle “kofin al midat s’dom” cannot serve the Appellants, who, as stated at the outset, built what they built unjustly and unlawfully.

 

           

 

 

 

HCJ 3914/92

 

Petitioners: 1. Leah Lev

                  2. Liron Lev, Minor

                  3. Ido Lev, Minor

                  4. Roi Lev, Minor

                                                                        v.

 

1. Tel-Aviv-Jaffa Rabbinical Court
2. Supreme Rabbinical Court of Appeals
3. Ran Lev

 

In the Supreme Court sitting as the High Court of Justice

[February 10, 1994]

Before Deputy President A. Barak and Justices S. Levin and D. Levin

 

 

 

 

[1]   CA 26/51 Kotik v. Wolfson, IsrSC 8, 1341

[2]   CA 99/63 Peleg et al. v. Attorney General, IsrSC 17, 1122

[3]   HCJ 136/54 Pollack v. Herzog et al., IsrSC 9, 155

[4]  HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court  et al., IsrSC 15, 106

[5]   HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals et al., IsrSC 40(3) 699

[6]   HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court et al., IsrSC 48(3) 203

[7]   ST 1/60 Winter v. Beeri, IsrSC 15, 1457

[8]   CrimA 230/56, 4/57 Shorer v. Attorney General, IsrSC 11, 750

[9]   FH 22/73 Ben Shahar v. Mahlev, IsrSC 28(2) 89

[10] HCJ 547/84 Of Ha’emek, Registered Agricultural Cooperative Association v. Ramat Yishai Local Council et al., IsrSC 40(1) 113

[11] MApp 613/82 State of Israel v. Awad, IsrSC 36(3) 612

[12] HCJ 991/91 David Pasternak Ltd. et al. v. Minister of Construction and Housing et al., IsrSC 48(5) 50

[13] HCJ 355, 370, 373, 391/79 Katalan et al. v. Prisons Service et al. IsrSC 34(3) 294 [http://versa.cardozo.yu.edu/opinions/katlan-v-prison-service]

[14] HCJ 14/51 Attorney General v. Editor of “Davar” et al., IsrSC 8, 1017

[15] BAA 663, 691, 5145/90 A. v. Israel Bar Association District Committee of Tel Aviv – Jaffa, IsrSC 47(3) 397

[16] MApp 678/82 Tayar v. State of Israel, IsrSC 36(3) 386

[17] CA 703/70 Somech v. Ozer et al., IsrSC 24(2) 799

[18] CA 230/69 Kaneti v. United Shvili Film et al., IsrSC 23(1) 505

[19] LA 451/85 Adin Marketing Company Ltd. v. Flatto Sharon, IsrSC 39(3) 303

[20] CA 548/78 A. et al. v. B., IsrSC 38(1) 736

[21] LCA 26/89 Mashraki et al. v. "Rotem" Insurance Company Ltd., IsrSC 42(4) 348

[22] LCA 18/89 Pichman v. Bank Leumi Leyisrael Ltd., IsrSC 42(4) 513

[23] HCJ 243/62 Israel Film Studios Ltd. v. Levi Geri et al., IsrSC 16, 2407; IsrSJ 4, 208 [English]

[24] CrimApp 6654/93 Binkin v. State of Israel, IsrSC 48(1) 290

[25] HCJ 323/81 (Mot 533/81) Vilozny v. Supreme Rabbinical Court in Jerusalem, IsrSC 36(2) 733

[26] HCJ 158, 2130/66 Segev et al. v. Rabbinical Court et al., IsrSC 21(2) 505

[27] HCJ 10/59 Levi v. Tel Aviv Rabbinical Court et al., IsrSC 13 1182

[28] HCJ 155/65 Gurovitz v. Tel Aviv Rabbinical Court et al., IsrSC 19(4) 16

[29] HCJ 95/63 A. v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 17, 2222

[30] HCJ 161/64 Mussman v. Haifa Rabbinical Court et al., IsrSC 18(3) 502

[31] HCJ 816/80 Gotthelf v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 38(3) 561

[32] HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court, IsrSC 9, 1193

[33] HCJ 7/83 Biaris v. Haifa Rabbinical Court et al., IsrSC 38(1) 673

[34] HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court, IsrSC 20(2) 342

[35] HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court, IsrSC 46(2) 1

[36] HCJ 1689/90 Aasi v. Central District Sharia Court, IsrSC 48(5) 148)

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

[38] HCJ 80/93 Gurfinkel v. Minister of the Interior, IsrSC 17, 2048

[39] CA 303/57 Reich v. Hammer,  IsrSC 11, 1362

[40] HCJ 111/53 Kaufman v. Minister of the Interior, IsrSC 7, 534

[41] HCJ 190/57 Assaig v. Minister of Defence, IsrSC 12(1) 52

[42] HCJ 505, 496, 488/83 Baransi v. Director of the Visa and Nationality Dept; Dasuki v. Minister of the Interior et al., IsrSC 37(3) 722

[43] HCJ 448/85, HCJApp 32, 5/86 320, 284/85 Dahar et al. v. Minister of the Interior,  IsrSC 40(2) 701

[44] MApp 1064/86 Archbishop Ajamian v. State of Israel, IsrSC 41(1) 83

[45] FH 9/77 Israel Electric Corporation. v. “Ha’aretz” Newspaper Ltd., IsrSC 32(3) 33; IsrSJ 9, 295

[46] LA 558/85 Ilin et al. v. Rotenburg et al., IsrSC 40(1) 553

[47] HCJ 869, 852/86 Aloni et al. v. Minister of Justice et al., HJCApp 521, 523, 543, 518, 515-512, 507, 502, 487, 486, 483/86 IsrSC 41(2) 1

[48] HCJ 578/82  Naim v. Jerusalem District Rabbinical Court et al., IsrSC 37(2) 701

[49] HCJ 403/71 Alkourdi v. National Labor Court et al., IsrSC 26(2) 66

[50] ST 1/50 Sidis v. Chief Execution Officer, Jerusalem et al., IsrSC 8, 1020

[51] CA 174/83 N. Soher v. P. Soher, IsrSC 38(2) 77

[52] HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court et al., IsrSC 26(2) 765

[53] HCJ 428/81 unreported

 

Labor Court cases cited:

 

[54] ] LC 52/8-4; 7-41 unreported

 

United States cases cited:

 

[55] Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)

[56] Matter of Alamance County Ct. Facilities, 329 N.C. 84, 405 S.E.2^nd 125 (1991)

 

 

 

 

Petition for an order nisi. The case was heard as if an order nisi were grated. The petition was granted, and the order nisi was made absolute.

 

M. Bar Shilton, Y. Bar Shilton – on behalf of the Petitioners

Y. Sidi – on behalf of Respondent 3

 

JUDGMENT

 

Deputy President A. Barak: The question before the Court in this petition is: What considerations may a Rabbinical Court take into account when considering whether or not to grant a writ ne exeat republica?

 

The Facts

 

1. Petitioner 1 (hereinafter: the Petitioner) and Respondent 3 (hereinafter: the Respondent) are married. They have three minor children (Petitioners 2, 3 and 4). Disputes arose between the Petitioner and the Respondent. The Petitioner filed a claim for child support and custody in the District Court (on May 10, 1992). She also sued for divorce in the Rabbinical Court. In response, the Respondent filed suit for marital reconciliation with the Rabbinical Court (Respondent 2). In the framework of the suit for marital reconciliation, the Respondent requested that the Tel Aviv-Jaffa Rabbinical Court issue a writ ne exeat republica to prevent the Petitioner from leaving Israel. The request stated that "for some time, the wife has been having an affair with a foreign man who is a resident of the United States, and it is her present intention to leave Israel, to move to the United States with the children, and  to live there with this man". The Rabbinical Court, in the presence of the Respondent alone, issued an order barring the Petitioner and her children from leaving the country. The Petitioner requested that the Rabbinical Court rescind the order. The request noted that the Petitioner and her eldest daughter (Petitioner 2) wished to go abroad for two weeks. The vacation was planned long in advance and was "meant as a bat-mitzvah gift for the daughter". The two sons (Petitioners 3 and 4) would remain in Israel. The Petitioner has an active business in Israel, and there is no concern that she might not return to Israel. The Respondent objected to this request. In the meantime, the original date for the Petitioner's departure from Israel passed. She amended her request to a new date (August 14, 1992), adding that she was also combining a business trip in her trip and that preventing her from leaving would inflict severe monetary damage.

 

The Proceeding before the Rabbinical Court

 

2. The Tel Aviv-Jaffa Rabbinical Court held a hearing in the presence of the parties (on August 2, 1992). The relationship between the parties was described in the course of the hearing. The Respondent stated that a foreign man disrupted the couple's marriage. According to the Respondent, the purpose of the Petitioner's travel abroad was to meet with the foreign man and to have intimate relations with him. The Petitioner emphasized the rift in their personal relationship. She stated that the purpose of the trip was an excursion (as a gift to the daughter) and business enquiries. At the end of the hearing (on July 30, 1992), the Rabbinical Court reached the following decision:

 

Having heard the arguments and responses of the parties and their attorneys, in light of the material presented to us, and in view of the claims of the husband who claims and who fears that the wife's travel abroad at this stage would cause a final and irreparable rift between them, this court decides – at this stage – not to grant the wife's request to rescind the writ ne exeat republica against her. The court will hold an additional hearing on the matter of the wife's request on the 24^th of Elul, 5752 (September 22, 1992) at 9:00 a.m. The parties are required to negotiate an appropriate solution which will enable them to travel abroad together, or will enable the wife to travel separately under such terms as will abate the husband's concerns.

 

An application for leave to appeal this decision was filed with the Supreme Rabbinical Court. The court was asked to schedule an urgent date for a hearing in order to allow the Petitioner to leave Israel on the date she requested, so that she and her daughter would be able to return to Israel in time for the beginning of the school year. The Supreme Rabbinical Court denied the application for leave to appeal (on August 6, 1992), ruling:

 

Inasmuch as the Regional Court decided to schedule an additional session to continue the hearing, it is inappropriate to hear the appeal at this stage .

 

The petition before us was filed against these Rabbinical Court decisions.

 

 

The Parties' Arguments

 

3. The Petitioners claim that the reason that was given by the Regional Rabbinical Court to bar their exit from the country – how the departure would affect the couple's relationship – is invalid. This reason is contrary to the Rabbinical Court's own approach and to the case law of the civil courts. It is repugnant to the provisions of Basic Law: Human Dignity and Liberty. This Basic Law establishes the right of every person to leave Israel. Against this background, granting a writ ne exeat republica must be limited to securing a party's appearance in court and guaranteeing the monetary rights of the other party. It was further argued that the Rabbinical Court lacked authority to prevent the daughter from leaving the country.

 

4. In his response, the Respondent argues that he seeks to achieve marital reconciliation. The court acted within this framework and did not act ultra vires. There is a concern that the Petitioner may not return to Israel for the Rabbinical Court's hearings and will thereby frustrate the claim for marital reconciliation. The Petitioner must wait until the hearing in the Regional Rabbinical Court is exhausted.

 

5. Upon the commencement of the hearing (on August 13, 1992), (at the consent of the parties) we treated the hearing as though an order nisi had been granted. After hearing the parties' arguments, we made the order absolute and cancelled the writ ne exeat republica against the Petitioners. We instructed that the cancellation of the order be conditioned upon the Petitioners' furnishing a personal bond securing their return by September 15, 1992, and a third-party guarantee in the amount of NIS 100,000.

 

We ruled that the Respondent will bear the Petitioners' costs in the amount of NIS 10,000. We instructed that our reasons will be given separately. These are our reasons.

 

The Normative Framework

 

6. The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: the Rabbinical Courts Jurisdiction Law) sets forth the normative framework of the rabbinical courts' jurisdiction. The law establishes the jurisdiction of the rabbinical courts over matters concerning the personal status of Jews. The substantive law under to which the rabbinical courts rule on personal status matters is Jewish Law. The Rabbinical Courts also rule in accordance with the general substantive (statutory and case-law) law that applies to matters under their jurisdiction. The Rabbinical Courts Jurisdiction Law does not establish any rules of procedure for the rabbinical courts in matters that are in their jurisdiction. In the past, certain provisions in this regard were established in the Jewish Community Regulations.[1] These regulations are no longer valid, and for this reason alone they cannot serve as a source of the authority to promulgate procedural rules. What, then, is the procedural regime that applies in the rabbinical courts?

 

7. One might argue that the authority to prescribe procedural rules derives from the substantive law. Since the substantive law followed by the rabbinical courts is primarily Jewish law, therefore Jewish law should also be the source of the rabbinical courts authority to establish rules of procedure (see: E. Shochetman, Procedures (Sifriyat Hamishpat Ha’ivri, 5748) 12 (Hebrew)). This argument  cannot be accepted. The authority to establish procedures derives from the nature of the body’s status as a judicial instance and not from the substantive law by which that judicial instance rules. Thus, for example, the civil court rules in accordance with Jewish law in many matters of personal status, however it does not apply the procedural (and evidentiary) rules of Jewish law when ruling on such matters (see, CA 26/51 Kotik v. Wolfson [1] at p. 1344; CA 99/63 Peleg. v. Attorney General [2] at p. 1128). Indeed, to paraphrase Justice Silberg’s statement that "the law here is, so to speak, a 'function' of the judge" (see: M. Silberg, Personal Status in Israel (Mif'al Hashichpul, 5718) 6 (Hebrew)), we might say in this case that the procedure is a “function” of the judge and not of the (substantive) law by which the judge rules. Therefore, the power of a rabbinical court judge to establish the court’s rules of procedure does not derive from the substantive law by which he rules. How, then, are the rabbinical courts’ rules of procedure established?

 

8. In my opinion, in the absence of statutory authorization in this matter, the power to establish procedures lies with the rabbinical courts themselves. The origin of such authorization is the inherent jurisdiction of each judicial instance to decide its own procedures (see HCJ 136/54 Pollack v. Herzog  [3] at p. 165; also see P. Goldstein, The “Inherent Jurisdiction” of the Court, 10 Iyunei Mishpat 37, 49 (5744-45) (Hebrew); I. H. Jacob, The Inherent Jurisdiction of the Court, 23 Current Legal Problems 32 [1970]). Justice Berenson elaborated on this in reference to the rabbinical courts, stating:

 

A court for which the State did not prescribe procedures and did not delineate the manner by which they shall be established is authorized, by virtue of its inherent jurisdiction, to establish its own procedures that it will follow… When there is a hierarchic system of tribunals for which the legislature has not provided procedures, the question of who will decide them and how is generally an internal manner  (HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court [4] at p. 114).

 

Similarly, my colleague Justice D. Levin stated:

The Druze courts, which were duly established and have been conducting their hearings for years, do not operate in a vacuum. Since no procedural regulations were promulgated by the authorized minister, the judges of the Druze courts were permitted to establish their own procedures that they followed by virtue of their inherent jurisdiction (HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals [5] at p. 704).

 

Thus, the rabbinical courts have inherent jurisdiction to prescribe the procedures that they will follow. In exercising that jurisdiction, the Israeli Rabbinical Courts Procedure Regulations, 5753 (Y.P. 5753 2298) were promulgated. A review of these regulations reveals that their content reflects Jewish law (see Shochetman, ibid., at p. 11). However, in terms of the power to promulgate them, they in fact realize the rabbinical courts' inherent jurisdiction to prescribe their own procedures. Indeed, alongside the procedures that were promulgated in the past by virtue of the rabbinical courts' inherent jurisdiction, the courts continue to enjoy inherent power to regulate those procedural matters which have not been addressed in regulations (compare: HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court [6] at p. 214). This inherent jurisdiction derives from the rabbinical court (like any other judicial instance) being a judicial institution established by law, which is intended to rule upon disputes, and which is granted power that is inherent to the very performance of the duty and the need to conduct judicial proceedings.

 

Inherent Jurisdiction and its Limits

 

9. A judicial instance's inherent power to prescribe procedures is of signal importance. "Without it proper judicial activity would be impossible" (Justice H. Cohn in ST 1/60 Winter v. Beeri [7] at p. 1474). The inherent powers "are vital in order to allow the court to perform its duties properly…" (Justice Landau in CrimA 230/56 Shorer v. Attorney General [8] at p. 753). They underlie "that minimal authority in matters of procedures, trial efficiency and justice that the court needs in order to perform its purpose: administering justice. This power is the external reflection of the internal sense of justice with which the judge is endowed and that he expresses in his daily actions" (Justice Berenson in FH 22/73 Ben Shachar v. Machlev [9] at p. 96).

 

This power is broad. It "encompasses any matter that occurs in or out of the courtroom that is related to the trial" (HCJ 305/89 [6] at p. 214). Indeed, due to the broad scope of this power, it has long been accepted that it should be exercised with great caution (see: Roadway Express v. Piper (1980) [55] at p. 763). This ancillary power is not unlimited. It is not broader than the express authority to prescribe procedures. By its nature, it operates within the boundaries of procedural law and relates to the matter of the proper management of the judicial proceeding and its proper control. Moreover: inherent jurisdiction (as well as express jurisdiction in procedural matters) is, in essence, "governmental authority". Therefore, it must be exercised reasonably. Indeed, the judge, like any person exercising governmental authority, must act reasonably. I addressed this elsewhere, stating:

 

A judge may not toss a coin. He may not consider any factor that he chooses. He must consider reasonably. We have here, as in administrative law, a margin of judicial reasonableness. There are a number of options within the margin among which a reasonable judge may choose. Two reasonable judges may reach different results (HCJ 547/84 Of Haemek v. Ramat Yishai  [10] at p. 141).

 

This duty to act reasonably also applies when a judge exercises his inherent jurisdiction (MApp 613/82 State of Israel v. Awad [11] at p. 616).

 

10. What constitutes reasonable exercise of judicial authority? The answer is that reasonable exercise of judicial authority means its exercise in a manner that strikes a proper balance among the values, principles and interests that must be considered. I addressed this elsewhere, stating:

 

Judicial discretion, like any governmental discretion, must be exercised in the framework of the law. A judge must not be arbitrary or discriminatory. He must consider his discretion reasonably… This requirement means, inter alia, that the judge must weigh all of the relevant considerations, juxtapose them, and strike a balance among them where there is friction. The nature of the relevant considerations changes from case to case… what characterizes them all  is that they present considerations of judicial and judiciary efficiency along with considerations of justice, morality, human rights and the court's standing in modern Israeli society… (HCJ 991/91 David Pasternak Ltd. v. Minister of Construction and Housing  [12] at p.  60).

 

Thus, proper exercise of "inherent" judicial authority – like the exercise of explicit statutory procedural authority – means exercising the inherent authority in a manner that strikes a proper balance among the values, principles and interests that must be considered when exercising inherent authority.

 

11. What are the values, principles and interests that must be considered when exercising inherent jurisdiction? It would appear that these values, principles and interests are not essentially different from those that apply when exercising statutory procedural jurisdiction. Naturally, these values, principles and interests, which determine the "environment" of the (statutory or inherent) procedural jurisdiction, change from case to case in accordance with the specific procedural issue at hand. However, a number of typical considerations can be identified as a common thread through the procedural process in general and the exercise of inherent jurisdiction in particular. Procedural justice is a central consideration. This consideration means, inter alia, perceiving the procedural process as intending to realize substantive law, based upon exposing the truth. Procedural justice requires observing the rules of natural justice, which treat of granting each party an opportunity to voice its arguments, prohibiting bias, and the obligation to state reasons. Rules regarding a fair hearing are also derived from procedural justice. In this context we might note knowledge that a hearing is being held, being granted a proper opportunity to present arguments, fair exercise of procedural powers, as well as open  and accessible courts. The efficiency, simplicity and finality of proceedings can also be included in this framework. The aspiration for confidence, stability and certainty in procedural arrangements should also be included in the framework of these typical considerations.

 

12. A typical set of values that must be considered in every procedure is that of human rights. Among these it is necessary, inter alia, to consider a person's dignity and personal liberty (see: HCJ 355/79 Katalan v. Prisons Service [13]; HCJ 14/51 Attorney General v. Davar [14]). A person's right to privacy and confidentiality must also be considered. Any procedural arrangement must treat the litigating parties equally. It must guarantee freedom of expression, occupation and property (see BAA 663/91 A. v. Israel Bar Association [15]). It must consider the right to strike and lockout (see: MApp 678/82 Tayar v. State of Israel [16]; MApp 613/82 State of Israel v. Awad [11]; LC 52/8-4 7-41 [54]). It must ensure the freedom of movement that is guaranteed to every person, and in that framework, the right of every person to leave the country (see: CA 703/70 Somech v. Ozer [17]; CA 230/69 Kaneti v. United Shvili Film [18]; LA 451/85 Adin Marketing v. Flatto Sharon [19]). Indeed, constitutional human rights are part of constitutional law and are directed first and foremost towards the governmental authorities. However, they project (directly and indirectly) onto all the branches of law and thus create a constitutionalization of the law. Procedural law is not immune to human rights. On the contrary: procedural law must recognize them and give them expression. Indeed, in a long line of judgments, this Court has recognized procedural law's subordination to accepted human rights. Justice Elon addressed this in stating:

 

…In the absence of express law, the court does not have the power to order blood tests, even if it would not involve coercion. Indeed, the court has ancillary inherent jurisdiction to issue various decisions and orders in order to effect a just and efficient examination, however orders that by their very nature comprise an infringement of a person's basic right, even if the infringement will not be coercive, cannot not be included in this ancillary power (CA 548/78 A.. v. B. [20], at p. 756).

 

Similarly, the Supreme Court of the State of New York [sic][2] ruled, in reference to the court's inherent power, that: "Even in the name of its inherent power, the judiciary may not... violate the constitutional rights of persons brought before its tribunals" (Matter of Alamance County Ct. Facilities [56] at  p. 132). Similarly, my colleague Justice S. Levin emphasized the need to consider a person's constitutional right to leave Israel in the context of proceedings concerning the issuing of a writ ne exeat republica (see LCA 26/89 Mashraki. v. "Rotem" Insurance  [21] at p. 552).

 

My colleague, Justice S. Levin, wrote:

 

…In light of the severe restriction of the freedom of movement inherent to the use of this regulation (Regulation 376 – A.B), a freedom which is a constitutional right of the highest order, the regulation should not be employed unless all of its elements have been strictly proven…. (LCA 18/89 Pichman v. Bank Leumi [22] at p. 517).

 

13. I have addressed the corpus of general considerations that govern the exercise of (statutory or inherent) procedural power. Sometimes these considerations all lead in one direction and sometimes they conflict internally with one another: procedural justice leads in one direction while procedural efficiency leads in another. And both of these could lead in a direction that differs from the direction of human rights. In such a state of affairs, there is no choice other than to strike a proper balance among the conflicting considerations. In the framework of such a balance, significant weight must be given to considerations pertaining to human rights. This is particularly evident now, with the enactment of the Basic Law: Human Dignity and Liberty. This Basic Law has elevated human rights – the majority of which were based on case law ("'Unwritten' Basic Rights": HCJ 243/62 Israel Film Studios. v. Levi Geri [23]) to a supra-statutory constitutional level. Although the validity of the previous law – with its procedural rules – was preserved (sec. 10 of Basic Law: Human Dignity and Liberty), its interpretation, internal balances and application must be influenced by the constitutional status of human rights (see: CrimApp 6654/93 Binkin v. State of Israel [24]).

 

The Rabbinical Courts' Inherent Jurisdiction and its Limits

 

14. Does this general approach regarding the scope of inherent jurisdiction – both in terms of its breadth and in terms of its limitations – also apply to the inherent power of the rabbinical courts to prescribe their own procedures? The answer is affirmative. A rabbinical court is a judicial instance established by statute. "The rabbinical courts draw their judicial authority from the state's legal system that granted them that authority” (Justice Elon in HCJ 323/81 Vilozny v. Supreme Rabbinical Court [25] at p. 738). Like any judicial instance, it is also granted inherent powers to arrange procedures. When exercising these inherent powers, the rabbinical court is subject to all of the limitations that are imposed upon any judicial instance that exercises inherent powers. This approach was clearly expressed in a long list of judgments that held that the rabbinical courts' procedures must respect "basic principles of fairness" (HCJ 158/66 Segev v. Rabbinical Court [26] at p. 521, per President Agranat). These are the rules of natural justice that obligate any court system, including the rabbinical courts (see: HCJ 10/59 Levy v. Tel Aviv-Jaffa Rabbinical Court [27]; HCJ 155/65 Gurovitz v. Tel-Aviv Rabbinical Court [28] at p. 19; HCJ 95/63 A. v. Tel Aviv-Jaffa Rabbinical Court [29] at p. 2221; HCJ 161/64 Mussman v. Haifa Rabbinical Court [30]; HCJ 816/80 Gotthelf v. Tel Aviv-Jaffa Rabbinical Court [31]). Justice Berenson addressed this matter – in the context of the Rabbinical Court's inherent power – stating:

 

A court for which state law did not establish procedures nor delineate the manner for their establishment, is authorized, by virtue of its inherent jurisdiction, to decide for itself the procedures that it will apply. In this regard – to the extent that the state law does not limit the court – it is its own master. However, the arrangements it prescribes must not comprise anything repugnant to the relevant general laws of the State … and must realize the principles of natural justice, since they must be properly observed by every body that decides legal or quasi-legal matters … (HCJ 150/9 [4] at p. 114).

 

Observing the rules of natural justice is but one of the limitations upon inherent jurisdiction. It is not the only limitation. Justice Goitein addressed this in stating:

 

It has already been decided on innumerable occasions that this court, when sitting as the High Court of Justice, will not intervene with judgments of the religious courts unless they have acted without jurisdiction, or in exceptional cases which call for our intervention for the administration of justice (HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court,  [32] at p. 1198; [IsrSJ 2, 429 at 436]).

 

Justice Bejski stated in a similar spirit:

 

That which has been stated until now justifies the intervention of this Court, despite its reticence to do so on the merits except in cases of ultra vires, of infringement of the principles of natural justice, or for the sake of tikkun olam [“repairing the world” – ed.] (HCJ 7/83 Biaris v. Haifa Rabbinical Court [33] at p. 687).

 

Thus, the "administration of justice" and the "repairing of the world" are additional limitations – beyond the limitation associated with the rules of natural justice – that apply to the exercise of (statutory or inherent) procedural authority. These also include, inter alia, the limitations deriving from the fundamental principles concerning recusal and judicial integrity, and open and accessible courts (and compare: HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court [35]; HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court [35] IsrSC 46(2) at p. 21; HCJ 1689/90 Aasi v. Central District Sharia Court [36]). Similarly, any recourse by the rabbinical court to its inherent authority must be consistent with the protection of human rights. Indeed, every litigant in the rabbinical courts appears before those courts bearing all the human rights enjoyed by every person in Israel. The Israeli legal regime guarantees human rights to every person, and every person enjoys these rights in every judicial forum. The move from a “civil” judicial forum to a “religious” one does not lead to a loss or denial of basic human rights. “It would be inconsistent with these fundamental rights that the move from a civil court to a religious court would lead to a loss or infringement of these basic rights. No ‘confiscation’ of these civil rights can be permitted in the absence of an express statutory provision consistent with the requirements established under our constitutional system” (HCJ 1000/92 Bavli v. Great Rabbinical Court [37] at p. 248). Indeed, the promise of human rights is general and applies to all relationships and before all the courts. A religious court does not operate in a vacuum. It operates within the general framework of the Israeli legal system. Professor Rosen-Zvi rightly observed:

 

The religious court indeed holds jurisdiction – sometimes exclusive – to address a certain area of Israeli law. But the court remains an Israeli judicial forum within the general framework of Israeli law. The court operates within the framework of Israeli law and the general legislative framework, and it is not exempt from the commandments of the provisions of Israeli law (A. Rosen-Zvi, Israeli Family Law: The Sacred and the Secular   (Papyrus, 1990) 86 [Hebrew]).

 

The Israeli legal system is not a confederation of separate systems. The Israeli legal system is a unity that recognizes the uniqueness of its various parts. Therefore, substantive matters of personal status are subject to Jewish law, which at times may take precedence over some arrangement of the general law. However, such precedence is limited exclusively to matters of personal status, “no more and no less” (per Landau J. in HCJ 80/63 Gurfinkel v. Minister of the Interior [38] at p. 2068). It does not apply to what does not fall within the scope of personal status (see: Rosen-Zvi, ibid., p. 76). Thus, for example, it does not apply to the civil “mass” (and the various property rights it encompasses) with which every person comes before the Rabbinical Court (see: HCJ 1000/92 [37]). It also does not apply to the exercise of the rabbinical court’s inherent authority to address the proceedings before it. In exercising that authority, the rabbinical court must respect human rights, and like every other judicial forum, it must properly balance all of the conflicting values, principles and interests in each and every issue. This balance is imposed upon the inherent jurisdiction “from without”, by virtue of the entire complex of values of the Israeli legal system. It reflects the substance and principles of the Israeli legal system of which the rabbinical courts are a part.  What is that proper balance when the rabbinical court is requested to issue a writ ne exeat republica against one of the litigants?

 

 

Ne Exeat Republica

 

15.       A stay of exit, whether as temporary or interlocutory procedural relief, can only be issued as a procedural means intended to assist a party “in realizing the relief that the substantive law grants to the party” (per Landau J. in CA 303/57 Reich v. Hammer [39] at p. 1363). The inherent authority of a judicial instance to establish procedure in regard to the granting of this procedural relief must therefore properly balance the values, interests and principles vying for dominance in the framework of procedural law.  A person’s constitutional right to leave Israel must be placed on one side of the scales. This right has been recognized as a basic right of a person in Israel. “A citizen’s freedom of movement to leave Israel is a natural right that is recognized as self-evident in every country with a  democratic regime, of which our country is one …” (per Silberg J. in HCJ 111/53 Kaufman v. Minister of the Interior [40] at p. 536; and see: HCJ 190/57 Assaig v. Minister of Defence [41] at p. 55; HCJ 488/83 Baransi v. Director of the Visa and Nationality Dept. [42]; HCJ 448/85 Dahar v. Minister of the Interior [43]; MApp 1064/86 Archbishop Ajamian v. State of Israel [44]). It derives from being a free person, from the democratic character of the state, and from being part of the international community in which freedom of movement is recognized as a customary human right. Basic Law: Human Dignity and Liberty adopted this approach (sec. 6(a)) and granted the right to leave Israel (“All persons are free to leave Israel”) supra-legal status (see: CrimApp 6654/93 [24]). “All governmental authorities” – including all judicial forums (as they, too, are governmental authorities) “are bound to respect” this right (sec. 11 of Basic Law: Human Dignity and Liberty).

 

16.       As against the constitutional right of every person to leave the country stands the interest of a litigant to realize the substantive law. A litigant’s leaving the country may influence the legal proceedings and the possibility of executing the judgment. Maintaining proper legal proceedings to ensure substantive rights is a legitimate interest deserving protection by all parties. There is also a public interest that legal proceedings be effective, that suits not be frustrated, and that judgments be executed. Leading a litigant to an “empty well” because the other side has left the country infringes both the personal interest of the victim and the public interest in maintaining proper legal proceedings. However, the plaintiff’s interest that  deserves protection is not the pressuring of the defendant to concede the suit in order to liberate himself from the restriction imposed by a stay of exit. The state is not a prison, and agreeing to a suit should not be a key for release from captivity. “… staying the defendant is not meant to serve as a means for pressuring him to ransom himself from captivity” Y. Sussman, Civil Procedure, S. Levin, ed., (6^th ed., 1990) 571 (Hebrew)).

 

17.       We have addressed the values, principle and interests that must be considered in regard to granting relief in the form of a stay upon exiting the country. On one hand stands the basic value of freedom of movement, while the litigant’s interest in ensuring his substantive rights by means of a legal process stands on the other. The two values stand in opposition. Balancing the conflicting values is therefore required.  My colleague Justice S. Levin addressed the need for striking this balance in the area of procedural law, noting:

 

The fundamental question that must be addressed in interpreting the said regulation is where is the balance point between the principle that the defendant’s right to freedom of movement not be restricted unnecessarily, and the need to prevent the defendant from fleeing abroad and thus frustrating the suit filed against him (LCA 26/89 [22] at p. 552).

 

Professor S. Goldstein similarly observed:

                       

…granting any type of preliminary relief involves a delicate balance of the plaintiff’s interests in preventing the defendant from frustrating the litigation, and that of the defendant in not having his liberty or property restrained prior to the definitive adjudication of his liability (Stephen Goldstein, Preventing a Civil Defendant from Leaving the Country as a form of Preliminary Relief, 20 Is.L.R. 18, 24 (1985)).

 

                       

Indeed, the balance must reflect the relative social importance of the conflicting interests. The balance should properly be an expression of principle that reflects a “decisional framework which contains a guideline of value…” (per Shamgar J. in FH 9/77 Israel Electric Corporation. v. “Ha’aretz” [45] at p. 361 [IsrSJ 9, 295]; and see: HCJ 991/91 [12] at p. 60).  This balance serves a dual purpose: first is serves as a standard for interpretation by which a procedural rule is given meaning; second, it establishes the boundaries of the (statutory or inherent) authority of the procedural rules themselves. Procedural rules whose interpretation leads to the possibility of preventing leaving the country to an extent that exceeds the standards established by the principled balance exceed the (statutory or inherent) power of the promulgator of the rules.

 

18.       It would appear to me that the proper constitutional standard is as follows: a litigant may be prevented from leaving the country if there is a sincere and well-founded suspicion that the litigant’s leaving the country would frustrate or thwart the judicial proceeding or prevent the execution of the judgment. My colleague Justice S. Levin gave expression to this standard in noting:

 

…when there is real, direct or circumstantial evidence from which one may infer a danger that the proceedings may be thwarted by the defendant’s travel abroad, the first principle (the defendant’s freedom of movement – A.B.) will retreat before the need to prevent the complainant from facing an empty well when judgment is rendered against the defendant, inasmuch as the rule is not intended to shield the defendant from his creditors and thwart them (LCA 26/89 [22] at p. 553).

 

I would like to make a few comments in regard to this standard. First, this standard is of a constitutional character. By establishing a causal connection between preventing leaving the country (as a constitutional right) and the negative effect of the absence upon the judicial proceedings, it expresses a constitutional view of the status of the fundamental principles of our legal system. Professor Goldstein addressed this in his abovementioned article in noting (at p. 26):

 

…the requirement of a causal connection is not merely a result of the interpretation of a specific rule of civil procedure, but rather the demand of a more fundamental principle of Israeli jurisprudence. It represents the application of a constitutional norm regarding the freedom of movement in general, and the right of a person to leave the country in particular.

 

Second, the causal connection between the danger and its prevention required by this standard is “a sincere and well-founded suspicion”. This standard was adopted in the Dahar case [43] in regard to striking the balance between the right to leave the country and the public interest in state security. In my opinion, this standard is also appropriate for striking the required balance in the matter before us. Dr. Yaffa Zilbershats addressed this in noting:

 

In our opinion, the “sincere and well-founded suspicion” test is better suited to balancing the interests in this case in which we deprive a person of his basic right to leave the country in order to protect the interest of the plaintiff that the legal proceedings or the execution of a judgment not be frustrated (Y. Zilbershats, The Right to Leave a Country (Ph.D. Diss., Bar Ilan, 1991) 203).

 

 

Third, not any possible harm, whether severe or insignificant,  can serve to prevent a litigant from leaving the country. The harm must be of a special type, of particular severity, i.e., “frustrating the lawsuit in advance through the debtor’s fleeing abroad…” (LCA 26/89 [21] at p. 552, following LA 558/85 Ilin v. Rotenburg [46] at p. 556). In addressing the nature of the permissible infringement of a person’s right to leave Israel, Dr. Zilbershats writes (ibid., p. 180):

 

In our opinion, because the right to leave the country is a basic human right of great importance, it should only be possible to restrict it if it has the potential to frustrate a judicial proceeding or prevent the execution of a judgment against the person seeking to leave the country.

 

Fourth, meeting the said standard is a necessary condition for exercising the authority of preventing a litigant form leaving the country. It is not a sufficient condition. Thus, for example, procedural rules may impose additional demands, for example, that a condition for granting a writ ne exeat republica is that: “The defendant is about to leave the country permanently or for an extended period” (rule 376(a) of the Civil Procedure Rules, 5744-1984). Fifth, before exercising its discretion, the court must consider whether there are less drastic means for ensuring the interest deserving protection while not infringing freedom of movement. Thus, for example, providing an appropriate bond may often meet this requirement. Sixth, the court should exercise this procedural authority with great care. “Unquestionably, preventing a person from leaving the country infringes an individual’s liberty, and therefore requires careful consideration…” (per Ben-Porat, D.P. in LA 451/85 [19] at p.305). The court must therefore meticulously examine whether the required standard is met, and only “if all the elements have been strictly proven” can the requested order be granted (per S. Levin, J. in LCA 18/89 [22] at p. 517). Granting the order must not be routine, and it should properly be granted only when justified by the circumstances.

 

Seventh, naturally, the application of the said standard changes in accordance with the substantive right that the judicial proceeding itself is intended to realize. Proceedings for the return of a loan are not the same as divorce proceedings. In the former, the legitimate interests of the creditor can usually be ensured by an adequate bond. In the latter, at times (although not always) the sincere and well-founded suspicion that the woman may be rendered an agunah [a “chained woman” – ed.] may require granting a writ ne exeat republica. Moreover, proceedings that can lawfully be conducted without the personal presence of the parties are unlike proceedings that can only be lawfully conducted if the parties are actually present. In the former case, a party’s leaving the country will not frustrate the proceedings, while in the latter it will frustrate the very possibility of conducting proceedings.  Nevertheless, even here a less drastic means should always be preferred. Eighth, this standard is formulated to take account of the fact that we are concerned with interlocutory relief in the course of a pending proceeding. We must bear in mind that the claim has not yet been proved, and a judgment has not yet been rendered. The certain infringement of one party’s freedom of movement stands against the mere claim of the other party who argues that his substantive right has been infringed, but whose claim has not yet been accepted and no judgment has recognized it. In such a situation, the standard that should be adopted should be one that tends, as far as possible, to protect the person who will suffer the certain infringement of rights. In so doing, we express the serious weight of an individual’s right to leave the country.

 

Ne Exeat Republica in the Rabbinical Court

 

19.       As we have seen, the Rabbinical Court has the inherent power to establish rules of procedure. Procedures for preventing a litigant from leaving the country were established within that framework. Such procedures are established under rule 106 of the Rabbinical Courts Rules of Procedure, 5753 (see: HCJ 852/86 Aloni v. Minister of Justice [47] at p. 61). In the framework of its inherent power, the Rabbinical Court can, indeed, establish procedural rules in general, and procedural rules in regard to preventing a person from leaving the country in particular, in accordance with its procedural conceptions, which may differ from the procedural conceptions of the “civil” courts or of other religious courts (see: Shochetman, On Orders of Ne Exeat Regno against Judgment-Debtors and the Authority of the High Court of Justice to Review Procedural Orders of Rabbinical Courts, 14 Mishpatim 83 (1984)). However, the Rabbinical Courts inherent power to establish procedural rules in general, and procedural rules in regard to preventing leaving the country in particular is limited by the proper balance of the values, interests and principles that characterize Israeli law. Therefore, the Rabbinical Court’s authority to order that a litigant may not leave the country is limited by the appropriate standard for balancing the conflicting values, interests and principles in this context. In accordance with them, judicial authority to bar a litigant from leaving the country may be exercised only when there is a sincere, well-founded suspicion that his leaving the country will frustrate or thwart the legal proceedings or prevent the execution of the judgment. It is against this background that one must understand this Court’s  statement that “the purpose of the restriction imposed upon a person, which prevents his leaving Israel, is identical for a [civil] court or a rabbinical court” (HCJ 578/82 Naim v. Jerusalem District Rabbinical Court [48] at p. 711), and that “the areas of the authority of the various judicial forums – civil and religious – in regard to preventing leaving the country…must be similarly construed” (per Shamgar P. in HCJ 852/68 [47] at p. 61). Adopting this standard will achieve the normative harmony and legal unity to which every legal system aspires. This will ensure that the fundamental values and principles grounding our legal system will be protected and uniformly realized in the procedural rules of all Israeli judicial forums. In the framework of their inherent power, the rabbinical courts are free to establish procedural rules consistent with their worldview. “Their procedural rules are their own business” (per Berinson J. in HCJ 403/71 Alkourdi v. National Labor Court [49] at p. 70). However, that procedural freedom is not unrestricted. It is subject to the limits – to which all judicial forums are subjected – that derive from the proper balance of values, principles and interests that reflect the values of the State of Israel.

 

From the General to the Particular

 

20.       The District Rabbinical Court’s decision to prevent the Petitioner from leaving the country must be examined against the background of this normative structure. The Petitioner’s suit for divorce from the Respondent was pending before the Rabbinical Court. The Respondent’s suit for marital reconciliation was also pending. The court was requested to issue a writ ne exeat republica against the Petitioner and the children in the framework of the reconciliation suit. The Rabbinical Court granted the request on the basis of the Respondent’s claim that he “fears that the woman’s leaving the country at this stage would result in a final, irreparable rupture between them”.  The Rabbinical Court ordered a further hearing in two months, and requested that the parties negotiate “to achieve a suitable solution that would allow their joint travel abroad, or allow the wife to leave subject to conditions that would allay the husband’s fears”. The Great Rabbinical Court denied the wife’s appeal, holding that there were no grounds for hearing the appeal “inasmuch as the District Rabbinical Court had set a date for a further hearing of the matter”.

 

21.       Does the District Rabbinical Court’s decision maintain the proper balance between the freedom of movement (of the Petitioner) and ensuring the realization of the substantive rights (of the Respondent) by means of the judicial process? In my opinion, it does not, for two reasons. First, the evidentiary groundwork presented to the Rabbinical Court did not substantiate a “sincere and well-founded suspicion”. All that was before the court was the husband’s claim (unsupported by any additional evidentiary foundation) and the wife’s denial. That is insufficient to ground a sincere, well-founded suspicion. Second – and of primary importance in this context – the condition that the Petitioner’s absence from the country might frustrate or thwart the judicial proceeding in regard to reconciliation was not met. The judicial proceeding in the matter of reconciliation would not be frustrated at all by the Petitioner leaving the country. It is clear from the circumstances that the Petitioner will be travelling abroad for only a brief period. This brief absence from Israel cannot potentially influence the proceedings. In any case, the matter can be adequately addressed by requiring an appropriate guarantee. Postponing the hearing on revoking the writ ne exeat republica for two months is inconsistent with the status of the freedom to leave the country as a basic human right. Note that I am willing to assume – without deciding the matter – that the Petitioner’s leaving the country might negatively influence the couple’s relationship, and might even – as the husband argues – result in a final rupture of the relationship. It is also possible – although here, too, I cannot make a finding – that preventing the women’s leaving might serve to advance a reconciliation between her and the Respondent. But even if that were the case, the Rabbinical Court’s inherent power to establish procedures does authorize it to prevent a litigant from leaving the country when the standard that properly balances the relevant values, interests and principles is not met. Indeed, the suit for marital reconciliation (which is a matter of personal-status law, see: ST 1/50 Sidis v. Chief Execution Officer, Jerusalem [50] at p. 1031; CA 174/83 N. Soher v. P. Soher [51] at p. 82) raises serious problems, particularly in the area of interlocutory relief. Interlocutory orders that infringe basic human rights like the right to property (in regard to vacating a residence), freedom of movement (in prohibiting leaving the country, see: HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court [52] at p. 770) and the autonomy of personal will (by preventing meeting another person) may be granted out of a desire to realize the substantive law (see in this regard: S. Dichovski, The Authority of the Rabbinical Courts as reflected in their Judgments, 10-11 Dinei Israel 9, 15ff. (5741-43) (Hebrew)). In this case, we are witnesses to an example of the fundamental problem deriving from the first attempt “of its kind in Jewish history to apply religious law and impose religious jurisdiction in a society in which the majority of its members define themselves as secular” (P. Maoz, The Rabbinate and the Religious Courts: Between the Hammer of the Law and the Anvil of Halakha, 16-17 Annual of the Institute for Research in Jewish Law 289, 394 (1991) (Hebrew)). In the matter at hand, this special attempt leads to a gap between the basic conceptions underlying marital reconciliation in religious law and the worldview of a largely secular society. As judges, we take the law as a given and do not  question it. However, to the extent that interlocutory orders are granted in the context of marital reconciliation that do not meet the requirements of proper balancing of the values, principles and interests that must be addressed, the Rabbinical Court is not authorized to issue a writ ne exeat republica merely because the matter interferes with marital reconciliation (as opposed to interfering with the judicial proceedings in regard to reconciliation), inasmuch as its procedural power to grant such orders is subject to the limitations required by the proper balance that we discussed. In his aforementioned book,  Prof. Rosen-Zvi correctly pointed out (pp. 117, 119):

 

The Rabbinical Court issues [orders – A.B.] comprising remedies attendant to marital reconciliation that infringe the spouse’s liberty. Some of these orders also concern prohibitions that directly affect third parties. For example, an order forbidding a spouse to meet with a particular person whose name appears in the body of the order. Such an order seriously infringes an individual’s right and is inconsistent with the fundamental values of Israeli society…

 

…Israeli law does not grant the Rabbinical Court a free hand even if it is required by the worldview of religious law and the original content of the marital reconciliation cause of action. The Rabbinical Court operates within the framework of boundaries set by Israeli law. These exigencies obligate it, and it may not deviate from or exceed their borders.

 

Indeed, to the extent that such interlocutory orders do not conform to the delicate balance of the values, principles and interests that must be considered – primary among them the human rights of the parties to the proceedings and of third parties – they deviate from the inherent authority (as currently expressed in the Rules of Procedure of the Israeli Rabbinical Courts, 5753) of the Rabbinical Court to grant interlocutory relief. It may be superfluous to note that, nevertheless, the Rabbinical Court is authorized to take the conduct of the parties into account among its considerations in accordance with Jewish law, and give it the duly required weight under the substantive law. In this regard, it is apt to recall the words of Deputy President Y. Kahan, who held:

 

Clearly, the Rabbinical Court may draw all the conclusions that derive under [Jewish – ed.] law from the fact that the Petitioner, who is married, is conducting intimate relations with another man.

 

However, we have not found any legal basis upon which to ground a restraining order as issued in this case (HCJ 428/81 [53]).

 

That is also so in the matter before us. The Rabbinical Court is not authorized to issue a temporary order prohibiting the Petitioner from leaving the country. However, it is authorized to make inferences in regard to the substantive law in the matter of reconciliation from the fact that the Petitioner left the country, and from her conduct in the country and abroad. For these reasons, we have made the order absolute (as stated in para. 5 of our opinion).

 

Justice S. Levin: I concur.

 

Justice D. Levin: I concur.

 

Decided in accordance with the opinion of Deputy President Barak.

Given this 29^th day of Shevat 5754 (Feb. 10, 1994).

 

 

 

 

AAA 1207/15

 

 

Appellants:                             1.         Chaim Menachem Ruchamkin

                                                2.         Moshe Shalom Malachi

 

                                                                        v.

 

Respondents:                          1.         Bnei Brak Municipal Council

                                                2.         Chanoch Zeibart – Mayor of Bnei Brak

                                                3.         Yaakov Verzhbinsky

 

 

Appeal of the judgment of the Tel Aviv Administrative Affairs Court in AP 056189-12-13 Judge M. Agmon-Gonen

 

 

Before: Deputy President E. Rubinstein, Justice S. Joubran, Justice N. Hendel

 

Judgment

 

Justice N. Hendel:

            This is an appeal of the judgment of the Tel Aviv-Yafo District Court sitting as a Court of Administrative Affairs (AP 056189-12-13, Hon. Judge M. Agmon-Gonen) denying a petition in regard to the composition of the Municipal Property Tax Discount Committee (hereinafter: the Discount Committee) of the Bnei Brak Municipality.

The Background of the Petition

1.         The Bnei Brak Municipal Council comprises 25 members. In the municipal elections held on Oct. 22, 2013, the “Central Torah List” – a subsidiary faction of the United Torah Judaism Party (hereinafter: UTJ) – won 17 seats on the Council. The Shas faction won six seats on the Council, and the “Bnei Torah” list won only two seats. In light of the results, the Bnei Brak municipal coalition was formed by the UTJ and the Shas faction, while the Bnei Torah faction remained in the opposition.

            Following the elections, on Nov. 13, 2013, the Bnei Brak Municipal Council held its first session, in the course of which the members of the Council voted on the composition of the Council’s permanent committees. Prior to the session, the members of the Council were presented with a proposed list of appointments of the party representatives to the various committees, as a basis for the vote. Although from among the parties elected in the central elections, only the Bnei Torah Party remained outside of the coalition, Mr. Yaakov Verzhbinsky (Respondent 3), who was elected to the Council on the UTJ list, appeared on the appointments list for the various committees as a representative of the opposition. In the session, it was decided, inter alia, that Respondent 3 would serve as the opposition representative on the Municipal Property Tax Discount Committee, a defined under sec. 149D(a) of the Municipalities Ordinance [New Version] (hereinafter: the Municipalities Ordinance). At the conclusion of the session, Respondent 3 informed the Council that due to a material disagreement with the Mayor, he had decided to resign from the coalition, or in his words: “I have decided that I am actually resigning, voting nay, and I am actually going my own way, as I understand it”. The Appellants in this proceeding, who are members of the Bnei Torah faction, filed an administrative petition against the appointment of Respondent 3 as the opposition representative on the Discount Committee.

 

Arguments of the Parties and the Prior Proceedings

2.         The Appellants argue that the appointment of Respondent 3 as opposition representative on the Discount Committee under sec. 149D of the Municipalities Ordinance is unlawful. The Appellants present two primary arguments in support of their claim. The first is based upon the language of the law – sec. 149D(b)(1) lists the members of the Discount Committee, and establishes that one of its members must be “a member of the largest faction that is not represented on the Management Committee, that received the largest number of votes”. They argue that the largest faction that is not represented on the Management Committee is the Bnei Torah faction, and therefore the appointment of Respondent 3 does not meet that requirement. In their view, the section requires the appointment of one of the members of the Bnei Torah faction to the Committee. The second reason is directed at the definition of Respondent 3 as a representative of the opposition faction. The Appellants argue that Respondent 3 was elected as a member of the coalition, and his resignation on the day of the vote does not permit him to be defined, at least from a legal standpoint, as a member of the opposition. In effect, the Appellants’ argument is that there is no opposition representative on the Municipal Property Tax Discount Committee, and that even the requirement under sec. 150A(a) of the Municipalities Ordinance that every permanent committee have at least one opposition representative, is not met.

            The Respondents reject both of the Petition’s arguments. In regard to the Appellants’ claim that sec. 149D(b)(1) requires representation of the largest opposition faction, the Respondents argue that the section treats of a special case in which the coalition is composed of a number of small factions, while the largest faction remains in the opposition. That is not the case here, and therefore, according to their approach, the Appellants’ claim that the provision of sec. 149D(b)(1) was not fulfilled should be rejected. As for the Appellants’ claim that Respondent 3 only purported to resign, and that he is, therefore, not really a member of the opposition, the Respondents argue that sec. 125A of the Municipalities Ordinance establishes the conditions for defining a member of the Council as a member who resigned from his faction. Applying those tests to Respondent 3 leads to the conclusion that he resigned from his faction in accordance with the definition established by the law.

…

The Principle of Proportional Representation and its Interpretive Derivatives

7.         As noted, in its present form sec. 150A expresses the democratic principle of “proportional representation”. According to this principle, the right of the minority is not expressed solely in its participation in the elected body, but also in the indirect activities of the elected body that are performed by means of committees and subsidiary bodies. This is how President D. Beinisch explained the principle:

The principle of democratic equality requires appropriate, proportional representation of the minority, as well, and that representation is closely tied to the need to afford the represented minority a proper opportunity to express itself. The minority’s right is not limited to appropriate representation in the democratically elected body, nor in its appropriate opportunity to express an opinion on matters discussed by that body, but also gives rise to a right of representation in the subsidiary bodies that act on behalf of the elected body and represent it. Denial of that right in the subsidiary bodies denies the minority the possibility of expressing its view in central areas controlled by the elected bodies by means of subsidiary bodies that all operate on a representative basis. This is particularly prominent in the field of local government, in which most of the work of the municipal council is conducted by means of committees and subsidiary bodies (HCJ 1020/99 Duek v. Mayor of Kiryat Bialik, para. 6 of the opinion of President D. Beinisch (Aug. 8, 2000) (hereinafter: the Duek 1 case).

            In light of the proportional representation principle, the Court interpreted the expression “to the extent possible” not as a restrictive term, but rather as an expansion that requires that where the number of committee members is too small to allow for maintaining a factional ratio, preference will be given specifically to the small factions that are not represented at all, at the expense of the large faction that are already represented. It was thus held in the Shamgar case, which addressed sec. 19(A1)(1)(c) of the Building and Planning Law, concerning the election of representatives of a municipal council to the local building and planning board:

The fact that the provisions of the section require action in accordance with a proportional representation of the factions “to the extent possible” does not detract from the principle of proportional representation, but rather is intended to make its implementation possible in accordance with objective constraints … therefore, we cannot accept the approach of the learned trial judge who understood the expression “to the extent possible” in the section as restricting the principle of proportional representation. It is also important to note that in view of the centrality of the principle of proportional representation, this principle applies to the entire section. Therefore, the provision at the end of the section must be read subject to the guiding principle. This provision establishes that a deviation from the principle of proportional representation will be made only for the purpose of granting representation to the minority where maintaining the principle of proportional representation might be to the detriment of the minority such that it would be deprived of any representation. It is, therefore, possible to deviate from the principle of proportional representation, however this is in order to ensure representation of the minority which, in the absence of the provision at the end of the section, might not be represented at all (CA 2663/99 Shamgar v. Ramat HaSharon Local Council, IsrSC 54 (3) 456, 464 (2000)).

            In other words, when perfect proportional representation cannot be achieved, it is better to deviate from the relative ratio in favor of the small factions that are not represented at all, rather than to grant over representation to the large factions. The Court similarly interpreted sec. 249 of the Municipalities Ordinance, which treats of representation of the factions in municipal corporations. In the Oren case, the Court construed the expression “as far as possible” as an expression intended to broaden the principle of proportional representation:

What this means is that the legislative provision must be observed in each and every corporation such that members of the council on the board of directors of the corporation “shall be so selected that the ratio of forces of the factions of the council is preserved as far as possible”. It would therefore seem that where a faction claims that it is underrepresented on the board of directors of company “A” (for example, where its relative strength in the council entitles it to two representatives, but it is granted only one), it will not be adequate to respond that it enjoys overrepresentation on the board of municipal corporation “B” (unless this was done with its consent). This is particularly so when corporation “A” is a “very important” corporation” while company “B” is of average importance. However, since mathematical precision is not always possible, the legislature additionally instructed us in regard to proportional representation “as far as possible”… The concept of “as far as possible” is a conceptual framework – its content is not defined and detailed – and the vessel will be filled with content by the implementation of fundamental principles of the democratic regime and the proper governance of the local council (HCJ 3250/94 Oren v. Petach Tikva Municipal Council, IsrSC 49 (5) 17, para. 19 of the opinion of Justice M. Cheshin (1995)).

            This interpretation should also apply to sec. 150A(a) of the Municipalities Ordinance. The section’s legislative history shows that it was intended to grant appropriate representation to all factions in the subsidiary bodies and permanent committees. Therefore, there must be an effort to preserve the factional composition of the council in each of the permanent committees. When this cannot be achieved due to the small number of members of a committee, it is necessary to deviate from the factional composition in favor of the unrepresented opposition factions. This broad interpretation expresses the democratic principle that the minority must be party to all the activities of the authority. However, the question still remains as to how the principle of proportional representation is realized when all of the opposition factions cannot be represented, as in the case before us. I shall address this in greater detail below.

…

The Right of the Minority to Participate in Decision Making – An Extra-Legal View

9.         The right of the minority to participate in the decision-making process – and not just its political right to elect the decision makers – was particularly emphasized by many political philosophers in the second half of the twentieth century. It might be said that this is the third stage in the development of the democratic idea. At the principle’s outset – in the Athenian Greek polis – it meant majority rule (the meaning of the word demos is “the people”, and the original meaning of democracy was “rule of the people”, as opposed to monarchic and oligarchic rule). In the second stage, democracy became the majority’s obligation to recognize the rights of the minority, which, in the third stage, developed into the recognition that even the minority must play an integral role in the decision-making process (for a historical description of the development of the democratic idea in its various forms, see the book by Robert Dahl, who died some two years ago after serving as a professor of political science at Yale University, and who also served as President of the American Political Science Association: Robert A. Dahl, On Democracy (1998)). The right to participation is now understood to be a substantive part of the democratic idea. Thus, for example, the philosopher Joshua Cohen (professor at Stanford University, and student of John Rawls) coined the term “deliberative democracy”, which emphasizes not only majority decision-making, but also and especially, the right of the minority to participate in the process (see: Joshua Cohen, Deliberation and Democratic Legitimacy, in Deliberative Democracy, James Bohman and William Rehg (eds.) 67-91 (1977)). In his writings, philosopher Jeremy Waldron (political philosopher, professor at Columbia University) emphasized that the democratic process is not only a procedural process that offers an efficient means for decision-making, but is a process that expresses the substantive principle of equality and mutual respect. According to him, the basic presumption of the democratic concept is that the purpose of political decision-making is not the achievement of absolute truth, but rather the choice between competing, legitimate worldviews. The underlying presumption of a decision by the majority is that, given human variety, disputes are unavoidable, and a just decision cannot be defined per se. Therefore, the process must grant legitimacy to the spectrum of views and positions, and express mutual respect even for minority views. Waldron therefore emphasized that the democratic process is not a technical decision-making process, but rather a process that expresses the substantive principle of respect for differences of opinion. According to Waldron, we must operate in accordance with the Physics of Consent, which is necessary in view of the respect that one view must show for the other:

But is that all we can say for it – that it is a successful technicality? I think we can say more, along the lines of what I called the physics of consent. Majoritarianism is not just an effective decision–procedure, it is a respectful one… Respect has to do with how we treat each other's beliefs about justice in circumstances where none of them is self-certifying, not how we treat the truth about justice itself… it is because we disagree about what counts as a substantively respectful outcome that we need a decision-procedure" (Jeremy Waldron, The Dignity of Legislation, 158-162 (1999)).

            In a similar vein, philosopher Thomas Christiano (professor of political philosophy at the University of Arizona) is of the opinion that excluding the minority from the decision-making process reflects a substantive conception of the moral value of the minority’s view, and violates the right to equality among citizens:

…makes it amply clear to those who are excluded that their interests are not treated as equally worthy of advancement. The excluded can see that they are being treated as if they have a lesser moral standing (Thomas Christiano, The Authority of Democracy, 11 (2) Journal of Political Philosophy 1 ,11 (2003)).

            According to his approach, minority participation in the process is a central element of the legitimacy of majority decision-making in the eyes of the minority, which must accept the majority decision even when it considers the decision itself to be wrong. The minority must not feel that it has a lesser status than the majority. According to this view, debate and voting are not merely decision-making rules, but also preserve equality, and are the basis of the legitimacy of the majority’s decision. As he wrote:

Democracy is the only way to resolve disagreement that remains faithful to public equality. This is what makes democracy a uniquely just solution to political conflict and disagreement. It is what ensures that democracy legitimates outcomes even when they are unjust in the eyes of some (ibid., p.12).

The brief theoretical foundation that we have presented in regard to the right of the minority to participate in the decision-making process is consistent with the trend of the case law presented above, which anchors the various aspects of the principle of “proportional representation” as part of the political structure of Israeli democracy.

 

The Principle of Proportional Representation in Jewish Law

10.       It is interesting to observe how the broad spectrum of the democratic principle is reflected in our sources. To that end, I will devote a few paragraphs to the principle of proportional representation in Jewish law. The core principle of democracy – majority rule – is entrenched in the constitution of Jewish law in the biblical verse: “You shall not follow a multitude to do evil; nor shall you bear witness in a suit, turning aside after a multitude, so as to pervert justice” (Exodus 23:2). The end of this verse, “after a multitude, so as to pervert justice” was interpreted by the sages as instructing that in the case of a dispute, one must decide in accordance with the majority.[1] Thus the Tosefta explains: “To incline after the majority[2] – even if you say thus and your fellows says thus, the rule is in accordance with the majority” (Tosefta Berakhot 4:12). However, on the basis of the beginning of the verse, this instruction was understood by the sources not only as a procedure for rendering judgment, but as the preferable procedure for debate prior to rendering judgment – i.e., for the procedure and not just for the result. The phrase “nor shall you bear witness in a suit, turning aside after a multitude” was interpreted in the Mekhilta as expressing the duty of a judge to speak his mind and not be influenced by the opinion of the majority or other factors: “Do not say in the course of judging that I agree with my master, but state your opinion” (Tosefta Sanhedrin 3:8). Rashi, in his commentary to the Bible (ad loc.), emphasizes the individual’s duty to state what he thinks, even if his opinion contradicts that of the majority: “Render judgment as it is, and let the iron collar hang on the neck of the many”. This emphasis upon the duty of the minority to state its opinion without regard for the opinion of any authority, or even the opinion of the majority, reflects the view that the opinion of the minority is important and necessary to the deliberative process.

            On the basis of this principle, Rashba [Rabbi Solomon ben Abraham Adret, (1235–1310)] ruled that the majority opinion of a court is binding only when rendered after discussion and debate held in the presence of all the judges:

Even in the Great Sanhedrin, if seventy of them sat individually and condemned or acquitted, their decision is not binding unless seventy one sat together and debated the matter, in case one might see evidence or make a strong argument that would be accepted by his colleagues who would adopt a different view, but if they sat together and debated the matter, the decision is in accordance with the majority (Responsa Rashba 5:126. And also see: Eliav Shochetman, A Majority of the Whole - The Legal Status of Decisions Accepted in a Knesset Plenary which is Not Full, Reflections on Jewish Democracy, Benny Porat (ed.) 407 (2010) (Hebrew)).

            Rashba attributes the need for the presence of all the members of the Sanhedrin to the quality of a decision arrived at through a procedure in which the minority is afforded the opportunity to present its view. A decision made without hearing the view of the minority may not take account of the full scope of considerations, and should, therefore, not be deemed binding. In Rashba’s opinion, the principle that the majority opinion must be arrived at with participation of the minority must also apply to decisions of elected public officials. In this regard, he rules: “There is no majority consent unless the majority consent is arrived at in the presence of all as a matter of general law” (Responsa Rashba 3:304).

            An example of this approach according to which a majority decision must be made with the participation of all in administrative proceedings can be found in AAA (Beer Sheva) 15/05 Mifalei Tovala Ltd. v. Head of Municipal Property Taxes of the Eilat Municipality (2006). In that case, heard by the Beer Sheva Administrative Affairs Court, it was argued that contrary to the legal requirement, and as a result of practical problems, only two, rather than three members of the Municipal Property Tax Committee participated in the meeting. However, the State’s attorney representing the Committee argued that since a Committee decision requires a majority, the practice adopted was that, in general, only two committee members meet. When the two members arrive at an agreed position, a decision is reached accordingly, while the third member participates only when there is a disagreement. In rejecting that approach, I relied upon a judgment of the Rabbinical Court according to which the participation of the third member is required, even if he is in the minority, because he could potentially sway the majority (App 5728/135 Mafdal Youth v. Mafdal [National Religious Party], Rabbinical Courts Judgments7 225, per Chief Rabbi Yitzhak Nissim, Rabbi Eliezer Goldschmidt concurring, Rabbi Yosef Eliashiv dissenting).

            In the matter before us, the view of Rabbi Joseph of Trani (A rabbi of Safed, and Chief Rabbi of Turkey (1538–1639) aka Maharit) is of particular importance. In his view, like that of Rashba, the requirement that decisions be made with the participation of all applies not only to judicial decisions but also to edicts dependent upon consent. Maharit’s reasoning is based upon the view that the minority does not agree to accept the decisions of the majority when its view is not heard:

Even though they all agreed that decisions would be made by the majority, a majority of everyone is required… and just as there [in a court] we do not rule according to the majority unless all the judges participate, this is also so in this case, for if not for this condition among them, the majority could not compel the minority in a matter in which there is a gain or loss that could harm the minority, but now that they have agreed to follow the majority as if it was with the consent of all, it must be according to the opinion of all, with each and every one presenting his opinion before them, and then the majority is followed, and if it is not done in that manner, their action is void (Responsa Maharit 1:95; and also see 58. Emphasis added).

            Maharit is of the opinion that there are situations in which the validity of the majority’s decision is based upon the consent of the entire public (and not upon a biblical instruction, as in the case of the judgment of a court). In such a case, consent to accept the majority decision is contingent upon the participation of the minority in the decision-making process. When a decision is made by the majority without participation of all the members, the decision is invalid, inasmuch as the condition of hearing the minority was not met. Maharit does not explain the requirement of hearing the minority on the basis of the potential of the minority to persuade the majority, but rather upon the broader principle that the minority has an inherent right to participate in the process by virtue of agreement.  Here we find a democratic principle of participation according to which the consent of the minority to accept the decision of the majority is contingent upon being afforded the right to participate in the decision-making process. Only when the minority is granted the right to be heard is the majority opinion democratic rather than tyrannical.

            I will conclude with an additional insight of Jewish law, which also relates to the right of the minority. The Mishna and the Tosefta ask about the importance of preserving the minority opinion, although rejected by the majority. The answer, presented in two different sources, is that it is needed not only in order to understand the issue in the context of fulfilling the mitzvah of Torah study, but also because today’s minority may be tomorrow’s majority. Thus, for example, the Mishna states that a future court may rule in accordance with the minority opinion: “And why do they record the opinion of a single person among the many, when the halakha must follow the opinion of the many? So that if a court prefers the opinion of the single person, it may rely upon him (Mishna, Eduyot 1:5). The Tosefta places the emphasis upon changing times and circumstances: “Rabbi Judah says, why are the opinions of a single person from among the many recorded? So that if the time requires them, they can be relied upon” (Tosefta, Eduyot 1:4). These explanations assume that a majority decision does not make the court’s decision the only one of significance. The rejected minority opinion is not viewed as an error or mistake, but rather as a theoretical halakhic possibility that – while not the position adopted in practice at the time – may become so at other times. This is another reason for granting the minority the opportunity to express its view.

            Armed with these principles, we can approach another issue that remains to be decided.

…

Justice E. Rubinstein:

1.         I concur in the comprehensive opinion of my colleague Justice Hendel, first and foremost, because he arrived at a just result under the circumstances. Its message is that of rights of the minority, in this case in a municipal body, substantively and not merely formally. This provides a foundation for legal issues in general in the field of constitutional and administrative law. Indeed, we should bear in mind that the majority is not necessarily right. There is importance to it being a majority, and it is significant for the purpose of deciding, but hearing the voice of the minority is essential both in order to persuade, and so that another option may be available when the time comes. When we are treating of the opposition, in all its ramifications, and the role of the opposition and its participation, we are concerned with substantive, and not merely formal participation. In other words, this is the theory of limits – the theory of proportionality stans pede in uno.

2.         Respect for the minority is foundational to a democratic system, see HCJ 3166/11 Gutman v. Attorney General (2015) in regard to the importance of representation of minorities (and paras.4ff. of my opinion, in regard to the representation of the Arab minority). In the sixth chapter of his book On the Essence and Value of Democracy, entitled “The Majority Principle” (p. 100), the distinguished scholar Hans Kelsen writes of parliamentary majority – but in this regard, there is no difference between a parliamentary and a municipal majority:

It is telling that experience has shown it to be compatible with protection of minorities. For the concept of a majority assumes by definition the existence of a minority, and thus the right of the majority presupposes the right of a minority to exist. From this arises perhaps not the necessity, but certainly the possibility, of protecting the minority from the majority. This protection of minorities is the essential function of the so-called basic rights and rights of freedom, or human and civil rights guaranteed by all modern constitutions of parliamentary democracies (emphasis original – E.R.).

            In the preface to his Hebrew translation of Kelsen’s book, former Supreme Court Justice Prof. I. Englard writes (p. 15): “Kelsen emphasizes the decisive importance of the existence of a minority that is entitled to constitutional protection by entrenched fundamental rights”. And see Chap. 6 of the Knesset Law, 5754-1994, which establishes the status of the Head of the Opposition, and see Dr. Y. Marzel, The Status of Political Parties (2004), 119-118 (Hebrew).

3.         As we know, Knesset committees are composed on a factional basis (rule 102 of the Knesset Rules), and the opposition is mentioned in the rule (rule 6(a)(2)) that the chair of the State Control Committee will be a member of the opposition. But the legislature went further in the Municipalities Ordinance [New Version] in requiring opposition representation under sec. 150A, and even further in sec. 149D(b)(1) in requiring that the Discounts Committee will include “a member of the largest faction that is not represented in the Management Committee, which receives the largest number of votes”. While the term “opposition” was not employed here, it is clear that that is the intention. Also see sec. 149C(a)(c)(1) according to which the chair of the Municipal Control Committee must be a member of the opposition, as in the case of the Knesset, and see AAA 7697/14 B.R. Faction v. Kiryat Motzkin Municipal Council (Feb. 21, 2016) para. 19. The above are in the spirit of protection of minority rights, and it is in that spirit that we must interpret the law.

4.         My colleague cited some of the treasures of Jewish law on the subject of democracy. I will add several of my own to reinforce his worthy remarks.

 

Turning aside after a Multitude

5.         As my colleague noted, deciding on the basis of a majority is expressly recognized on the basis of the biblical verse “turning aside after a multitude” (Exodus 23:2). In his Sefer HaMitzvot, Maimonides lists following the majority among the 613 mitzvot: “… to follow the majority when the sages disagree about any of the laws of the Torah. The same applies to a private case in regard to Reuven and Shimon, as for example, if the judges of their city disagree whether Reuven or Shimon  owes money, they must follow the majority …” (Positive Mitzva 175). According to Maimonides, this verse instructs the sages to follow the majority even in the interpretation of the law – “about any of the laws of the Torah” – and to follow the majority of the court in deciding the law in specific cases. The verse is, therefore, a general principle of interpretation, as well as a rule for making legal decisions. The famous story of the Oven of Akhnai is instructive as to the importance the Sages attributed to majority decision-making:

On that day R. Eliezer presented every argument in the world, but they did not agree. He said to them: “If the halakhah is as I say, this carob tree will prove it.” The carob tree was uprooted a hundred cubits from of its place, others say four hundred cubits. They responded: “No proof can be adduced from a carob tree.” He then said to them: “If the halakhah is as I say, the stream of water will prove it.” The stream of water flowed backwards.  They responded: “No proof can be adduced from a stream of water.” He then said to them: “If the halakhah is as I say, the walls of the academy will prove it.” The walls inclined to fall. But Rabbi Yehoshua rebuked the walls. He said to them: “If scholars are engaged in a halakhic dispute, who are you to interfere?” They did not fall out of respect for Rabbi Yehoshua, and they did not return upright, out of respect for Rabbi Eliezer; and they remain inclined. He then said to them: “If the halakhah is as I say, it will be proved from Heaven.” A Heavenly voice called out: “What do you have against Rabbi Eliezer, inasmuch as the halakhah is always in accordance with his view.” But Rabbi Yehoshua arose and said: “It is not in Heaven.” What did he mean by “it is not in Heaven?” Rabbi Yirmiah said: “Since the Torah was given at Mount Sinai, we pay no attention to a Heavenly voice because You have written in the Torah at Mount Sinai: ‘One must incline after the majority’[3]” (Babylonian Talmud, Bava Metzia 59b).

The story thus emphasizes that the halakha is decided by majority decision, and not in accordance with voices from Heaven. Similarly, we find:

Rabbi Yannai said:  if the Torah were handed down cut and dried, [the world] would not have a leg to stand on. Why is this so? “And God said to Moses” – [Moses said to God]: Master of the Universe, teach me what the law is? He said to him: “Incline after the majority”. If the majority says to acquit – acquit. If the majority says to convict – convict, so that the Torah be interpreted 49 ways impure and 49 ways pure” (Jerusalem Talmud, Sanhedrin 4:2).

            The verse “incline after the majority” is conceived as an instruction for deciding when there are divergent interpretations of a particular law. In such a case, the decision will be made in accordance with the majority. That is also what we find in the Mishna (Eduyot 1:5): “And why do they record the opinion of a single person among the many, when the halakha must follow the opinion of the many? So that if a court prefers the opinion of the single person, it may rely upon him”. In other words (according to the Tosafot Yom Tov commentary [Rabbi Yom Tov Lipmann Heller (ca. 1579 – 1654)] ad loc.) “…as we have seen when later scholars decide the law in accordance with an individual opinion among the early scholars, even if the majority disagreed with him, and if we did not have the opinion of that early individual scholar, the later scholars would be unable to reject the opinion of the early scholars on the basis of their own view …”. According to the distinguished scholar Menachem Elon, this mishna concerns the “legislative” authority of the rabbis – their power to make edicts and decrees contrary to earlier sources  of Torah interpretation” (Jewish Law, vol. 1, 444 (1973) (Hebrew)).

            As noted, following the majority is also the rule for courts. Thus Maimonides, following the Mishna, states: “When a court is divided - some saying that the defendant is not liable, and others say that he is liable – we follow the majority. This is a positive mitzvah of the Torah, which states: ‘Incline after the majority’” (Maimonides, Mishneh Torah, The Sanhedrin and the Penalties in their Jurisdiction 8:1), and see E. Shochetman, Procedure in the Rabbinical Court, vol. 2 (5771 edition) 1139; and although the majority opinion is decisive and the minority as though non-existent, we are required to publish the minority opinion (p. 1143).

 

A Decree that the Majority of the Public cannot bear

6.         Although, as we have seen in the early rabbinic sources and in Maimonides, the law is decided by the sages, nevertheless, at times, the public also has a hand in deciding the law. Thus it was held that a decree becomes valid only if the majority of the public has accepted it or can bear it, but if not, it is automatically void. Thus Maimonides writes (Rebels 2:5-7):

5.         When a court sees it necessary to issue a decree, institute an edict, or establish a custom, they must first contemplate the matter and see whether or not the majority of the community can maintain the practice. A decree is never issued for the community unless the majority of the community can maintain the practice.

6.         If a court issued a decree in the belief that the majority of the community could maintain it, and after the decree was issued, the majority of the community raised doubts and the practice did not spread throughout the majority of the community, the decree is nullified, and the community cannot be compelled to follow it.

7.         If the sages issued a decree and imagined that it spread among the entire Jewish people, and the situation remained unchanged for many years, and after a long period of time, another court checked throughout the Jewish community and found that the decree had not spread throughout the Jewish community, it has the authority to rescind the decree. And even if it is of lesser stature than the original court in wisdom and in number, it can rescind it.

            We thus have before us flexibility built upon general public conduct in a sort of pragmatic democracy.

 

Communal Enactments and the Majority and Minority

7.         Over the generations, in the absence of a central legal authority that made it possible to make binding decisions by majority, Jewish law developed the institution of communal enactments [takanot hakahal] that allowed the public to enact halakhically valid norms for itself. The institution of communal enactments originated in early practices that permitted communities and professional associations to enact laws for themselves:

The townspeople may compel one another to build a synagogue and to buy a scroll of the Torah and the Prophets, and the townspeople can stipulate as to prices and measures and the wages of workers … the townspeople may say that one who presents himself before so-and-so shall pay so much, and one who presents himself before the ruler shall pay so much, any who releases or pastures his cow in the vineyard will pay so much, and one who pastures such an animal will pay so much…and the wool weavers and dyers can stipulate that all will have a share in any merchandise that comes into the town (Tosefta, Bava Metzia 11:23-24).

            Pursuant to these rules, the responsa literature held that communities had the authority to establish binding enactments for their members. Jewish law scholars found support for making  such enactments in the Jewish civil law principle “hefker beit din hefker” [“what the court declares ownerless is ownerless”] (Elon 564-565), and the Jewish criminal law principle “beit din makin ve’onshin shelo min hadin” [“a court may mete out punishment not prescribed by the Torah”] (ibid., 566-569).

            In this regard, Rashba (Rabbi Solomon ben Adret, Spain, 13^th-14^th cents.) addresses the question of whether men appointed to adjudicate criminal matters by community enactments and by the state could hear the testimony of [halakhically] inadmissible witnesses:

It would appear clear to me that you may do as you see fit, inasmuch as those matters that you raised apply only to a court that judges in accordance with Torah law as a Sanhedrin or such like. But one who holds office by state enactments does not actually rule upon the laws of the Torah but according to what he must do at the time according to the authority of the state…and all of those things apply only in a court that acts according to the Torah. Consider David who killed the Amalekite upon his own opinion. And so they said: they mete out punishment not prescribed by the Torah, and this is not to transgress the Torah but to build a fence around the Torah. And there was a case of a person who rode a horse on the Sabbath and was brought before a court and stoned. And it is not that such is the law, but rather the times required it, as we find in the chapter Ha’isha Rabba in Tractate Yevamot (90b). All the more so in your case, where the consent was primarily that you do what you think right, as was written in the letter of enactment that you referred to. And so the matter would appear clear for us and all places in which there is an enactment among them on such matters (Responsa Rashba 4:311).

            Communal enactments were generally enacted by the majority and bound the minority (Elon 580-581). In his response, the Rosh (Rabbeinu Asher, Ashkenaz & Spain, 13^th-14^th cents.) provides the following explanation:

You ask whether two or three of the average people in the city can exempt themselves from the agreement made by the community, or a ban imposed on something. Know that on public matters the Torah said “incline after the majority”, and therefore in every matter that the community agrees, we follow the majority, and individuals must obey what the majority has agreed to, for if not, the community will not agree to anything if individuals have the power to withdraw their consent. Therefore, the Torah instructs that in every matter of consent of the many “incline after the majority” (Responsa Rosh 6:5).

            Thus, the Rosh expanded the Talmudic rule adopted by Maimonides in regard to interpretation of the Torah and the procedure of the courts into a principle applying to “public matters” on the basis of public need (Elon 583). The opinion of the minority is heard, but the majority decides.

 

The Rights of the Minority in Communal Enactments

            How is the minority heard, and how are its rights protected? Addressing the question of whether the members of a community could rescind the permission granted to the members of another community to conduct business in their city, the Rema (Rabbi Moses Isserles, Poland, 17^th cent.) wrote:

It is clear that the community leaders do not have the authority to enact anything except in accordance with the law, and may not oppress individuals, and the majority does not have the power to steal from an individual (emphasis added –E.R.). As the Maharik (Moreinu Rabbi Joseph Colon, Italy, 15^th cent.) wrote on such a matter in Shoresh 1, and as Rashba wrote in a responsum cited by Bar Sheshet (Rivash – Rabbi Isaac ben Sheshet, Spain, 14^th-15^th cents.) in responsum 477: In regard to community A that wished to make an enactment imposing a tax on all property held in the city or in another city, and they wished to do this in order to obligate an individual who resided among them, and he replied: As to your statement on the power of the community to make rules and laws in this regard, it would appear to me to be nothing but theft, and they cannot legislate theft etc., and how does a majority concern this? It is therefore clear that the members of the community are permitted only to make enactments in regard to what the law places under their jurisdiction, and not anything that they may conceive, which never was and never will be the case (Responsa Rema 73).

            From the Rema’s responsum, based upon the sources cited, we learn that the majority does not have the power to make any enactment “they may conceive” against the minority, and they may not “oppress” individuals. This is one of the principles of justice and equity by which halakhic scholars assessed communal enactments (Elon 616-623). Another principle that derives from this requires that an enactment apply equally to all the members of the community (Elon 624). Thus, Ritva (Rabbi Yom Tov Asevilli, Spain, 13^th-14^th cents.) wrote:

And thus my late teacher would say: In regard to every enactment that the majority of the community, which is more important in number and wisdom, agrees to, even if the minority stands and shouts, they are obligated by what the majority has decided. But only if the majority believes that the enactment benefits the community can they enact thus upon the entire community equally (Novellae Ritva, Avoda Zara 36b, s.v. Katuv beshem Harav Rabbeinu Yona) (emphasis added – E.R.).

 

Israeli Democracy from a Halakhic Perspective

8.         In the spirit of the above, we may also consider how halakha views Israeli democracy, which like any democracy, is premised upon majority-minority relations, but which is also subject to legal and constitutional checks and balances. This question addresses several different issues: the relationship to democratic elections; whether it is permissible to appoint a government on the basis of democratic elections, even though the halakhically ideal Jewish government would seem to be a Jewish monarchy; the relationship to minority groups and their participation in the Israeli democratic process, both in regard to elections and governments, and in regard to law; and in “miniature”, such questions of majority and minority arise in the case before us, which is restricted to a limited municipal issue.

 

The Democratic Regime

9.         One of the approaches to recognition of the modern form of democracy can be found in the writings of Rabbi Isaac HaKohen Kook, Chief Rabbi of Mandatory Palestine until his death in 1935, in Responsa Mishpatei Kohen. According to that approach, in the absence of a king, his authorities pass to the entire nation, which can decide how to implement them:

Inasmuch as the laws of the king also regard all that concerns the general situation of the nation, it would appear that when there is no king, those legal authorities return to the nation in its entirety…In regard to all that concerns general administration, whoever leads the nation deals with the laws of the king, which are the general needs of the nation that are required for the time and reality (Responsa Mishpatei Kohen 144) (Hebrew)).

            Rabbi Isaac HaLevi Herzog, Chief Rabbi of Israel at the end of the Mandate and in the first decade of the State, cited this in his article On the Establishment of a State prior to the Coming of the Messiah published in his book A Constitution for Israel According to the Torah (Dr. I. Warhaftig (ed.) (Hebrew)). Under the subject “The Authority of a King in Our Day”, Rabbi Herzog wrote:

And if you say that we do not have a king, I would say that as long as he is not granted an eternal dynasty, he need not be from the House of David, and a king who is not of the House of David does not need to be anointed with the anointing oil, and the king’s authority derives only from the people, as he was chosen by the people. And so we may say that the entire people, and primarily the People of Israel residing in the Land of Israel as aforesaid, holds the authority of the king in regard to matters of the nation. And if the vast and decisive majority declares war, that is like the decree of the king, and it has the power to compel (Rabbi Y.I. HaLevi Herzog, A Constitution for Israel According to the Torah, vol. 1, 129 (1989) (Hebrew)).

            Thus, according to this approach, the authority of the king derives from the people. And when there is no king, authority returns to the people, which can make decisions by majority.

10.       Beyond what has been presented above, in his article Israeli Democracy in Halakha (20 Tehumin 131-144 (Hebrew)), Dr. Isaac Geiger presents various opinions according to which a democratic regime is halakhically preferable for four reasons expressed by rabbis and halakhic decisors: the Torah commands us to create a proper regime, and proper states now employ democratic regimes, and it is therefore appropriate that Israel do the same; democracy comprises ideas that derive from Judaism – the people as the source of authority, majority rule, the rights of the minority, limitation of human government, etc.; a democratic regime limits the power granted to human government, and is thus closer to the Kingdom of Heaven; and lastly, this form of government encourages the individual to bear responsibility for the public, and see in regard to the latter, Rabbi Yeruchem Levovitz, the mashgiach (ethical advisor) of the Mir Yeshiva in Poland-Belarus in the 1920s-1930s, who presented two concepts: “the public person” and “one who bears the burden of his fellow” (see his book Da’at Chokhma uMussar (5727) vol. 1, 25-31 (Hebrew)) which describes Moses (29) “who would bend his back to carry the burden of Israel, and did not do so only to help them, but so that he could sense all their troubles and pains to the extent that a person can feel them…”, and a person who bears the burden is also “the public person” (ibid., p 11); and also see Rabbi Mordechai Greenberg, Noseh Ba’Ol im Chavero (Kerem B’Yavneh Yeshiva) (Hebrew).

            Among Dr. Geiger’s sources we find Rabbi Yehuda Gershuni (Poland-Israel-U.S.A., 20^th cent.), who wrote:

Indeed, the better form of leadership in administering the state is “that a single opinion not dominate”, as an individual may err…if the nation recognizes the responsibility of the public and knows what society is and understands the organization of society; if the nation recognizes that the general good and happiness must be preferred over the good of any party, then there is no other course but government by the public, “by the community”, by the people themselves…only government by the people by means of a parliament of elders is the proper government, and only in such times as the people are not yet able to govern by the elders is rule by an individual temporarily needed, and take care in this. He [the Netziv – Rabbi Naftali Zvi Yehuda Berlin, Head of the Volozhin Yeshiva, Russia, 19^th cent.) explains that as long as there is public consent to run the state by representatives, there is no commandment to appoint a king. And only when the people demand the appointment of a king, and can tolerate autocratic rule, is the Sanhedrin commanded to appoint a king for them (ibid., p. 136).

            And thus Rabbi Yoel Bin Nun (Israel, 20^th-21^st cents.) wrote:

The concept of democratic government, in which there is no omnipotent element, divides power among different elements. There is no personage that is identified fully or partly as the government. This approach is the closest of all to the correct, proper and desired solution that balances the rule of humankind and the rule of Heaven. This is so because the democratic concept can also look to the Kingdom of Heaven and even be subject to it (ibid., 139).

            Dr. Geiger, however, hedges his approach in stating that he refers only to formal democracy – majority rule – and not to liberal democracy, owing to various fears, among them an excessive universalism at the expense of the Jewish aspect.

 

The Relationship to the Minority in the State of Israel

11.       In conclusion, I will cite my opinion in HCJ 3166/14 Gutman v. Attorney General, para. 4 (2015):

On the eve of the establishment of the State, Rabbi Yitzchak Isaac HaLevi Herzog, Chief Rabbi of Israel upon its establishment, who energetically strove to incorporate Jewish law into state law, dedicated a special work to constitutional issues in the new State. An important chapter was reserved for “The Rights of Minorities according to Halakha”, which he deemed “the most difficult matter in regard to the democratic character of the State” – see his book A Constitution for Israel According to the Torah, vol. 1, Governance and Law in the Jewish State (Itamar Warhaftig (ed.) 1989) 12 (Hebrew). His halakhic conclusion is that the State constitutes a form of “partnership” between the Jews and the non-Jews (pp. 20-21) that also allows for the appointment of non-Jewish judges (pp. 24-25), and according to his approach, the Arab population participates in the elections (p. 95). As the editor, Dr. Warhaftig, notes, the rabbi “takes the conditions of the United Nations (in the resolution of Nov. 29, 1947 – E.R.) as a given that the State will be democratic, and that there will be no ethnically based discrimination against minorities (Introduction, p. 34). Rabbi Herzog also employs the term “a Jewish democratic state” in regard to the partnership (note 1, at p. 22). Clearly, he struggles with no few halakhic problems, but arrives at a conclusion that comprises a realism that he grounds in halakha. Rabbi Ben-Zion Meir Hai Uziel, the Sephardic Chief Rabbi at the time, addresses this in his response (ibid., pp. 244-245), stating the opinion that there is no need to go into the particulars in this matter, so as not to raise contention, “and in fact, we need not address this, inasmuch as we did not conquer the land but were granted it upon express conditions, among them that the minorities in the state be granted fully equal civil rights”; and see Dr. G. German, A King over Israel, The Halakhic View of  Perpetual Sovereignty, and the Status of Knesset Laws in Halakha (2003) (Hebrew) 742-745; and Rabbi Dr. S. Federbush, The Law of Kingship in Israel (5765), a book written close to the time of the establishment of the State that argues that minorities – recognized as gerim toshavim [“resident aliens”] under halakha – should be viewed as “cultured, moral citizens who are entitled to enjoy all the rights of citizenship granted to Jews in the Hebrew State, and we are commanded to treat them as brothers and aid them in their time of need” (p. 59).

In his article The Jewish Question in the Jewish State (5719) (published in his book Lefrafkim (5763) 307 (Hebrew)), Rabbi Yechiel Yaakov Weinberg (author of Responsa Seridei Eish) writes concerning the Jewish character of the State (p. 310) that the State “has the right, and not merely the right but the duty, to grant equal rights to all its citizens, without any discrimination among citizens”, but that does not detract from the State’s duty “to preserve the independence of the national culture, and a Jewish way of life as one of the foundations of this society…”. Thus we find both sides of the equation expressed. As opposed to this, to complete the picture, see the position of E.M. Shach, leader of the Hareidi Lithuanian community, who expressed opposition to the idea that important State decisions might be decided pursuant to the vote of Arab Knesset members, Letters and Articles, vol. 5, 126 (5755) (Hebrew): “…is this, in their opinion, the vision of the State of Israel, is this what generations of Jews awaited, the belief they died for…to be granted a Jewish government that relies upon the inclusion of Arabs?”.  This is expressed as part of a view rejecting democratic government in general (cited in Moshe Hellinger, On Democracy and the State of Israel as a Democratic Country, in Religion and Politics in Jewish Thought: Essays in Honor of Aviezer Ravitzky (2012) 567, 588) (Hebrew)).

            And see my article Malkhut Yisrael le’umat Dina DeMalkhuta (pursuant to the aforementioned book by Dr. G. German), 22 Mehkarei Mishpat 489 (20060 (Hebrew).

12.       To return to our particular issue, I concur with my colleague’s analysis. In my opinion, there is good reason that the Discounts Committee “warranted” “special treatment”. In addition to the reasons brought by my colleague (para. 12) concerning the quasi-judicial functions of that committee, we should bear in mind the simple facts – we are concerned with money, a lot of money. Every discount represents a reduction in the municipality’s treasury, and in no few municipalities there may be – without wishing to misspeak – pressure for property tax discounts by “the close to entitled” and the “quasi-entitled”. Representation of the largest opposition faction on the Discount Committee under sec. 149D(b)(1) creates one of the gatekeepers, alongside the Treasurer, the Welfare Administration, the Collections Administration, and the Legal Adviser. The opposition member is meant to be the political “gatekeeper”. That being so, we have before us a specific section as opposed to general section 150A (see, recently, LCA 2015/15 Palevski v. Makor Formica Ltd. (Aug. 4, 2016) para 4). Perhaps there should be better harmony between the wording of the relevant sections 149 and 150A, and that “opposition” should be written in each case (it is mentioned in sec. 150A, but not in the prior sec. 149D). But clearly the intention is one, and even if sec. 150A was enacted later, its specificity prevails.

13.       In conclusion, I concur with my colleague.

HCJ 7625/06 HCJ 1594/11 HCJ 1595/11
President M. Naor Deputy President  E. Rubinstein Justice S. Joubran Justice E. Hayut Justice H. Melcer Justice Y. Danziger Justice N. Hendel Justice U. Vogelman Justice Y. Amit	Before:
Martina Rogachova 1.  Shawn Patrick Murphy 2.  Rachel Zipporah Alter	Petitioner in HCJ 7625/06: Petitioners in HCJ 1594/11:
Viviana del Sisana Cabarera Martinez	Petitioner in HCJ 1595/11:
v.

 

1.  Ministry of the Interior 2.  Population Authority 3.  Conversion Committee         –  Prime Minister’s Office 4.  Immigration Authority	Respondents in HCJ 7625/06:
1.  Ministry of the Interior 2.  Conversion Committee      – Prime Minister’s Office	Respondents in HCJ 1594/11 and HCJ 1595/11
1. World Union for Progressive Judaism 2. Movement for Progressive Judaism in     Israel 3.  Masorti Movement in Israel	Requesting to join as Respondents:
ITIM Organization	Requesting to join as “Amicus Curiae”:
Objection to an  Order Nisi Dates of the hearings: 23 Adar 5773 (March 5, 2013)                                     13 Tammuz 5755 (June 30, 2015
Adv. Theodor Schwarzberg; Adv. Meital Schwarzberg-Hazan	Attorneys for the Petitioner in HCJ 7625/06:
Adv. Yael Katz Mestbaum; Adv. Ella Borochov	Attorneys for the Petitioners in HCJ 1594/11 and the Petitioner in HCJ 1595/11
Adv. Yochi Genessin; Adv. Roi Shweika	Attorneys for the Respondents in HCJ 7625/06,  HCJ 1594/11 and HCJ 1595/11:
Adv. Nicole Maor	Attorney for those requesting to be joined as Respondents:
Adv. Aviad Hacohen; Adv. Elad Kaplan	Attorneys for the party requesting to join as Amicus Curiae

 

Israel Supreme Court cases cited

[1]        HCJ 58/68 Shalit v. Minister of the Interior [1970] IsrSC 23(2) 477

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

[3]        HCJ 5070/95 Naamat v. Minister of the Interior [2002] IsrSC 56(2) 721

[4]        HCJ 2597/99 Rodriguez-Tushbeim v. Minister of the Interior [2005] IsrSC 58(5) 412 (May 31,.2004).

[5]        HCJ 2859/99 Makrina v. Minister of the Interior [2005] IsrSC 59(6) 721[http://versa.cardozo.yu.edu/opinions/tais-rodriguez-tushbeim-v-minister-...

[6]        HCJ 142/62 Funk-Schlesinger v. Minister of the Interior [1963] IsrSC 17 225

[7]        HCJ 264/87 Hitahdut Hasefaradim Shomrei Torah – Shas Movement v. Director of the Population Administration in the Ministry of the Interior [1989] IsrSC 43(2) 723

[8]        HCJ 265/89 Beresford v. Minister of the Interior [1989] IsrSC 43(4) 793

[9]        HCJ 3648/97 Stamka v. Minister of the Interior [1999] IsrSC 53(2) 728 [http://versa.cardozo.yu.edu/opinions/stamka-v-minister-interior]

[10]      HCJ 1188/10 Pozarsky v. Ministry of the Interior (31.7.2013)

[11]      HCJ 11585/05 Movement for Progressive Judaism in Israel v. Ministry for Absorption of Immigration (May 19, 2009).

[12]      HCJ 8091/14 Hamoked Center for the Defence of the Individual v. Minister of Defense (Dec. 31, 2014).

[13]      FH 23/60 Balan v. Executors of the Estate of Raymond Litwinsky (dec.), [1961] IsrSC 15(1) 71.

[14]      HCJ 3477/95 Ben Attiah v. Minister of Education and Culture [1976] IsrSC 49(5) 1.

[15]      HCJ 6624/06 Pashko v. Ministry of the Interior (Aug. 13, 2015).

[16]      HCJ 4504/05 Skaborchov b. Minister for Internal Security (Nov. 4, 2009).

[17]      AAA 5875/10 Masorti Movement v. Be’er Sheva Religious Council (Dec. 11, 2016) [http://versa.cardozo.yu.edu/opinions/conservative-movement-v-beer-sheva-....

[18]      HCJ 72/62 Rufeisen v. Minister of the Interior [1962] IsrSC 16 2428.

[19]      HCJ 5079/08 A. v. Rabbi Sherman (April 25, 2012)

[20]      HCJ 5444/13 Erez v. Special Conversion Courts (2014)

[21]      HCJ 10226/08 Zevidovsky v. Minister of the Interior (Aug. 2, 2010).

[22]      HCJ 3994/12 Asphaho v. Minister of Justice (June 15, 2015).

 

United States courts cases cited

 [23]     Ran-Dav’s County Kosher, Inc. v. State, 129 N.J. 141 (1992).

[24]      Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir.2002).

 

Israeli Legislation cited

Basic Law: Human Dignity and Liberty.

Basic Law: The Government, sec. 32.

Citizenship Law, 5712-1952,  sec. 2(a).

Defense Services Law [Consolidated Version] 5746-1986, sec. 22A.

Law of Return, 5710-1950, general, and secs. 1, 2(a), 3(a), 4A, 4B.

Marriage and Divorce (Registration) Ordinance, sec. 2A.

Nationality Law, 5712-1942, sec. 2(a).

Population Registry Law, 5725-1965, section 3A(b).

Prohibition on Kashrut Fraud Law, 5743-1983, sec. 2(a)(2).

Religious Community (Conversion) Ordinance

 

Abstract

The Petitioners arrived in Israel from different places throughout the world, and while in Israel, underwent the conversion in an Orthodox community that did not operate within the framework of the state conversion system. The question that must be decided is whether these petitioners should be recognized as Jews for the purpose of the Law of Return. The Respondents argue that from an interpretative point of view, the Law of Return was not intended to apply to a person who converted while already living in Israel, and that a conversion performed in Israel should not be recognized unless it was conducted within the framework of the state conversion system.

The Supreme Court, sitting as the High Court of Justice, ruled:

President Naor: The question of the application of the Law of Return to converts who were living in Israel prior to their conversion has already been addressed in Rodriguez-Tushbeim v. Minister of the Interior. The fundamental decision in that case still holds: the Law of Return applies to a person who came to Israel, and converted while living lawfully in Israel. There is no justification for departing from that rule.

The Respondents’ approach lacks any support in the language of the Law. In this regard, we cannot accept the argument that the provision of sec. 3(a) of the Law of Return, establishing that “A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh's certificate” represents a negative arrangement in regard to a person who comes to Israel when he is not a Jew. The conclusion required by purposive interpretation of the Law of Return is that it is, in fact, a positive arrangement.

The approach of the Respondents is incompatible with the purpose underlying the Law, i.e., immigration and the Ingathering of the Exiles. In addition, this approach has consequences that are not egalitarian, and for this reason, too, it cannot be accepted. As has been held, it would be unlawful discrimination for one person to be considered an oleh because he converted and later settled in Israel, while another person who wished to settle in Israel would not considered an oleh only because his conversion occurred after he settled in Israel. Both converts joined the Jewish people and settled in the State of Israel; they are both children returning to their homeland. The difference in the “timetable” of the conversion and the immigration is irrelevant for the purposes of the Law, and the Law should not be interpreted in such a way as to lead to such unlawful discrimination.

True, the purpose of encouraging immigration is not the only purpose that the Law of Return was designed to realize. Underlying the Law is also an objective purpose that concerns abuse of the right to acquire status by virtue of Return. However, it is doubtful whether the approach of the Respondents realizes this purpose, and in any case, it does not constitute the only or the optimal solution to the problem. First, concern about abuse of the Law does not exist only with respect to those converting in Israel. Second, concern about abuse of the Law can be dealt with by increasing the oversight and supervision of a person who wishes to realize his right to status by virtue of Return, such that conversion that is not sincere will not be recognized. This, however, will not affect the rights of sincere converts.

The requirement that the arrangements in the Law of Return be invoked in good faith and without abuse justifies limiting the application of the Law only to a person who was living in Israel lawfully at the time of his conversion. The Law of Return will not apply to a person who underwent conversion while he was knowingly living in Israel unlawfully. For the purpose of the application of the Law of Return, the type of visa held by the convert is irrelevant. If a person was in Israel lawfully at the time of his conversion – the Law applies to him.

We cannot accept the Respondents’ position that the concept of conversion under the Law of Return refers only to conversion in the framework of the state conversion system. First, this approach has no support in the language of sec. 4B. True, the language of the Law inserts almost no content into the concept of conversion. However, sec. 4B must be interpreted in light of the Law in its entirety. Against the backdrop of the context of the provisions of the Law of Return, it may be said that conversion in the context of this Law is a public-civil act. Hence, a certain degree of oversight of the recognition of conversion is necessary. However, the language of the Law does not specify the nature of that oversight and the conditions under which conversion will be recognized. It certainly does not necessitate that oversight be achieved by means of recognizing only conversion by the state conversion system.

Examination of the purpose of the Law also indicates that the Respondents’ approach must be rejected. The purpose of sec. 4B of the Law is to encourage every Jew to immigrate to Israel and to settle in the country. This is so whether he is a Jew from birth or whether he has chosen to affiliate to the Jewish people through conversion. In this, the provision comports with the general purpose of the Law of Return, which is, as stated, the Ingathering of the Exiles. Let there be no mistake: in addition to encouraging immigration, the Law of Return also reflects the purpose of establishing the unity of the Jewish people in Israel and abroad. The interpretation proposed by the Respondents does not realize these purposes. It significantly limits the right of immigration and does not attribute weight to the variety of Jewish communities that exist, and it therefore cannot be accepted.

Make no mistake: the approach whereby the expression “has become converted” refers to any person whom three Jews have declared to have been converted by them is likewise unacceptable. It is clear from the purpose of the Law that the expression “has become converted” in the Law of Return embraces an objective test of public recognition of the process of the conversion. The criterion that should be adopted is that which was adopted for the purpose of recognition of a conversion conducted abroad: the criterion of the recognized Jewish community. This criterion successfully combines realization of the purpose of encouraging immigration and the unity of the Jewish people on the one hand, and oversight of the public aspect of conversion on the other. It is also in keeping with the general, objective purpose underlying the Law of Return, which is concerned with ensuring egalitarian outcomes.

Therefore, the term “converted” in the Law of Return must be interpreted as conversion under the auspices of a recognized Jewish community, in accordance with its established criteria. As has been ruled, “recognized Jewish community” means an established, active community with a common, known Jewish identity, which has fixed frameworks of communal administration and which belongs to one of the streams recognized by the international Jewish community. The Orthodox communities in which the Petitioners were converted comply with the definition of recognized communities, as they are established and have a common, known Jewish identity.

The state conversion system was established in the framework of the Government’s residual authority. It is a well-known principle that residual authority cannot serve as the basis for violating human rights. Furthermore, residual authority does not include the authority to determine primary arrangements. Recognition of conversion for the purpose of the Law of Return is a primary arrangement. This arrangement should be made by the legislature and not by the administration. For these reasons, it was not found to be within the residual power of the Government to determine that only conversion within the framework of the state conversion system is conversion according to the Law of Return.

Oversight of the sincerity of conversion is not exhausted by the one and only possibility offered by the Respondents, which proposes the recognition of state conversion alone. The Respondents have multiple tools for addressing the concern of abuse, by way of individual, careful examination of the sincerity of the conversion, and by attributing weight to the objective facts surrounding the process of conversion, including the circumstances of the convert’s entry into Israel and the type of visa on which he entered. In any case, the requirement that the conversion be conducted in a recognized Jewish community allays, to a great extent, concern about abuse.

On the said basis, the petition of the Petitioner in HCJ 7625/06 is denied. The other petitions are granted, and the petitioner in HCJ 1594/11 and the petitioner in HCJ 1595/11 were held to be Jews for the purpose of the Law of Return.

Justices Danziger, Vogelman, Joubran and Hayut concurred.

Justice Melcer concurred, adding: In administrative law, abuse of a right on the part of others in the past, or a concern about such abuse in the future, does not justify the withholding of a right from a person seeking it in good faith. Refusal of the authority in such a case is tainted by unreasonableness and non-proportionality. This principle applies even more strongly in constitutional law, when what is involved are fundamental constitutional rights.

The Right of Return is a  fundamental constitutional right that derives from the Jewish character of Israel, which is defined as a Jewish and democratic state. As such, this right is granted to every Jew. Just as the Law of Return does not present a monolithic view of every person born of a Jewish mother, so there cannot be a monolithic view of every person who has converted.

Justice Amit tended towards the minority opinion in Rodriguez-Tushbeim, according to which the Law of Return applies to a person who was Jewish before he came to Israel. However, since this extremely important decision was decided by a panel of eleven justices, Justice Amit concedes and does not find cause to deviate from that ruling. He concurs in the conclusion whereby recognition of conversion should not be confined to the state system alone.

Deputy President Rubinstein: The difficulty with the position of the President, at this time, lies in the fact that we are lending a hand to discord on the subject of conversion – an important subject in the Israeli experience as a Jewish and democratic state. Thus, recognition that grants status should come from the state, and it should be done in a manner that is friendly to the convert and as broad-minded as possible so that its outcome will apply to all Jewry. This is not something unattainable. The decision proposed by the President should be accepted with a deferment for 18 months, during which the Knesset will be able to establish by law a state conversion system that is harmonious, appropriate and fair both regarding the halakhah and respecting all sectors of our nation, at some level of centralization or decentralization, for otherwise, the responsibility will be borne by the political system.

Justice Hendel: “Conversion” is at base a religious term. Analysis of a concept with clearly religious roots requires addressing the halakhic position. To be clear, the roots of the institution of conversion are planted in the two-pronged philosophic and halakhic legacy of Jewish law, and at the same time, in a legal process. Interpretation of the term “has become converted” in the Law is required in order to give expression to these elements, while scrupulously preserving the frameworks, including an understanding of our role as the Supreme Court and not as a religious beth din [rabbinical tribunal].

The language and purpose of the Law do not entrench a position that would comprehensively negate the status of conversions conducted by private Orthodox religious tribunals. On the contrary: from the point of view of the purpose of the Law of Return, it would appear to be more correct to expand the possibilities of conversion – while giving expression to different halakhic approaches, and to rabbis with different outlooks who fall within the Orthodox framework. Creating over-centralization and granting an absolute monopoly to the Chief Rabbinate over the institution of conversion contradict the main purpose of the Law of Return, which is to encourage immigration. As such, the term “has become converted” must be interpreted broadly, in a way that includes every Orthodox conversion that was conducted in a beth din composed of rabbinic judges of stature.

This outcome is necessitated not only by the specific purpose of the Law of Return, but also by its general objective purpose, as derived from the basic principles of the system. There are substantive disputes even in the world of halakhah, certainly on the issue of conversion. Preferring a particular halakhic approach, while dismissing other approaches that exist in the halakhic-Orthodox arena is not an outcome that can be defended in the present legal situation. The state was not authorized to make such distinctions. Neither is this consistent with the values of the State of Israel as a Jewish and democratic state. Jewish, because the approach of the halakhah throughout the generations has supported pluralism in conversion proceedings, and democratic, due to the wrong in preferring the positions of one Orthodox group over those of another, in violation of equality and of the rights of those entitled to Return.

 

JUDGMENT

President M. Naor

The Petitioners before us arrived in Israel from different places around the world, and they underwent a process of conversion in an Orthodox community in Israel which did not operate within the framework of the state conversion system. The main question arising before us is whether they should be recognized as Jews for the purposes of the Law of Return, 5710-1950.

 

The Facts Pertaining to the Case

1.         The petitioner in HCJ 7625/06, Martina Rogachova (hereinafter: Martina), is a Czech citizen. There, according to her, she drew close to Judaism. In 2001, Martina arrived in Israel as a tourist. Towards the end of 2001, the tourist visa on which she had entered Israel expired, but she remained in Israel until the end of 2004, and then returned to the Czech Republic. In the course of the period in which she remained in Israel illegally, Martina underwent an Orthodox conversion in the rabbinical tribunal [beth din; pl. batei din] of Rabbi Karelitz in Bnei Brak, which is not part of the state conversion system. In 2005, and after many upheavals, she was permitted to reenter Israel, and she embarked on a process of acquiring status by virtue of her relationship with an Israeli citizen. Subsequently, after separating from her Israeli partner, Martina submitted a request to the state conversion system to “receive a certificate of conversion of religion” in view of the conversion that she had undergone, hoping to acquire entitlement to status by virtue of the Law of Return. When her application was rejected, she submitted the present petition. To complete the picture, it should be noted that while her petition was pending, Martina left Israel for the Czech Republic several times. During one of her visits in the Czech Republic, she became pregnant by a Czech national, and their son was born there in April, 2014.

2.         Petitioner no. 1 in HCJ 1594/11, Shawn Patrick Murphy (hereinafter: Shawn), is a Canadian citizen who entered Israel for the first time in 2006 on a tourist visa, which he extended from time to time. He studied in Israel for about a year in preparation for an Orthodox conversion, which was conducted at the beginning of 2007 in the beth din of Rabbi Frank in Mea Shearim, which is not part of the state conversion system. In 2010, Shawn applied for recognition of status under the Law of Return, but his application was rejected. Hence the petition. Eventually, Shawn received a permit for temporary residence in Israel (an A/5 visa), by virtue of his marriage to Petitioner no. 2, who is an Israeli citizen.

3.         The Petitioner in HCJ 1595/11, Viviana del Sisana Cabarera Martinez (hereinafter: Viviana), a native of Ecuador, arrived in Israel in 1999 with an Israeli partner. After the expiration of the tourist visa on which she had entered the country, Viviana remained in Israel illegally for several years. In the course of this period, two deportation orders were issued against her. In 2005, she returned to Israel following an application for status that had been submitted on the basis of her relationship with her Israeli partner, and eventually she received a temporary resident’s permit (an A/5 visa), which expired in 2010. In the course of 2009, after a period of study and preparation she converted – she too did so in the beth din of Rabbi Karelitz. Later that year, she submitted an application to the state conversion system to begin a process of state conversion. A year later, before the state conversion system had decided on her application, Viviana applied to the Ministry of the Interior to be granted temporary status until her conversion was arranged. At that time, she noted that she had separated from her Israeli partner. Her observance of an Orthodox lifestyle was, she claimed, the main reason for the separation. On January 3, 2011, her application for status was rejected; hence the petition. After the petition was submitted, on April 4, 2011, her application to begin a state conversion process was also rejected.

4.         The Petitioners in this case are different from one another. Many and varied reasons led them to Israel, and the nature of their stay in Israel is different in each case. However, the question underlying these proceedings is the same: should the conversion that each of the petitioners has undergone – Orthodox conversion that was not conducted in the framework of the state conversion system – be recognized for the purposes of the Law of Return?

 

The Proceedings

5.         A great amount of time has elapsed since the first petition was submitted. The reason for the delay lies in the attempts to find an out-of-court solution for the problem that the petitions raised. In this framework, attempts were made to solve the individual problems presented by the Petitioners (see, e.g., the decision of January 19,2009 (concerning Martina); the decision of May 2, 2012 (concerning Shawn)). These attempts, however, were unsuccessful. Subsequently we also postponed the hearing of the petitions several times with a view to allowing the Respondents to find a comprehensive solution to the problem. Thus, on March 5, 2012, we decided as follows:

               In our opinion, the issues that were raised in the three petitions before us, and in other petitions submitted by the those requesting to join as respondents (the World Union of Progressive Judaism, the Movement for Progressive Judaism and the Masorti Movement in Israel), ought to be brought before the Government that will be formed.

On July7, 2013 we granted the Respondents’ request to revisit the matter and update it, after we were informed that –

               [I]n two meetings that took place in his office, the incoming Minister of the Interior was presented with the issues that arise in the three petitions … and in other petitions that were submitted by those requesting to join. These issues were also raised before the Deputy Minister for Religious Services, in a meeting that was held in his office.

At present, the Minister of the Interior intends to bring up the matter before the relevant bodies in the Israeli Government (Notice on behalf of the Respondents of July 4, 2013).

On January 23, 2014, we once again granted the Respondents’ request to consider and update the matter, after “exhaustion” of the presentation of the issues before the Government. Finally, on February 13, 2014, the Respondents informed us that “a meeting had taken place on this subject, with the participation of the Minister of the Interior, the Deputy Minister for Religious Services, the Cabinet Secretary and other representatives of the state conversion system, the Ministry of the Interior and the State Attorney’s Office” in which it was concluded that the position of the State remains unchanged, but “one must await developments” in relation to a private member’s bill submitted on the matter of conversion (Amendment to the Religious Community (Conversion) Ordinance (Conversion by the Rabbi of a Town and a Local Council), 5773-2013). The legislative process of the said bill was not crowned with success.

There is, therefore, no avoiding a judicial decision. An order nisi was issued in each of the proceedings before us, and on March 5, 2013 and June 30, 2015, we heard the oral arguments of the parties.

 

Pleadings of the Parties

6.         The Petitioners’ argument was that it is sufficient to convert through a recognized Jewish community – in Israel or abroad – in order to entitle a person to status by virtue of the Law of Return. A similar position was presented by the organization seeking to join as amicus curiae. In the latter’s view, once a halakhic authority has decided on the validity of a conversion, the Ministry of the Interior cannot second-guess it. ITIM also argued that granting status only to a person who has converted through the state conversion system disproportionately violates the right of freedom of religion of those converting in private conversions in Israel, as well as their right to equality (both in relation to a person who converted in Israel through a state conversion, and in relation to a person who converted abroad). ITIM added that since conversion is an act that determines a person’s status, it must be regarded as a “primary arrangement” that the Government cannot regulate by means of the state conversion system.

7.         The Respondents, on the other hand, argued that status should not be granted by virtue of the Law of Return to a person who converted in Israel outside the framework of the state conversion system, for two reasons: first, they argued that from a interpretative point of view, the Law of Return was not intended to apply to a person who is already resident in the State of Israel; secondly, it was argued that in view of the legal ramifications of conversion, the term “who converted” in sec. 4B of the Law of Return must be understood as “under the aegis of the state, under state supervision.” In other words, for the purpose of granting a person status by virtue of the Law of Return, only conversion undergone in the special conversion tribunals established in the framework of the state conversion system will be recognized. This position, so stated the Respondents repeatedly, is based on a concern about frivolous requests for conversion, the only purpose of which is to acquire status in Israel. In their view, due to the great importance of oversight on the part of the state over applications for status by virtue of the Law of Return, which this Court has discussed more than once, it is not possible to recognize conversion by “any three people” – in the words of counsel for the state (see, e.g., pp. 5-6 of the protocol of the hearing of June 30, 2015) – but only conversion in the framework of the state conversion system.

8.         In addition, the position of the World Union of Progressive Judaism, the Movement for Progressive Judaism in Israel and the Masorti Movement, which requested to be joined as respondents, was submitted to us. Their main argument was that the decision in the petitions before us must be confined to the question of the recognition of private Orthodox conversion in Israel, and should not extend to the question of recognition of private conversion of the Masorti (Conservative) Movement and the Reform Movement – an issue that is the subject of petitions submitted by those requesting to be joined, and which are still pending (HCJ 11013/05 and related petitions).

9. I will already remark at this stage that, in my opinion, we do not need to decide on the requests to be joined. We have read the arguments of those requesting to be joined, and we have also heard their oral arguments. It is, of course, clear that our decision will relate only to the petitions before us. The issues that arise in the petitions that are pending (HCJ 11013/05 and related petitions) will be decided there.

 

The Normative Framework

10.       As stated, the question confronting us is whether, following the conversions that they underwent, the Petitioners should be recognized as Jews for the purpose of the Law of Return. Underlying the matter, therefore, is the interpretation of the Law of Return, which is one of the most important laws in the State of Israel. The Law of Return is a major expression of this being a Jewish state, in addition to a democratic state. At its core is immigration to Israel:

Right of Aliyah

1.

Every Jew has the right to come to this country as an oleh [immigrant].

The Law further provides that aliya [immigration to Israel] will be by virtue of an oleh’s visa (see section 2(a)). An oleh’s visa shall be granted to every Jew who has expressed his desire to settle in Israel, unless the Minister of the Interior is satisfied that the applicant is engaged in activity directed against the Jewish people, or is likely to endanger public health or the security of the state (sec. 2(b)). The arrangement in the Law of Return is complemented by sec. 2(a) of the Nationality Law, 5712-1952, which states:

Nationality by virtue of Return

2(a)

Every oleh under the Law of Return 5710-1950 shall become an Israeli national by virtue of Return […].

11.       The right of aliyah – and by virtue thereof, the right of nationality – is granted to every “Jew”. A definition of this concept was added to the Law of Return in 1970, in the framework of Amendment no. 2 to the Law. This Amendment was passed following the judgment of this Court in HCJ 58/68 Shalit v. Minister of the Interior [1], according to which a child who was born to a Jewish father and a mother who was not Jewish is to be registered in the Population Registry as a “Jew”, even though this child is not Jewish according to Jewish law. Since the passage of Amendment no. 2, the Law of Return has not been amended. The term “Jew” is defined thus in the Law of Return:

Definition

4B.

For the purposes of this Law, “Jew” means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.

In our context, none of the petitioners was “born of a Jewish mother.” Neither was it argued here that any of them is “a member of another religion.” Thus, we must address the interpretation of the term, “has become converted.”

12.       This is not the first time that this Court has addressed the question of the interpretation of the term “has become converted” in the Law of Return (see: HCJ 1031/93 Pessaro (Goldstein) v. Minister of the Interior [2]; HCJ 5070/95 Naamat v. Minister of the Interior [3]; HCJ 2597/99 Rodriguez-Tushbeim v. Minister of the Interior [4] (decision of May 31, 2004); HCJ 2859/99 Makrina v. Minister of the Interior [5]). In the various proceedings before this Court, the consistent position of the state has been that recognition of conversions for the purpose of the Law of Return should be limited. As will be explained below, this was based on a number of different arguments, which were dismissed. I will discuss these proceedings in brief.

13.       First, the state made the argument that to recognize conversion for the purpose of the Law of Return, the convert had to meet certain conditions stipulated in the Religious Community (Conversion) Ordinance (hereinafter: Conversion Ordinance). This argument was dismissed by the Court in Pessaro v. Minister of the Interior [2] (per President (emeritus) M. Shamgar, Deputy President A. Barak and Justices E. Mazza, M. Cheshin, T. Strasburg-Cohen and D. Dorner concurring, as against the dissenting opinion of Justice Z.A. Tal). It was ruled that the Conversion Ordinance “applies only to subjects that are within the jurisdiction of the religious courts” (p. 690), and does not apply for the purposes of the Law of Return:

               All we are saying is that the Conversion Ordinance does not apply for the purpose of recognition of conversion under the Law of Return […]. Our ruling today is of a purely negative nature. We are determining the negative (the Conversion Ordinance does not apply). We are not determining the positive (the precise contents of the essence of conversion in Israel). As we have mentioned, the “positive” is likely to be determined explicitly and specifically by the legislature. At the same time – and as long as the Knesset has not had its say – we do not have a legal lacuna. A “positive” solution to the problem is found in the Law of Return, which defines who is a Jew. If the legislature does not say anything further on this, there will be no option but to come to a judicial determination on this point in accordance with the existing definition (ibid., pp. 747-748).

14.       Once the argument concerning the application of the Conversion Ordinance had been dismissed, the argument was raised that a conversion that is conducted in Israel constitutes an act of joining the Jewish religious community – a single religious community at the head of which stands the Chief Rabbinate – and therefore the conversion must have the consent of the Chief Rabbinate. This argument was rejected in the case of Naamat v. Minister of the Interior [3] (per President A. Barak, Deputy President S. Levin and Justices T. Orr, E. Mazza, M. Cheshin, T. Strasburg-Cohen, D. Dorner, Y. Turkel, D. Beinisch and E. Rivlin concurring, as against the dissenting opinion of Justice I. Englard). In that matter it was ruled that the conception of the Jews as a single religious community reflects a “Mandatory-colonialist approach” (ibid., p. 752). Israel, it was ruled, is not the state of a “Jewish community”, but rather, the state of the Jewish people. Therefore, and as held in Pessaro v. Minister of the Interior [2], there is no need for the approval of the Chief Rabbinate for conversion undergone in Israel. It was also ruled that the connection between the convert and the community conducting the conversion is not important, and the convert is not required to join this community in order for the conversion to be recognized.

15.       It should be clarified that the relief that was sought, both in Pessaro v. Minister of the Interior [2] and in Naamat v. Minister of the Interior [3], was registration of the petitioners as Jews in the Population Registry. For the purpose of the Population Registry, the term “Jew” is defined “in accordance with its meaning in section 4B of the Law of Return” (section 3A(b) of the Population Registry Law, 5725-1965). For this reason, the Court turned to the interpretation of the expression “has become converted” in the Law of Return. However, it issued its rulings in relation to the Population Registry, and not for the purpose of acquisition of status by virtue of the Law of Return. In the words of President A. Barak:

As in the case of Pessaro, in our case, too, state oversight of the public aspect of conversion [with respect to status by virtue of Return – M.N.] – beyond the oversight of registration in the Registry – must be determined by the Knesset. As long as the Knesset has not expressed itself, we go back – insofar as registration in the Registry is concerned – to the authority of the registration officer under the Population Registry Law (Naamat v. Minister of the Interior [3] at p. 753).

The extent of the authority of the registration officer was determined by this Court over 25 years ago, in the case of Funk-Schlesinger (HCJ 142/62 Funk-Schlesinger v. Minister of the Interior [6]), which has a firmly established place in the case law (see, e.g., HCJ 264/87 Hitahdut Hasefaradim Shomrei Torah – Shas Movement v. Director of the Population Administration in the Ministry of the Interior [7], 732; and see also: Shalit v. Minister of the Interior [1], at p. 507; Pessaro v. Minister of the Interior [2], at p. 674; for an in-depth discussion of the application of the ruling in Funk-Schlesinger v. Minister of the Interior [6], see: Naamat v. Minister of the Interior [3] at pp. 735-745). According to the case law, the role of the registration officer is purely statistical, and it is not within his authority to examine the validity of the conversion.

16.       Additional arguments concerning the interpretation of the expression “who was converted” were raised in Rodriguez-Tushbeim v. Minister of the Interior [4]. That case dealt with petitioners who, while living lawfully in Israel, began their studies towards conversion, at the end of which they underwent a conversion ceremony in a Jewish community outside of Israel. The relief sought in that case was recognition of the petitioners as Jews for the purpose of status under the Law of Return (in addition to their registration as Jews in the Population Registry). The State’s argument was that the Law of Return was never intended to apply to a person who came to Israel and converted during his stay, whether the conversion was conducted in Israel or abroad. This argument was dismissed in Rodriguez-Tushbeim v. Minister of the Interior [4] (per  President A. Barak, Deputy President (emeritus) T. Orr, Deputy President E. Mazza and Justices M. Cheshin, D. Dorner, D Beinisch and E. Rivlin concurring, as against the dissenting opinion of Justices Y. Turkel, A. Procaccia, E. E. Levy and A. Grunis). The rule that was settled in Rodriguez-Toshbeim v. Minister of the Interior [4] was that the Law of Return applies to a person who was not a Jew, and who converted in Israel or abroad during the period of his lawful stay in Israel.

17.       Following dismissal of this argument, another argument was raised, based on the distinction between a conversion undergone in Israel and a conversion undergone outside of Israel. With regard to the former, it was argued that only a conversion undergone in the framework of the state conversion system should be recognized. As for conversion abroad, it was argued that recognition should be granted only to those conversions by which the convert joined the converting community – which could belong to any recognized stream of Judaism – and became part of that community. In Makrina v. Minister of the Interior [5] this argument was dismissed. Concerning conversion undergone abroad, it was ruled (per President A. Barak, Deputy President (emeritus) E. Mazza, Deputy President M. Cheshin, Justices D. Beinisch, E. Rivlin, E. Hayut and myself concurring, as against the dissenting opinion of Justices Y. Turkel, A. Procaccia, E.E. Levy and A. Grunis) that joining the converting community is not a condition for recognition of a conversion undergone outside of Israel. The ruling was as follows:

We rule that according to the Law of Return, it is not a sine qua non for recognition in Israel of a conversion undergone outside of Israel that the conversion was for the purpose of joining the community in which the conversion was conducted (ibid., at p. 740).

The condition that was set for recognition of conversion abroad was that it was conducted in a Jewish community recognized by the authorized religious organs of that community (ibid., at pp. 738-739). With respect to conversion in Israel – which, as stated, was not the core issue in that case – it was noted only that the government is not authorized to determine, by virtue of its residual authority, that only conversion conducted in the framework of the state conversion system will be recognized under the Law of Return (ibid., at p. 744). The legislature did not see fit to amend the Law of Return after these judgments had been handed down.

18.       I have only briefly discussed the abundant case law pertaining to the interpretation of the concept of conversion in sec. 4B of the Law of Return. Since we, too, have been charged with the task of interpreting the concept of conversion in the Law of Return, this case law will serve as a basis and a normative framework.

 

Deliberation and Decision

19.       The Respondents, as will be recalled, argued that from the point of view of interpretation, the Law of Return was not intended to apply to a person who converted once he was already in Israel, and that a conversion conducted in Israel should not be recognized unless it was in the framework of the state conversion system. In that case, the first question confronting us is this: does the Law of Return apply to a person who arrived in Israel prior to his conversion, and who converted in the course of his stay? If it is decided – and I recommend to my colleagues to decide thus – that the Law of Return applies, a further question will arise, namely: does the interpretation of the expression “has become converted” in the Law of Return imply that conversion that was undergone in Israel should be recognized only if it was conducted in the framework of the state conversion system? I will address each of these questions in turn.

 

Application of the Law of Return to Converts Living in Israel

20.       The question of the application of the Law of Return to converts who were living in Israel prior to their conversion was discussed in the case of Rodriguez-Tushbeim v. Minister of the Interior [4]. The law as decided on this question a decade ago is still valid. The decision there was as follows:

               In principle, the Law of Return applies to someone who is not a Jew, came to Israel and converted (in Israel or abroad) while staying in Israel. (ibid., para. 26 per President A. Barak) (emphasis added – M.N.)

The fact that that case involved individuals who had undergone conversion outside of Israel neither adds nor detracts. The fundamental law remains in force: the Law of Return applies to a person who comes to Israel and converts while he is lawfully in the country. The Respondents are not, in fact, raising a new argument; rather, they are asking us to depart from the decided case law. I do not think there is justification for so doing – neither from the point of view of the language of the Law of Return, nor from the point of view of its purpose. I shall explain.

21.       The Respondents’ approach lacks any foothold in the language of the Law. The Law does not contain any exception, express or implied, to its application. On the contrary, its formulation is sweeping: every Jew is entitled to immigrate to Israel. The Respondents based themselves on the provisions of sec. 3(a) of the Law of Return, which states that “A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh’s certificate.” According to them, this provision reflects a negative arrangement in relation to a person who is not a Jew. This approach is unacceptable:

               Indeed, the provisions of sec. 3(a) of the Law of Return […] are not to be understood as a negative arrangement with respect to a person who comes to Israel when he is not a Jew, and subsequently converts. This provision deals with the special case of a Jew who has not yet crystallized his position and came to Israel other than on an oleh’s visa. It should not be deduced from this that only a Jew who arrives in Israel other than on an oleh’s visa may, while still in Israel, receive an oleh’s certificate. We will not interpret one of the most fundamental of Israeli laws in this technical, formalistic way (Rodriguez-Tushbeim v. Minister of the Interior [4], para. 19 per President A. Barak).

The language of sec. 3(a) does not necessarily indicate a negative arrangement:

               […] From the explicit meaning, an implicit meaning may be deduced. What appears to be the silence of the constitutional text is not silence at all, nor a lacuna, but rather, it is possible to deduce from it an implicit meaning or “informed silence” or “talking silence”. The implicit meaning may be negative (a negative arrangement). The significance of a negative arrangement is that the arrangement that was fixed in the explicit sense will not apply to the unregulated matter. An expression of this is found in the saying, expressio unius est exclusio alterius. The implicit meaning may also be positive (a positive arrangement). The meaning of a positive arrangement is that the arrangement that was fixed explicitly may also apply to the matter that was not regulated explicitly (Aharon Barak, On the Implied in the Written Constitution, 45 Mishpatim (forthcoming)) (Hebrew), p. 11 in the version to which I have access; and see regarding legislation: Aharon Barak, Interpretation in Law – Interpretation of Legislation, 109-115 (1993) (Hebrew) (hereinafter: Barak, Interpretation of Legislation)).

In my opinion, the inescapable conclusion of purposive interpretation of the Law of Return is that this is in fact a positive arrangement. I will explain my reasons.

22.       Negating the application of the Law of Return, as the Respondents claim, is incompatible with the purpose underlying that Law – “aliyah” [lit. – going up, namely, immigration to Israel], i.e., the Ingathering of the Exiles. Indeed, “this purpose was to restore the sons to their borders and to make the State of Israel into the state of the Jewish People” (HCJ 265/89 Beresford v. Minister of the Interior [8], at 845). The words of Justice M. Cheshin are apt:

The right of return is granted to every Jew – as such – and the primary characteristic of the right is its decisiveness – it is a right that is almost absolute. Every Jew, whomever, can and is entitled to – at his volition alone – realize the right to return, the right that “your children shall return to their country” [Jeremiah 31:17]. (HCJ 3648/97 Stamka v. Minister of the Interior [9], at p. 751).

This purpose is also evident in the various provisions of the Law of Return, the whole purpose of which is to encourage and facilitate aliyah (on the Law in general as a source for its purpose, see: Aharon Barak, Purposive Interpretation in Law 413 (2003) (Hebrew) (hereinafter: Barak, Purposive Interpretation); Barak, Statutory Interpretation, at pp. 106-108). Among these provisions is sec. 4A of the Law of Return, which deals with granting status to the non-Jewish family of a Jew, whether or not the Jew himself immigrates to Israel. This section “was conceived with the purpose of facilitating the immigration of mixed families, in the hope that the non-Jewish family members would ultimately join the Jewish people” (HCJ 1188/10 Pozarsky v. Ministry of the Interior [10], para. 25 of my opinion (July 31, 2013). The same applies to recognition of the status of a “second-time oleh”, i.e., a Jew who immigrated to Israel by virtue of Return, severed the connection with Israel by leaving and giving up his Israeli citizenship, and subsequently chose to return and settle in Israel. A “second-time oleh”, too, is entitled to immigrate to Israel and to acquire citizenship by virtue of Return (see: ibid., at paras. 26-27 of my opinion).

The approach of the Respondents is incompatible with this purpose of the Law.

23.       In addition, the Respondents’ approach leads to results that are not egalitarian. It discriminates between a person who converted prior to settling in Israel and one who settled in Israel prior to his conversion; it discriminates between a person who is a Jew from birth, who according to the Respondents may live in Israel prior to his decision to immigrate to and settle in Israel, and a person who is a Jew by virtue of conversion. For this reason, too, it is unacceptable (see: Barak, Purposive Interpretation, at p. 425). President Barak discussed this matter:

Aliyah [immigration] means the settling of a Jew in Israel. In this context, the question of when the person who settled in Israel became a Jew – either before he settled in Israel or thereafter – is immaterial. Indeed, the process of conversion means “joining the Jewish people. That is its entire nature and entire purpose” […]. With respect to the convert’s joining the Jewish people (conversion) and settling in the State of Israel (immigration), the question of whether the conversion preceded the place of residence or the place of residence preceded the conversion is of no importance. It would be unlawful discrimination if one person would be regarded as an oleh because he converted and then settled in Israel, whereas another person who wishes to settle in Israel would not be regarded as an oleh because his conversion postdated his settling in Israel. Both these converts joined the Jewish people and settled in the State of Israel; both are children returning to their homeland. The difference between the two converts with respect to the “order of events” of the conversion and the immigration is irrelevant for the purpose of the Law of Return, and the Law of Return should not be interpreted in such a way as to entail such illegitimate discrimination” (Rodriguez-Tushbeim v. Minister of the Interior [4], para. 19 per President A. Barak).

24.       In truth, encouraging immigration is not the only purpose that the Law of Return was intended to realize. I accept that there is also an underlying, objective purpose that concerns preventing abuse of the right to acquire status by virtue of Return. This Court has stated more than once that the state has a right to prevent abuse of the arrangements in the Law of Return (See Rodriguez-Tushbeim v. Minister of the Interior [4], para. 24 per President A. Barak; HCJ 2859/99 Makrina v. Minister of the Interior [5], at p. 739; see also my position, ibid., at p. 747; HCJ 1188/10 Pozarsky v. Ministry of the Interior [10], para. 29 of my opinion). But it is doubtful whether the Respondents’ approach realizes this purpose. It is hard to see it as a response to the problem of abuse, and in any case it does not constitute the only or the best solution to this problem. First, concern about abuse of the Law of Return does not exist only with respect to a person who has converted in Israel. This concern is apparently also relevant regarding a person who converts abroad. Limiting the application of the Law of Return in such a way that it would not apply in relation to a person who was residing in Israel prior to his conversion does not, therefore, provide a response to the concern about abuse of the arrangements. Moreover, concern about abuse of the Law of Return can be addressed by increasing oversight and monitoring of those who wish to realize their right to acquire status by virtue of Return, in such a way that conversion that is not sincere will not be recognized – and this, without harming the rights of sincere converts; in other words, in the framework of interpretation of the Law of Return, and not by a wholesale negation of its application, which would limit the significance of the right of Return. Indeed, “Woe to basic human rights, if they are given a restrictive interpretation, only for fear of abuse” (Rodriguez-Tushbeim v. Minister of the Interior [4], at para. 24 per President A. Barak).

25.       The requirement that the provisions of the Law of Return be invoked in good faith and untainted by abuse – a requirement to which I subscribe – does not justify restricting the application of the Law of Return such that it will not apply to a person who converts in Israel. It does, however, justify restricting its application such that it applies only to a person who was living lawfully in Israel at the time of his conversion. In this spirit, it was decided in Rodriguez-Tushbeim v. Minister of the Interior [4] that the Law of Return applies only to a person “who came to Israel, and underwent a process of conversion while he was in Israel legally” (ibid., para. 25 per President A. Barak; emphasis added – M.N.). The Law of Return does not apply to a person who underwent conversion while he was knowingly in the country unlawfully. To be precise: for the purpose of the Law of Return, the type of visa held by the convert is not important. The Law of Return applies to anyone who was in Israel lawfully at the time of his conversion.

26.       Thus, my view is in accordance with the decision in Rodriguez-Tushbeim v. Minister of the Interior [4], that the Law of Return applies to a person who came to Israel, and while he was residing in Israel legally, underwent a process of conversion, whether in Israel or outside of Israel. The question still remains as to the scope of the expression “has become converted” in sec. 4B of the Law of Return, and whether, as the Respondents argue, it extends only to a person who underwent conversion in Israel in the framework of the state conversion system. This is a question of interpretation, which I shall now address.

 

Interpretation of the Expression “Has become converted” in sec.4B of the Law of Return

27.       The concept of conversion in the Law of Return raises complex questions of interpretation. The Knesset did not adopt a position on the question of the meaning of this concept. With respect to a conversion that was conducted abroad, it was decided that it means conversion that was conducted in the framework of a “recognized Jewish community” (Makrina v. Minister of the Interior [5], at pp. 738-739). As for conversion conducted in Israel, according to the Respondents this means conversion in the framework of the state conversion system alone. I cannot accept this approach, and I will explain. First, this approach has no foothold in the language of the section. Section 4B of the Law of Return is formulated concisely. The language does not limit or provide exceptions to the expression “has become converted” in any way whatsoever, over and above what is necessitated by the fact that the legislature invoked a religious concept, i.e., that the act of conversion comports with a Jewish understanding of the concept. In truth, it appears that the language of the Law barely provides content for the concept of conversion. However, the task of interpretation is not exhausted by the meaning of the individual term “has become converted”. As is well known, “a legislative expression is a creature that exists in its environment. It receives its character from its context” (see Shalit v. Minister of the Interior [1], at p. 513). The provision of section 4B must be interpreted in its context, i.e., in light of the Law of Return in its entirety (see: Barak, Statutory Interpretation, at p. 106; Barak, Purposive Interpretation, at p. 413). Against the backdrop of the context of the provisions of the Law of Return, it may be stated that the concept of conversion therein does not refer exclusively to the private, religious act. The intention is not to a person’s personal recognition, which is a matter between himself and his God. Conversion in the context of the Law of Return is a public-civic act: by virtue thereof, a person becomes affiliated to the Jewish people, and by virtue thereof he acquires the right of Return and the right to citizenship. From this it transpires that a certain degree of oversight of the recognition of conversion is required (see: Pessaro v. Minister of the Interior [2], at p. 687; Naamat v. Minister of the Interior [3], at p. 753; Makrina v. Minister of the Interior [4], at p. 746). I accept that recognition of conversion should be contingent upon an objective test and not be dependent upon the personal will of the individual. However, the language of the Law does not indicate the nature of that oversight, or the conditions under which conversion will be recognized. It certainly does not necessitate oversight exclusively by means of recognition of state conversion. In any case, the language is only the starting point of the task of interpretation, and not its end. An examination of the purpose underlying sec. 4B of the Law of Return, and the Law in general, also indicates that the approach of the Respondents must be rejected.

28.       The purpose of sec. 4B is to encourage every Jew, as such, to immigrate to Israel and to settle in Israel, whether he is a Jew by birth or whether he has chosen to join the Jewish people by means of conversion. In this, the section merges with the general purpose of the Law of Return, which is, as stated, the Ingathering of the Exiles. Let there be no mistake: the Law of Return is not a law that is designed to regulate immigration to Israel and oversight thereof, but rather, a law that expresses the right of self-determination of the Jewish people, and the link between the Jewish people and its homeland. The Law of Return embodies the justification for the existence of the State of Israel as a Jewish state, in addition to it being a democratic state. It is based on the recognition that “the Jewish people is one nation. Part of it is in Israel; part of it is in one Diaspora; part is in another Diaspora)” (Naamat v. Minister of the Interior [3], at p. 751.

The Jewish people is, indeed, one people, but it is dispersed throughout the world, and it comprises disparate and varied communities, and sub-varieties within those communities. As such, the Law of Return, in addition to encouraging immigration, reflects the purpose of establishing unity of the Jewish people in the Diaspora and in Israel. The interpretation proposed by the Respondents does not reflect these purposes. It significantly restricts the right to immigration, it does not attribute weight to the variety that exists among the Jewish communities, and it cannot, therefore, be accepted.

29.       However, also unacceptable is an approach whereby the expression “has become converted” refers to any person whom three Jews have declared to have converted, and certainly not to every person who has decided, by virtue of his own subjective will, to affiliate to the Jewish people. From the purpose of the Law – as well as its language, as explained above – it emerges that the term “has become converted” in the Law of Return embodies an objective criterion of public recognition of the process of conversion. What is that criterion? The criterion that I propose to my colleagues is the very same criterion that this Court adopted in relation to recognizing a conversion that was conducted abroad – the criterion of the recognized Jewish community. In my opinion, this criterion suitably combines the realization of the three purposes that I mentioned: encouraging immigration and unity of the Jewish people on the one hand, and oversight of the public aspect of conversion on the other.

30.       The significance of this is that the expression “conversion” in the Law of Return should be interpreted as a conversion conducted in a recognized Jewish community in accordance with the accepted criteria of that community. On this, President A. Barak wrote as follows:

               When we say “recognized Jewish community” we mean, as a rule, an established, active community with a common, known Jewish identity, which has fixed frameworks for communal administration, and which belongs to one of the recognized streams of the world Jewish community (Makrina v. Minister of the Interior [5], at p. 737).

Hence, we are talking about conversion that is conducted by religious organs in a recognized Jewish communal framework, and in accordance with the criteria followed in that community. This is no trivial requirement. It means that this is not a matter of conversion by “any three people”, in the words of counsel for the state, but conversion that is conducted by a religious body that has been authorized for this purpose by the community that it serves, and in accordance with the established, accepted criteria of that community. Let it be clear: not every Jewish community the world over will be considered a recognized community. The community must have a common, established, fixed Jewish identity. Nevertheless, I do not think it appropriate, in the present circumstances, to list the specifications for all those Jewish communities that should be regarded as “recognized Jewish communities”. I will also not go into the question of the threshold requirements of such a community, e.g., what is the minimum number of members. For our purposes, it is sufficient to determine that the Orthodox communities in which the Petitioners before us were converted, in Bnei Brak and in Jerusalem, comply with the definitions of recognized Jewish communities that are established and that have a common, known Jewish identity.

31.       My conclusion concerning the recognized-community test is in keeping with the objective, general purpose underlying the Law of Return, which is concerned with ensuring egalitarian outcomes (see: Barak, Purposive Interpretation, at p. 224). Indeed, the interpretative preliminary assumption is that the purpose of a legislative act is to uphold and maintain basic rights, including the right to equality (see: ibid., at p. 425). The Respondents’ approach creates discrimination between a person who underwent converted abroad and a person who converted in Israel (see and compare: Rodriguez-Tushbeim v. Minister of the Interior [4], at para. 23 per President A. Barak). In my opinion, there is no room for discrimination between a person who chose to convert abroad before deciding to settle in Israel, and a person who settled in Israel prior to deciding to convert, and who converted while he was lawfully resident in Israel. Both are Jews who wish to establish their homes in Israel.

32.       As for the immigration of a Jew to Israel, the order of events of settling in Israel and affiliating to the Jewish people through conversion is not important (see: ibid., at para. 19). In the words of Justice E. Rivlin:

               “Aliyah” […] is not exhausted by actual arrival in the Land of Israel. Its essence is reflected in the choice made by a Jew by birth, or a person who  converted, to settle in Israel […]. “Aliyah” is not necessarily the first stay in the Land of Israel. This preliminary stay is not necessary, but it is also not sufficient. It is not necessary because a Jew may stay in Israel for a certain period of time before becoming an oleh, and there is nothing to prevent him from making aliyah to Israel even if he had been in Israel previously. Let us say as follows: “aliyah” does not lie in the physical act of arriving at the gates of the country […].  “Aliyah” to Israel is the fact of the decision made by a Jew to live permanently in Israel […]. There is not, nor, in my opinion, can there be, any doubt that if the non-Jew converted after he has been in Israel, and he decided sincerely to reside in Israel – this is a Jew who has “made aliyah” to Israel. It is not surprising that the Bible attaches no significance to the question of whether Ruth the Moabite converted prior to crossing the Jordan River or whether […] only after she crossed the River. One way or another, she merited becoming the mother of the Royal Dynasty of Israel” (id., at para. 4).

I see no justification for interpreting the Law of Return in a manner that entails discrimination between a person who converted in Israel and one who converted abroad. For this reason, too, the interpretation whereby conversion for the purpose of the Law of Return is conversion that was conducted in a recognized Jewish community according to its accepted criteria, whether conducted in Israel our outside of Israel, is preferable.

33.       Moreover, the interpretation proposed by the Respondents is incompatible with the accepted principles relating to the exercise of the Government’s residual authority. I shall explain. The position of the Respondents is that for the purposes of the Law of Return, only the conversion of a person who converted through the state conversion system should be recognized. The state conversion system was established by virtue of decision no. 3613 of the 27^th Government (April 7, 1998), which adopted the Report of the Committee on Conversion in Israel (The Neeman Committee). The Neeman Committee recommended establishing a single process of state conversion, in the framework of which an institute for the study of Judaism would be established, with the participation of the three main streams of Judaism, and in the framework of which conversions would be carried out in special courts that would be recognized by all the streams of Judaism. I am not expressing any position on the question of whether the state conversion system that was actually set up indeed realizes these recommendations, inter alia because there does not seem to be agreement among all the streams of Judaism as to its activity. This is not our concern here.  We are concerned with the authority to set up a state conversion system, which is allegedly anchored in the residual powers of the Government (sec. 32 of Basic Law: The Government). 

34.       It is a well-known principle that residual authority cannot serve as the basis for a violation of human rights:

               Where sec. 32 of Basic Law: The Government authorizes the Government to act, it requires it to act subject to any law. Clearly this constraint prohibits the Government from acting contrary to the provisions of the law. Moreover, it prohibits the Government from violating any of a person’s human rights (Yitzhak Zamir, Administrative Authority, vol. 1, 421 (2^nd ed., 2010) (Hebrew) (hereinafter: Zamir); see also: Daphne Barak-Erez, Administrative Law, vol. 1, 141 (2010) (Hebrew) (hereinafter: Barak-Erez)).

Limiting recognition of conversion to the state conversion system alone, as the Respondents propose, would lead to a violation of the right of Return, which is a fundamental right vested in every Jew, contrary to the provisions of the Law of Return. The question of the proportionality of this violation does not arise at all, since residual authority cannot constitute justification for violating rights. President A. Barak wrote in this vein:

               [W]e accept that the Government is competent to establish, by virtue of its (residual) general power prescribed in s. 32 of Basic Law: the Government, a conversion system similar to the one that was established following the recommendations of the Neeman Commission. Notwithstanding, the Government is not competent to determine, by virtue of its general power, that only conversion that is conducted within this framework shall be recognized under the Law of Return. (Makrina v. Minister of the Interior [5], at p. 744; see also: HCJ 11585/05  Movement for Progressive Judaism in Israel v. Ministry for Absorption of Immigration [11], para. 19 per President D. Beinisch).

35.       Neither does the residual authority of the Government include the authority to establish primary arrangements (see: Zamir, at pp. 424-425; Barak-Erez, at p. 142). The principle of the rule of law tells us that those will be established by the legislature, and not the executive (see: Zamir, at pp. 85-86). Recognition of conversion for the purposes of the Law of Return is a primary arrangement. It reflects the general policy of the State of Israel on an issue that lies at the heart of the justification for the existence of the State, and touches upon fundamental questions that go to the very root of Israeli society. Such regulation ought to be undertaken by the legislature, and not by the administration. For these reasons, I do not think that the residual power of the government enables it to determine that only conversion in the framework of the state conversion system is conversion under the Law of Return.

36.       Furthermore, the Respondents base their position almost exclusively on concern about abuse of the process of conversion by way of idle requests for recognition of conversion, the whole purpose of which is to allow them to acquire status in Israel. Indeed, it appears indisputable that the state has the right to prevent abuse of conversion and not to grant rights by virtue of Return to a person whose conversion is not sincere. A person whose conversion is not sincere does not, in any case, not realize the purpose of the Law of Return. However, concern about abuse does not justify, per se, restrictive interpretation of the rights under the Law of Return:

                [T]he rules and arrangements should not be allowed to lead to a result whereby the desire to prevent recognition of the conversions of converts that abuse the right to immigrate to Israel prejudices the right of converts who properly exercise their right to join the Jewish people […].It is possible to prevent abuse of the right to immigrate to Israel in various different ways. Each case has its own circumstances.(Makrina v. Minister of the Interior [5], at p. 739; see also: Pozarsky v. Ministry of the Interior [10], at para. 29 of my opinion (given that the right of Return that is granted to every Jew is a basic right […] it must not be given a strict interpretation only because of the concern for abuse”).

Indeed,   abuse of the process of conversion must be prevented. I am even prepared to assume – and this is only an assumption – that conversion through the state conversion system usually prevents abuse. However, I do not think that this is the optimal way to ensure the sincerity of the conversion. Take, for example, the case of a non-Jew who enters Israel lawfully. While he is in Israel, he draws closer to Judaism and seeks to become part of the Jewish people. He studies for a lengthy period towards the conversion. He undergoes conversion in a recognized Orthodox community, which is known to be extremely strict, in a beth din of well-known rabbis, which is not part of the state conversion system. He does so either because he did not know of the existence of the state conversion system or because he chose to undergo the most stringent conversion. After the conversion, he lives in the community and observes an Orthodox lifestyle. Does the conversion of this person not fulfill the purpose underlying the Law of Return? Is there a reason to assume in advance that his conversion is not sincere?  My answer to these questions is negative.

37.       In my opinion, oversight of the sincerity of the conversion is not exhausted by the single possibility raised by the Respondents, which involves recognition only of state conversions. The Respondents have many tools for addressing their concern, by means of individual, careful examination of the sincerity of the conversion and consideration of objective criteria surrounding the conversion process, including the circumstances of the person’s entry into Israel and the type of visa on which he entered (see and compare: Pozarsky v. Ministry of the Interior [10], para. 29 of my opinion). In any event, the requirement that the conversion be undergone in a recognized Jewish community can significantly allay concerns of abuse, for “it is not sufficient that three people declare that a person was converted by them” (Naamat v. Minister of the Interior [3], at p. 751). This, as stated, is the main concern expressed by the Respondents. The test of the recognized community provides a response to this concern. The requirement, as I pointed out, is that a religious body that has been recognized for that purpose by a recognized religious community conducted the conversion in accordance with the accepted criteria of that community. Insistence upon these requirements significantly reduces the possibility of abuse of the process of conversion for the purpose of acquiring status by virtue of the Law of Return (and for acquiring the economic rights that come with this status).

38.       My position, therefore, is that purposive interpretation of the expression “has become converted” in sec. 4B of the Law of Return leads to its interpretation as referring to a person who has undergone conversion in a recognized Jewish community in accordance with that community’s accepted criteria.

And from general principles to the matter of the Petitioners before us.

 

From the General to the Specific

The Petitioner in HCJ 7625/06 (Martina)

39.       I discussed the fact that the Law of Return applies to a person who came to Israel and underwent a process of conversion while living in Israel lawfully. At the time of her conversion, Martina was in Israeli unlawfully, since in 2001 the tourist visa on which she had entered Israel expired. Martina remained in Israel, as will be recalled, for about three years after that time without making any attempt to lawfully arrange her stay. Accordingly, her conversion cannot be recognized for the purpose of acquiring status by virtue of the Law of Return. Having reached this conclusion, I will not discuss the question of whether the community in which she converted is a recognized Jewish community or not. I also see no need to discuss the sincerity of the conversion, even though the parties raised various arguments on this matter.

40.       In Martina’s case it was also argued that her conversion was confirmed by the Rabbinical Court, i.e., by an official state body, and she is therefore to be regarded as a person whose conversion is recognized. It is true that on March 12, 2006 a decision was handed down in the matter of Martina in the Tel Aviv Regional Rabbinical Court, as follows:

               The Court hereby confirms that Ms. Rogachova Martina […] was converted before the beth din headed by the Sage Rabbi S.Y. Nissim Karelitz., which is a beth din recognized by the Chief Rabbinate of Israel (Exhibit 6 of the Respondents’ response of Feb. 1, 2007) (emphasis added – M.N.).

However, from that response it emerges that the decision of the Regional Rabbinical Court was based on a mistake, in that the rabbis though that the beth din was a special conversion tribunal that was recognized by the Chief Rabbinate of Israel. In addition, on Nov. 14, 2006, an additional decision was handed down in which it was clarified:

In its decision [of March 12, 2006 – M.N.], the Court was not expressing any opinion about the validity of the conversion. It merely confirmed, on the basis of the documents before it, that the conversion was conducted by the beth din of Rabbi Nissim Karelitz.

               Furthermore, the Court was under the impression that the said beth din is officially recognized by the Chief Rabbinate of Israel, but it emerges that there is no document confirming this (exhibit R/11 of the response of the Respondents of Feb. 1, 2007).

Without expressing an opinion about the conduct of the Rabbinical Court in this matter, it seems to me that the decisions of the Rabbinical Court should not be seen as conferring validity upon the conversion of Martina by the state conversion system. Since she was in Israel unlawfully, in any case it is very doubtful whether she could have undergone conversion in the framework of the state conversion system (in which lawful permanent residency is a pre-condition for beginning the conversion process). One way or another, the scope of the argument in our case is confined to the question of Martina’s entitlement to status by virtue of the Law of Return. I see no reason to depart from my conclusion whereby she is not entitled to status under the Law of Return because she was in Israel unlawfully at the time of the conversion.

My position, therefore, is that the order nisi and the interim orders that were issued in HCJ 7625/06 be rescinded.

 

The Petitioner in HCJ 1594/11 (Shaun)

41.       Shaun has been in Israel lawfully for the last nine months or so. As such, the Law of Return applies to him. There is still a question of whether he is to be regarded as a person who “has become converted” according to the interpretation of this expression in the Law of Return, that is to say, was his conversion conducted in the framework of a recognized Jewish community? From this aspect, Shaun’s case is an easy one: he converted in the beth din of Rabbi Frank in the framework of the Orthodox community in Mea Shearim. The Respondents did not dispute that this is a community that belongs to one of the main streams of Judaism – a community with an established Jewish identity and with fixed frameworks of communal administration. It is also easy, in view of the whole array of circumstances, to recognize the sincerity of the conversion. The conversion was preceded by a significant period of preparation and study, and after the conversion, Shaun married a Jewish partner, and they live together in an ultra-Orthodox community in Jerusalem. I have not found a single indication that this conversion was not sincere. Therefore, my conclusion is that Shaun meets the condition of “has become converted” in the Law of Return, and is entitled to status by virtue of that Law. The petition also sought additional relief in regard to the granting of a certificate of conversion. This apparently refers to recognition by the state of his conversion. In view of the conclusion that I have reached, I do not think that the discussion ought to be extended to that matter, but I will say that a certificate of conversion (issued by virtue of the Conversion Ordinance) has no legal implications with respect to recognition of conversion under the Law of Return, but only with respect to matters that are within the competence of the religious courts, as was decided in Pessaro v. Minister of the Interior [2].

42.       My conclusion, therefore, is that the order nisi issued in HCJ 1594/11 should be made absolute with respect to recognition of Petitioner 1 for the purpose of status under the Law of Return.

 

The Petitioner in HCJ 1595/11 (Viviana)

43.       At the time of her conversion, Viviana was in Israel lawfully. In her case, too, it is simple to determine that the conversion was undergone in the framework of a recognized Jewish community, for it was conducted in the Orthodox beth din of Rabbi Karelitz in Bnei Brak. The Respondents did not dispute that this is a community that has a known Jewish identity, with a fixed framework, and is renowned. The Respondents argued that the circumstances surrounding the conversion indicate that it was not sincere, but in my opinion, the whole set of circumstances of the case indicates that this is not a case of abuse of the process of conversion, but rather of a person who has tied her fate to the fate of the State of Israel and the fate of the Jewish people, which she seeks to join.

44.       Viviana’s conversion was conducted at the beginning of 2009, when she was residing in Israel lawfully by virtue of a permit for temporary residency, on the basis of a relationship with an Israeli partner. The visa was valid until April 2010. In the course of 2009, she applied to the state conversion system to begin a process of state conversion. After a year, when no decision had yet been given by the state conversion system on her matter, she applied to the Ministry of the Interior to be granted temporary status until such time as the matter of her conversion would be arranged. On this occasion, she mentioned that she had separated from her Israeli partner, due, as she claimed, primarily to the religiously observant lifestyle that she had adopted after her conversion. On Jan. 3, 2011, her application for status was rejected on the grounds that the conversion that she had undergone was not a state conversion “as required”, and in view of the fact that she had separated from her Israeli partner. On April 4, 2011, her application to begin a process of state conversion was rejected, based on the fact that her status was not arranged.

45.       Indeed, more than a decade ago, Viviana lived in Israel unlawfully for a fairly substantial period, but I do not think that this should tip the scales. Her conversion was conducted long after that period of unlawful residence, at a time when she was lawfully in Israel on a visa that would not expire for a significant period of time. The main doubts of the Respondents concerning the sincerity of Viviana’s conversion arose regarding the sincerity of her relationship with her Israeli partner, mainly because of the fact that at the time that she applied to the Ministry of the Interior to arrange her status and report her separation, the Israeli partner had already married another woman. I do not accept the conclusion reached by the Respondents that this piece of information indicates that the entire relationship was dubious. The information submitted by the Respondents themselves (see, e.g.,  exhibit R/2 of the Respondents’ response of April 14, 2011, which indicates the existence of a relationship at the beginning of 2011), paints a picture of the two involved in a relationship for about a decade, during about five years of which Viviana’s status was regulated in accordance with the graduated process for the partners of Israelis, and the sincerity of the relationship was subject to periodic monitoring of the Ministry of the Interior. During this period, the Ministry of the Interior found nothing untoward in the relationship, and Viviana’s residence permits were extended several times. It is clear that in the circumstances that have been described, the split between the partners preceded the date of the notice, even though I cannot determine by exactly how much. However, this says nothing about the sincerity of the relationship prior to that date, nor about the sincerity of Viviana’s conversion. Her conversion preceded the date by more than a year. The conversion itself was preceded by long years in which Viviana lived in Israel, and during most of which she worked in the home of a religious family that encouraged her to draw close to the Jewish religion (see: appendix 5 of the petition of Feb. 27, 2011). She still lives with that family today. Also, her conversion was preceded by a long, significant period of study (see: ibid.).

46.       This is not a case of a person who tried to arrange her status by any possible means, the conversion being only one of them. Indeed, over the course of a number of years, Viviana’s status was regulated by virtue of her relationship with an Israeli partner, and when this relationship ended, she attempted to arrange her status by means of conversion through the state conversion system. However, the conversion in the beth din of Rabbi Karelitz was undergone when her status was not at all an issue, and her relationship was still strong – and the circumstances of that conversion, as stated, indicate its sincerity. In any case, this is not a person who was thinking only of regulating her status, using any available means. In this context we would note that her application to arrange her status in the Ministry of the Interior was submitted about a year after she applied to the state conversion system, and after a reply was not forthcoming. This application was rejected – while her application to begin a state conversion process was still pending – because she had not undergone state conversion. Subsequently, her request to begin the state conversion process was rejected on the grounds that her status was not settled. In any case, I do not see how any of this casts doubt upon the sincerity of the conversion.

In this petition, too, the relief of being granted a certificate of conversion was sought, but as we have said, that does not touch upon the question of recognition of the conversion under the Law of Return.

47.       My conclusion, therefore, is that the order nisi issued in HCJ 1595/11 should be made absolute with regard to recognition of the conversion of the Petitioner for the purpose of her status by virtue of the Law of Return.

 

Conclusion

48.       Our decision today is confined to the question of acquiring status by virtue of the Law of Return. This is not a religious question, but rather a civil-public one. We are not deciding anything in the framework of these proceedings regarding the question of recognition in other contexts of the conversions undergone by the Petitioners. We waited to hear from the legislature. Since the decision of the legislature has not been forthcoming, we saw no option but to issue a judicial decision on this matter.

If my opinion is accepted, we will rescind the order nisi that was issued in HCJ 7625/06, and make the orders nisi in HCJ 1594/11 and HCJ 1595/11 absolute, in the sense that we determine that Petitioner 1 in HCJ 1594/11 and the Petitioner in HCJ 1595/11 are Jews for the purpose of the Law of Return. This is by virtue of the conversion that they underwent in a recognized Jewish community in Israel. There will be no order for costs.

 

Justice Y. Danziger

I concur.

 

Justice U. Vogelman

I concur in the comprehensive opinion of my colleague President M. Naor, and with its reasoning.

In HCJ 2597 Rodriguez-Tushbeim v. Minister of the Interior [4], it was decided that the Law of Return applies to a person “who enters Israel and while he is in Israel legally he underwent a process of conversion.” I accept the decision of the President whereby there is no justification for departing from this ruling, and therefore the argument of the Respondents that the Law of Return was not designed to apply to a person who converted when he was already in Israel cannot be accepted.

I also agree with her conclusion that the term “has become converted” in the Law of Return must be interpreted as applying to a person whose conversion was undergone in a recognized Jewish community in accordance with its regular criteria, and that recognition of conversion should not be restricted to the state conversion system alone, as the Respondents argued. This is based on the reasons elucidated by the President in her opinion.

I also fully agree with the decisions in the individual cases at bar based on these principles.

 

Justice S. Joubran

1.         I concur in the thorough and comprehensive opinion of my colleague President M. Naor and with her conclusion.

2.         My opinion is the same as that of my colleague the President on the two questions confronting us: first, does the Law of Return apply to a person who arrived in Israel prior to his conversion, and while in the country underwent a process of conversion? And the second, if the answer to the first question is positive, whether the interpretation of the term “has become converted” in sec. 4B of the Law of Return implies that conversion that was conducted in Israel is to be recognized only if it was conducted in the framework of the state conversion system?

3.         As the President stated, this is not the first time that this Court has addressed the interpretation of the Law of Return, and in particular, the question of the conversion required under sec. 4B of the Law. Quite the contrary! This Court has dealt with this issue extensively – with expanded benches – in a series of petitions on the subject, and has laid down clear principles that are now our beacon. It is a fundamental principle that we are a court of law, and not a court of judges (see: HCJ 8091/14 Hamoked Center for the Defence of the Individual v. Minister of Defense [12], para. 1, per Justice E. Hayut; FH 23/60 Balan v. Executors of the Estate of Raymond Litwinsky (dec.) [13], at p. 75). As such, and since no reasons justifying departure from these principles have been presented, we must continue on the same established, firmly rooted line of interpretation.

4.         Like my colleague the President, I too am of the opinion that the answer to the first question is positive. In Rodriguez-Tushbeim v. Minister of the Interior [4], it was explicitly ruled, as a matter of principle, that the Law of Return applies to a person who is not Jewish, who arrives in Israel, and who in the course of lawful presence in Israel undergoes conversion – whether in Israel or abroad (ibid., at para. 26, per President A. Barak; see also: para. 19, per President M. Naor in this proceeding). As President Naor stated, this is the interpretation that is necessitated both by the language of the Law, and by its purpose. My opinion, too, is that there is no cause for deviating from the settled law. I believe that the cumulative requirements that the convert’s stay in Israel be lawful and that the conversion be sincere allay, to a great extent, concern about abuse of the arrangements in the Law of Return, and I find no reason to introduce further requirements due to this concern.

5.         The response to the second question – interpretation of the term “has become converted” in sec. 4B of the Law of Return in relation to conversion undergone in Israel – is apparently more difficult, for it is not based directly on earlier rulings. However, on this matter, too, we rely on previous principles fashioned by this Court. The “criterion of the recognized Jewish community”, which the President proposes that we adopt, is a criterion that was established in Makrina v. Minister of the Interior [5] regarding the interpretation of the expression “has become converted” in sec. 4B of the Law of Return in relation to conversion undergone outside of Israel. According to this criterion, a person who “has become converted” is a person who underwent conversion in a recognized Jewish community, in accordance with its accepted criteria. Like my colleague the President, I too am of the opinion that this criterion should also be applied to conversion undergone in Israel, for it suitably combines realization of the goal of encouraging immigration and unity of the Jewish people on the one hand, and oversight of the public aspect of conversion on the other (and see para. 29 of President Naor’s opinion in this proceeding).  This criterion – as opposed to the requirement of conversion in the framework of the state conversion system, on which the Respondents insisted – does not discriminate between a person who chose to undergo the conversion process outside of Israel and a person who decides to convert in Israel. This will ensure an egalitarian outcome, and as such, I can only adopt it enthusiastically.

6.         Therefore, I concur in the opinion of my colleague President M. Naor and all its reasons.

 

Justice E. Hayut

I concur in the comprehensive opinion of my colleague President M. Naor and all its reasons.

 

Justice H. Melcer

1.         I concur in the precise and meticulous judgment of my colleague President M. Naor.

2.         I will permit myself, nevertheless, to add two comments:

(a)   Abuse of a right on the part of others in the past, or concern about such abuse in the future, does  not justify, in administrative law, the denial of the right to a person seeking it in good faith, for the refusal of the authority in such a case is tainted by unreasonableness and lack of proportionality. See and compare: HCJ 3477/95 Ben Attiah v. Minister of Education and Culture [14].

(b)   The principle mentioned in para. (a) above is even more applicable in constitutional law, when at stake are basic constitutional rights, the violation of which is permissible only in accordance with the limitations clause in sec. 8 (with respect to the security forces –  sec. 9) of Basic Law: Human Dignity and Liberty.

3.         The right of Return, regulated under the Law of Return, is a basic constitutional right that emanates from the Jewish character of Israel, which is defined as a Jewish and democratic state. As such, this right is granted to every Jew (see sec. 1 of the Law of Return), and see: HCJ 6624/06 Pashko v. Ministry of the Interior [15], para. 9, per Deputy President E. Rubinstein, and my opinion in HCJ 4504/05 Skaborchov v. Minister for Internal Security [16], at para. 14).

A Jew for the purpose of the Law of Return is, therefore, any person who is born to a Jewish mother, or who has become converted, and who is not a member of another religion (see sec. 4B of the Law of Return). Hence, just as the Law of Return does not adopt a monolithic view in regard to a person who was born to a Jewish mother by virtue of the Law of Return – neither can there be a monolithic view regarding every person who has converted, and it is therefore clear that those Petitioners before us, who converted in good faith in the framework of a recognized (ultra-Orthodox) Jewish community, must be accepted by virtue of Return.

 

Justice Y. Amit

I personally tend to the minority opinion in Rodriguez-Tushbeim v. Minister of the Interior [4], according to which the Law of Return applies to a person who was Jewish before he came to Israel. However, since such an important decision was made by a bench of 11 justices, I bow my head, and I do not think it appropriate to depart from that decision.

Once we have overcome this preliminary, principal question, I concur in the conclusion of my colleague Justice M. Naor that recognition of conversion should not be confined to the state conversion system.

 

Deputy President E. Rubinstein

Introduction

1.         “And once more with you, once more with you”, but will “peace be upon you, upon us, and upon everyone” (from the song of Dudu Barak)? The subject of conversion is never off the agenda of this Court, as demonstrated by the many judgments that my colleague has cited and quoted (for some of this history, see the article of Prof. Eliezer Don Yehiyeh, ‘Who is a Jew” and Who is a Convert? The Attempts to Amend the Legislation on the Subject and their Failure”, in The Fourth Decade 5738-3738 (Y. Weitz & Z. Zameret, eds., Avi Picard, asst. ed.,) 5776-2016, 69 (Hebrew)). This time we are dealing with an application for citizenship by virtue of Return with respect to persons who converted in an Orthodox community in Israel, outside of the state conversion system. According to the Respondents, such conversions are not acceptable for the purposes of Return. In her comprehensive and interesting opinion, my colleague the President proposes (at para. 29) to interpret the expression “has become converted” in sec. 4B of the Law of Return in light of the criterion of a “recognized Jewish community”, since the High Court in Rodriguez-Tushbeim v. Minister of the Interior [4] ruled that “the Law of Return applies to a person who is not a Jew, and who in the course of his lawful stay in Israel underwent conversion (in Israel or abroad).” According to my colleague (para. 30), we are not dealing with conversion by “any three people” whosoever, as the Respondents fear, but with conversion through a community “with a common, established and fixed Jewish identity”, and the communities in which the Petitioners converted meet this requirement. According to my colleague, conversion through the state conversion system cannot be regarded as exclusive, and the Government does not have the residual authority to determine that only conversion through the state conversion system is valid for the purposes of Return (paras. 34-35). Furthermore, according to my colleague, the concern expressed by the Respondents for abuse of the process of conversion can be dealt with by various administrative tools, and it may be allayed particularly by the criterion of the recognized Jewish community. I will note here that had I been a member of the bench in the case of Rodriguez-Tushbeim v. Minister of the Interior [4], I imagine that I – like my colleague Justice Amit in his comment – would have dissented, but that is in the past, and much water has flowed under the bridge since then.

2.         As I shall explain briefly, the problem, as I see it, with the President’s position at this time is that we are lending a hand – unintentionally, of course – to the creation of discord on the subject of conversion, a subject that is important in Israel’s reality as a Jewish and democratic state. Thus, while recognition that grants status – as does conversion – must, in my view, come from the state, it should be achieved in a manner that is as friendly as possible to the convert, should adopt as broad a perspective as possible, and should achieve an outcome that would apply to all of Jewry. This is not impossible to achieve. Clearly, in the background lies not only the question of the Orthodox communities in Israel, but on its coattails also the non-Orthodox – the Conservative and Reform – communities, and my colleague mentioned (para. 8) the petition in HCJ 11013/05 and others, in relation to which, in her decision of Aug. 8, 2015, she noted the “substantive proximity” between them and the present petition, and in a decision of Sept. 3, 2015 she said that “their turn will come.” That is, indeed, so, and the question is whether, instead of this piecemeal approach, we ought not to take this opportunity – possibly the last one – to achieve a just harmony on the subject of conversion that will be acceptable to all, or almost all, in the framework of the state conversion system or with its approval, in the spirit of the recommendations of the Neeman Committee of 1998, which I will discuss below and which I endorse, or in another appropriate way, such as that proposed in recent years by MK E. Stern and others, thus providing a “service to the nation” – an essential one in my view – that is achievable and fair. This, however, requires legislation, and if all would understand that in the absence of legislation, every person will “withdraw into his tent” on the practical as well as the legal level, it may also be possible to achieve the necessary “national compromise” (even though there are those who do not like to use the term “compromise” in this context). This is not at all unattainable. “I have been young and now I am old” [Psalms 37:25] and I am sorry to say that a surfeit of “cautiousness born of humility” (see TB Gittin 56a, the words of the Tanna, R. Zechariah Avkulas, relating to the horrific legends of the destruction of the Temple), and for our purposes, the surfeit of piety or extremism of various elements in the religious and political systems – not only the Orthodox, although they in particular, but also from the other end of the spectrum – have until now prevented a solution. This is so even if we do not draw an analogy to the catastrophic consequences of the Destruction which the sages ascribed to that surfeit of “cautiousness”.

3.         I will give you my bottom line right here and now. In my view, President Naor’s proposal should be accepted, but deferred for eighteen months, during which time the Knesset, if it sees fit, can enact legislation in order to establish, by law, a state conversion system that is harmonious, appropriate and fair, vis-à-vis the halakhah and duly respecting all parts of our nation, however concentrated or dispersed, for otherwise, it will unfortunately be the political system that will be held accountable.

4.         The President’s opinion, and the decision therein, stem, unfortunately, from the inability of the political system – the executive and the legislature, the Government and the Knesset as one – to generate an appropriate statutory solution for a sensitive subject such as conversion. The negative result is that it is dumped, time and time again, on the doorstep of this Court, which is intended to solve disputes and to interpret the law, in such a way that its binding decisions must address public, value-based disputes that the Government and the Knesset refuse, or find it politically difficult to resolve. Time and again, the Court calls upon the legislature to do its job – a call that passes as a common thread through the judgments. And since this call is not heeded – and at a time when the judicial lot has no choice but to fall – complaints are often levelled at this Court to the effect that it does not satisfy everyone, and mainly that it is “secular” or should one say “liberal”, and not sufficiently “Jewish”, or all of these together, and that it is “activist”. On the other hand, it is not zealous in guarding rights, and it is too passive. In short, it is “a bit of everything.” But in truth, the Court does not “put in an order” for cases, rather, it adjudicates what is submitted to it as a petition or an appeal. If we take a close look at the present issue, the words “has become converted” in sec. 4B of the Law of Return were unclear from the very outset, for the section did not specify how the person became converted. Over the years, bits and pieces of case law have accumulated, as described by my colleague. Incidentally, the same tendency – although there are exceptions – to cast problems at this Court and later to complain when the decision does not satisfy all, is evident not only in relation to conversion: see AAA 5875/10 Masorti Movement v. Be’er Sheva Religious Council [17], in which instead of reaching an agreed arrangement of “modest” dimensions on the matter of ritual baths for converts from the Conservative and Reform Movements, which we urged them to do, they dragged their feet, which led to a “monumental” judgment.

5.         I asked myself what it is that bothers me about the President’s conclusion which, if it becomes the “permanent” bottom line of our judgment, I think will be something of a Jewish-national default position, which in universal-Jewish terms would be a pity. Two points should, in my view, be considered. The first: when we say “convert”, we are dealing with a statutory term that brings with it status and benefits, and it ought to have a meaning that is not voluntary and random, so that not everyone who wishes to call himself by that name may do so and “obligate the realm”. Indeed, it is a matter of a “recognized community”, but it is reasonable to assume that much ink will be spilt in relation to the term “recognized community”, and petitions will be submitted and panels of justices will be sorely tried, and it is possible that everything will return to square one. The same concern applies to the interpretation of “serious Orthodox courts that have standing” (paras. 5-9 of the opinion of Justice Hendel). Secondly, and this is the main point: the division between registration of the conversion in accordance with our judgment treating of the Law of Return, 5710-1950, and the civil, administrative legal system, as well as the Population Registry, as opposed to recognition of conversion for the purpose of marriage in the rabbinical courts, which have jurisdiction in matters of marriage and divorce under the Rabbinical Courts (Marriage and Divorce) Law, 5713-1957, is not desirable, to put it mildly. In my view, we must strive to achieve harmony between the two, in order that there not be among us those who are registered as Jews but who cannot, for example, marry as Jews. The implications of this are harsh, as any reasonable person will understand. However, we, as a court, do not have the tools to achieve that harmony, and the intervention of the legislature is required. The boundaries of interpretation are not limitless. In the absence of guidance from the legislature, the President is right: it is difficult to prefer one interpretation over another. And in fact, the interpretation given by the President is, ultimately, a compromise, placing conversion in Israel, like conversion abroad until now, within the bounds of a recognized community, as opposed to – at least this is the thinking – “Thou puttest the law for each man into his own hand” (mShevi’it 2:1). But, as stated, I fear that “adventures in litigation” may still await on this matter – would that I were mistaken! Let us recall: “ObviouslyClearly, in matters of Return, which is a basic right of every Jew (‘Every Jew has the right to come to this country as an oleh’, in the words of sec. 1 of the Law of Return), the State has a special obligation to consider carefully any breach of the right” (para. 9(1) of my opinion in Pashko v. Ministry of the Interior [15], which was also cited by my colleague Justice Melcer). Is there a solution that would be worthy of universal Jewish harmony in the State of Israel? In my view, this is possible, based on a responsible, friendly approach to converts.

 

The Shalit Case and Amendment of the Law of Return

6.         These questions are not new to us. I will recount some – only some – of the history, although I would not presume to exhaust it. Already in the fifties of the previous century, we recall that a crisis erupted against the background of the guidelines of the Ministry of the Interior concerning registration of Jews in the Population Registry, and the appeal of the first Prime Minister, David Ben Gurion, to the sages of Israel on the question of “Who is a Jew”, which this is not the time to discuss (see: Collection of Responsa of the Sages of Israel and Appendices (Hebrew), and A. Ben-Raphael, Jewish Identities: Responses of the Sages of Israel to Ben Gurion (5761) (Hebrew)). However, the crisis arose again in full force in 1970. Due to limitations of space, we will focus on the amendment to the Law of Return (no. 2) of 1970. We will go back four and a half decades, in the footsteps of the Shalit case (Shalit v. Minister of the Interior [1]) that shook the political system at a time when this Court, with what was then a very rare bench of nine justices, ruled by a five-four majority that Major Benjamin Shalit’s children, whose mother was not Jewish, should be registered as Jews in the Population Registry. Following the judgment, a bill to amend the Law of Return was submitted and debated in the Knesset. This is not the place to go into detail, but I will cite, as background, from the words of (then) Justice M. Landau at p. 520 of his opinion in the Shalit case, after the suggestion of the Court to delete the “nationality” section was not accepted (I will admit that I myself, for reasons of principle, agree with the opponents of that suggestion, and I will not elaborate): “The dispute and the division reached this Court. No good will arise from this for anybody, but the grave damage to the public that it involves is clearly evident.”

In the debate on the first reading of the amendment to the Law, MK (and eventually Minister) Haim Zadok, in the Knesset session of Feb. 10, 1980, referred to these words, saying (56 Dvrei HaKnesset 764): “I wish to point out that the Supreme Court was not enthusiastic about deciding this subject”. The Court ruled “because it was left with no option but to rule.” And indeed, at the time, my colleague Justice Sohlberg and I happened to write (Minha LeYitzhak, in honor of Judge Y. Shiloh (5759), 339: “The courts – seemingly more reluctantly than willingly – are called upon to deal with disputes on questions of state and religion” (also cited in my book Paths of Government and Law (5763-2003, pp. 196-197 (Hebrew). The same applies today (see: Masorti Movement v. Be’er Sheva Religious Council [17]).

7.         Regarding the substance: when Minister of Justice Yaakov Shimshon Shapira,  in the Knesset deliberations of the amendment to the Law of Return (p. 781), described the proposal for defining the term “Jew” (which now appears in sec. 4B of the Law of Return, formulated as follows: “…a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion”), he pointed out that the draft law did not contain the words “who has become converted in accordance with the halakhah”, “and we therefore say that a person who arrives with a conversion certificate from any Jewish community, as long as he is not a member of another religion, will be accepted as a Jew.” MK Haim Zadok repeated these words in the debate on the first and third readings (March 10, 1970, 57 Divrei HaKnesset 1137): “A person who became converted in any Jewish community will be accepted as a Jew.” This was the historical basis, which apparently included the understanding – which had no normative anchor – between the two Shapiras (Minister of Justice Yaakov Shimshon Shapira, a member of the Labor Party, and Minister of the Interior H.M. Shapira, a member of the National-Religious Party) that a member of a Jewish community abroad would be registered as Jewish, but in Israel, the conversions would be Orthodox. The position of the State in all of the many petitions surveyed by President Naor was consistently in line with that agreement.

For interpretation from that time (the 1970s) of the legal situation following the amendment of the Law of Return see A.H. Shaki, Who is a Jew in the Laws of the State of Israel (5737) A. 178-184 (Hebrew). Professor Shaki wrote (p. 180): “… It is a fact that the present wording [“has become converted” – E.R.] is understood as being ambiguous, and is liable to suffer … also from a non-halakhic interpretation.” He also mentions that the words “in accordance with the halakhah” already appeared in the directives issued in 1960 by Minister H.M. Shapira with respect to the Registry (p. 181). According to Shaki – who wrote from an Orthodox ideological perspective (p. 183) – “There is no option but to amend unequivocally the existing ambiguous definition in order to clarify that the conversion under discussion is a conversion recognized by Jewish tradition, in the Shulhan Arukh, for generations, and not any substitute for it.” In his view (ibid.), “a minimal uniformity in determination of the nature of affiliation to Judaism…” should be assured, and he proposes (at p. 184) “the adoption of halakhic criteria by non-Orthodox streams as well,” “a traditional common denominator” which in his view is to be found in the formula, “who has become converted according to Torah law.” For another view, see M. Stanislawski, A Jewish Monk? A Legal and Ideological Analysis of the Origins of the “Who is a Jew” Controversy in Israel, in E. Lederhendler & J. Wertheimer, Text and Context: Essays in Modern Jewish History and Jewish Historiography in Honor of Ismar Schorsch (2005), which discusses the case of “Brother Daniel” (Oswald Rufeisen), HCJ 72/62 Rufeisen v. Minister of the Interior [1962] IsrSC 16 2428. See also M. Finkelstein, Conversion in Theory and Practice (5754) (Hebrew); Rabbi Y. Avior, Laws of Converts in Mixed Marriages (Hebrew); Rabbi S.A. Stern, Halakhic Conversion (2^nd ed.)(5762) (Hebrew).

 

Ministerial Committee on Registration of Converts from Abroad – 1987

8.         In the above-mentioned article of Justice Sohlberg and myself (and see Paths of Government and Law, pp. 208ff.), there is a partial recounting of the story of conversion in the State of Israel in the eighties and nineties of the last century. Mention is made of the Ministerial Committee that in 1987 attempted, unsuccessfully, to reach a solution on the subject of conversion. The Ministerial Committee on Registration of Converts from Abroad was appointed on Jan. 25, 1987, by the unity government headed by Prime Minister Yitzhak Shamir, “to examine the questions that arise in connection with the registration of converts from abroad. The Committee will examine the various aspects of the subject, and for this purpose will be able to confer with experts in Israel and among Diaspora Jewry. The conclusions of the Committee and its recommendations will be made with the agreement of all members. The Committee will endeavor to complete its work within 6 months.”

9.         In its decision of Feb. 8, 1987, the Committee set up a “team comprising Ministers Z. Hammer, Y. Modai and M. Shahal, the Attorney General and the Cabinet Secretary to advise the Ministerial Committee at its next meeting about the arrangements for a meeting of the Committee plenum or a team thereof, as necessary, with experts from Israel and abroad.” It was decided that meetings of the plenum would be held once a month, and meetings of the team as necessary.

Inter alia, the full Ministerial Committee met with the Chief Rabbis. Below is a summary dated June 23, 1987:

               The Prime Minister opens and presents to the Chief Rabbi the aim of the work of the Ministerial Committee on Registration of Converts from Abroad.

               The Prime Minister requests, on behalf of the Ministerial Committee, to hear the position and the proposals of the Chief Rabbis on this matter.

                        The Chief Rabbis present their position, and these are the main points:

-      The question of conversion affects the whole of the Jewish people. It is impossible for people who are not Jewish to be affiliated to the Jewish people.

                        -           The problem in Israel focusses on a small number of cases.

                        -           Pressure must be brought to bear on the Reform community to stop converting.

-      The Reform Jews are good, “kosher” Jews but they must not be involved in conversion.

-      The ways of the Reform rabbis in the United States cannot be imposed upon those people who live in Israel. This leads to assimilation.

-      The problem is a problem of US Jewry, and they must find the solution to the problem that they created.

-      Every conversion is checked by the rabbinical court. Conversions are not accepted automatically, even if those conducting the conversion are Orthodox rabbis.

The Vote

The Ministers ask the Chief Rabbis for their opinion on the following proposals:

a.    To set up a joint beth din of three Orthodox rabbis and two observant rabbis, one Reform and one Conservative.

b.    To enhance the authority of the rabbi who is the Registrar of Marriages by granting him authority to accept a sworn affidavit concerning the Jewishness of a candidate for marriage.

c.    To add to the items “religion and nationality” in the Population Registry the items “former religion and nationality”.

d.    To change nothing from a statutory point of view, and to leave the situation as it is today.

The Chief Rabbis reiterate their position that the problem is a problem of US Jewry, and therefore they cannot intervene by setting up a joint rabbinical tribunal there. Similarly, they say, eligibility for marriage must be examined. The Chief Rabbis also state that the Knesset is not the appropriate framework for deciding on subjects that are exclusively within the area of halakhah.

The Chief Rabbis make the following proposal:

A representative body on the part of the Chief Rabbinate will be set up, which will be located permanently in the United States (for example, in the Israeli Consulate in New York), to which immigrants to Israel can turn for help on various subjects. Inter alia, this representative body will serve as the address for converts who are making aliyah to Israel, for clarification and guidance in connection with their aliyah and their absorption in Israel.

The Prime Minister notes that the proposal could be a pragmatic solution which could partially reduce the problem of registration of converts from abroad. However, this should be presented to the other streams in order to gain their cooperation in this endeavor.

Other Ministers, too, regarded this proposal as positive in principle. The Prime Minister thanks the Chief Rabbis for their participation in the meeting.

On the position of the Israeli rabbinical world in the decade following the Shalit affair, see Conference of Rabbinical Judges – 5739, an appendix to the book Conference of Rabbinical Judges – 5775 (5776-2016), p. 411, at pp. 440-454, and the words of Rabbis Y. Frankel, S.B Werner, S.T. Rubinstein, S. Goren, M. Uriah, A. Shaar Yashuv, H.D. Halevi and B. Rakover, and I will not elaborate.

For the sake of brevity, I will cite only a small part of the discussions of the said team from the Ministerial Committee, which devoted a great deal of time to the matter. In the meeting of the team of June 16, 1987, Prof. Menachem Shawa observed that “if the High Court of Justice had to interpret this expression [“has become converted” – E.R.] at the beginning of the nineteen seventies, immediately after the Amendment to the Law of Return, it would have interpreted it in the halakhic sense, but the attempts to amend the Law by adding the words “in accordance with the halakhah” after the words “has become converted”, and the rejection on the part of the Knesset of the attempts to amend the Law, created an interpretative rule that is now difficult to ignore.”

At the same meeting, Professor Eliezer Berkovits, a Jewish philosopher and halakhist who was himself Orthodox, said that “conversions that are conducted by the Reform and the Conservatives are usually valid retroactively from a halakhic point of view, and agreement should be reached between the streams on the elements that are common and that unite the nation. Every party must compromise a little in order to reach a common path of action, without amending the Law of Return.” Concerning the question of whether it is possible in his view to establish a joint beth din comprising three Orthodox rabbis and another two rabbis who are halakhically observant – one Reform and the other Conservative – he replied that it is possible to achieve such a solution if the State can find Orthodox rabbis who are prepared to sit down with the other streams … he is doubtful whether this idea can be realized in Israel, but in the United States it is possible, and such a solution is almost inescapable.

The representatives of Chabad were in favor of amending the Law by the addition of the words “in accordance with the halakhah,” for the sake of the integrity of the nation and its unity. It should be borne in mind that, at the time, the  Lubavitcher Rebbe (Rabbi M. Schneersohn) was at the forefront of those calling for the addition of the words “in accordance with the halakhah” to the term “has become converted”, even following the decisions of the Chief Rabbinical Council 5730 (see his letters to Dr. Zerah Warhaftig of 30 Shevat 5732 [February 15, 1972], Dvar Malkhut, Ki Tissa 5776 (13 Adar 5776 [February 22, 2016]), and to Mr. Aharon Cohen of 6 Kislev 5735 [November 20, 1974], Dvar Malkhut, Vayishlah 5776 (16 Kislev 5776 [November 28, 2015]).

 

Attempts at a Solution 1988-1989

The team’s work had not yet been completed, and the subject arose once more after a severe crisis concerning conversion following the elections of 1988, on which we will not elaborate here. In 1988-1989, this crisis gave rise to an extremely intensive attempt, focusing primarily on immigrants from the United States, at negotiations with the representatives of the Israeli Government (the Cabinet Secretary at the time – yours truly – who coordinated the negotiations, and the senior official at the Ministry of Religion, Zev Rosenberg), and representatives of the Orthodox (what is called “Modern-Orthodox”), Conservative and Reform streams in the United States (through the rabbinical seminaries of the streams and the rabbinical organizations), with the knowledge of the Israeli Chief Rabbinate and its partial participation (by Rabbi Yohanan Fried, who was then an emissary in New York).

“That you may tell it to the generation following” (Psalms 48:14), I will tell the story of that affair as it was documented in what I wrote in honor of Rabbi Professor Norman Lamm in the jubilee volume, Kema’ayan HaMitgaber (Bentzi Cohen, ed.) 5774-2004, pp. 13-15 (Hebrew). Rabbi Lamm participated in the said process. The words are quoted with light editorial modifications:

After the Israeli elections of 1988l, the conversion crisis erupted. This subject, the “Who is a Jew” question, which some have called “Who is a Rabbi”, occupied the state periodically over the course of many years, and the scope of this paper does not allow for the full history. Towards the end of 1988, important elements in American Jewry, mainly from the Conservative and the Reform movements, feared that the new “narrow” government that was about to be formed in Israel (but which ultimately did not eventuate) would amend the Law of Return such that the Law would define the term “has become converted” in a way that would grant exclusivity to Orthodox conversions. Ultimately the government was established as a national unity government, without the Law of Return being amended. However, in view of the serious crisis that had been created, the idea arose of trying to reach an agreement on the subject of “Who is a Jew”. As cabinet secretary I was appointed by the Prime Minister, Yitzhak Shamir, to deal with the matter. The person with whom I communicated in the Religious-Zionist stream in the United States was Rabbi Dr. Norman Lamm, President of Yeshiva University, who was joined by the late Rabbi Dr. Louis Bernstein, also from Yeshiva University. Representing the Conservative Movement were Rabbi Prof. Ismar Schorsch, Chancellor of the Jewish Theological Seminary, together with Professor Shamma Friedman, from the Seminary in Jerusalem and eventually an Israel Prize laureate; and on behalf of the Reform Movement was the late Rabbi Prof. Alfred Gottschalk, Chancellor of Hebrew Union College in Cincinnati, together with Dr. Walter Jacob of Pittsburgh (grandson of Rabbi Benno Jacob, the biblical commentator, often quoted by Prof. Nechama Leibowitz in her biblical commentary). The emphasis was on finding a solution to the questions of conversion in connection with immigration to Israel.

Intensive negotiations took place throughout 1989, virtually without publicity, in a sincere effort to achieve Jewish unity and fairness towards all, and to seek a formulation that would reflect the idea that Jews should not be fragmented; and therefore on the one hand, to create a common platform for the different streams of Judaism, out of mutual respect, and on the other hand, the result of which would be conversion that would be acceptable also to the Chief Rabbinate in Israel. The formulation that was prepared was as follows:

Memorandum of Agreement

We the undersigned, having conferred on the arrangements necessary for the conversion of candidates for aliyah to Israel, in order to ensure that they will be accepted in Israel as full Jews for all intents and purposes, and in order to promote the unity of the Jewish people, have agreed as follows: “A Joint Conversion Committee will be established, which will be comprised of one rabbinical representative who will be appointed by each of the three heads of these institutions: the Hebrew Union College, the Jewish Theological Seminary and the Rabbi Isaac Elchanan Rabbinical Seminary attached to Yeshiva University.

The Chief Rabbinate of the State of Israel will appoint a rabbinical representative (an attaché to the Israeli Consulate in New York), whose tasks will include matters of conversion of olim.

After examination of each candidate for conversion who wishes to make aliyah, the Committee will make a recommendation, by consensus, in full coordination with the said attaché, concerning those candidates whom it finds suitable, and the recommendations will be passed on by the attaché to a beth din that will be set up by the Israeli Chief Rabbinate for the purpose of conversion prior to aliyah.

(-) Israel Cabinet Secretary

(-) Ministry for Religious Matters in the Government of Israel

(-) The Hebrew Union College, The Jewish Theological Seminary

Guidelines as follows were to have been attached to the document:

Guidelines:

1.    Conversion will be in accordance with halakhah. The process will include, in its contents and its spirit, “He is informed … about some of the easy precepts and some of the more severe ones.” Doctrinal matters are beyond the purview of this process.

2.    The length of the process of preparation depends on the intellectual ability of the candidate and the time that he devotes to his studies. The minimum period is six months. The candidate for conversion must develop a basic understanding of and commitment to Judaism, its history and its lifestyles. He must also prove his loyalty to Israel.

3.    The candidate for conversion must come equipped with a recommendation from a rabbi who will take responsibility for his preparation and commitment. The rabbi must determine that the candidate has a sincere and healthy interest in Judaism and in Israel.

4.    The candidate is expected to demonstrate suitable knowledge of Hebrew.

5.    An attitude of warmth and kindness towards the candidates is necessary, bearing in mind that they will be living in Israel.

6.    We expect that the candidate for conversion will make a substantial contribution to a Jewish charity of his choice.

7.    Every suitable past conversion will be accepted without the necessity of a second conversion.

Simply put, the proposal, like the proposal of the Neeman Committee that was eventually set up in 1997 (see below), was intended to make possible a common platform for all the various streams of Judaism in the form of a joint committee for all (and not a joint beth din, as the subject was later presented in a distorted way by certain circles of New York ultra-Orthodox Jewry), and at the same time, to ensure that the conversion would be in accordance with the halakhah and acceptable to the Chief Rabbinate, for the sake of the unity of the Jewish people.

However, due to the proposal being presented in a certain way by those ultra-Orthodox circles (as was the case with the Neeman Committee many years later), and in view of the opposition from the other end of the spectrum, in certain parts of the Reform movement, it never took off.

At that time, we tried to introduce a fair, moderate trend, which called for promoting unity in Israel – unity for all the parts of the Jewish people, while preserving the framework of halakhic Judaism with no violation of the halakhah, and we were not successful. A similar fate awaited the Neeman Committee, even though it progressed further, reaching the stage of a Government decision, but it did not reach the stage of legislation.

The Neeman Committee

10.       The Neeman Committee was appointed by Prime Minister Benjamin Netanyahu on June 27, 1997, and headed by Prof. Yaakov Neeman, who later became Minister of Finance and Minister of Justice. The background to the appointment of the Committee was an initiative – and subsequent crisis – to enact an amendment to the Rabbinical Courts (Marriage and Divorce) Jurisdiction Law, the aim of which was to give official status to Orthodox conversion, apparently following the judgment of the Supreme Court in Pessaro v. Minister of the Interior [2]. This time, the emphasis was on Jews from the former Soviet Union, as opposed to the effort described above which primarily concerned US Jewry. This occurred after an agreement was reached on June 17, 1997 between the Coalition Chairman, MK Michael Eitan and representatives of the Masorti movement (the Conservative movement – Rabbi Reuven Hammer) and the Movement for Progressive Judaism (the Reform movement – Rabbi Uri Regev), with the involvement of Minister Natan Sharansky and MK Prof. Alex Lubotzky. It was agreed to freeze impending legal proceedings, and to establish a committee comprising seven members, which would include one representative of the Reform Movement and one of the Conservative Movement, aimed – inter alia – at leading “to a situation in which registration of particulars under the Population Registry Law and regulation of the matter of naturalization, including that of converts, would be done in a way that would be satisfactory to all parties,” with the Coalition debating and approving the conclusions. On that same day – June 17, 1997 – Prime Minister Benjamin Netanyahu wrote to the leadership of the Conservative and of the Reform Movements that a joint committee would be established, and “I regard this as an important step in which Israel and the Diaspora will work together to preserve the unity of the Jewish people out of mutual respect. And I hope that out of this crisis we will emerge strengthened.”

The Neeman Committee worked intensively, and held 50 meetings. It searched for a fair path. I will mention a memorandum that was submitted to it on Sept. 2, 1997 by Dr. Menachem Finkelstein, author of the important work, Conversion in Theory and Practice (2004) (Hebrew), who later served as the Military Advocate General with the rank of Major General, and is now Deputy President of the Tel Aviv District Court. The memorandum – in the spirit of “It is time to act for the Lord”, and in reliance on well-known halakhic case law – discusses the approach of “in accordance with the need” (in the words of Rabbi Moshe Feinstein, one of the greatest halakhic decisors of the twentieth century in the USA), in order to deal with the subject of observance of commandments, which is the principal halakhic difficulty with accepting converts. Among the decisors that were cited as authorities were Rabbi Ben-Zion Meir Hai Uziel, Rabbi Ovadia Yosef and Rabbi Isser Yehuda Unterman – all Chief Rabbis of Israel; see the memorandum, “On the Problem of Conversion in the State of Israel: Opinion of 1997”, also in the special edition of the Judges Bulletin in honor of Judge Shmuel Barukh (website of the Judiciary) p. 182 (Hebrew); on the approach of Rabbi Feinstein, see Harel Gordin, The Conversion Ceremony as a Ritual of Defining Jewish Identity: A Study of the Theory of Rabbi Moshe Feinstein, in A. Maoz and A. Hacohen (eds.) Jewish Identity (5774-2014) 101 (Hebrew).

11.       On Jan. 28, 1998 Yaakov Neeman, who by that time was already serving as Minister of Finance, informed the Prime Minister that the Committee had completed its task, and that it was seeking the approval of the Chief Rabbis for its recommendations, which included the establishment of an Institute for the Study of Judaism and rabbinical conversion tribunals, as will be described. The Report of the Committee, which was attached to the letter, included an agreement (para. 3) “to establish a unified state process of conversion – according to Jewish law – that will be recognized by all of Israel. This will make it possible to ensure the unity of the Jewish people. The proposed conversion track is intended to ensure, insofar as possible, in the framework of the halakhah, maximum consideration of the constraints of the time and human distress.” The Report included – as stated – the establishment of an Institute for the Study of Judaism in which all the streams would be represented, and special conversion tribunals that would be appointed by the Chief Rabbis, which would be “batei din comprising three judges, in the halakhic sense, as required for purposes of conversion (Shulhan Arukh, Yoreh Deah 268:3-4), and not a beth din with jurisdiction by virtue of the Rabbinical Court Judges Law, 5715-1955. This conversion, in that it would be acceptable to the entire Jewish people, contributes to national unity.” It was also said that “in relation to a candidate for conversion, ‘We inform him of the fundamentals of the faith, i.e., the unity of God and the prohibition against the worship of false deities. We elaborate on this matter. We inform him about some of the easy precepts and some of the more severe ones. We do not elaborate on this matter.  … . We do not teach him all the particulars lest this cause him concern and turn him away from a good path to a bad path. For at the outset, we draw a person forth with soft and appealing words’...” (Maimonides, Laws of Forbidden Sexual Unions 14:2). This, in my view, transmitted cautious optimism.

The protocols of the Council of the Chief Rabbinate of 13 Shevat 5758 (Feb. 9, 1998) dolefully document Professor Neeman’s attempt to convince people of the conclusions of the Committee, stressing the need for a solution to the problem of conversion of tens and even hundreds of thousands of people who made aliyah lawfully but are not Jewish according to the halakhah, and the fact that the conclusions of the Committee include conversion according to Jewish law. In his words, “Conversion is not something private … it is unacceptable that each person should choose a rabbinical tribunal for himself,” and he refers, therefore, to an exclusive track – if the Chief Rabbinate approves –to prevent fracturing the nation. However, from the many statements of rabbis such as Chief Rabbi I. M. Lau, Rabbi S. Kook and others – apart from the demand to legislate exclusivity for the rabbinical courts – reservations emerge about the joint institute. One of the participants, Rabbi U. Gliksberg, stated, “Were I to hear that the recommendations of the Committee had been enacted as law, we would weigh up whether this is worth ’the trouble of the King’, (Book of Esther 7:4), but if it is not a law, who can guarantee that the Reform will stop converting people. If it is not so, we have not helped in any way”. Rabbi M. Rochwerger also asked the same question. The reply of Minister Neeman was that “I see a possibility that if the Council should wish with respect to the question addressed to it, and would ask to bring this matter to the Knesset, there is a chance that it would become law. There is no doubt that this would be the decision of the Knesset. The Attorney General has undertaken to defend [the Government] against the petitions that will be submitted to the High Court of Justice. If a subject that was settled by agreement comes before the court, it will not need to adjudicate it.”

Ultimately a decision was made, parts of which are quoted below:

               The Chief Rabbinical Council received clarifications, in a clear and absolute manner, that it is required only to consider the matter of conversion itself, and in spite of its clear stance that there should be no cooperation with those who do not accept the yoke of the Torah on themselves, the Council was called upon to discuss the matter of conversion in view of the serious, grave problem of mixed families who arrived in Israel after being estranged for decades from the Jewish sources. There is no doubt that responding to this involves many difficulties and a huge effort, and the Rabbinate is tackling the heavy task which has been laid on its shoulders.

               The Council received the unequivocal announcement of the Minister of Finance that there are no longer, and will no longer be, conversions in Israel that are not in accordance with halakhah, and that he has made a clear undertaking that acts that are called “conversion” and that are only a semblance of conversion will be prevented in Israel. The demand of the Chief Rabbinical Council is that this exclusivity in relation to conversion according to halakhah will be anchored in statute and will receive legal force.

               The Council has seen fit to announce publicly that conversion is a personal matter concerning the convert himself and he, and he alone, must convince the beth din that he accepts the yoke of the Torah and the commandments, and is committed to joining the Jewish people. The beth din is and will be concerned only with the matter of the particular person in front of them, to enable it to consider his matter fearlessly, recognizing the duty imposed on it.

               The Chief Rabbinical Council reiterates the longstanding position of the Chief Rabbinate that conversion in Israel must be considered and conducted only in the batei din that operate according to the law of the Torah “at the discretion of the beth din which will convert, in accordance with the halakhah, a person who it considers to have accepted the yoke of the commandments.

               Accordingly, the Chief Rabbinate decides hereby that additional batei din should be set up wherever there is found to be a need for this.

               The Chief Rabbinical Council calls upon everyone who is able to do so to prevent the activities of those who do not believe in Torah from Heaven, and who are trying to uproot the foundations of the Jewish religion, thus creating a fissure between parts of the people, and attempting to sow in the hearts of the people a departure from the traditional path that has been trodden for generations. They have already brought about disastrous consequences and assimilation amongst Diaspora Jewry. The great sages of Israel prohibited any cooperation with them and with their approach. It is inconceivable to establish a joint institute with them.

               The Torah of Israel is one, and was given from Heaven, and there is no room for any deviation whatsoever from what we were taught by the sages of all the generations, from whom we are sustained. Conversion in Israel is an entry ticket to the Jewish people, and it will be conducted solely according to Jewish law.

I will not presume to offer an interpretation of the decision of the Rabbinical Council; clearly, it did not support the decisions of the Neeman Committee. It appears that on the one hand, it reflects some sort of understanding of the needs of the hour, and on the other hand, it contains a demand for “exclusivity of jurisdiction” for the batei din and serious rejection of the non-Orthodox streams – even though it did not call them by names – in a manner that rules out cooperation with them. As I understand, once the Rabbinate did not approve, at least some of the non-Orthodox partners pulled out.

12.       As opposed to this, what follows is the decision of the Government dated April 7, 1998, bearing the heading “Conversion in Israel”:

We have decided (2 against) to approve the decision of the Ministerial Committee on Conversion in Israel no. NGR/1 of April 6, 1998 as follows:

a.    Following decision no. 3610 of the Government of April 5. 1998, to adopt, with the Government’s approval, the attached recommendations of the Committee to Develop Ideas and Proposals in the Matter of Conversion in Israel, headed by Minister Yaakov Neeman (hereinafter: the Committee).

       The Ministerial Committee takes a very positive view of the recommendations of the Committee, and believes that they present an appropriate solution for the problem of conversion.

The Ministerial Committee is further of the opinion that realization of the recommendations of the Committee will bring sectors of the nation closer together both in Israel and abroad.

The Minister of Finance will find in the State budget the resources necessary for the realization of the recommendations of the Committee, and will allocate this budget for the implementation of the proposed plan in these recommendations.

b.    (1 absention) – To take note of the announcement of the Chairman of the Ministerial Committee that with the approval of the Prime Minister, the Chairman of the Ministerial Committee for Diaspora Affairs, Immigration and Absorption, and the Chairman of the Jewish Agency, the composition of the board of directors of the Institute for the Study of Judaism (in accordance with the second part of the Committee’s recommendations – Chap. 1, sec. 3(a)), will be as follows:

       Prof. Benjamin Ish-Shalom – Chairman

       Ms. Aya Dashevsky – Member

       Mr. Avraham Duvdevani – Member

       Dr. Amnon Shapira – Member

       Prof. Chaim Shine - Member

Rabbi Michael Boyden – Member

Rabbi Reuven Hammer – Member

(the last two – from the Reform Movement and the Conservative Movement)

The Rabbinical Council is one thing, the Government is another, and indeed, the rabbinical tribunals were established.

13.       We will cite, somewhat at length, our view (i.e., mine and that of Justice Sohlberg, who served as the Senior Assistant to the Attorney General and the advisor to the Committee in formulating its recommendations) of the Neeman Committee, not long after it had completed its task, in the aforementioned article (see Paths of Government and Law, pp. 210-214):

               The deep internal struggle within the Jewish people changed, unintentionally, that which was secondary into that which was primary, and that which was primary into that which was secondary. In truth, regarding conversion in Israel at this time – it is not the struggle between the streams that is the main thing; the main thing is the serious problem of those many tens of thousands of immigrants from the Former Soviet Union – some set the number at two hundred thousand or higher – who immigrated to Israel under the Law of Return, but who are not Jewish according to halakhah, and they are therefore held back from fully integrating into Israeli society. It was not for nothing that the emphasis in the Neeman Committee was on conversion in Israel, as opposed to the emphasis on conversions abroad in the previous attempt.

What was required here, as well, was an attempt to leave aside those disputes of principle that will continue to echo around the world not to push too fast, and to allow each to hold on to his own worldview. Instead, to create a reasonable, consensual arrangement, that would allow for respectful mutual coexistence, with moderation, patience and common sense; to find a common interest that would be the basis for consensual patterns of action. This interest in the matter of conversion is apparently the need to help in the integration of tens of thousands of olim into Israeli society. Alongside this common interest, there is also the desire, common to most of those involved, to avoid widening the divisions within the Jewish people. It is no secret that the Reform and the Conservative streams aspire to improve their position in the Israeli reality, and to prevent the exclusivity of Orthodox Judaism. However, in this battle there are red lines, and apparently there is a joint desire not to cross them.

… from these points of view, as seen from the office of the Attorney General, we have tried to balance, to learn and to promote a reasonable, suitable solution.

In these circumstances, the view was widely held – and it still is widely held, despite all the obstacles – that people were prepared for that two-tiered solution proposed by the Neeman Committee, in order to strive for maximum unity of the Jewish people, out of mutual respect. It was appropriate to have a unified state conversion process, in accordance with Jewish law, which would be recognized by all of Israel, something which apparently could and should have been acceptable to all. The conversion track that was proposed by the Committee was designed to ensure, insofar as possible within the framework of the halakhah, maximum consideration of the constraints of the hour and of human distress.

A preparatory, basic stage is that of the Institute for the Study of Judaism, in which the students would study for conversion. The idea is that the institute for the study of Judaism will operate in different locations around the country, the emphasis being on places in which there are concentrations of immigrants, and it will provide a suitable response from the points of view of accessibility and of the curriculum needs of each person who wishes to convert. Not only is this a promise to the tens of thousands of immigrants, not only a preservation of the halakhic basis which has been the practice over the years in the pre-state Jewish community and in the State of Israel, but also a promise to the Reform and the Conservatives. The Institute is intended to serve the concept of cooperation among the streams and unity in the Jewish people. The directorship of the institute is intended to represent the Jewish population of Israel in all its variety and streams. Just as in the Neeman Committee, in which the members were, inter alia, representatives of the Movement for Progressive Judaism and the Masorti Movement, so too the directorship of the Institute.

The curriculum and the teaching staff were also supposed to be varied, to familiarize students with Judaism while stressing the uniqueness of the Jewish people and its Torah, and what unites the Jewish people in all its variety and its streams. And at the same time, the plan was designed to prepare the students, to teach them and to ready them – should they so wish – for the process of conversion before the special conversion tribunals that would be established by the Chief Rabbis of Israel, and of course, this would be clear to all those involved.

… How unfortunate it is that those “soft and appealing words” (as per Maimonides in Laws of Forbidden Sexual Unions) were not adopted by all. For ultimately – what was in the proposals? The dialogue stage – a joint institute for the study of Judaism, in which people of the different streams among the Jewish people would come together, all in order to prepare students for conversion in the knowledge that the conversion would be halakhic; and at the second stage, conversion in batei din that would be set up by the Chief Rabbinate, with an understanding of the severe human distress in this generation, and for the purpose of conducting halakhic conversions that would be valid for all intents and purposes, in the most reasonable way possible. One of the present authors, the Attorney General, wrote to the Chief Rabbis on the eve of the discussion of these recommendations in the Committee, that in his eyes, this was a historic agreement: “As a person who has dealt with these matters in the past on behalf of the Government of Israel, in an effort to achieve solutions which at this time have not come to fruition, the achievements of the Committee are indeed great in my view. This is a rare opportunity to achieve a substantive solution in a peaceable manner … for the problem that has accompanied us for forty years … I do not make light of the problems that the Chief Rabbinate is liable to identify, but it seems that the advantages of the proposal of the Committee far outweigh – to an infinite degree – the problems from the perspective of the Rabbinate – and there are, also, the problems from the perspectives of the Reform and the Conservative movements … It would indeed be unfortunate if it were to be rejected, for then, Heaven forbid, we should all be regarded as having the humility of Rabbi Zechariah ben Avkulas (TB Gittin 56a) – the talmudic figure whose surfeit of cautiousness born of humility led to disastrous results….

Far away from the spotlight, the Committee of Rabbi Druckman deliberated the issue of the conversion of minors. The recommendations of this Committee – just the tip of the iceberg – were accepted unanimously. The Committee internalized recognition of the need to deal with the major issues: finding a suitable solution for those minors and their families upon whom fate had not smiled, to distance them from battles of prestige and politics, and to lead to their optimal integration into Israeli society. Common sense prevailed. The Druckman Committee toiled and succeeded, as proven, apparently, in reality.

The Neeman Committee sat for two long months, holding many meetings and displaying great patience, endeavoring to hear and to understand everyone who was involved in the issue. This in itself was an achievement whose importance is not to be underestimated: a meeting around one table of Jews from completely different backgrounds, in order to find a basic common denominator. From time to time, proposals were made for “technical” solutions, such as attaching a special designation to converts in the Population Registry. We opposed most of them, whether due to the need to avoid reminding the convert (and even more so – those around him) of his past; or whether due to the fact that a technical solution defers the substantive problem somewhat, but it still exists in full force; and primarily due to the fact that as the deliberations of the Neeman Committee progressed, a feeling prevailed that people were becoming open to a substantive solution for which so many had yearned.

In the formulation of the agreements, as is the nature of things, there are things that are revealed and those that are concealed; some things could be said explicitly, and some only in vague terms or hinted at, if at all … it stands to reason that continuing dialogue and mutual respect would make possible suitable solutions for the questions that arose.

Valiant efforts were made in order to ensure that the institute, in the proposed format, would be launched, and that the opportunity would not slip away. We did not ignore the existence of questions of implementation for which no solution had been offered in the recommendations of the Committee. We did not make light of the problematics of the Chief Rabbinate and its misgivings, due to the fact that the institute in question would comprise representatives of the various streams of Judaism, even though we would have been happy had the decision of the Chief Rabbinical Council been formulated differently, and it should be recalled that many conversions that had been performed to date with the approval of the Chief Rabbinate were not based on pure halakhic observance on the part of the converts. We did not ignore the difficulty of the Conservatives and the Reform who were required to agree (even though this coincided with the establishment of a joint forum – the institute – which is a very significant innovation) to the continuation of the monopoly of the Chief Rabbinate in conducting the conversions. This, when at the same time the attempt to orchestrate a direct meeting between the representatives of the non-Orthodox streams and the Chief Rabbinate did not succeed. We were aware of the fact that this was not the perfect realization of a noble, elevated goal, but the beginning of the lower path which contained many potholes. And with all that we did not see – not then and not now – any other reasonable solution.

Insistence on the continuation of uniform, halakhic conversion with a clear trend towards understanding the needs of the time and its voice, on the responsibility of the Chief Rabbinate, respectful dialogue with the non-Orthodox movements in Israel by way of their integration in the joint institute, and all this based on a common interest to act for the sake of the wellbeing of the olim, in a way that is likely to be acceptable to all the different sectors and streams in the nation, including those that wish to challenge the hegemony of the Chief Rabbinate, is a fitting compromise. Each one according to its view and approach would be able to point out its achievements, alongside concessions with which it could live.

It is impossible to elaborate here all the efforts and attempts that were made – whether in order to bring about a comprehensive solution, or to solve concrete problems – in the dozens of cases that came before the courts. We wanted to obviate the need for legal discussions in order to help clear the air and allow for the processes recommended by the Neeman Committee to run their full course. Similarly, our hope was to reach a situation which would make legislation on this issue unnecessary … The goal was to try and reach informed consent to the solution of compromise, of common sense and goodwill, without us falling between the hammer of the Knesset and the anvil of the Court (the latter is not interested in adjudicating these matters, and would of course prefer for them to be solved within the political system).

At the time of this writing, puffing slowly uphill, breathing heavily, is the engine and with it several carriages, bearing the establishment of the joint institute for the study of Judaism and the establishment of the special rabbinical conversion tribunals. Not all the carriages were attached as anticipated. Some of them are destined to break off, or to stop at one station or another. The passengers, too, are not yet knocking on the doors of the train, even though it is proceeding slowly. There are those attempting to have it both ways, with only one foot on the train, waiting, anticipating, considering whether to jump on or not. And with all that, we hope that the train will roll on, and that in the end, the recognition that the proposed combined solution – which is a golden path at this time for dealing with the polarized views – will eventuate.

There may be more oscillations, protests and objections. Recourse will be made to the parliamentary and judicial arenas. Each party will try to chalk up another victory in one battle or another. But ultimately – so we believe – the possible reasonable path is for a solution of the type that was proposed, on the basis of a basic, common interest. Sometimes solutions arise based on lack of choice, after a crisis or serious friction. The push to seek solutions until now usually occurred in such circumstances. We would prefer that it not necessarily be circumstances such as those that lead to a solution, for it is obviously better that the solution be achieved calmly.

Why did we cite the above at length? Because what was said then is, in my opinion, applicable today as well, and in order to show that, with appropriate changes, it is not impossible, with goodwill, to achieve universal-Israeli harmony, so that all those who convert, belonging to all the sectors of the Jewish people, will be able to marry in Israel in the proper way, and conversion – the preparation for which will include an inter-denominational dialogue – will be acceptable to all, in the regular batei din of the Rabbinate.

Regrettably, the recommendations of the Neeman Committee, even though they were adopted by a government decision, did not achieve their overall purpose either. The Joint Institute for the Study of Judaism, which was established following the proposals, did eventually – possibly too late – receive the approval of the Chief Rabbinate, but the conclusions did not become law, and were left dangling between Heaven and Earth.

14.       With respect to the position of the Rabbinate regarding the Institute, I will mention that following petitions to the High Court of Justice on the subject of conversion, and after much effort on the part of the Attorney General, a letter was sent to me by the two Chief Rabbis, Ashkenazi Chief Rabbi Israel Meir Lau and Sephardi Chief Rabbi Eliahu Bakshi-Doron, on Sept. 12, 2000, which stated:

               Following the hearing before the Supreme Court on the subject of conversion, out of concern for the unity of the Jewish people, we believe that the following should be clarified:

               The batei din dealing with matters of conversion that come under the Rabbinical Courts Administration accord decent treatment to every person who turns to them, child as well as adult, who wishes to shelter under the wings of the Divine Presence.

The batei din operate in accordance with the halakhic rule whereby the request of whosoever is not Jewish and who wishes to convert is examined on the substance of the matter, i.e., the person’s seriousness, his motives, his knowledge and his desire.

In this framework, the place of the studies of the person wishing to convert does not constitute a factor by virtue of which the batei din weigh their decisions on matters of conversion, and there is even no requirement for studies in an institute. The beth din does not disqualify any person wishing to enter its gates.

With respect to the Joint Institute for the Study of Judaism: its graduates who converted in the batei din after they were examined, are the very best proof, each one individually, that they were treated like every other convert (emphasis added – E.R.).

The halakhic principle that leads the batei din to consider every person seeking to convert irrespective of the place of studies will also lead the batei din in the future.

We will add as an aside that we have ruled that every person who undergoes conversion in the special conversion courts will receive a conversion certificate from the Director of the Rabbinical Courts, and the conversion has the same status as conversion conducted in the regional batei din.

This letter speaks for itself, and at the time I regarded it as being very important, for in it the Chief Rabbis endorsed not only conversion in the special courts, but also the Joint Institute for the Study of Judaism. However, no agreed arrangement with any statutory expression has been achieved, and this is the root of the problem.

15.       Some eighteen years have passed since the Neeman Committee convened. It appears that there have been no dramatic “strategic” developments, that is, no new agreements and no new legislation, but the subject has not disappeared from the agenda, and it arises and dies down again both in the Government and in this Court, and my colleague the President has reviewed the case law. I will add that, as for myself, as Attorney General I insisted that conversion should be conducted in a governmental framework, and therefore the “Conversion Administration” (headed by Rabbi Israel Rosen, one of the main contributors on the subject) which was a quasi-public-private body even though it bore the name “governmental”, became a governmental system; see also the review of Rabbi Rosen, Fifteen Years of State Conversion From a Personal and Public Perspective, on the Tzomet Institute website,.

I will mention here that in the judgments of this Court, alongside their decisions on the cases before them, there is a consistent overtone calling upon the legislature to speak out, but unfortunately, it has not been heeded. Thus, for example, in Pessaro v. Minister of the Interior [2], President Barak stated (p. 746), in response to the words of Justice Tal (dissenting) on the need for public oversight of the act of conversion: “My colleague further notes that this result [that every private body will conduct conversions – E.R.] is unacceptable, for conversion is not only a private act but a public one. Indeed, my colleague’s considerations are worthy. It is, of course, in the hands of the Israeli legislature, to consider what requirements there should be for the purposes of the Law of Return and the Registry …”. And further on (p. 747): “Conversion for the purposes of the Law of Return is an act by virtue of which a person joins the Jewish people. It has public ramifications regarding Return and nationality … The concept ‘conversion’ is, first and foremost a religious concept, of which the secular legislature makes use.” Further on President Barak stated that, indeed, it was ruled that the Religious Community (Conversion) Ordinance does not apply to the Registry, but added (pp. 745-748): “We are not determining that which ‘is’ [the exact contents of the nature of conversion in Israel – E.R.]. As we mentioned, that which ‘is’ is liable to be determined explicitly and in detail by the legislature. At the same time, as long as the Knesset has not made its voice heard, there is no juridical lacuna. A solution to the problem of ‘what is’ is found in the Law of Return, which defines who is a Jew. Should the legislature add nothing to this, there will be no option but to seek a judicial decision on this matter according to the existing definitions.”  As President Barak said in the majority opinion in Makrina v. Minister of the Interior [5], at p. 732, conversion in the Law of Return has two aspects: “From one aspect, it is entirely in the private domain, between man and his Maker. From the other aspect, conversion is of huge public significance.” That is why the distinction was made in that case (at p. 734, per President Barak), inasmuch as, unlike matters of registration, in which the level of oversight is “low” in that the issue is a statistical compilation, here we are dealing with the Law of Return,  which grants “the convert the entry key to Israel and to acquire citizenship of Israel. The oversight in this framework must, naturally, be stricter, and the degree of evidence that is required must be higher. Hence the possibility that the same individual will be registered as a Jew in the Population Registry, but will not be able to register as a Jew for the purpose of the Law of Return” (p. 734); in Naamat v. Minister of the Interior [3], at p. 753, President Barak stated:

Let there be no mistake – I accept that conversion in Israel is not a private act. It has public ramifications. By virtue thereof a person joins the Jewish people. Following conversion it is possible to acquire Israeli citizenship. There is, therefore, a need for governmental regulation of the public aspects of conversion, beyond what is determined in the Population Registry Law, the purposes of which are limited and are statistical in nature … as in the case of Pessaro, so too in our case, state oversight of the public aspect of conversion – beyond the oversight of registration in the Registry – must be determined by the Knesset. As long as the Knesset has not stated its position, we return – in all that concerns registration in the Registry – to the authority of the Registrar.

President Barak’s judgments constitute a call that could not be more clear that the Knesset state its position. It has not done so.

16.       Below is a short, non-comprehensive review of other developments. On Sept. 1, 2003, the Government adopted a decision entitled “Head of the Conversion System in Israel”, which stated as follows:

We decide (unanimously):

Following government decision no. 3613 of April 7, 1998, in which it was decided to adopt the recommendations of the Neeman Committee on the subject of conversion in Israel, and under which batei din for conversion were established, a person will be appointed to head the conversion system in Israel, from among the judges of the conversion tribunals.

The head of the conversion system in Israel will be appointed by the Chief Rabbi of Israel, who serves as the president of the Chief Rabbinical Court.

The head of the conversion system will be responsible, on behalf of the Chief Rabbis of Israel, inter alia, for the conversion system and the overall policy on the question of conversion in Israel.

The head of the conversion system will be authorized by the Minister for Religious Affairs to sign conversion certificates.

On July, 10, 2004, a decision was adopted, entitled “The Conversion System in Israel” as follows:

We decide (11 in favor; 2 against; 3 abstentions):

a.     Following government decision no. 761 of Sept. 1, 2003, according to which the Chief Rabbi of Israel, President of the Chief Rabbinical Court, appointed the head of The Conversion System in Israel, and in accordance with sec. 31(d) of Basic Law: The Government:

To transfer the conversion tribunals unit from the Ministry of Justice to the Israel Conversion System in the Prime Minister’s Office.

In accordance with the request of the Chief Rabbi of Israel, President of the Chief Rabbinical Court, the place of the conversion tribunals unit in the Prime Minister’s Office will be examined and determined in coordination with the head of the Conversion System in Israel, the Director General of the Chief Rabbinate of Israel and the Cabinet Secretary.

b.     Any power that was held by the Director of the Rabbinical Courts in accordance with government resolution no. 1705(8/GR) of 8.6.2000 will be granted to the head of the Conversion System.

c.     To transfer from the Ministry of Justice to the Prime Minister’s Office the budgetary items that were allocated in its budget and/or that it used for the subject of the special conversion tribunals, as well as the personnel who dealt with this subject and the means and the resources they had at their disposal.

In the event of disagreement on the said subject – the Cabinet Secretary will decide.

d.     Until the complete transfer of the budgets and the means as stated in sec. (c) above, the special conversion tribunals, with their staff and their judges, will continue to receive all the administrative services that they received to date from the Ministry of Justice, including through the Rabbinical Courts Administration, unless it should be decided otherwise in coordination between the Prime Minister’s Office and the Ministry of Justice.

e.     The staff of the special conversion tribunals and the judges will remain in their present location, unless it should be decided otherwise by the Prime Minister’s Office.

f.      This resolution amends sec. b(1)(a) of government decision no. 900 of Oct. 8, 2003.

 

17.       In order not to overburden, I will not discuss the case law reviewed by my colleague. I will mention only that whenever a relevant judgment was handed down (such as Rodriguez-Tushbeim v. Minister of the Interior [4]), parliamentary debates ensued concerning the preparedness of the Ministry of the Interior for its implementation (see the survey of the Center for Research and Information of the Knesset, The Issue of Conversion in Israel, by N. Ben-Ami, 9 Tammuz 5767 (June, 25, 2007), which contains, inter alia, a description of the bodies that are involved in conversion – the Conversion System in the Prime Minister’s Office, the Conversion Department in the Ministry for Immigration and Absorption, the Department of Adult Education in the Ministry of Education, the Department of Human Resources and the Chief Army Chaplain, the Joint Institute for the Study of Judaism (described as “the central state body dealing with the preparation of potential converts, acting in the framework of the Jewish Agency), and private non-profit organizations (p. 9). The difficulties in the process of conversion were also described, as well as the fact that the number of those undergoing conversion had not risen significantly despite the partial implementation of the conclusions of the Neeman Committee and the establishment of the Conversion System in the Prime Minister’s Office. There was also a description of the work of the “Committee for the Examination of an Overall  Organizational Structure and Pooling of Resources on the Subject of Conversion in Israel” (Halfon Committee), which was established in 2007, headed by the Director General of the Ministry for Immigrant Absorption, Erez Halfon, following the stagnation in the number of olim, and this Committee recommended the establishment of a supreme steering committee, a pooling of the conversion activities in one governmental support unit (the Conversion System), and expansion of the special conversion tribunals, as well as families to accompany every convert, and a central information system.

18.       See also Procedural Rules and Applications for Conversion 5766-2006, published by the Chief Rabbi and the President of the Chief Rabbinical Court, the Sephardi Chief Rabbi, Rabbi S. Amar, Official Gazette 5766-2062, of Feb. 27, 2006, in which the location of the special conversion tribunals and their districts was established (five districts throughout the country, with two of them handling Ethiopian immigrants), a description of the pre-conversion procedures and the role of the representative of the beth din who, inter alia, conducts an interview with the candidates. It was determined that a foreign national (who is not a citizen or a permanent resident) will not be converted except in special circumstances, with the authorization of the Exceptions Committee, and there was discussion of questions of training rabbinical court judges, appointment of judges of the special tribunals (by a search committee according to the decision of the Government of 24 Kislev 5766 (Dec. 25, 2005)0, the proceedings in the tribunal (after examination of the preparation), deciding by unanimous decision, arrangements for ritual immersion and enforcement of the tribunal’s decision, as well as the possibility, in exceptional cases, of nullifying a conversion, and also issuing a certificate of conversion (on cases of nullification of conversion, see HCJ 5079/08 A. v. Rabbi Sherman (April 25, 2012); HCJ 5444/13 Erez v. Special Conversion Courts (2014); on this see Rabbi Shlomo Dichovsky, Retroactive Nullification of Conversion, in Rabbi Yaakov Dichovsky, (ed.),  Lev Shome’a LeShlomo, vol. 1, 367 (5774) (Hebrew); A. Edrei, And Are we Not Responsible For Them? More on the Conversion Debate, 24 (5771) Akdamut 178 (Hebrew); Asher Maoz, Uncircumcised of Heart – Enough!, Haaretz May 5, 2008).

There has also been no let-up in the preoccupation with attempts to change the alignment of authority in order to allow town rabbis or a local council to conduct conversions in the framework of special tribunals; see government decision no. 2147 of Nov. 2, 2014 concerning “Local Conversions Panels” which was intended to enable the establishment of  local conversion panels which would operate in accordance with Jewish law (a compromise proposal following the proposal of MK Elazar Stern, to which I will refer below).  See also, e.g., the Israel Chief Rabbinate Law (Amendment – Authority in Matters of Conversion) Bill, 5775-2015 (Twentieth Knesset; it was preceded by an identical bill in the Eighteenth Knesset).

19.       Much has been written on the attitude to the convert since the time of Hillel the Elder (TB Shabbat 31a) who, when a Gentile approached him and requested “Convert me on condition that you teach me the entire Torah while I stand on one foot”, said to him (unlike the sage, Shammai the Elder), “That which is hateful to you, do not do to your fellow – that is the entire Torah, the rest is commentary. Go and study.” See Rabbi Y.Y. Weinberg, On One Foot – The Attitudes of Hillel and Shammai to the Convert, Lifrakim (5763) 367 (Hebrew), who explains (p. 368) Hillel’s belief that after a person embarks on his path into to Judaism, “The love of the convert for his Jewish brethren  will grow over time” (and see the comment of Rabbi A. A. Weingort, ibid.); see also Joshua Schoffman, And if a Stranger Sojourn with You in Your Land, You Shall Not Do Him Wrong, A. Hacohen and M. Wigoda (eds.), Parshat Hashavua 181, Leviticus  (5775-2012) (Hebrew); Aviad Hacohen, “And You Shall Love the Stranger” –  On Maimonides’ Attitude to the Convert and the “Other”, A. Hacohen and M. Wigoda (eds.), Parshat Hashavua 294 (Ekev 5767-2007), published also in his book Parshiot Umishpatim, Jewish Law in the Weekly Portion (2011) (Hebrew), 265; and Rabbi Dr. Benjamin Lau, “You Did Not Seek That which was Lost” – On the Conversion Decisions of Rabbi Uziel, Akdamut 21 (5768) 96 (Hebrew); see also A. Mintz & D. Stern (eds.), Conversion, Intermarriage and Jewish Identity, (R.S. Hirt, series editor) (2005); and inter alia the important article of Chaim I. Waxman, Giyur in the Context of National Identity, 151. See also the articles of Rabbi Eliahu Birenbaum, And Many from among the People of the Land Became Jews, Makor Rishon weekend edition, 21 Heshvan 5775 (Nov. 14, 2014), and Not a Jew, but Also Not a Gentile, ibid., 3 Adar I 5776 (Feb. 12, 2016).

I will add that Rabbi Haim Amsalem, in his monumental work Zera Israel (5770) 1 (Hebrew), distinguishes with respect to conversion between a person who has Jewish antecedents and a person who has no Jewish roots, and “if regarding the latter, the Torah said ‘And you shall love the stranger’, how infinitely much more so does this apply to those with Jewish antecedents who wish to return to the rock of their quarry, that they should be loved and brought close, and this commandment requires us to be lenient in respect of them as far as possible within the framework of the halakhah”, whereas in relation to Gentiles who do not have Jewish roots, according to him there is no need to be lenient, and each case should be decided on its merits and they must undergo the entire process (p.2).

20.       In these contexts, see also Netanel Fisher, The Challenge of Conversion in Israel – An Analysis of Policy and Recommendations (Israel Democracy Institute, 2015) (Hebrew), which includes a comprehensive survey of the history of state conversion already from the seventies (although he does not discuss some of the matters described above). According to the author (p. 41):

The State of Israel is exceptional in the extent of its involvement in the process of conversion of its citizens. In Israel, there is unique regulation of the process of conversion, and the State has invested many resources in order to promote the conversion of its citizens Indeed, in the – relatively few – years in which the leaders of the State and the rabbinical establishment have been active in promoting conversion, the results were commensurate.

At the same time, however, the conversion system did not meet its goals, and only about 24,000 people (about 7% of the non-Jewish olim) converted to Judaism between 1996 and 2014, and about half of those who began the process did not complete it. The book claims that state conversion declined over the years for various reasons, and see, e.g., pp. 36-37; and see pp. 80-86 regarding the pragmatic approach adopted by the rabbinical establishment. According to the author (p. 113), “the governmental status of the conversion tribunals should be preserved, and therefore it is proposed to improve the existing system, through cooperation”. Various recommendations are also brought, including that “the judges [must] create an atmosphere that will admit additional identities as long as they do not contradict the Jewish halakhah. They must transmit to the person converting that his Israeli and Zionist identities are important, and that Russian or universal identity is not necessarily incompatible with Jewish-religious identity.” The author elucidates the various alternatives on the subject of conversion that were raised over the years (chap. 6, pp. 154ff.), and mentions the proposal of MK Stern to decentralize the conversion system (147-149).

I will now address what is possibly the author’s main point which – I admit – is also close to my heart, and that is “the recommended alternative: Orthodox, state, welcoming conversion” (Chap. 7, pp. 171ff.). As the author says:

 Orthodox state conversion will solve the personal problems of identity of the non-Jewish group and will act as a bridge between the Jewish identity of its members and the Orthodox Jewish definitions that are accepted by the majority of sectors of society. From the point of view of regulation of personal status, too, state Orthodox conversion will grant Jewish status in relation to all that concerns matters of marriage, divorce and burial, the absence of which violates the basic civil rights of the non-Jewish group, and which private or non-Orthodox conversion cannot provide, even from the national point of view …” (p. 171).

The author subsequently demonstrates how this is possible also from rabbinical perspectives throughout the Diaspora (pp. 172-174). Here is his summary:

1.    Over the course of the last centuries, the leading halakhic decisors would welcome those converting, and would convert them even if they knew with certainty that the converts did not intend to observe all the commandments of the Torah.

2.    The considerations of those decisors – preserving the unity of the Jewish people and restoring the “seed of Israel” which was lost – are infinitely more apt in the Israeli reality of ingathering of the exiles and the return of the forsaken of Israel.

3.    It appears that according to this halakhic position, as ruled by Chief Rabbi Unterman, on the basis of the words of the “Ahiezer” (Rabbi Haim Ozer Grodzinski, Vilna, 20th century), there is no need to “push the candidate into a corner” in relation to the level of his future observance of the commandments, and a “good faith” acceptance of the commandments is sufficient.

4.    Whereas the sages of recent generations settled for a basic training towards conversion, today the process is much stricter. The demands made of the candidates are high, and they are required to undergo both educational and experiential preparation that continues for a whole year. These demands were not made of candidates for conversion in the past.

5.    There is, therefore, a clear halakhic solution to the problem of conversion in our day: it is possible to adopt the lenient approach that was common in many communities, and to achieve higher rates of conversion.

21.       This alternative is similar to the proposals from the eighties and the nineties that the author describes. However, the author does not proceed from a jurisprudential perspective, and as good as his proposals may be – and I think they are – without legislation I fear that they will not succeed, for it is the absence of legislation that brought us to this point. The conception that embraces friendly, “welcoming” Orthodox conversion leads to universal-Jewish harmony, and this is such an important thing. Let us be perfectly clear: no matter what this Court decides regarding the conversions of the non-Orthodox streams, with regard to marriage and divorce there will be fundamental difficulties that an appropriate statutory arrangement could prevent. Again – it would appear that there will be no avoiding the legal situation described by the President that will eventuate if there is no awakening in the direction of legislation, and nothing more need be said. Let me explain: why Orthodox conversion? Because the Israeli public includes a large proportion of ultra-Orthodox, Orthodox and traditional Jews, whose religious world is Orthodox, and as was once said by an Israel social scientist – a secular person – “The synagogue that I do not attend is Orthodox”, i.e., “the old synagogue”. Indeed, the Conservatives and the Reform, who are entitled to equal religious services from the state (see, e.g., Masorti Movement v. Be’er Sheva Religious Counci [l7]) are a small minority in Israel, but a significant majority in the Diaspora, particularly in the United States, and they too have a suitable place under the Israeli sky. Let us recall the poem of Nathan Alterman: “There will be No Cultural War” (The Seventh Column, vol. 2, (5732) 239-240 (Hebrew).

           

            Despite all the declarations that

“This is the last straw…how long will we be silent?”

The new Jew can never forsake

his debt to the “old” Jew…

 

And still: It is not worth the price for the State, not worth the price

to insist upon a decision, whatever the cost,

with forces that have displayed their prowess

in overwhelming mighty kingdoms…

 

While there is yet time, let not the embers ignite,

for conflagration may follow.

And it seems to me that the Jewish People

have greater enemies than the Jewish People.

 

The words there were aimed at protecting Orthodoxy, but the pendulum swings in both directions. What is necessary, therefore, is a friendly approach to every candidate for conversion, one that is welcoming and understanding, an approach that is directed at the truth and the essence of conversion, its fundamental elements, and which does not discount reality. I am not saying that the special conversion tribunals do not operate in this manner; but for the sake of universal Jewish harmony, a statutory solution is essential.

22.       In order to achieve a statutory solution such as this, various options available to the legislature should be considered: the approach of the Neeman Committee could be adopted; or that of Yedidia Stern, Seth Farber and Elad Kaplan, A Proposal for a State Conversion Law (June, 2014), which was taken up by MK Elazar Stern and MK Aliza Lavie in the Knesset; see also Ariel Finkelstein, Opinion on the Matter of the Conversion Bill, the “Golden Mean” project of the Institute for Zionist Strategies (June, 2014); Rabbi Nachum A. Rabinowitz, In Each and Every City, Makor Rishon weekend edition (April 25, 2014) 4. A more centralized course is possible, under the supervision of the Chief Rabbinate, or a decentralized one – it is not up to us to decide. The main thing is for a harmonious solution to be found, the outcome of which will be conversion that is recognized by all Jewry and which would prevent a situation of “each person with his own Torah”, with its implications, for example, for marriage and divorce.

23.       I will not presume here to anticipate the outcome of future petitions. But I believe that the non-Orthodox communities, too, apparently have an interest in their conversions being accepted by all, including for the purpose of marriage and divorce. Hence the importance of a comprehensive state solution that will allow the flames to subside, out of a general-Israeli interest; “general-Israeli” means, in my view, recognition of the Israeli reality with its longstanding traditions on the one hand, and on the other hand, treatment of the entire Jewish people, including Diaspora Jewry, fearlessly, as part of the conversation. The dispute over the meaning of a Jewish and democratic state includes interpretation of “Jewish”, which involves searching for the golden mean and extending a mutual hand, in decency and tolerance, without dismissing beliefs, opinions and principles. I proposed to allow the said period to enable the government and the legislature to do their work. Although different, this is in the sense of the watchman to whom the prophet Ezekiel referred (33:7): “So thou, son of man, I have set thee a watchman unto the house of Israel …” And what will become of the love of Israel – all Israel? Has it not also been said, “Love you therefore the stranger; for you were strangers in the land of Egypt” (Deuteronomy 10:19). If any person wishes to convert, and is a genuine convert, Maimonides – and who is greater than he? –has already said (Laws of Forbidden Sexual Unions 14:1):

We ask him: “Why did you choose to convert? Don’t you know that in the present era, the Jews are afflicted, crushed, subjugated, strained, and that suffering comes upon them?” If he answers: “I know, and I am unworthy of joining,” [and as Rashi says in TB Yevamot 47a, s.v. “I am unworthy”: “and I am not fit to be party to their trouble, and would that I would merit doing so”] we accept him immediately.

Again, let us recall the surfeit of humility and piety of the Tanaitic sage in the accounts of the Destruction that were mentioned above, as well as the statement that is always apt: “When you seize a large amount you may not have seized anything” (TB Yoma 80a). I will conclude with what I wrote in the above-mentioned matter of A. v. Rabbi Sherman [19]:

“And if a stranger sojourn with you in your land” – so says the verse, “you shall not do him wrong’ (Leviticus 19:33). The Bible repeats the prohibition against oppressing the stranger dozens of times … Woe to the society, morally and normatively, that disparages the strangers who dwell among it (para. 26).

 And further: “From a certain point of view, mutual respect [emphasis in the original – E.R.] is in my opinion the key term -- mutual respect among the different streams of contemporary Jewry; mutual respect between the tribunals that deal with conversion and those converting” (ibid., para. 50). It is precisely the seriousness and the importance of the subject of conversion that also emerge from the almost desperate cry of this Court over the years to the legislature that indicate the need for a harmonious, sensitive and Jewishly-comprehensive approach of the legislature and those around it, and common sense. I will conclude with a section from what Deputy President Silberg wrote in Shalit v. Minister of the Interior [1] (p. 500):

And I believe with perfect faith that if there should be mass aliyah from the Communist countries – aliyah which may determine the fate of the Jewish people for good or bad – there will be those sages who will employ their full authority, and will be halakhically lenient regarding the absorption of the far-flung Russian tribe into the people and into the land. The bonds of the halakhah have always united the people, but have not choked it [emphasis in the original – E.R.].

 Justice Silberg did not live to see the day, but we have. We should collect this debt.

24.       And a word as to the important opinion of my colleague Justice Hendel. I read with great interest the many apt examples that he brought from Jewish sources concerning “decentralized conversion”, which may also be called “privatization of conversion”. However, in my view – with all due respect and admiration – the nature of the State of Israel as a Jewish and democratic state, in which the subject of Judaism is relevant on two levels – the religious level (marriage and divorce according to Jewish law) and the civil level (the Law of Return and the Population Registry) must be emphasized. Hence the aspiration for universal state conversion, which will grant every convert full, unquestioned recognition, both for the purpose of Return and registration, and for the purpose of marriage. The moving words of my colleague towards the end of his opinion regarding the treatment of strangers highlight, in my eyes, the need for the convert to gain his rightful place in all the frameworks of the State of Israel.

25.       In conclusion, I propose that the outcome in the opinion of the President be deferred for 18 months, for the purpose of statutory regulation of the subject of conversion, and for the good of all the converts from all aspects, and the sooner the better.

 

Justice N. Hendel

1.         We will begin at the end: my conclusion is the same as that of my colleague President M. Naor, whereby the order nisi issued in HCJ 7625/06 should be rescinded, and the orders nisi issued in HCJ 1594/11 and in HCJ 1595/11 be made absolute, such that the Petitioners will be recognized as Jews for the purpose of the Law of Return, based on the conversions that they underwent in the ultra-Orthodox rabbinical tribunals in Israel that do not belong to the state conversion system. At the same time, my reasons relating to the last two petitions are different, and they will be presented below.

Section 1 of the Law of Return states that “Every Jew has the right to come to this country as an oleh,” and in sec. 4B it clarifies that “For the purposes of this Law, ‘Jew’ means a person who was born of a Jewish mother or has become converted to Judaism, and who is not a member of another religion.” The legislature therefore defined the term “Jew” as including, inter alia, a person who converted. At the same time, however, the expression “has become converted” was not defined. This time, we are dealing with the question of the status of conversions that were conducted upon Israeli soil by “private” Orthodox batei din that do not belong to the state conversion system. Of course, the petitions before us focus on the interpretation of the expression “has become converted” in the Law of Return, and they do not affect the validity of the Petitioners’ conversions in other areas. Nevertheless, I would not concur – certainly not fully – in the President’s determination that “[t]his is not a religious question, but rather a civil-public one.” Indeed, the Law of Return, which was described by President A. Barak as “the most fundamental of laws”, and which expresses better than any other law the historical uniqueness of the State of Israel (see HCJ 10226/08 Zevidovsky v. Minister of the Interior [21], para. 2 of my opinion) is not a religious law. However, as I remarked in relation to the expression “is not a member of another religion” in that same section, “an attempt to define the term ‘religion’ without referring to religion is bound to fail” (ibid., at para. 5). “Conversion”, too, constitutes a term that is religious at base, and no matter how much we may wish to refrain from deciding on an internal-religious question, the term is present in the background – and even at the center. Even according to the approach that refuses to adopt a “pure” halakhic interpretation in relation to every factual variation that arises, there is no doubt that an analysis of a concept that has clearly religious roots requires basic consideration of the halakhic position – if only due to the central role it has played in fashioning the institution of conversion (see and compare ibid., paras. 5-6).

This position does not stem from the unique characteristics of the State of Israel as a Jewish state, but rather from the very nature of the expression “has become converted” that appears in the Law, which from a linguistic, social and historical point of view bears religious significance. Certain support for this position can be found in the attitude of the courts in the United States to consumer legislation that sought to prevent kashrut fraud, and prohibited misrepresentation of food that was not kosher as kosher. Thus, for example, the Supreme Court of the State of New Jersey explained that the secular purpose of the legislation, i.e., protection of consumers who wish to buy particular food products, does not obscure its religious nature, for –

               The laws of kashrut are intrinsically religious, whether they are ambiguous or not and whether they are disputed or not […] Here, the disputes that would arise under the kosher laws would call inescapably on the State to assume a religious role. The State itself invariably would be one of the disputants, seeking to impose and enforce its own interpretation of Orthodox Jewish doctrine (Ran-Dav’s County Kosher, Inc. v. State [23], 162-163).

In other words, enforcement of civil legislation requires an in-depth examination of religious kashrut arrangements. It is not possible to detach it from these arrangements, and to determine that the term “kashrut” will be given an independent, civil meaning (a similar position was presented in the Federal Court in the matter of Commack Self-Service Kosher Meats, Inc. v. Weiss [24]). Hence, anchoring a religious concept in a civil law does not create a divider between it and its religious roots. On the contrary, such a separation is likely to miss the original mark of the legislature. The distinction is fine, and one can point out differences between the example that was presented and the interpretation of sec. 4B confronting us. However, this would seem to emphasize the importance of recognition of the religious aspect of the term “has become converted” in the framework of the interpretative process.

Nevertheless, the feeling is that the issue of defining “has become converted” in the Law of Return in the State of Israel constitutes a heavier legal question, with a different load and nature – possibly due to the history of the Jewish people, the religion of Israel and the establishment of the State of Israel. As Justice Y. Turkel wondered in Rodriguez-Tushbeim v. Minister of the Interior [4]: “Ought the Court decide on the question of whether a particular Gentile has become a Jew? Ought it decide on the question of whether the internal process and the external process have taken place in regard to the person converting? Ought it decide on the question of who is authorized to conduct the conversion?” Therefore, he wrote, “If my opinion is heeded, we would wash our hands of this decision” and leave it for the legislature.

However, for all that this approach is good and wise, we cannot avoid making a decision, in my opinion. The petitions here have been pending for many years -- one of them, almost a decade -- and although this Court has repeatedly called upon the legislature to regulate the matter by statute, the Knesset is still delaying. Granting relief to the Petitioners, who are desperately waiting for recognition of the conversion they underwent, and to acquire status in the State of Israel, is within the authority of this Court, and not that of a religious court. At the end of the day, days, year, and decade – and even if we are still waiting for the legislature’s word, we are not at liberty to ignore the order of the Angel of the Law who whispers, “Go out and decide.”

2.         In view of the above, and bearing in mind the weight that must be attributed to Jewish halakhah in interpreting sec. 4B of the Law of Return, we should turn our gaze for a moment from the concrete questions before us – who is a convert or who is the converter – and address, even if only briefly, the question of “what is conversion?” The position of Judaism on this question appears to be somewhat unique. One might have expected that a religion that claims to possess divine truth would aspire to convert all mortals. The Jewish approach, however, even in ancient times, was that every Gentile must indeed observe the seven universal Noahide laws, but he is not required to convert and to adopt the Jewish religion (TB Sanhedrin 56a; on the basis of observing these seven laws, a Noahide is entitled to be called “a righteous Gentile” and he has a share in the World to Come (Maimonides, Laws of Kings 8:11)). It is not for nothing that the issue of conversion does not appear in the Laws of Repentance, for a person’s decision to convert, even though he is not obliged to do so, is not perceived as being “repentance”. The Gentile is judged on his own deeds, and in order to fulfil his destiny in the eyes of the Lord he is not required to convert. As it has been said, “I call both Heaven and Earth as my witnesses to testify to the fact that the Holy Spirit rests upon a person in accordance with his virtuous deeds, whether Gentile or Jew, male or female, slave or maidservant” (Yalkut Shimoni, Judges 247, 42).

At the same time, Judaism did recognize the process of conversion. This might not be obvious due to another characteristic of Judaism: one could say that Judaism is not a religion in the normal sense of a community of faith, but is more similar to an extended family. This family grew and grew, and over the generations it became a people, with a history and a culture. Its beginning was in family, and its continuation in a nation. The Law of Return, too, recognizes the halakhic principle whereby Jewishness passes down from generation to generation, by way of the mother – as stated at the beginning of sec. 4B of the Law. This unique characteristic raises doubts as to the possibility of conversion: can a convert with non-Jewish origins “change” his family roots? Can he become an integral part of the history of the nation? Despite the complexity this involves, Judaism responded positively to these questions. An interesting treatment of this appears in Iggerot HaRambam [Letters of Maimonides] in his response to Obadiah the Proselyte, who asked whether he was permitted to recite the prayer “Who has chosen us … [because] You have given to our forefathers as a heritage … And You brought us out of the Land of Egypt ... He who performed miracles for our forefathers …” etc. – wording that relates to historical events to which the ancestors of the proselyte were not party. Maimonides’ answer is clear:

You may say all this in the prescribed order and not change it in the least. In the same way as every Jew by birth says his blessing and prayer, you, too, shall bless and pray alike, whether you are alone or pray in the congregation. …. Since you have come under the wings of the Divine presence and confessed the Lord, no difference exists between you and us… as it is said, “One ordinance shall be both for you of the congregation, and also for the stranger that sojourns with you (Maimonides, Responsa, 293).

This also finds expression in the Shulhan Arukh (Even Ha’ezer 129:20): “The convert writes [his name]: A. son of Abraham our Forefather.” The convert therefore belongs not only to the community of believers, but he integrates fully into Jewish history, both as a family member and as a member of the nation. Thus, the Gentile is not obliged to convert, but he may do so, and once he is recognized as a convert he becomes an integral part of the extended family and entitled to full equality.

Alongside the said theoretical aspect, it must be explained that according to the halakhah as well, the process of conversion is a legal process, the validity of which is contingent upon the execution of a particular procedure in the beth din. As stated in the Babylonian Talmud (TB  Yevamot 47a):  “R. Judah said, a convert who converted in court is a convert; in private – [he] is not a convert.”

Here we have it: the roots of the institution of conversion are planted in a bifurcated ideological and halakhic tradition of Jewish law, and at the same time, in a legal process that is subject to certain laws and does not stem only from the person’s subjective conception. Interpretation of the words “has become converted” in the Law of Return must give expression to all these elements, while scrupulously preserving the frameworks – including an understanding of our role as the Supreme Court and not as a religious tribunal.

3.         To be more specific: the present issue is that of recognition, for the purposes of the Law of Return, of conversions that were conducted in Israel by ultra-Orthodox batei din that are not part of the state conversion system. According to the state, these conversions should not be recognized, for two reasons: first, because the conversion is conducted in Israel and not overseas, hence the Law of Return does not apply to the Petitioners and others like them; secondly, because the converting body is not part of the state conversion system, which must be granted exclusivity in the context of the Law of Return. I will address each of these arguments in turn.

In Rodriguez-Tushbeim v. Minister of the Interior [4] it was ruled that the Law of Return applies only to a non-Jewish person who came to Israel, and in the course of living here lawfully underwent a process of conversion overseas. The petitions before us give rise to a somewhat different issue, since the petitioners were not only living in Israel prior to their conversion, but they also underwent the conversion itself in Israel. At the same time, and as President Naor pointed out (para. 20), in Rodriguez-Tushbeim v. Minister of the Interior [4] the Court said:

               …. we decide – as a matter of principle – that the Law of Return applies to a person who is not a Jew, who comes to Israel, and while he is lawfully in the country he undergoes a process of conversion (in Israel or outside of Israel) (para. 26 per President Barak).

Indeed, the conclusion regarding the application of the Law of Return to conversion that was conducted in Israel is not free of doubt. From the language of sec. 3(a) of the Law of Return, which states that “a Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh’s certificate,” it may apparently be concluded that a non-Jew who has come to Israel is not entitled to receive an oleh’s certificate – even if in the course of his stay he converted and applied to settle in Israel.

However, my view is that the Law of Return applies with full force to a non-Jew who underwent the process of conversion in Israel, for the following four reasons: first, the linguistic interpretation that is implied by sec. 3(a) is not definitive. It is entirely possible that the term “Jew” does not relate to the date of arrival in Israel but to the situation of the person seeking status at the time of submission of the application. Second, the judgment in Rodriguez-Tushbeim v. Minister of the Interior [4], which was handed down by an expanded bench, related to the application of the Law of Return to those converting who had been living in Israel prior to their conversion. In the decade that has elapsed since, the Law has not been changed, and as such I do not find grounds for the position of the state – which is in fact seeking to depart from the prevailing case law. Third, there is logic to the position whereby purposive interpretation supports the conclusion reached by this Court in the matter of Rodriguez-Tushbeim v. Minister of the Interior [4], for the main purpose of the Law of Return is to enable Jews, whether by birth or by virtue of conversion, to settle in Israel and to realize the vision of the Ingathering of the Exiles. This purpose teaches that decisive significance should not be attributed to the place in which the conversion was conducted, and that the main question is whether the person applying for status is a Jew. Fourth, since the Rodriguez-Tushbeim v. Minister of the Interior [4] decision says that a person who was living in Israel lawfully – and it is possible that also due to his stay in Israel, the decision to convert was made – is entitled to the status by virtue of the Law of Return if he converted abroad, then practical considerations support the Petitioners’ position. Making the entitlement dependent upon the conversion ceremony being conducted abroad will force the person converting to cut short his lawful stay in Israel. It is difficult to see the justification for creating such a “nuisance”. For these reasons, I am of the opinion that the first question should be answered in the affirmative, and that recognition should be granted to the application of the Law of Return to converts who converted in Israel while they were living here lawfully.

With this we conclude our deliberation of HCJ 7625/06. The Petitioner in that process was living in Israel unlawfully at the time that the conversion was conducted, and as such I can only concur in the position of President Naor (paras. 39-40 of her judgment) and rescind the order nisi that was issued in her matter. On the other hand, the Petitioners in HCJ 1594/11 and 1595/11 have overcome the first hurdle, and therefore we must consider the second question on the agenda, which focuses on the status of the process of conversion that the Petitioners underwent in batei din that do not belong to the state conversion system. In other words, we must look not at the geographical location of the conversion – Israel as opposed to abroad – but at the identity of the body conducting the conversion: a private body that does not belong to the state conversion system, and is not supervised by the state.

4.         It would appear that even according to the state’s approach, according to which it has the fundamental authority to operate a state conversion system and to grant it exclusivity in the context of the Law of Return, the petitions should be granted. In other words, even according to the state, the conversions undergone by the Petitioners should be recognized for the purposes of the Law of Return. Why is this?

On April 7, 1998, the Israeli Government (decision no. 3613) decided to adopt the recommendations of the Committee to Develop Ideas and Proposals on the Matter of Conversions in Israel (hereinafter: Neeman Committee, or Committee) – a committee that was appointed in an attempt to appease the various streams of Judaism – Orthodox, Conservative and Reform – and to resolve the disagreements around the issue of conversion. On the one hand, the Neeman Committee considered the pressing need to make conversion possible and accessible  for the tens of thousands of Israelis who are not recognized as Jews according to the halakhah, at a time when the conversion process was controlled by the rabbinical courts. On the other hand, the Committee was of the opinion that recognition of non-Orthodox conversions – which are in dispute and which are unacceptable to the Orthodox stream – would be detrimental to national unity. Upon completion of its task, the Neeman Committee recommended the establishment of “a uniform state conversion process – according to Jewish law – which would be recognized by all Israel”, through establishing a joint conversion system: an institute for the study of Judaism, in which there would be representation for all the streams, and special conversion tribunals that would be appointed for this purpose by the Chief Rabbis. The Committee stressed that “the intention” is not to be too strict in the conversion procedures, and to settle for acceptance of the main principles of religion and the primary commandments.

The recommendations of the Neeman Committee were adopted, as we have said, by the Government, which attributed great importance to encouraging the conversion of the non-Jewish olim, and was so enthusiastic in its support that “it sometimes seemed that the leaders of the state … were more interested in conversion than the religious establishment” (Netanel Fisher, The Challenge of Conversion in Israel: An Analysis of Policy and Recommendations, 78 (2015) (Hebrew) (hereinafter: The Challenge of Conversion); on the elements of this policy see ibid., at p. 21-27). Over the course of the years, additional decisions were made concerning the mode of operation and the degree of independence of the state conversion system. In 2003, it was decided that the Chief Rabbi of Israel would appoint the head of the system, who would sign the certificates of conversion and “would be in charge, on behalf of the Chief Rabbis of Israel, inter alia, of the conversion system and the overall policy regarding the subject of conversion in Israel” (decision 761 of Sept. 1, 2003). In 2008, it was decided that the conversion system would be defined as an adjacent unit of the Prime Minister’s Office, the special conversion tribunals were transferred to the responsibility of this system, and it was decided that it would be headed by a “halakhic authority” who would act “under the guidance of the Sephardic Chief Rabbi” (decision 3155 ofFeb. 14, 2008). The format for the activity of the special conversion tribunals was regulated by the Chief Rabbi through the Rules of Procedure in Applications for Conversion, 5766-2006. Inter alia, these Rules provided that the rabbinical court judges who would sit in these conversion tribunals would be appointed by a “search committee for candidates”, and that the Chief Rabbi would appoint a president for each panel, who was ordained as a religious court judge (Rules 10(2)-(3)).

In his opinion, my colleague Deputy President Rubinstein presents an excellent survey of the complicated, on-going attempt to reach accord on the subject of conversion. I will permit myself to say that in view of his part and his efforts in the framework of his former public functions, my colleague’s review is as enriching as it is moving. In any case, without delving into the depths of how events unfolded, suffice it to say that an analysis of the government decisions on the background of the Report of the Neeman Committee indicates that at the heart of the establishment of the State Conversion System lay the intention to grant a monopoly to conversion “according to Jewish law” – since such conversion is recognized by “all Israel” and is accepted by all the streams. The purpose of the system is, therefore, to subordinate conversion to the Chief Rabbinate, depositing control of this system in the hands of the Orthodox stream and negating recognition of conversions that are conducted by other Jewish streams, in accordance with their outlooks. This, alongside a certain “compensation” in the form of a joint institute for conversion, in which representation would be given to Conservative and Reform Jewry. From a review of the circumstances that led to the establishment of the State Conversion System, it can easily be seen that the claim of the state – which took center stage in the proceedings before us – concerning what was wrong with depositing the “house keys” in the hands of private elements – does not by any means present the whole picture, or even the main thrust of the considerations that underlay the decision. The catalyst for the government decision was not the choosing of an authorized body for the sake of “making order”, come what may, without taking a stand on the identity of that body. The “biography” of the system shows that its establishment did not put great emphasis, for example, on solving the “problem” of private Orthodox rabbinical tribunals that handle conversion. In fact, their activity, as such, did not constitute a real consideration in the recommendations of the Neeman Committee. The main “problem” that arose was the issue of non-Orthodox conversions, and for this reason the Rabbinate was given control over the state system, and the principle of conducting the conversions according to “Jewish law”, namely, Orthodox conversion, was adopted. This analysis of the conversion system and its purposes is highly significant – as I will elucidate below.

Before discussing the significance of this, I will mention that in the framework of the petitions before us, we are concerned only with the status of conversions that were conducted by “private” Orthodox rabbinical tribunals. Indeed, at a certain stage, the state sought to establish a connection between these petitions and the issue of recognition of non-Orthodox conversions that were conducted in Israel – an issue that was raised in the framework of a series of petitions that are still pending in this Court (HCJ 11013/05 Dahan v. Minister of Justice and others). However, the World Union for Progressive Judaism, the Movement for Progressive Judaism in Israel and the Masorti Movement in Israel (organizations that represent Reform and Conservative Judaism) claimed that these were “two totally different issues.” This emerges, according to them, from the separate contacts between the State and themselves in an attempt to regulate the status of non-Orthodox conversion, and this is appropriate bearing in mind their unique characteristics: whereas the Orthodox streams enjoy representation in the state system, which is subordinate to the Chief Rabbinate, the Reform and the Conservatives remain locked in a stalemate if recognition is not given to the conversions that their tribunals conduct. In the present proceedings, this position gained support in the decision of President D. Beinisch of April 12, 2011, which clarified that there is no justification for a stay of proceedings in the present case until the contacts between the state and the non-Orthodox communities have been exhausted, due to the substantive difference between the proceedings. From a procedural point of view, we decided to respect the position of the Reform and the Conservative Movements, to refrain from consolidating the petitions, and to separate the issues of recognition of non-governmental Orthodox conversion and adjudication of the status of non-Orthodox conversion. The turn of the petitions dealing with this latter issue will also come soon, but I believe that it is possible, and desirable, to decide on the present petitions without addressing the other issue.

An additional preliminary remark concerns the question of the basic authority of the Government to grant a monopoly to the State Conversion System. In this regard, the position of President A. Barak in Rodriguez-Tushbeim v. Minister of the Interior [4] is interesting: he says that due to the nature of the issue at hand – a preliminary arrangement with ramifications for human rights – section 32 of Basic Law: The Government cannot be considered a suitable source of authority for granting such a monopoly. Indeed, in the same breath, President Barak explained that it is possible that the provisions of the Law of Return themselves, as opposed to the residual authority in sec. 32, will lead to the conclusion that such authority indeed exists:

We accept that the Government is authorized, by virtue of its general (residual) authority under sec. 32 of Basic Law: The Government, to establish a conversion system similar to that which was established following the recommendations of the Neeman Committee. At the same time, the Government is not authorized by virtue of its general authority to determine that only conversion conducted within this framework will be recognized under the Law of Return. Recognition of conversion for the purpose of the Law of Return will be determined according to the interpretation of the Law of Return. The requirements of the Law of Return regarding conversion may possibly overlap the arrangements pertaining to the conversion system according to the Neeman Committee Report. Insofar as this overlap exists, it stems from the provisions of the Law of Return and from them alone (para. 30 of his opinion).

For this reason, I decided to elaborate and clarify that even if the Law of Return authorizes the Government to establish a state conversion system, as the state claims, this does not negate the status of the conversion of the Petitioners in HCJ 1594/11 and HCJ 1595/11. Clearly, it is possible to decide on these petitions and to grant them even on the assumptions presented in the state’s position, or at least some of them.

From the above it emerges that one of the main grounds for the establishment of a state conversion system is the desire to ensure that only conversions conducted according to Orthodox halakhah will be recognized. A big question, therefore, is why only the conversions of the tribunals belonging to the state system should be recognized as valid for the purpose of the Law of Return and not the conversions of other Orthodox batei din which rule according to Jewish law.

This question derives from the shortcomings in the state’s position. To clarify: the State Conversion System, as presented to us by the state, consists of three levels. The first is the granting of exclusivity to Orthodox conversion; the second is the establishment of special conversion tribunals; and the third is the non-recognition of the conversions conducted by other tribunals – whatever their commitment to halakhah and whatever their status may be. As we have said, for the purpose of deciding on this petition I am prepared to accept the two first levels. The focus of the examination, therefore, will be upon the third level – non-recognition of any Orthodox beth din that was not appointed by the Chief Rabbinate as part of the special conversion tribunals.

In my opinion, this third level, whose many shortcomings lie at the interface of the triad of authority, interpretation and reasonability, is unacceptable. As will be recalled, in Rodriguez-Tushbeim v. Minister of the Interior [4], this Court ruled that the Government is authorized to establish a state conversion system by virtue of its residual powers – in the absence of concrete statutory regulation of the status of the Chief Rabbinate and the religious courts in the area of conversion. However, in the same breath it was clearly stated that sec. 32 of Basic Law: The Government does not authorize the Government to decide that only conversions conducted in the special tribunals may confer status for the purpose of the Law of Return, in the absence of such authorization in the formulation of the Law:

               Where there is a contradiction between the interpretation of the Law of Return and the arrangements for conversion under the Report of the Neeman Committee, the Law of Return prevails. The general (residual) power of the Government cannot contradict the provisions of the Law of Return or violate a human right […] therefore, as long as the Knesset has not had its lawful say on the matter, the problem of recognition of conversion for the purpose of the Law of Return must be resolved in the framework of the interpretation of the Law of Return (para. 30 per President A. Barak).

As stated, the need to prevent abuse of the arrangements under the Law of Return by means of fictitious conversions was recognized in the case law, and led to the ruling that conversions conducted before any three people, no matter what their halakhic status, are insufficient. Thus, counsel for the state argued repeatedly that the purpose underlying the withholding of recognition of the validity of private Orthodox conversions for the purpose of the Law of Return was legitimate. According to her, a situation in which any three Jews may serve as a conversion tribunal for the purpose of acquiring status by virtue of the Law of Return is unacceptable.

However, the choice is not between granting a monopoly to batei din that belong to the state conversion system and recognizing the conversions of any panel of three Jews. There is another possibility, one which is consistent with the relief sought in the present petitions:  to recognize Orthodox batei din that are headed by rabbis and halakhic decisors whose standing in the community is unquestioned.

6.         This intermediate possibility is strengthened in view of the existence of groups of rabbis whose status as rabbis complying with the halakhah has received a certain degree of state recognition. For example, why detract from the status of a municipal rabbi, or the heads of the hesder yeshivas [rabbinical seminaries in which the students combine Jewish studies and military service]? As for the first group, the State of Israel has an abundance of rabbis who serve in rabbinical positions on its behalf, and constitute, in fact, an integral part of the public service on the one hand, and of the rabbinical establishment on the other. These are, first and foremost, the rabbis of cities or towns, in whom the legislature has placed its trust and granted them sensitive powers. Local rabbis possess various religious-civil powers, such as issuing kashrut certificates (sec. 2(a)(2) of the Prohibition of Kashrut Fraud Law, 5743-1983), and registration of marriages – with all the sensitivities involved in regulating matters of personal status (sec. 2A of the Marriage and Divorce (Registration) Ordinance)). It is difficult to see why considerations of “making order” and protecting the integrity of Israel’s borders could justify the restrictive interpretation of sec. 4B of the Law of Return in a way that would except conversions conducted by recognized town rabbis.

Moreover, concern about abuse of conversion proceedings also diminishes in regard to conversions that are conducted by semi-official figures, such as heads of hesder yeshivas who rule on practical halakhic issues. Section 22A of the Defense Services Law [Consolidated Version] 5746-1986 anchors the status of the students of the hesder yeshivas – academies that comply with the criteria set by the Minister of Defense, which are included in a list drawn up by him, and that are granted the exclusive right to combine active military service with yeshiva studies. The process of individual recognition of these yeshivas, and its substantive ramifications for a substantive institution such as military service, grants their leaders, at the very least, a quasi-official status. Could it be said that they are trigger-happy when it comes to conversion? To these – town rabbis and heads of hesder yeshivas – must be added known ultra-Orthodox batei din. It is hard to take seriously the argument that these batei din, such as the batei din involved in this case, which are committed to the halakhah and to examining the purity of intention of the person converting, would not be trustworthy, and would cause Israel to be inundated with pretenders seeking to abuse the institution of conversion in order to acquire civil status.

In accordance with the decision in Rodriguez-Tushbeim v. Minister of the Interior [4], conversions that were conducted by rabbis who served in recognized Orthodox communities overseas, for example, in the United States, are recognized, and the converts are granted the right of Return. However, according to the state’s position, if those rabbis would immigrate to Israel, and would reestablish their batei din, in which conversions would be conducted according to the same practical and halakhic criteria according to Jewish law, the conversions they conducted would no longer be valid. Beyond the fact that such an outcome discriminates between those converting who presented themselves before a beth din overseas and those who did so in Israel, it reveals the lack of logic in the sweeping dismissal of “private” conversions that were conducted on Israeli soil – and shows that the considerations of sincerity and purity of intention cannot form its basis.

Even if there are real concerns about abuse of the conversion process, the state’s position is flawed and unconvincing. As I have said, I do not advocate an absence of oversight, and clearly the conversions of a beth din whose members do not have halakhic authority will not acquire status by virtue of the Law of Return. But even without discussing the setting of clear criteria for recognition of batei din – criteria that are not required in the framework of this petition – it is difficult to ignore the fact that the solution that the state has chosen is not proportionate. No basis has been laid before us for the concern that recognition of the conversions of serious Orthodox batei din in which the rabbinic judges are people of stature will lead to a breaching of the dams and to mass fictitious conversions of olim. In this context it will be noted that even if not every town rabbi or head of a hesder yeshiva, for example, is interested in dealing with conversions, most of the batei din that deal with this subject are experienced in it. I am referring mainly to Orthodox batei din that are committed to halakhah and that examine the conversion meticulously. In these circumstances, clearly there is no room for exclusive recognition of the special tribunals, while negating wholesale the status of every other conversion.

On the other hand, and as my colleague the President noted in her opinion (para. 36), it was not proven that the State Conversion System is immune to mistakes and abuse, particularly in view of the appointment and oversight mechanism of the special conversion tribunals, which are not part of the regular rabbinical court system. The status of the latter system is directly regulated by statute, with all the implications – including procedures for selecting the judges. As opposed to this, the conversion tribunals are designated tribunals, appointed by the Chief Rabbi for the sole purpose of conversion, and therefore there is significant doubt as to whether the factual investigations that they are able to conduct regarding the sincerity of the motives of the person converting are qualitatively superior to the investigations conducted by the Orthodox batei din that are not part of the conversion system.

We thus find that there is no purposive or linguistic anchor for a position that comprehensively dismisses the status of conversions that were conducted in private Orthodox batei din. On the contrary, from the point of view of the purpose of the Law of Return, it would appear that it is more correct to expand the possibilities of conversion, giving expression to the different halakhic approaches, and granting recognition to rabbis with different outlooks that fall within the Orthodox framework – at least with respect to the three groups I mentioned: rabbis with an official or semi-official status, such as town rabbis or heads of  hesder yeshivas; ultra-Orthodox batei din that have stature in the Haredi community; and rabbis from established Jewish communities abroad who immigrated to Israel. Over-centralization, and granting an absolute monopoly to the Chief Rabbinate over the institution of conversion – a monopoly the practical significance of which is the adoption of a strict approach and the placing of obstacles in the path of Jews who wish to immigrate to Israel – are contrary to the central purpose of the Law of Return, which is to encourage aliyah. This being the case, the expression “has become converted” must be interpreted broadly, to include every Orthodox conversion process that was conducted in a beth din in which the rabbinical judges are people of standing. Indeed, this would not prevent the state from checking the sincerity of the motives of the person converting, and from deciding every case on its merits (see and compare HCJ 3994/12 Asphaho v. Minister of Justice [22], para. 6 of my opinion, in which my colleagues Justices E. Hayut and Z. Zylbertal concurred), but wholesale disqualification of conversions is contrary to the language and the purpose of the Law of Return.

I would incidentally note that the position of the state raises a difficulty in the area of reasonableness. No criteria were presented to us to explain why certain courts are recognized but not others. Make no mistake: the emphasis is not on recognition of the special conversion tribunals, but on the lack of justification for negating the status of the conversions of the batei din that do not belong to the conversion system. Consequently, even if I accept that recognition should be confined to batei din that belong to the Orthodox stream, and even if I agree that authority exists to set up special conversion tribunals, there is no basis for withholding similar recognition from the batei din that adhere to Jewish law and which have gained stature and recognition.

This result is inevitable not only in view of the specific purpose of the Law of Return, but also of its general, objective purpose, as derived from the basic principles of the system. It should come as no surprise if I say that in the halakhic world as well, there are substantive differences of opinion – certainly on the subject of conversion. Preferring a particular halakhic approach, while dismissing other approaches that exist in the halakhic-Orthodox arena, is not a defensible outcome in the present legal position. The state was not authorized to draw such distinctions. Moreover, doing so is incompatible with the values of the State of Israel as a Jewish and democratic state. Jewish, because the approach of halakhah over the centuries has supported pluralism in conversion proceedings, as will be explained, and democratic, due to the defect in preferring the positions of one Orthodox group over another, thus violating equality and harming those entitled to Return. This is not an expression of a position on whether this is correct in relation to non-Orthodox batei din to the same degree as in relation to non-governmental ultra-Orthodox batei din.

7.         Before I explain why the establishment of a centralized conversion system is incompatible with the values of the State of Israel as a Jewish state, I will say that, of course, I am not here to decide upon an internal halakhic disagreement on matters of conversion. My purpose is to present, if only briefly, by means of various approaches, the complexity of the halakhic decisions on the subject. This, as well as supporting the reasons cited above, is in order to provide a basis for the conclusion that, in the present legal system, one cannot grant exclusivity to certain batei din – in the absence of the necessary legislative mechanism that would provide a basis for such a conclusion.

As I understand matters, the necessity of recognizing a wide array of batei din, which represent different halakhic approaches, is derived from the nature of the halakhic decisions on the laws of conversion. Even though there is consensus, albeit not absolute, with respect to the ideal conditions for accepting converts – circumcision (for a male), ritual immersion, acceptance of the yoke of the commandments and affiliation to the Jewish people – reality, as is its way, thwarts neat definitions. The question of conversion does not usually arise under laboratory conditions. Indeed, over the centuries and to the present day, different approaches have been presented, sometimes very distant from each other, with respect to accepting a convert under conditions that were not ideal. As Rabbi Ovadia Yosef pointed out when he was serving as the Sephardic Chief Rabbi of the State of Israel: “We always had disputes between the House of Shammai and the House of Hillel, the former strict and the latter lenient. This is the basis for the fact that in certain batei din there are strict rulings whereas in others they are lenient.” (Protocol of the Internal Affairs and Environment Committee, 8^th Knesset (Nov. 16, 1976) (hereinafter: the Internal Affairs Committee Protocol)).

Maimonides, in his halakhic work HaYad HaHazakah, discussed the conversion of the wives of King Solomon, which were carried out due to monarchical-political considerations, and not necessarily out of a desire to embrace Judaism. He explains: “One should not think that … Solomon King of Israel…. married gentile women who did not convert”, as implied by the literal reading of the Bible (I Kings 11:1-4). Indeed: “the court did not accept converts throughout the reign of … [and] Solomon … [they feared] that they were motivated by the sovereignty, prosperity and eminence which Israel enjoyed… Nevertheless there were many people who converted in the presence of ordinary people during the era of … Solomon” – and the courts did not reject the conversion after the immersion ceremony had already taken place (Laws of Forbidden Sexual Unions 13:14-16).

More generally, the Great Eagle [a sobriquet for Maimonides] stressed that the beth din asks the convert, “‘Why did you choose to convert? Don't you know that in the present era, the Jews are afflicted, crushed, subjugated, strained, and suffering comes upon them?’ If he answers: ‘I know. Would it be that I be able to be part of them,’ we accept him immediately.” (ibid., 14:1). The willingness of a Gentile to cast his lot with that of the Jewish people, when he has no ulterior motivation for converting, is sufficient. Maimonides also explains that the convert is informed of the “fundamentals of the faith, which are the unity of God and the prohibition against the worship of false deities. We elaborate on this matter.” It is interesting to note that the only precepts that Maimonides saw fit to specify in this context are precepts between man and his fellow –  “gleanings of the field and the second tithe” – and in this, too, we learn of the nature of acceptance of the yoke of commandments required in the conversion process (ibid., 14:2). Rabbi Shimon Gershon Rosenberg, the head of the Siach Yitzhak Yeshiva, who passed away a decade ago, showed how Maimonides trod the middle ground between the ideal and the reality of his day:

               From Maimonides one can learn about the ability to combine different dimensions of thought: recognition of the ideal but also understanding the practical, recognizing the goal and also understanding the reality and identifying that which is achievable – without giving up on the perpetual and active aspiration to move the reality on towards the vision. The halakhic outlook of Maimonides is conceptual, but not necessarily coherent and certainly not monolithic. Moreover, even though he molds the laws of conversion in light of his views, he leaves the last question – whether the convert will be integrated into the Jewish people by the beth din – unsolved; and in order to answer it the beth din must weigh considerations of time and place and not considerations of the ideal. We have seen that Maimonides preferred to be lenient in the laws of conversion in order to prevent mixed marriages and to preserve the integrity of the family – a weighty consideration in our day as well. However, even if this leniency is a necessity at the time, one must not forget the objective and the vision, which are the creation of the community at the center of which stands the will of God and the way of God – that very community that was established by our forefather Abraham, who as Maimonides emphasizes, was the father of all converts (Shimon Gershon Rosenberg-Shagar, Zot Briti: Conversion, Secularization, Civil Marriage 93 (5772-2912) (Hebrew) (hereinafter: Shagar.

In the spirit of the present time of the year,[1] let us discuss the conversion of the Persians in the account in the Book of Esther. In chap. 8 verse 17, it is written that after the victory, “[and] many from among the people of the land became Jews; for the fear of the Jews was fallen upon them.” Rashi explains the words “became Jews” – as “became converted”. And despite the problematic motive, Rabbi Shlomo Dichovsky, a judge in the Supreme Rabbinical Court and past Director of the Rabbinical Courts (Lev Shome’a leShlomo 1:23, Retroactive Nullification of Conversion, (Shafat: 2014) (Hebrew)) writes that it is hard to believe that “a beth din in our day would perform wholesale conversions of enemies of the Jews who became frightened of them”. Nevertheless, the conversions were not nullified.

More recently, in the 20th century, we have also seen decisions regarding conversion according to halakhic policy and the times, in at least the following two senses. One is the willingness to recognize conversion under conditions that are not ideal, in order to prevent more serious consequences as a result of not accepting the convert. The second is recognition of wider general phenomena as a basis for deciding on the validity of the conversion of an individual.

An example of the first sense is provided by the ruling of Rabbi David Zvi Hoffman, one of the great German decisors at the beginning of the 20th century. In his responsa (Responsa Melamed Leho’il, 2, 83) he discusses the situation of a Gentile who “married a Jewish woman under their laws … and she is already pregnant from him and it is very clear that she will marry him even if he does not convert.” Despite the difficulty, Rabbi Hoffman allowed the non-Jew to convert, inter alia, for the reason that the couple could have remained married according to the civil law only, so that the very willingness of the non-Jewish partner to convert and to gain religious recognition indicates that “there is a basis for saying that he is doing it for the sake of Heaven.” Another reason: “If we do not accept him, she will marry him in violation of a scriptural prohibition, for marriage of a Jewish woman to a non-Jew is a scriptural prohibition … And therefore it is better that we accept him rather than that she marry him in violation of the prohibition.” He also addresses the fact that the conversion of the non-Jewish partner is for the benefit of the couple’s children, and regards this as a relevant consideration. At the end of the discussion, Rabbi Hoffman proposes that in all that concerns observing the commandments, such as keeping the Sabbath and refraining from eating forbidden foods, “it is better for him to promise rather than take an oath.” In another responsum, Rabbi Hoffman addressed the issue of a kohen who married a non-Jewish woman in a civil ceremony, and who bore him a child, who was circumcised and then died. Now, “she has misgivings, and she wishes to convert and to marry the kohen in accordance with Jewish law.” The question noted that if her request is not granted, there is a concern that “she will become ill and go insane.” In his responsum, Rabbi Hoffman sketches the guidelines for deciding as follows: “One must investigate which is the greater prohibition – for a kohen to marry a convert or for him to marry a non-Jewess? It seems to me to be simple that the prohibition against marrying a non-Jewess is stricter.” Despite the prohibition against the marriage of a kohen and a convert, he converted the woman in order to avoid an even graver halakhic situation; “to repair the status of the kohen and that of his lineage, she is accepted” (ibid., Part 3, Even Ha’ezer and Hoshen Mishpat 8). In the two responsa, Rabbi Hoffman is careful to say that every effort must be made to ensure that the convert will be scrupulous in his observance of the commandments, but it emerges from the responsa that this is far from being a certainty. These responsa demonstrate the new complexity that faced the decisors of that generation in their efforts to be true to both the halakhah and the reality (see Arye Edrei, And are we not responsible for Them? More on the Conversion Debate, 24 Akdamut (5771) (Hebrew)).

As for the second sense, the effect of the general considerations and challenges that face the Jewish people on the institution of conversion, we will cite the following examples: Rabbi Ben-Zion Meir Hai Uziel, the first Sephardic Chief Rabbi of the State of Israel, while serving as the rabbi of Thessaloniki, was asked a question concerning “an Israelite who married a Gentile woman and lived with her for several years and she bore him children, and now the woman wishes to convert and to marry with huppah and kiddushin  according to Jewish law.” Inter alia, Rabbi Uziel based his decision that it was possible to convert the woman on the fact that “this Gentile woman is already married to an Israelite, and in bringing her into the covenant of Judaism she will become much closer to the family of her husband and his religion, and moreover, the children who have been born to her and those who will be born from now on will be full Jews […] It is a mitzvah for them to bring them close and to include them in the Covenant of the Torah of Israel and to banish the blight of assimilation which is a malignant blight in the orchard of the House of Israel” (Responsa Mishpetei Ouziel 1, Yoreh Deah 14; emphasis added – N.H.). In other words, the need to fight assimilation led to an institutional change in the concept of conversion, and to an attempt to consolidate ranks even at the price of relaxing the formal requirements.

In a similar fashion, Rabbi Isser Yehuda Unterman – the Ashkenazic Chief Rabbi of the State of Israel 1964-1972  – in referring to the immigrants from the Soviet Union, said that “one must be lenient in this hour of need when it is absolutely impossible to prevent non-Jewish immigrants from assimilating into the People of Israel … those who require conversion must be dealt with according to the law of the Torah, with sensitivity and understanding, bearing in mind what these brothers of ours have undergone in their spiritual plight” (Isser Yehuda Unterman, Laws of Conversion and their Mode of Execution, Torah Shebe’al Peh 13, 15 (5735-1975) (Hebrew)). Here, too, the integration of the olim who were not recognized as being halakhically Jewish into Israeli society led to a change in the halakhic rulings and to recognition of the need to display “sensitivity and understanding,” making the dry criteria with which the converts must comply more flexible.

Thus the major decisors consciously adopted the changing reality in society and among the Jewish people as a basis for fashioning rulings contrary to what had been accepted previously. In the words of Rabbi Ovadia Yosef:

               Despite all these reservations, there has been a change in our generations with respect to a person who comes to convert for marital reasons, and our sages are aware of the new development. In the past, every nation adhered to its own people; a non-Jew could not marry a Jewish woman and the converse; everyone preserved the tradition. Only in recent generations, in view of the development of democracy and individual freedom, can people act in this regard, and if they will not be able to marry according to Jewish law, they will anyway continue to live together as man and wife. When a person lives thus with a Gentile woman and she later presents herself for conversion, they are viewed thus: if only for marital purposes –in any case he is already living with her; hence the request to convert is for the sake of Heaven. This is therefore a good development.

The great sages of the Torah in recent generations have disagreed on this question. Some of the Ashkenazic rabbis are more strict on this matter […] As opposed to them, there are many rabbis who are lenient […] in fact, the majority of judges of the rabbinical courts today accept this change, and therefore, even when they know that the woman who has presented herself for conversion does so due to marital interests – she is accepted (Protocol Neeman Committee, p. 3).

There is no denying, therefore, that different approaches exist. In fact, there is a dispute over whether there is in fact any halakhic disagreement on the question of conversions, or rather, that the differences in approach are limited to investigating the practical aspects. Rabbi Bezalel Zolty, a judge in the Supreme Rabbinical Court of Appeals, and the Ashkenazic Chief Rabbi of Jerusalem until his death in 1982, argues that:

The problem of conversion in our times is not a halakhic problem. The laws of conversion are fixed and clear, there are no complicated halakhic problems in the acceptance of converts, and in any case, there is no cause for saying that there are rabbis who act like the House of Shammai and are strict in the laws of conversion, and there are rabbis who act like the House of Hillel and are lenient in the laws of conversion

The main problem in accepting converts, particularly in our time, is purely factual: to determine with certainty the true intention of the person who seeks to convert […] In this matter there are no clear rules […] and it is clear that in determining facts there is no room for strictures or leniencies, but rather the facts must be determined as they truly are (Bezalel Zolty, On the Laws of Accepting Converts, 13 Torah Shebe’al Peh 33 (5731-1971) (Hebrew)).

On the other hand, there are stricter approaches, such as that of Rabbi Abraham Sherman, a judge of the Supreme Rabbinical Court, who holds that:

               All the conversions of the modern period in Israel and the world over, since the beginning of the period of the Enlightenment in which mixed marriages began and the need for conversion was created, are accompanied by interests, and it transpires that the vast majority of the converts did not accept the yoke of the commandments at the time of the act of conversion, and also did not observe the commandments after the conversion. The vast majority of conversions in the modern period and in Israel require investigation by an authorized beth din prior to the converts entering the community of Jews. They are not definitely Jewish. (For a discussion of his approach, see Etgar Hagiur,  90 (Hebrew); see also Avraham Haim Sherman, The Authority of the Sages of the Generation on Subjects of Conjugal Relations and Conversion, 30 Tehumin 163 (5770-2000) (Hebrew)).

The responsa cited are only a small sampling of the rulings over the generations. There were those who were lenient and those who were strict in accepting the convert. This was so from the time of the Talmud: see the different attitudes of Hillel and Shammai – one was tolerant and one was pedantic (TB Shabbat 30b-31a). The truth be told that the many approaches traverse many of the different issues. Thus, for example, Shagar writes (at p. 87):

In the sources we found a difference between the Land of Israel and countries abroad with respect to conversion. There is a solid argument for saying that only in the Land of Israel is it possible to convert, but there is also the opposite argument, that only abroad is it possible to convert, due to the concern that in Israel, people want to convert due to the “goodness of the Land of Israel” and not for the sake of Heaven. However, the considerations of Rabbi Unterman are different: outside of Israel the Jews constitute a minority in the midst of a non-Jewish society, whereas in the State of Israel they are the majority, and therefore only in Israel does the convert join Jewish society.

Regarding the changes over time, and sometimes in relation to that same phenomenon, it emerges from the survey that there were those who wished to make the conditions more lenient, those who wished to make them stricter, and even those decisors who held that one must not depart from the rules (see at length the article of Prof. Edrei (Arye Edrei, And are We not Responsible for Them? More on the Conversion Debate, 24 Akdamut (5771)); Shagar, pp. 15-93, and a collection of sources over the generations, as appears in Rabbi Haim Amsalem, Zera Yisrael, part. 2 (5770-2010)).

Therefore, in this context I do not wish to propose one model of halakhic ruling as being preferable to another. That is not my job. My objective is to disclose the variety and the disagreements on the issue of conversion – a variety that is not similar to that which exists in relation to other halakhic issues, such as kashrut. What I have written was intended to afford a glimpse of the array of rulings.

I believe that this information is significant when we set about interpreting sec. 4B of the Law of Return and deciding whether it is possible to grant the special conversion tribunals exclusive control of the process of conversion and the right of Return – while dismissing various Orthodox approaches that differ from the one adopted by the Chief Rabbinate. Against the backdrop of the approaches that were cited, it would certainly be incorrect to dismiss the approach of a particular halakhic decisor simply because it is lenient. Such dismissal ignores the complexity not only of the rabbi’s response, but also of the question that was put to him.

8.         It appears that adoption of a broad approach, by recognizing the conversions of ultra-Orthodox batei din of stature, is also supported by halakhic rulings from the past and the present. In other words, the problem with preferring one particular halakhic approach is even greater in the area of conversion, in which many decisors stress the importance of the existence of a pluralistic system that is capable of embracing different approaches at the same time. In this matter let us look at the words of Rabbi Professor Nachum Rabinowitz, head of the Birkhat Moshe hesder yeshiva, who takes a grave view of the establishment of a centralized conversion system, and believes that this is “liable to uproot conversion”:

               Clearly there is no room to enact a law or to fix a procedure whereby all the conversions must be subject to a single central halakhic authority. This was never the case in Israel, and such a determination is liable to put an end to conversion. If all the conversions are subject to the approach of a single halakhic authority, a situation is liable to arise whereby the door is barred to converts. On the contrary, over the generations every beth din was authorized to conduct conversions, and even in the days of the Sanhedrin, at the time of Hillel and Shammai, we find that Shammai rejected several potential converts whereas Hillel converted them, proving that there is room for differences between batei din in their approach to converts. It is precisely the variations among the batei din that allow for the acceptance of converts (Nachum Eliezer Rabinowitz, Mesillot Bel’vavam, 283 (2015) (Hebrew)).

In view of the need to accommodate the variety of halakhic approaches, on the one hand, while ensuring the sincerity and the proper conduct of conversion processes, on the other, Rabbi Rabinowitz proposed that the role of the local rabbis be expanded significantly. He writes:

               Accordingly, the town rabbis should be permitted to handle conversions, as was the practice throughout the generations, and even to appoint the members of their beth din themselves. Moreover, town rabbis are close to the people of their towns, and know them better than the judges of the centralized batei din. In addition, they are able to create connections with the municipal frameworks in their localities, and it will be easier for them to establish cooperation with the schools, the youth movements and the residents in the various communities, and they will be able to encourage, monitor and advance the process of conversion of the young people (ibid., at p. 284).

Rabbi Ovadia Yosef, who objected to the establishment of special conversion tribunals – inter alia, due to the concern about the lack of an alternative in the event that these tribunals would adopt a strict conversion policy – wrote in a similar vein (Etgar Hagi’ur, 96) that “there were difficult cases … and I accepted them. But everything was done quietly. Even the Tablets of the Covenant that were given publicly, with thunder and lightning – were broken. Everything must be done in a private manner … For this reason, a national conversion tribunal will not only not help, but it is also liable to cause harm” (Protocol of the Internal Affairs Committee, at p. 8).

As I understand it, at the root of the various approaches lies the philosophical dispute that moves on the scale between “Converts are as harmful to Israel as a sore” (TB Yevamot 47b) and “Love you therefore the stranger” (Deuteronomy 10:19) – or, as Rabbi Ovadia Yosef pointed out, “The Bible definitely deems conversion as a positive act. Our rabbis took an affirmative view of it” (Protocol of the Internal Affairs Committee, p. 2). The decisor knows the intricacies of the halakhic requirements, but reality, as is its way, does not fit into neat categories. The reality of conditions that are not ideal is not something new. But the particular variations change. One cannot compare the questions that came before the decisor at the beginning of the twentieth century in Germany to the issues that arose in the United States in the middle of that century. In Israel, too, the issue of the new immigrants in the seventies was not similar, factually, to this issue in the nineties. So we see that the non-ideal reality is not new but it often assumes a different garb in accordance with the conditions of time and place. It seems that the exclusive situation that was created in the State of Israel in our times, following the immigration from the states of the Former Soviet Union, in which tens and possibly even hundreds of thousands of people who are not recognized as Jewish in accordance with the halakhah live among us, highlights the need to provide a platform for different halakhic approaches that advance a solution to the problem.

9.         Hence, the substantive halakhic disputes in relation to the institution of conversion – as well as the importance of a variety of halakhic opinions in this area – lend support to the interpretative conclusion whereby, in the absence of explicit statutory entrenchment, the conduct of conversions for the purpose of the Law of Return should not be entrusted to a halakhic monopoly that represents one approach. In addition, the purposes of the Law of Return, alongside the basic principles of the State of Israel as a Jewish and democratic state, indicate that the different approaches that exist within the halakhic framework should be allowed to operate in parallel as a basis for granting the right of Return. In the absence of an explicit directive from the legislature, the state must refrain from taking a side in the dispute by recognizing a single, centralized body that dictates its halakhic conception to the whole conversion system. Just as the strict approach should not be dismissed, the state is not authorized to dismiss the lenient approach.

Indeed, there is a Chief Rabbinate in our state that is in charge of a variety of religious issues. It is not my intention to challenge its status. However, in the case before us, the Law of Return contains no specific authorization granting the Chief Rabbinate exclusive control over conversion proceedings – as exists in the present formulation of sec. 2 of the Prohibition Against Kashrut Fraud Law, 5743-1983, for example. As such, there is no avoiding an examination of the exclusive status of the State Conversion System by means of purposive interpretation of the expression “has become converted” in sec. 4B of the Law. On this plane, in view of the combination of its civil purposes – the Zionism of the Law of Return, Ingathering of the Exiles and bringing Jews and their family members to the Land of Israel – and its halakhic purposes, which show the importance of preserving halakhic breadth of opinion, I believe that interpretation that dismisses the status of conversions that were conducted in other serious Orthodox batei din is unacceptable, as explained above. We are not dealing with a clearly religious determination. The term “conversion” is, in my eyes, a religious term. But the interpretation is implemented in the framework of the Law of Return, which is not a religious law. In the absence of an explicit definition of the expression “has become converted,” I believe that limiting the list should be avoided, and that recognition should be granted, for the purpose of the Law of Return, to the Jewishness of Jews who underwent the process of conversion in recognized, appropriate batei din – each, in accordance with his halakhic outlook – without imposing one, single, halakhic conception.

To summarize, the conclusion I have reached stems from a combination of several factors. First, there is no explicit law granting the Government the authority to grant exclusivity to the State Conversion System – even if there is authority to establish such a system.  Second, for the purpose of deciding upon the status of established, private, ultra-Orthodox batei din, in this petition it is possible to decide based on the assumption, which stems from the government decision, that only Orthodox conversion should be recognized. Third, given the complexity of the halakhic rulings on matters of conversion, with all its varied approaches, and the purpose of the Law of Return that was intended to encourage the aliyah of Jews – both those born as Jews, and those who converted – restrictive interpretation of the Law is not justified. The cumulative force of these reasons leads to the outcome that recognition should be granted to the status of conversions that were conducted in serious, respected Orthodox batei din, as explained.

10.       And from the general to the specific. Above, I explained that in HCJ 7625/06, the petition should not be granted, since the Petitioner was living in Israel unlawfully at the time of the conversion. This is a relevant, appropriate consideration, consistent with the case law cited above, and for this reason the order nisi issued in her case should be rescinded (see paras. 39-40 per President Naor). As for the other Petitioners, for the reasons elucidated above, and in view of the established status of the batei din that conduct conversions in the ultra-Orthodox communities, I believe that their conversions should be recognized for the purpose of the Law of Return. Clearly, the two batei din whose conversions were at issue in the framework of these petitions do not constitute a closed list, and the status of conversions conducted by additional batei din that enjoy a similar status should be recognized.

Before concluding, I wish to clarify again that this judgment is handed down on the assumption that arises from the position of the state in accordance with the government decision that places Orthodox conversion at center stage. I am not expressing an opinion on the issue of Reform or Conservative conversions, which is not under discussion in this framework.

I will also add that bearing in mind that in the absence of action to amend the Law in the course of the decade that has elapsed since the question of “private” Orthodox conversions was brought before us, and with all due understanding for the position of my colleague Deputy President E. Rubinstein, I believe that there is no longer any justification for delaying the execution of this judgment. Of course, should the Knesset wish to amend the Law, it can do so. However, in the absence of an amendment, there is no choice but to decide the petitions on their merits.

11.       A final point: the opinions in this case, as in the other cases dealing with the Law of Return and the status of conversion, are characterized by an abstract juridical analysis, dealing with public-constitutional issues that are of great importance, and involve the tension between religious law and civil law. But to complete the picture it should be made clear that, as is obvious to all my colleagues, we are dealing with personal status, and more precisely, with a personal matter. At issue are people’s deepest and most sensitive aspirations. The legal decision that we must make will affect the person’s self-perception, the most basic components of his identity, not to mention the practical question of where he will spend his life. Irrespective of the outcome, I will say that the matter of the Petitioners, and others in their situation, must be treated with utmost sensitivity. It is appropriate to mention in this context that the commandment to love the stranger, and the prohibition against harming him, appear in the Bible no less than 36 times – more than any other commandment, including the commandment to love God. In fact, Maimonides equated the commandments to love the stranger and to love God, and noted in his response to Obadiah the Proselyte that “with respect to the stranger we were commanded to show great love ... just as we were commanded to love His Name (Maimonides, Responsa, 369). We will once again mention the talmudic account (TB Shabbat 31a) of the non-Jew who asked Shammai, one of the great sages of Israel in the period of the “Pairs”, to teach him the entire Torah while he stood on one foot. The Talmud relates that Shammai shouted at him, and “pushed him away with the ruler in his hand”. His reaction is understandable. True, it was Shammai who instructed: “Receive every man with a pleasant countenance” (mAvot 1:15). Nevertheless, the demand to learn the whole Torah while standing on one foot relays a lack of seriousness and insincerity, and hence Shammai’s cold response. However, and despite this, when the Gentile presented himself before Hillel and threw down the same challenge, Hillel treated him seriously and with compassion, and responded that the Torah can be condensed into the negative aspect of the command to love one’s neighbor as oneself, i.e., what is hateful to you, do not do unto others. Beyond the message of the talmudic story in relation to flexibility and the broad view that are necessary in conversion proceedings, as I mentioned above (para. 6), it would seem that we can all learn from Hillel’s response – and more than that, from the approach that this response expresses – about the desirable treatment of a person who is not a convert but wishes to become one. It is not for nothing that the Talmud chose to end the story with the following words: “The humble manner of Hillel brought us under the wings of the Divine Presence” (ibid.).

12.       And finally, for these reasons that I have explicated, I too concur in the outcome reached by my colleague President M. Naor (see para. 1 above).

 

Decided by majority opinion to rescind the order nisi issued in HCJ 7625/06 and to make the orders nisi in HCJ 1594/11 and HCJ 1595/11 absolute, in the sense that it is decided that the Petitioners are Jewish for the purpose of the Law of Return, as against the dissenting opinion of Deputy President A. Rubinstein, who was of the opinion that the date on which the orders enter into force should be deferred for 18 months, in order to allow for statutory regulation. There is no order for costs.

 

21 Adar 5776

March 31, 2016   

 

 

LCA 6897/14
Radio Kol BaRamah	Applicant:
v.

 

Kolech – Religious Women’s Forum	Respondent: Attorney for the Applicant: Moti Arad, Adv. Attorneys for the Respondent: Asaf Pink, Adv., Orly Erez-Likhovski, Adv.
The Supreme Court   Before Justices E. Hayut, Y. Danziger, D. Barak-Erez   Application for leave to appeal the judgment of the Jerusalem District Court of September 9, 2014,  in Class Action 23955-08-12, delivered by the Honorable Judge Gila Kanfi Steinitz   12 Tammuz 5775 (June 29, 2015)

 

 

Israel Supreme Court cases cited

[1]        LCA 8671/09 Cellcom Israel Ltd. v. Fattal (6.5.2010).

[2]        LCA 2282/15 Psagot Provident and Pension Funds Ltd. v. Levy  (8.7.2015)

[3]        HCJ 746/07 Ragen v. Ministry of Transport (5.1.2011) [http://versa.cardozo.yu.edu/opinions/ragen-v-ministry-transport]

[4]        HCJ 153/87 Shakdiel v. Minister of Religion [1988] IsrSC 42(2) 221 [http://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affairs]

[5]        HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSc 49(4) 94 [http://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]

[6]        HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [1998] IsrSC 52(3) 630

[7]        LCA 8821/09 Prozansky v. Layla Tov Productions Co. Ltd. (16.11.2011) [http://versa.cardozo.yu.edu/opinions/prozansky-v-layla-tov-productions-ltd]

[8]        CA 5378/11 Frankl v. Allsale (22.9.2.2014).

[9]        LCA 9615/05 Shemesh v. Focaccetta Ltd. (5.7.2006) [http://versa.cardozo.yu.edu/opinions/shemesh-v-focaccetta-ltd]

[10]      CA 9494/08 Pan v. Israel Railways (27.6.2013)

[11]      CA 6887/03 Resnik v. Nir Cooperative (20.7.2010)

[12]      LCA 3814/14 Hogla Kimberley Marketing Ltd. v. Mastei (6.7.2015)

[13]      LCA 1868/15 Yetedot T.S.M.V. Publishing and Advertising Ltd. (15.3.2015)

[14]      HCJ 6111/94 Committee for the Preservers of Tradition v. Chief Rabbinical Council of Israel [1995] IsrSC 49(5) 94

[15]      HCJ 1514 Gur Aryeh v. Second Authority for Television and Radio [2001] IsrSC 55(4) 267 [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r...

[16]      HCJ 1067/08 Noar KeHalacha Assoc. v. Ministry of Education (6.8.2009) [http://versa.cardozo.yu.edu/opinions/noar-kehalacha-v-ministry-education]

[17]      LCA 8014/09 Dikla Insurance Co. Ltd. v. Friedman (21.4.2011)

[18]      LCA 729/04 State of Israel v. Kav Mahshava Ltd. (26.4.2010)

[19]      CA 10085/08 Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel v. Estate of Tufik Raabi (4.12.2011) [http://versa.cardozo.yu.edu/opinions/tnuva-central-cooperative-v-raabi-e...

[20]      LCA 2128/09 Phoenix Insurance Co. Ltd. v. Amossi (5.7.2012)

[21]      CA 4534/14 Daniel v. Direct Teva Ltd. (14.6.2015)

[22]      HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSc 40(3) 505

[23]      HCJ 910/86 Maj. (ret.) Ressler v. Minister of Defense [1988] IsrSC 42(2) 441

[24]      CA 8416/99 E.I.M. Electronics and Computers (1999) Ltd. v. Mifal Hapayis [2000] IsrSC 54(3) 425

[25]      CA 7699/00 Tamgash Management and Project Development Co. Ltd. v. Kishon River Authority [2001] IsrSC 54(4) 873

[[26]    LCA 3489/09 Migdal Insurance Co. Ltd. v. Zevulun Valley Metal Plating Ltd., (11.4.2013)[27]      AA 980/08 Minirav v. State of Israel – Ministry of Finance, (6.9.2011)

[28]      HCJ 7200/02 D.B.S. Satellite Services (1998) Ltd. v. Council for Cable and Satellite Broadcasts [2005] IsrSC 59(6) 21

[29]      HCJ 6792/10 D.B.S. Satellite Services (1998) Ltd. v. Knesset (20.7.2014)

[30]      HCJ 1030/99 Oron v. Speaker of the Knesset [2002] IsrSC 56(3) 640

                       

Israeli District Court cases cited

[31]      Class Action (Econ.) 2484-09-12 Hatzlaha, Consumer Movement for the Promotion of a Fair Society and Economy v. Cohen (18.2.2013)

[32]      CC (Center-Lod District Ct.) 25435-03-15 Kolian v. Yetedot T.S.M.V. Publishing and Advertising Ltd. (13.3.2015)

 

Israeli Magistrates Court cases cited

[33]      CC (Bet Shemesh Mag. Ct.) 41269-02-13 Phillip v. Aboutbul (2015).

[34]      SC (Βeer Sheva) 33424-02-12 Michaeli v. Chevra Kadisha – Ofakim Religious Council (15.6.2012).

[33]      SC (Bet Shemesh) 2917-10-11 Marsden v. Negdi  (5.7.2012).

 

United States courts cases cited

[36]      Wal-Mart Stores, Inc. v. Dukes et al. 564 U.S. 1, 11 (2011).

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

[38]      Amchem Products, Inc. v. Windsor 521 U.S. 614 (1977)

 

Israeli Legislation cited

Basic Law: Human Dignity and Liberty

Civil Wrongs Ordinance [New Version], sec. 6

Class Action Law, 5766-2006

Equal Rights for Persons with Disabilities Law, 5758-1998, sec. 19(53)

Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000

 

Abstract

 

The District Court certified the application of Kolech – Religious Women’s Forum Organization (hereinafter: Kolech) to bring a class action against the radio station Kol BaRamah Ltd. (hereinafter: the radio station), holding that the declared policy adopted by the radio station in the years 2009-2011, whereby women could not be heard on the station’s broadcasts, constituted prohibited discrimination under the Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: Prohibition against Discrimination Law). (It should be noted that the change in the management of the radio station as of the year 2011 was the result of a regulatory and monitoring process instituted by the Second Authority). Hence this Application for Leave to Appeal, which was heard as an appeal, at the center of which lie the following questions: Does the policy of the radio station, according to which women are not heard on its broadcasts, constitute cause for bringing a class action? Under what conditions is an “organization” authorized to bring such an action?

The Supreme Court (per Justice Y. Danziger, Justices E. Hayut and D. Barak-Erez concurring) dismissed the appeal, except for comments on the question of quantification of damages and subject to the determination that in adjudicating the case, the District Court will not address violations that occurred in the period after the beginning of the process of regulation, for the following reasons:

After a short discussion of the general phenomenon of exclusion of women from the public domain, and after the Supreme Court expressed its feeling of disgust and revulsion at the existence of this phenomenon in those cases in which it amounts to prohibited discrimination, and after setting the parameters of the discussion as a class action on grounds of discrimination, the Court proceeded to examine the central questions presented by the case. The Court concluded that there were no grounds  to intervene in the majority of the determinations of the District Court or in its conclusion that the said action is suitable for adjudication as a class action, both in its substance and in the manner in which it was submitted. In particular, no grounds were found for intervening in the two central determinations according to which Kolech is an organization that is eligible to bring a class action by virtue of section 4(a)(3) of the Class Actions Law, and there is prima facie cause for bringing a class action under the provisions of sec. 3(a) of the Class Action Law and item 7 of the Second Appendix to that Law.

Sec. 4(a)(3) of the Law states that an “organization” (within the meaning of the definitions section of the Law) may bring a class action, provided that the action addresses an area that is among its public purposes, and provided that it would be difficult to submit the application on behalf of a plaintiff who has a personal cause of action. In the opinion of Justice Danziger, narrow, cautious interpretation should normally be adopted in removing the procedural barriers that the above sec. 4(a)(3) places before organizations that wish to submit an application for certification of a class action, out of concern that lack of caution in this regard is liable to encourage the phenomenon of bringing baseless actions, and even affect cases in which there would not seem to be any difficulty in bringing the action in the names of plaintiffs with personal causes of action.

An organization seeking to bring a class action in place of a plaintiff with a personal cause of action must meet the following cumulative conditions:  first, the organization must prove that it complies with the conditions of sec. 2 of the Class Action Law, which include proving that it is an active, recognized organization, that regularly and actually operates, and has been doing so for at least a year, and that the purpose of its activity is clearly a public purpose; secondly, the organization must prove that the lawsuit is within the area of one of its public purposes; thirdly, the organization must prove that a difficulty exists in submitting the application in the name of a person with a personal cause of action. The term “difficult” should be examined in accordance with the case and its circumstances, and with regard to several indicators, among them a lack of financial means among potential plaintiffs; areas or situations in which the direct victims are not aware of the fact of the harm done to them due to gaps in knowledge or an inability to comprehend the harm; and cultural barriers which make it difficult to find a plaintiff with a personal cause of action. All these are relevant to situations characterized by the existence of a cultural gap that deters plaintiffs with a personal cause of action from turning to the courts, and does not constitute a closed list. As a rule, proving this condition will require that evidence be presented showing that the organization acted with “due diligence” to locate a plaintiff with a personal cause of action, in both the quantitative and the qualitative sense, but  subject to the possibility of there being exceptional situations in which the court will be satisfied that there is an inherent difficulty, or that there are special, known and convincing data arising from the circumstances of the case that would suffice to show a difficulty in finding a plaintiff with a personal cause of action.

As the District Court determined, Kolech – whose purpose is promoting the status of women in the religious community and in Israeli society – complies with the above conditions, and it is therefore a “qualified organization” for the purpose of bringing a class action. The main reason supporting the conclusion that it was difficult to find a plaintiff with a personal cause of action in the present case is that there is a reluctance on the part of ultra-Orthodox women to place themselves at the forefront of the struggle to increase gender equality in the ultra-Orthodox community, for fear of harm to their position in the community. In this regard, the cultural aspect carries great weight, and it is sufficient to support the concern that had  Kolech not submitted the application for certification of the class action, it would not have been submitted at all. The Court added that even had it been possible to locate a plaintiff with a personal cause of action who could have submitted the application herself, it would not have been right in the circumstances to order that the request be denied or dismissed in limine, but at most, to order that the organization be replaced by that plaintiff.

As for the cause of action, the Court decided that the Prohibition against Discrimination Law applies in the circumstances of the case. As the District Court determined, the prohibition against discrimination in the provision of a “public service” refers not only to access to the broadcasts of the radio station, but to all the services that the station provides to listeners, including the possibility of listeners participating in programs. Denying this possibility to women because they are women – provided such denial is proved – is certainly liable to amount to discrimination to which the Prohibition against Discrimination Law applies. Pursuant to this, the Court dismissed the argument of the radio station that gender distinction is necessitated by the traditional religious nature of the radio station and is due to the halakhic position of the station’s rabbinical committee, and therefore there is no discrimination, or alternatively, that the exceptions specified in the Prohibition against Discrimination Law apply such that it is not possible to sue the station for its policy. The Supreme Court held that the policy adopted by the radio station does, indeed, constitute discrimination under sec. 3(a) of the Law, and that there are no grounds for applying the exceptions prescribed in secs. 3(d)(1) and 3(d)(3) of the Law, according to which it will not be considered discrimination where “the action is necessitated by the character or nature of the product” and that it is possible to maintain “separate frameworks for men or women, as long as this separation is justified”. In this context, the Court determined that in order for either of the two above exceptions to apply, it must be proven that the religious norm is indeed binding, or at least justifies adopting the differential attitude to women. In the present case, it cannot be said that religious practice mandates or justifies application of the exceptions in the Prohibition against Discrimination Law, particularly when the halakhic opinion upon which the station relies – that of the late Rabbi Ovadia Yosef – stated specifically that the prohibition on allowing women’s voices to be heard is not in the category of a halakhic prohibition, but rather, in the category of “enhancing a precept” [hidur mitzvah]. Moreover, the facts in the present case show that the cultural and the religious character of the radio station was preserved even after the said practice of excluding women from the broadcasts of the station was stopped in the framework of the regulatory process, and what is more, the scope of the activity of the station actually continues to grow. Moreover, the exception specified in sec. 3(d)(3) of the Law does not apparently apply in our case, inter alia, for the reason that it refers to the existence of “separate frameworks” for men and women, i.e., an arrangement of separation. In our case, there was no arrangement of separation but an arrangement that apparently prevented women, and only women, from participating in the broadcasts of the radio station.

Further, no cause was found for intervening in the determinations of the District Court with respect to the immunity provided in sec. 6 of the Civil Wrongs Ordinance.

With respect to harm and calculating the compensation, even though the Court accepted some of the arguments raised by the radio station regarding the harm, it was of the opinion that this element was proved by Kolech at the required prima facie level for this stage of the proceedings, and therefore there is no reason to depart from the final conclusion of the District Court that it had been proven to the required extent that the members of the class incurred harm due to the policy of the station. At the same time, the Court decided to intervene in certain determinations of the District Court in this context, such as the determination regarding the possibility of awarding damages in the suit “without proof of harm”. The Court held that it was not possible to award damages without proof of harm in the circumstances of the case, notwithstanding the possibility of doing so under the Prohibition against Discrimination Law in matters other than a class action. A second comment referred to the matter of the relief that was sought – NIS 104,000,000. It was noted that the case raised questions concerning the appropriate method of calculation of the compensation in the circumstances of the case.

No grounds were found for intervening in the determination of the District Court whereby a common question existed in respect of all the members of the class, i.e., “whether the station acted in a prohibited discriminatory manner against the members of the class in that it prevented women from being heard on air from the time it began operating and until today, Nov. 6, 2011…”; according to the Court, the focus on the issue of the common question should be on the tortious conduct of the radio station during the period of the declared policy. This question is one that stands at the center of the action. The District Court should not address questions that relate to the period of time after the commencement of the regulatory process, in the course of which the two concrete violations occurred. The Supreme Court also found no grounds to intervene in the determination that there is a “reasonable possibility” that the above question will be decided in favor of members of the class.

Neither was reason found to intervene in the determination of the District Court that a class action is the suitable means of conducting the said dispute, insofar as the period prior to the beginning of the regulatory process is concerned. As opposed to this, the Court held that with respect to the period of the particular instances of violation, a class action is not necessarily the most efficient way of conducting the particular dispute, and it is preferable that it be adjudicated in the framework of personal actions brought by the women who were allegedly harmed, to the extent that they wish to do so.

Furthermore, the conditions laid down in secs. 8(a)(3) and 8(a)(4) were met. There is reasonable basis to assume that the interests of all members of the class will be represented and conducted in an appropriate manner and in good faith.

Consequently, it was ruled that the decision of the District Court will stand, except for any changes necessitated by what has been said above.

Justices E. Hayut and D. Barak-Erez concurred with the above and added comments, inter alia, regarding procedural questions related to class actions being brought by means of an organization, and on the substantive issue of the exclusion of women, including reference to an additional aspect relating to the “location” of the present case on the private-public continuum.

.

 

 

JUDGMENT

 

Justice Y. Danziger

Does a radio station’s policy that women will not be heard on its broadcasts constitute cause for bringing a class action,  and under what conditions will an “organization” be permitted to bring such an action? These are the central questions before the Court.

 

Introduction

1.         The Jerusalem District Court granted an application to certify a class action submitted by the organization “Kolech – Religious Women’s Forum” (hereinafter: Kolech) against the Kol BaRamah Ltd. radio station (hereinafter: the radio station or the station), claiming that the station’s declared policy that women would not be heard on its broadcasts constitutes prohibited discrimination under the Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: the Prohibition against Discrimination Law).  The court dismissed various arguments raised by the radio station regarding the suitability of the action for adjudication as a class action. Thus, for example, the station’s argument that the application for approval should be dismissed because it was not submitted by a plaintiff who has a personal cause of action was dismissed.  In addition, the argument that there was no cause for bringing the action since the Prohibition against Discrimination Law does not apply in the circumstances of the case was dismissed. It was held that the policy adopted by the radio station constitutes blatant gender discrimination under the Prohibition against Discrimination Law, and therefore there is cause for adjudicating the suit as a class action. It was further held that the action raises questions that are common to all members of the class; that it is the efficient and fair way to decide the dispute; that there is a reasonable possibility that the dispute will be decided in favor of the members of the class; and that it is reasonable to assume that the action will be presented and conducted in the appropriate manner. The application for leave to appeal was lodged against this decision

 

The Pertinent Facts

2.         The radio station Kol BaRamah has operated since 2009 by virtue of a concession for radio broadcasts issued by the Second Authority for Television and Radio (hereinafter: the Second Authority). The concession was issued to the station after it won a tender published by the Council for the Second Authority for granting a concession for a radio station intended for the “religious-traditional-Sephardic” community.  As emerges from the material submitted to us, the radio station has significant influence in the communications market, and today it is the fifth-largest regional radio station in the State of Israel. There is no dispute that since its establishment in 2009 and until the end of 2011, the radio station  maintained a declared policy whereby women would not be heard on its various broadcasts. Moreover, there is no dispute that following various regulatory directives, the station changed its policy, and as of November 2011, women’s voices began to be heard in its broadcasts.

3.         The change in the policy of the radio station, which began towards the end of 2011, was the result of regulatory and oversight procedures that were adopted by the Second Authority, in the framework of which various directives were issued to the radio station. The Second Authority began to adopt these procedures after it received complaints against the radio station, which upon investigation, revealed that the policy was based on directives that had been issued by the “Rabbinical Committee”, which is the station’s “halakhic” [Jewish law] committee, and which plays a role in the station by virtue of the terms of the concession. The purpose of the procedure was to establish rules pertaining to women’s voices being aired in the station’s broadcasts, while, insofar as possible, conducting a dialogue with the radio station. Against this background, various directives were issued ordering, inter alia, that the station allow women who hold public office to be heard on the radio broadcasts, and that its broadcasting schedule would devote a “weekly program” intended for its female audience. These directives were first published in a letter sent by the Second Authority to the station on Oct. 10, 2011, as follows:

“1.  News or currently breaking events  transmitting a message to the Israeli public will be broadcast live and unedited. This directive is effective immediately.

2.    When the response of a female public official is required on a particular subject, for journalistic or ethical reasons, or when the public official initiates a request to respond to a particular subject, the station will allow the said official or her representative to participate in the broadcast and to be heard. This directive is effective immediately.

3.    The station will incorporate into its broadcasting schedule a weekly program intended for the station’s female listeners, in the framework of which women will be able to speak and make their position heard. This directive will take effect at the beginning of November, 2011.

       You are requested to inform the Authority of the manner in which the program will be integrated into the schedule of broadcasts no later than Oct. 24, 2011.

4.    The station will continue to provide a complementary response to the station’s male and female listeners by means of the IVR system, inter alia, by means of rabbis’ wives, insofar as necessary, in different and varied areas. This directive is effective immediately.

       As clarified in our discussion, implementation of these directives will be carried out on all the frequencies that serve the station’s broadcasts. As stated, the manner of implementation will be reviewed by the Authority at the end of four months from the times specified above.

4.         In accordance with the terms of the letter, the radio station established a weekly program intended for the female audience, albeit at an early hour. Approximately three months later, the Second Authority approved the broadcasting schedule submitted by the station for the year 2012, but at the same time, added a requirement that the station include broadcasts of women holding public office, and that it incorporate into its scheduled programs a “daily broadcast strip”, amounting to several weekly hours, in which women would be able to speak on the programs. This requirement, too, was issued in writing, as follows:

1.    The station will include women who hold public office in all current events programs of the station. This applies both when the female public official asks to comment on a particular subject that is raised in the program, and when such comment is relevant and required for journalistic reasons.

2.    The station will include women who have expertise in various areas in all its broadcasts. This directive is effective immediately.

3.    The station will air news or currently breaking events on live transmission without editing that includes considerations of gender distinction. This directive is effective immediately.

4.    The station will incorporate into its broadcasts two weekly hours of programming intended for female listeners, with the participation of women. These two hours will be incorporated into the broadcasts of the station as of April 15, 2012, and will be brought prior to that date to the attention of the Board of the Authority.

5.    The station will incorporate into its broadcasts two weekly hours in addition to those specified in sub-section (4), in which women will be incorporated into the programs intended for all listeners. These two hours may be in consumer programs, conversations with listeners, youth programs, etc. These two hours will be incorporated into the station’s broadcasts as of April 15, 2012.

       The Council notes the statement of the station’s owner, Mr. Zvi Amar, on behalf of all the owners of the station, that the station will act diligently and in good faith to include women who are public figures and experts in all broadcasts of the station.

5.         The dialogue in the framework of the regulatory process continued into the years 2013-2014, when the Second Authority approved the broadcasting schedule submitted by the station in relation to those years, but it continued to oversee and to issue directives to the station. Inter alia, the Second Authority decided that the station would increase the number of weekly hours in which women would be permitted to go on air. The latest relevant directive that was issued to the radio station appeared in writing on Jan. 8, 2014, and it determined that there would no longer be any restrictions on women being included in the station’s broadcasts:

1.    There will be no restriction on women being heard in the station’s broadcasts.

2.    At the request of the station, the Council approves one hour of broadcasts daily that will be devoted to sermons and to conversations of listeners with rabbis, in which the station will be permitted to exclude the voices of women. The Council is of the opinion that approval of this limited scope in which women will not be heard also provides a response to the most ultra-Orthodox listeners of the station, and it is reasonable and proportionate.

3.    In light of the long regulatory process on this matter, which already began in 2011 with the station’s declared policy in regard to allowing women to be heard, the Council directs the station’s administration to initiate action to encourage women being included in its broadcasts, including female public figures and female experts in various fields.

4.    The Council stresses that the station must ensure that it acts lawfully, including in relation to the employment of women at the station.

6.         And indeed, the process of gradual regulation that began in 2011, at which time the declared policy of the station stated that women would not be heard in its broadcasts, took shape. By 2014, all the previous restrictions on airing women’s voices in the station’s broadcasts were removed, with the exception of the restriction in sec. 2 of the letter dated Jan. 8, 2014. The Second Authority even emphasized its satisfaction with the dialogue and with the process of “genuine internalization” on the part of the station, and it announced that the station’s concession would be extended for another three years.

 

Report of the Departmental Team for Examining the Phenomenon of “Exclusion of Women”

7.         Parallel to the regulatory procedures undertaken by the Second Authority, the Attorney General also turned his attention to this matter and examined the phenomenon of “exclusion of woman” in the public domain in general, and the activity and policy of the Kol BaRamah radio station in particular. This was pursuant to an increasing number of reports on various manifestations of exclusion of women. On Jan. 5, 2012, the Attorney General appointed a team to investigate all aspects of this phenomenon. The team was asked to examine the legal aspects of some of the manifestations of the phenomenon in the public domain, and to formulate recommendations for addressing them. In this framework, the team also examined the policy of the radio station. On March 7, 2013, the team submitted a report to the Attorney General (hereinafter: Report of the Departmental Team). Insofar as the policy of the radio station was concerned, the Report stated that “exclusion of women” on the part of the station was expressed in that, initially, women were not heard at all. At the same time, the report described the change that had taken place at the radio station in complying with the directives of the Second Authority, noting that over time, women began to be heard over the airwaves, and that a noticeable trend of adding broadcasts and programs dedicated to women could be discerned.

8.         The Report of the Departmental Team added that three meetings had been held on the subject of the activities of the radio station, and that there had been meetings with the representatives of the Second Authority, the Commission for Equal Opportunity in the Workplace, and the representatives of the radio station. The Departmental Team noted that it was impressed by the significant progress that had been made following the actions of the Second Authority, which led to women being heard on the broadcasts of the radio station. Nevertheless, it was noted that at the time of the writing of the Report, the broadcasting of women’s voices by the station was still subject to significant restrictions. The team was of the opinion that these circumstances raised legal and constitutional difficulties. An important point in relation to the case at hand, which is addressed in the Report of the Departmental Team, addresses the application of the Prohibition against Discrimination Law to the activities of the radio station. In this context, the Departmental Team thought that the statutory provision according to which “communications services” constitute a “public service” also applied to the activity of the radio station, and therefore its policy should be “treated” in accordance with the provisions of the Prohibition against Discrimination Law. This point was summarized in para. 198 of the Report of the Departmental Team, which noted that the routine broadcasting arrangements “entail a violation of the basic rights to dignity, equality and freedom of expression and they are contrary to the provisions of the Prohibition against Discrimination Law…”.

9.         The Attorney General adopted the Report of the Departmental Team, and subsequently sent a letter, on May 7, 2013, to a number of government ministers. The letter included specific reference to the activity of the radio station, and mentioned that its broadcast practices entailed a serious violation of women’s basic rights. It should be noted that the Government of Israel also adopted  the Report [Resolution no. 1526 of the 33rd Government of Israel, “Prevention of the Exclusion of Women from the Public Domain” (March 30, 2014)].

 

Arguments of the Parties in the District Court

10.       Kolech submitted its application for certification of the class action as a non-profit organization devoted to social and cognitive change in regard to gender equality in the religious community in Israel. Kolech claims that the station’s policy constitutes unlawful discrimination under the provisions of sec. 3(a) of the Prohibition against Discrimination Law, which prohibits, inter alia, acting in a discriminatory manner in the provision of a public service “due to gender”.  Kolech concentrated its arguments on two major focal points of discrimination that existed, in its view, in the activity of the radio station. The first point of discrimination lay in not allowing women to “appear on air”. In this context, it was alleged that in the relevant periods, the radio station prevented women from appearing on air and speaking in the broadcasts, first in a comprehensive manner, and later, in a partial manner, whereas men were allowed to be heard. The second point of discrimination lay in the “deprivation of content” from the male and female listeners of the radio station. This point of discrimination related to the fact that due to the policy of the radio station, listeners received communications services “purely from the male sex”, with women being excluded from the world of communications content. As a consequence of the policy adopted by the station, the listeners were deprived of the opportunity to listen and to be exposed to the opinions of women. Kolech added that these two focal points of discrimination reflect conduct that is a serious violation of the basic rights of women under Basic Law: Human Dignity and Liberty and its derivatives, including their right to dignity, to equality, and to freedom of expression.

11.       On the legal plane – since we are dealing with the area of class actions – Kolech argued that the suit should be certified as a class action under item 7 of the Second Appendix to the Class Action Law, 5766-2006 (hereinafter: Class Action  Law), namely, for a cause according to the Prohibition against Discrimination Law. In accordance with the various provisions of the Class Action Law, Kolech asked that it be determined that the “class” in the name of which the class action would be conducted would include “all the female listeners of the radio station and all the women who wished to listen to the station but refrained from doing so due to the discrimination against women at the station”, and that the “relief” would be “by way of issuing an order directing [the station] to cease discriminating against women at the Kol BaRamah radio station, and financial compensation for members of the class”. It should be noted that Kolech brought support for its various arguments, both concerning the definition of the class and with respect to the damage caused to its members, in an expert opinion prepared by the Sarid Institute for Research Services Ltd. In the framework of this opinion, a survey was conducted that examined the extent of damage to women from the policy of the station. Based on the data from the survey, Kolech estimated the number of women who were harmed by the policy of the station “to a great extent” at some 64,000 women. Kolech pointed out that, indeed, it is difficult to quantify the non-monetary damage, but at the same time, it is possible to do so based on cases in which compensation was awarded for violation of the Prohibition against Discrimination Law. Against this backdrop, Kolech set the sum of compensation at NIS 104,000,000, explaining that the compensation for each member of the class amounted to between NIS 1,000 and 2,000. Kolech added that the action raises questions common to all members of the class; that a reasonable possibility exists that the action will be decided in its favor; and finally, that the class action is the most efficient way to decide the dispute.

12.       The radio station requested that the application to approve a class action be denied. First, the station contended that Kolech – as an organization that is not an injured party with a personal cause of action – is not qualified to file a class action. It argued that Kolech had not proved that it had acted with due diligence to locate a person with a personal cause of action prior to submitting the class action, as required by the Class Action Law. In that context, it was contended that Kolech is also not qualified to submit the class action because there is a difference between its national-religious world view and the world view of the women who constitute the target audience of the radio station, who are from the ultra-Orthodox Sephardic sector. On the merits, the radio station contended that there is no cause of action because sec. 3(a) of the Prohibition against Discrimination Law does not apply in the circumstances of the case. In this context it was contended that the section requires that there be no discrimination in access to the service or product, whereas in the present case, the service that the radio station provides is accessible to all listeners, and every woman can listen to the radio station, just like any man. Therefore, it was argued, the relevant section of the Prohibition against Discrimination Law does not apply. Alternatively, it was argued that the practice adopted by the station does not in any way constitute “discrimination”, but is rather a “permitted distinction”. The radio station’s version was, therefore, that if it is held that the Prohibition against Discrimination Law applies, then the exceptions enumerated in secs. 3(d)(1) and 3(d)(3) apply, whereby an act is not considered to constitute discrimination when it “is necessitated by the character or nature of the product,”  and by which it is permissible to maintain “separate frameworks … for men or women …  on condition that the separation is justified …”

13.       The radio station further argued that apart from the fact that no grounds exist for submitting a class action, no harm was caused to the members of the class. Inter alia, it was argued that women in the relevant class are not at all interested in being exposed to or having their voices heard in the wider public, and similarly they are not interested in hearing the voices of other women. In this context, the radio station also attacked the findings of the survey, pointing out that Kolech did not submit any substantial proof for the existence of harm, as was claimed. As for the requested relief, the radio station claimed that if it is awarded, the station’s character will be harmed and the purpose for which it was established will be frustrated. The radio station additionally claimed that weight should also be attributed to the regulatory procedures it underwent, and to the fact that it complied with the directives of the Second Authority. In this context, it was argued that due to the fact that its activity was in accordance with the directives of the Second Authority, it has immunity from being sued under sec. 6 of the Civil Wrongs Ordinance [New Version] – immunity that applies to acts that were done in accordance with statutory provisions or by virtue of legal authority. It was argued that this immunity applies as of the date on which the station was established, since the concession to operate the station stated that a “spiritual committee” would be set up that would determine the rules for its broadcasts. It was noted that the station acted in light of these provisions in good faith, in the reasonable belief that it acted in accordance with the valid legal permission of the spiritual committee not to broadcast women’s voices, and upon the basis of the opinions of the leading rabbis in Israel.

 

The Decision of the District Court

14.       The District Court initially addressed the qualification of Kolech to apply for certification. The court noted that the provisions of sec. 4(a)(3) of the Class Action Law allow  an “organization” to submit a class action subject to two cumulative conditions: one, that the action filed is within the area of one of the objectives of the organization; and two, that in the circumstances of the case, submitting the request for certification on behalf of a person who has a personal cause of action would prove problematic. The District Court held that Kolech met these two conditions. It stated that Kolech provided proof that it was an organization that had been acting for years to promote the status of women in religious Jewish society, and as such, the action was clearly within the area of its objectives. It also stated that Kolech proved that it would be difficult to find a woman with a personal cause of action, in that there is an inherent difficulty in placing an ultra-Orthodox woman “at the forefront of the battle”, due to the fear of reprisal by the society in which she lives and the social harm that she would likely incur. The court also found support for its conclusion in the findings of the survey that was submitted on behalf of Kolech, from which it emerges that the percentage of women who stated that they are prepared to take legal action to change the policy of the station is extremely small. Finally, the court remarked that because the action raises issues that are of public importance, the fact that it was submitted by an organization that has resources and knowledge has the potential to realize the objectives of the Class Action Law.

15.       The court subsequently addressed the question of whether, in the circumstances of the case, there were grounds for submitting a class action.  Central to this issue was the question of whether sec. 3(a) of the Prohibition against Discrimination Law applied in the circumstances. The Court dismissed the narrow interpretation of the radio station, whereby the section treats only of prohibiting discrimination in the form of access to a service or a product, and therefore, would not appear to be relevant in our case. It was noted that the language of the section refers to the prohibition of discrimination in providing a “public service”, and the Law defines communications services as such a service. Furthermore, the communications services provided by the radio station include news and commentary broadcasts, as well as offering listeners the opportunity to express their opinions on the air. The court emphasized that this conclusion is also necessitated by the purpose of the Law, which is the prevention of discrimination, and in particular discrimination of the type expressed in the case at hand. The court therefore held that the policy of the radio station may fall within the purview  sec. 3(a) of the Prohibition against Discrimination Law, however it distinguished between two different periods in which discrimination, as defined by the Law, occurred, as follows:

a.  The period of the declared policy (2009 – Nov. 6, 2011): In relation to this period, the District Court held that the policy adopted by the radio station constituted prohibited discrimination within the meaning of sec. 3(a) of the Prohibition against Discrimination Law. It added that the exceptions in secs. 3(d)(1) and 3(d)(3) of the Prohibition against Discrimination Law, according to which an action is not deemed to be discriminatory where it “is necessitated by the character or nature of the product” and by which it is permissible to maintain “separate frameworks … for men or women …  on condition that the separation is justified …” do not apply. Inter alia, the court explained that it was not proven that there was a “relevant difference” between men and women that justified the gender distinction that was adopted, for even according to the radio station, the distinction was not based on an explicit religious precept, but was adopted as a “stringency” (“enhancement of the precept” [hidur mitzvah]) that is not a halakhic requirement. It was also held that the policy of the station in any case does not meet the condition of maintaining “a separate framework”, since the matter at did not involve separation, but rather prevention directed solely at women.

b. The period of specific violations (Nov. 6, 2011 –Aug. 28, 2012). In this period, regulatory procedures were undertaken, but it was alleged that in two instances the radio station violated the directives it was given. The first instance occurred in November 2011, when the station refused to interview Prof. Sofia Ish Shalom of Rambam Hospital because she was a woman. In respect of this event, the Second Authority imposed a fine of NIS 10,000 on the station. The second instance occurred in the same month, when one of the station’s producers requested of Rambam Hospital that a medical resident discuss a certain topic on the air. Here, too, the producer stressed that the interviewee must be a man and not a woman. The District Court held that these two violations constituted cause under sec. 3(a) of the Prohibition against Discrimination Law, and it saw no reason to change its conclusion due to any exceptions in the Law.

16.       In the framework of the deliberations on the cause of action, the court also considered the radio station’s contention that it enjoyed immunity by virtue of section 6 of the Civil Wrongs Ordinance [New Version]. The court considered this argument, even though it pointed out that the radio station had not raised it in its response but only at a later stage, apparently in a “change of front”. On the merits, the court held that the argument should be partially accepted. The court explained that, as of the end of 2011, the radio station began to operate in dialogue with the Second Authority and subject to its directives. In these circumstances, it was held that the station should not be held liable in tort for actions that were conducted in the framework of the regulatory process, and that its actions during this period are covered by the immunity granted under sec. 6 of the Civil Wrongs Ordinance. On the other hand, it held that this immunity did not extend to acts carried out by the radio station prior to the regulatory processes, nor to acts carried out at in the course of the regulatory processes but which deviated from the directives of the Second Authority.

17.       Upon completing its deliberations on the cause for bringing a class action, the court proceeded examine the additional conditions for certification. The court held that under the circumstances of the case, the action raises substantial questions that are common to all the members of the class. One question was “whether [the station] wronged the members of the class through unlawful discrimination in that it prevented women from being heard on the air from the time that it began its operations and until November 6, 2011…”. A second question was “whether [the station] wronged the members of the class through unlawful discrimination in that it prevented women from being heard on the air in the two instances…”. The court further held that a class action was the efficient and fair way to decide the dispute, noting that there is an inbuilt advantage in conducting such an action against the background of concerns about various constraints that exist amongst the female members of the class in relation to filing personal actions. It explained that conducting this action as a class action was likely to facilitate modes of proof and relief that would not be possible in personal suits. It was also likely to enable many women to receive appropriate relief for breach of the law, where it was doubtful that these women would turn to the courts as individuals. In relation to the relief, it was further pointed out that according to the Prohibition against Discrimination Law, it is possible, in the circumstances of the case, to award compensation even “without proof of harm”. Finally, the court noted that it believed that the case of the members of the class would be conducted in a suitable manner and in good faith.

18.       The court summarized its determinations by saying that Kolech had met the burden of proving the fulfillment of all the required conditions for approving a class action. Therefore, and as provided by the legislature in section 14(a) of the Class Action Law, the court held that the class in whose name the class action would be conducted was: “All the female listeners of the Kol BaRamah radio station and all the women who were interested in listening to the station but refrained from doing so due to discrimination against women at the station from the date of the beginning of the activity of the station and until the date of submission of the application for certification”. The court also held that Kolech and its attorneys would serve as the representatives in the action, and that the requested relief is an order requiring the radio station to desist from its discrimination against women, as well as monetary compensation for the members of the class.

 

The Application for Leave to Appeal

19.       The arguments of the radio station essentially restate the arguments it raised in the District Court, and I will therefore repeat only the main points. The radio station believes that filing a class action is not appropriate in the circumstances of the case, inasmuch as it operated in cooperation with representatives of the Second Authority and in accordance with its directives. In addition, the station believes that the court erred in all its determinations and in its decision to certify the class action. Thus, for example, the radio station claims that the court erred in its determination that Kolech was qualified to submit the class action as an organization. It also claims that there was a mistake in the court’s ruling on the existence of a “cause” under sec. 3(a) of the Prohibition against Discrimination Law, and in its ruling that the immunity under sec. 6 of the Civil Wrongs Ordinance applied only from the beginning of the regulatory process and not from the time that the station was set up. Another central argument in the application for leave to appeal is that the court did not explain what “harm” was allegedly caused to the class that would give rise to an entitlement to monetary relief. Inter alia, it was stated that the Court erred in its determination that compensation can be awarded “without proof of harm”, in view of sec. 20(e) of the Class Action Law which precludes the possibility of doing so in a class action. The station also contests the finding concerning the “definition of the class”. According to the station, there was no justification for including all the female listeners of the station in the class. Rather, the class should, at most, comprise only those listeners who requested to be heard on air and were refused. Finally, it was argued that the members of the class do not in any way share common questions. For these and other reasons, the radio station reiterated its position that the class action should not be certified.

20.       Kolech objects to the application for leave to appeal. Kolech argues that the decision of the District Court is well-founded and reasoned, and reveals no flaws. As a preliminary argument, it says that the application for leave to appeal does not meet the criteria laid down in the case law of this Court for granting leave to appeal a decision certifying a class action. On the merits, Kolech supports the findings of the District Court both in relation to its qualification and in relation to the existence of cause under sec. 3(a) of the Class Action Law, and with respect to the extent of immunity by virtue of sec. 6 of the Civil Wrongs Ordinance. Kolech objects to the argument of the radio station whereby women were apparently not harmed, since they could “listen” to the radio station. Kolech argues that preventing the possibility of women having their voices heard does not harm only those women who were not permitted to go on air, but it conveys a harmful and humiliating message to all female listeners that the class to which they belong – that of women – is an “inferior” class. Concerning the damage, Kolech adds that at the stage of certifying the class action it is not necessary to prove the exact harm caused to each of the members of the class, and that the harm will be calculated and assessed in the principal procedure itself. In any case, Kolech argues, harm was certainly caused due to the significant breach of the rights of the members of the class to dignity and equality.

 

Deliberation and Decision

21.       After examining the material that was presented to us, I have reached the conclusion that granting the application for leave to appeal, and adjudicating it as an appeal, is justified. Even though the criterion for granting leave to appeal a decision to certify a class action has been narrowed over the years (see: LCA 8671/09 Cellcom Israel Ltd. v. Fattal [1]; LCA 2282/15 Psagot Provident and Pension Funds Ltd. v. Levy, paras. 11-10 [2]), my opinion is that the present application raises several exceptional legal questions that must be discussed already at this procedural stage. Accordingly, the following discussion will address the arguments of the radio station on the merits. I will begin with a short discussion of the general phenomenon of exclusion of women from the public domain, and I will also define the questions relevant to the class action in the present case. I will subsequently examine whether the conditions for certifying a class action have been met in the present case, focusing particularly on those conditions that relate to the party that is seeking certification and the existence of cause of action.

 

(A)       Exclusion of women from the public domain – Some preliminary comments

22.       The phenomenon known as “exclusion of women” refers to the particular case of generic discrimination on the basis of sex, the main characteristic of which is not allowing women – by virtue of being women – to receive public services or to take part in public activity. In one sense, the phenomenon is liable to manifest itself in gender separation, i.e., in situations in which public services are in fact supplied to women, but separately. This, for example, is the case in relation to gender separation between men and women on buses or in health clinic waiting rooms. In another sense, exclusion of women might also manifest itself in a situation in which women are categorically prevented or constrained from receiving services or from being active participants in activity that is taking place in the public domain, as if there were a sign to the effect that the service is provided “for men only”. This is the situation in respect of the sweeping prohibition on broadcasting women’s voices, as in the present case. The practices suspected of being exclusionary of women inherently give rise to questions on different legal planes, and in particular on the public-constitutional plane, where they emphasize the tensions surrounding the rights of women to equality, dignity, freedom of expression, autonomy and freedom of occupation, as opposed to contrary rights and interests that derive from the principle of multi-culturalism, freedom of religion and a desire to prevent harm to religious sensibility (for a discussion of the various considerations, see, e.g.: HCJ 746/07 Ragen v. Ministry of Transport [3]; Report of the Departmental Team, at 10-34; Ruth Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, 5 UCLA J. Int’l & For. Aff. 339, 362-366 (2000); Susan M. Okin, Is Multiculturalism Bad for Women? in Is Multiculturalism Bad for Women? 9-24 (Joshua Cohen, Matthew Howard & March C. Nussbaum eds., 1999).

23.       The theoretical center of gravity in relation to the exclusion of women in Israel – as reflected in the relevant literature and in the Report of the Departmental Team – lies in various manifestations of the phenomenon in contexts that include religious-halakhic aspects. In particular, disagreement arises in relation to the question of whether these aspects justify according a separate or limited status to women in the public sphere, having regard to the entire range of conflicting interests (see, inter alia: Alon Harel and Aharon Schnarch, Separation of the Sexes on Public Transportation, 3 Alei Mishpat 71(2003)  (Hebrew) (hereinafter: Harel & Schnarch)); Noya Rimalt The Separation between Men and Woman as Discrimination between the Sexes, 3 Alei Mishpat 99 (2003) (Hebrew) (hereinafter: Rimalt); Zvi Triger, Separation  between Women and Men as Sexual Harassment, 35 Iyunei Mishpat 703, 709-713 (2013) (Hebrew) (hereinafter: Triger); Alon Harel, Regulating Modesty Related Practices, 1 Law and Ethics of Human Rights 211(2007)). As we have said, the Report of the Departmental Team dealt in depth with the phenomenon of the exclusion of women in this context. In doing so, specific instances of the phenomenon were discussed, and the various cultural and halakhic interests were considered – including gender separation and distinction in cemeteries, in state ceremonies, on public transportation and the free movement of female pedestrians in ultra-Orthodox neighborhoods. As mentioned in the Report of the Departmental Team, the criterion that was adopted for examining the constitutionality of every instance that was suspect in relation to exclusion of women was that which had been formulated over the course of many years in the case law  of this Court in relation to discrimination. According to this criterion, what must be examined is whether there is a “relevant difference” that derives from the character and nature of the public service that justifies the gender separation. As the Court has pointed out, in the framework of this examination, weight should also be attributed to the unique cultural aspects of the ultra-Orthodox community, including the question of how to relate to the fact that women in the ultra-Orthodox community are members of a class that is a “sub-minority” within the ultra-Orthodox minority (Report of the Departmental Committee, paras. 13, 25 and 242).

24.       Indeed, the practice that is suspected of being exclusionary will be examined on its merits, according to its nature and characteristics, and according to the rules that were laid down in the case law in relation to similar instances of discrimination, all, of course, with the necessary changes by virtue of the various interests resting on the scales (see: Aharon Barak, Human Dignity: The Constitutional Right and its Derivatives, vol. 2, 703-705 (2014) (Hebrew); HCJ 153/87 Shakdiel v. Minister of Religion [4], at 242-243); HCJ 4541/94 Miller v. Minister of Defence [5], at 109-110; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [6], at 652-660). Not every activity or policy that is alleged to constitute “exclusion of women” will necessarily be classified, ultimately, as prohibited discrimination. We will already say that the reality of life in these contexts is complex, and does not allow for the adoption of a simplistic, radical approach to all its  manifestations. This was discussed by Justice S. Joubran in HCJ 746/07  Ragen v. Ministry of Transport [3], who explained that the context of the practice of separation is likely to  shed a different light on our view concerning constitutionality, having regard to the circumstances of each individual case, paraphrasing the words of Justice T. Marshall of the United States Supreme Court (Cleburne v. Cleburne Living Ctr. 473 U.S. 468-469 (1985)): “A sign that says ‘Men Only’ looks very different on a bathroom door than on the door of a bus.” This, therefore, will be the starting point for examining suspected incidents of exclusion of women, including in our case.

25.       As I mentioned, the general discussion of the phenomenon of exclusion of women from the public domain is merely an introduction to the main subject with which we are concerned, viz., the class action. However, I have decided to express at the outset my sense of revulsion and repugnance at this phenomenon, which seems only to be increasing in those cases in which it amounts to prohibited discrimination. 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 [6], 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 (I had occasion to discuss a matter in this spirit, in a slightly different context, in LCA 8821/09 Prozanski v. Layla Tov Productions Co. Ltd. [7], paras. 17-30).

 

(B)       Class action on grounds of discrimination – the parameters

26.       Both in the District Court and in this Court, the arguments of the parties did not focus on the question of the suitability, in principle, of class actions for dealing with the general phenomenon of discrimination, and in that context, for dealing with the exclusion of women from the public domain. In my opinion, they were correct in not doing so. The absence of any disagreement on this point derives from the understanding that, in principle, insofar as the alleged discrimination is prohibited under any of the sections of the Prohibition against Discrimination Law, a class action can be employed as a means for realizing or protecting the rights that have been violated. This is the legislative desire, and it derives directly from a combination of the provisions of sec. 3(a) of the Class Action Law and item 7 of the Second Appendix to the Law, in which the possibility of filing a class action for a cause pursuant to the Prohibition against Discrimination Law is regulated. A different question, which might require consideration in the future, is whether it would be possible to file a class action for  a discriminatory practice that is not regulated under the provisions of the Prohibition against Discrimination Law, and what (if any) might constitute the appropriate ground for basing such an action. In any case, consideration of this question is not required here, since in the present case, certification of the class action is based on the provisions of the Prohibition against Discrimination Law alone.

27.       The above notwithstanding, and without taking a definitive stand on this matter, I will comment as an aside, that in the past, the professional literature raised the possibility that a class action might provide a possible device for addressing cases of collective harm, such as discrimination, and for repairing the damage it had caused,  apparently even independently of the Prohibition against Discrimination Law  (see, e.g., Guy Halfteck, A General Theory Regarding the Social Value of Class Actions as a Means for Law Enforcement, 3 Mishpat ve-Asakim 247-331, note 31 (2005) (Hebrew); Yifat Bitton, Bringing Power Relations within the Scope of Negligence Liability, 37 Mishpatim 145, 212-213 (2008) (Hebrew); Yifat Bitton, Dignity Aches: Compensating Constitutional Harms, 9 Mishpat uMimshal 137, note 5 (2005) (Hebrew) (hereinafter: Bitton, Dignity Aches); Assaf Pink, Class Actions as an Instrument of Social Change, 6 Maasei Mishpat  157 (2014) (Hebrew) (hereinafter: Pink, Class Actions); and see, mutatis mutandis, Daphne Barak-Erez, Constitutional Torts 296 (1993)). Furthermore, quite apart from the discussion of class actions, recent judgments of the trial courts in “regular” – not class action – civil suits have granted recognition to the right of female injured parties to non-monetary compensation for distress, humiliation and violation of dignity caused by a policy of exclusion of women adopted in their regard (see: CC (Bet Shemesh Mag. Ct.) 41269-02-13 Phillip v. Aboutbul [33]; SC (Beer Sheva) 33424-02-12 Michaeli v. Chevra Kadisha – Ofakim Religious Council [34]; SC (Bet Shemesh) 2917-10-11 Marsden v. Negdi  [35]).

28.       The discussion below – except for a brief discussion regarding the “efficient and fair” way to conduct the proceedings – will not deal with the general argument that a class action should not be used in cases of discrimination because there would seem to be “more suitable” alternatives, such as seeking relief on the constitutional and administrative planes (see the discussion of this argument in Bitton, Dignity Aches, at 139. Bitton argues that in the case of collective harm to the dignity of women and their right to equality, the instrument of class action is, indeed, available, but it may be that “the relief of a court order is a more suitable remedy”). As stated, in our case there is no dispute that on the legal level, compensation for discrimination under the Prohibition against Discrimination Law can be sought in a class action procedure, even if other legal possibilities exist. Moreover, the possibility of being awarded relief on the administrative and constitutional planes does not necessarily rule out the possibility of receiving parallel relief by way of a class action. It must be borne in mind that a class action may include applications for relief of several kinds at once, and that sometimes, the actions on separate legal planes are addressed from the outset to different bodies. Furthermore, a class action sometimes constitutes a vital instrument of enforcement precisely when the administrative sanctions are insufficient (see, e.g.: CA 5378/11 Frankl v. Allsale, para. 34 [8]; LCA 9615/05 Shemesh v. Fucacheta Ltd., para. 5 [9]).

29.       In the absence if a need to discuss the questions mentioned above, our deliberations will focus on the question of whether the conditions for approving a class action are met in the present case. As we know, the Class Action Law states in secs. 3(a) and 8(a) that an applicant who seeks certification of a class action must prove several cumulative conditions: (a) One condition is that the cause of action must be one of the causes of actions for which a class action may be brought; (b) A second condition is that the action raises substantive questions of fact or law that are common to all members of the class, and that there is a reasonable possibility that they will be decided in favor of the class; (c) A third condition is that the class action is the most efficient and fair way in which to decide the dispute; (d) The fourth and fifth conditions are that there are reasonable grounds to assume that the concerns of all the members of the class will be represented, and that the matter will be conducted in an appropriate way and in good faith. Additional conditions  specified in sec. 4 of the Class Action Law require that the plaintiff in the class action be authorized in advance to bring and conduct the action; and that insofar as one of the causes of action is harm, the plaintiff in the class action proves prima facie, already at this procedural stage, that harm was caused to a member of the class or that there exists a reasonable possibility that harm was caused to the class (on the conditions, see: CA 9494/08 Pan v. Israel Railways, para. 5 [10]; CA 6887/03 Resnik v. Nir Cooperative, para. 24 [11]).

 

(C)       Interpretation of section 4(a)(3) of the Law – Is “Kolech” qualified to file the action?

30.       Section 4 of the Class Action Law treats of the question of who may apply for certification of a class action. The section specifies the said persons, and in particular, sec. 4(a)(3) of the Law provides that an “organization” (as defined in the Law) may also submit a class action, provided that the action concerns an area that is included in one of its public objectives, and provided that submission of the application by a plaintiff with a personal cause of action would prove difficult. The Law states as follows:

 

By whom and in whose name may an application for approval of a class action be brought	4(a) The following are entitled to submit to the Court an application for approval of a class action as specified below:
		(1)	A person who has cause for an action or matter specified in section 3(a), which raises substantive questions of fact or law common to all members of a class of persons – in the name of that class;
		(2)	A public authority in an action or matter specified in section 3(a) that is within the sphere of one of the public purposes in which the public authority engages – in the name of a class of persons, if that action or matter raises substantive questions of fact or law common to all its members;
(Amendment no. 4) 5768-2008		(3)	An organization in an action or matter specified in section 3(a) that is within the sphere of one of the public purposes in which the organization engages – in the name of a class of persons, if that action or matter raises substantive questions of fact or law common to all its members, on condition that the Court is satisfied that – under the circumstances of the case – it would be difficult to submit the application in the name of a person specified in paragraph (1); however, the Israel Consumer Council, as defined in the Israel Consumer Council Law 5768-2008, may apply for approval of an action as a class action, even if it is not difficult for a person to submit the application as stated in paragraph (1).

The definitions section of the Law defines “organization” as follows:

 

Definitions

2.

In this Law: “Organization” – a body corporate, other than a body corporate set up by a law or a religious trust, which exists and operates in practice and in a regular manner and has done so for at least one year for the advancement of one or more public purposes, its assets and income being used only for the achievement of public purposes, on condition that its activity is not on behalf of a political party or of some other political body, or in connection with a party or aforesaid body or for the advancement of their purposes;

 

 

31.       The interpretation of sec. 4(a)(3) of the Law has not yet been decided by this Court, but it has been addressed in the past by the Economic Department of the District Court (Judge C. Kabub) in Class Action (Econ.) 2484-09-12 Hatzlacha, Consumer Movement for the Promotion of a Fair Economic Society and Economy v. Cohen [31]). The District Court held that in order for an organization to qualify to bring a class action, it must prove that there are prima facie grounds, that there is a difficulty involved in locating a plaintiff with a personal cause of action, and that it is a suitable organization per se. With respect to interpretation of the word “difficult”, the Court held that this requirement attests to the fact that the legislature did not wish to open too wide a portal through which organizations could bring class actions. However, at the same time, it was held that a narrow, pedantic approach should not be adopted, as it might divest the purpose of the law of content in that it would not be possible at all for organizations to file class actions. Against this background, it was decided that the term “difficult” would be examined “in accordance with each matter and its circumstances” (para. 68), and in that particular case, the court added that “the organization that is petitioning bears the burden of proving that it acted with due diligence to locate a person with a cause of action” (para. 64), and that the attempt to locate such a person will be examined from a “quantitative” as well as a “qualitative” perspective (para. 77). The court also noted that “[I]t must be recalled that a class action is indeed a collection of personal suits, but at the same time it has the status of a public action. Therefore, where there is a public interest in the action, this might lead to a certain leniency with respect to the procedural conditions for its submission” (para. 34).

32.       My fundamental view is that a narrow, cautious approach should be adopted to the question of the interpretation of sec. 4(a)(3) of the Law. Careless removal of the procedural barriers, which would allow organizations to submit applications for approving class actions with no limitations, is liable to increase the extent of the phenomenon of submitting groundless claims, even in cases in which there is apparently no real problem in the applications being submitted by plaintiffs who have a personal cause of action (for a discussion of the general concern about groundless actions, see e.g., Alon Klement, Keren Weinshall-Margel, Ifat Taraboulous and Ronnie Avissar-Sadeh, Class Actions in Israel – An Empirical Perspective 9 (2014) (Hebrew) (hereinafter: Class Actions – Empirical Perspective). Another concern is that removing the barriers will motivate certain elements to unite for the sole purpose of facilitating class actions. As I shall explain below, the narrow approach is also the consequence of reading the provisions of the Class Action Law themselves. In this context, the provisions of sec. 4 of the Law present several significant hurdles which organizations must overcome in order that they be allowed to submit an application for certification of a class action, and which attest to the legislative desire to limit their power and to allow them to submit class actions only in cases which are indeed suitable. Moreover, this conclusion also derives from the legislative history of sec. 4 of the Law, it being evident that the legislature did, indeed, wish to allow organizations to bring class actions, but at the same time it did not totally abandon the model that had prevailed in Israeli law prior to the enactment of the Law, whereby the party that brought the class action had to be a member of the injured class (see: Steven Goldstein, Comments on the Class Action Law, 5766-2006 6 Alei Mishpat  7, 16-18 (2007) (Hebrew)).  

33.       The point of departure in the Law is that it is preferable if the person bringing the class action is “a plaintiff with a personal cause of action” or a “public authority” and not an “organization”. This conclusion can be deduced from a reading of sec. 4 of the Class Action Law, in which the legislature established a clear hierarchy among the three bodies. First, sec. 4(a)(3) of the Law states that the application should not be made by an organization if the action can be brought by a plaintiff with a personal cause of action,. Secondly, it is evident that the legislature similarly prefers that the class action be brought by a “public authority” under sec. 4(a)(2) of the Law, as may be inferred from the broad authority granted to such authorities. And note that the three bodies defined as a “public authority” are authorized to bring class actions in certain areas, in view of the recognition that in these areas, it may be difficult to file suit in other ways. The legislature deemed it advantageous to concentrate bringing class actions in these areas in the hands of public authorities, in view of their accumulated experience , their human resources and the fact that at times they have parallel administrative powers, so that they have a more varied means at their disposal for dealing with the wrongdoers. The legislative preference is evinced primarily from the scope of the authority conferred on public authorities, in that they are authorized to bring class actions without even being required to prove the difficulty involved in bringing the action in the name of a plaintiff with a personal cause of action. The language of the Law and the wide power given to the public authorities attest to a clear legislative preference that the plaintiff in class actions be “a plaintiff who has [personal] cause for an action” or a “public authority”. This preference is significant also from the aspect of the qualification of the organization seeking to bring a class action.

I would incidentally note that I am aware of the argument that, in practice, the public authorities have yet to exercise their power (see: Class Actions – Empirical Perspective, at 15-16; Appeal in Class Actions, at 638). However, I do not think that this argument adds or detracts from the empirical analysis above.

34.       Another point of departure is that the term “organization” must be interpreted narrowly, solely in accordance with its definition in the Class Action Law only, and not according to its definition in other laws. And note that in several laws enumerated in the Second Appendix to the Class Action Law, the status of an organization is recognized in various contexts, and they are sometimes vested with the power to sue. Thus, for example, sec. 7(a) of the Prohibition against Discrimination Law states that a corporate body that is engaged in the defense of rights may bring a civil action for a tort under the Law, even when the tort was perpetrated against an individual, as long as that individual has consented thereto. The legal question is whether the fact that an organization was accorded a status by means of an “external law” exempts it from the conditions pertaining to organizations in the Class Action Law. Apparently, it can be argued that putting the organization in the shoes of the plaintiff with a personal cause is effected by way of an external law, and not by means of sec. 4(a)(3) of the Class Action Law. According to this approach, the organization comes within the bounds of the Class Action Law as a “person with a cause” according to sec. 4(a)(1) of the Law, and it is therefore not required to overcome the hurdles placed before an organization under sec. 4(a)(3) of the Law (on this view, see Pink, Class Actions, at 166).

35.       My position, as stated, is that no analogy can be drawn from the status accorded to an organization under external laws with respect to its status for the purpose of bringing a class action. When the provisions granting a status to organizations in external laws were enacted, no examination was conducted of all the aspects required to grant status to an organization as a plaintiff in a class action. Furthermore, the Class Action Law sets hurdles and conditions with respect to organizations that do not exist in the external laws, such as the requirement of operating in practice and in a regular manner for the duration of at least one year. It may well be added that an understanding of the background to the enactment of the Class Action Law leads to a similar conclusion, bearing in mind that the legislature wished to concentrate all the procedural aspects connected to the filing of class actions under one law (see sec. 1 of the Class Action Law: “The purpose of this law is to prescribe uniform rules on the submission and conduct of class actions, in order to improve the protection of rights …”; and  the memorandum to the Class Action Law 5765-2005). Accordingly, it is clear that adoption of an interpretation that allows an organization to be accorded a status by virtue of external laws for the purpose of submitting a class action will lead, in effect, to the decentralization, contrary to the legislative intent, of those procedural aspects that were deliberately concentrated under the Class Action Law.

36.       The first hurdle placed before an organization that seeks to submit a class action in place of a plaintiff with a personal cause of action appears in sec. 2 of the Law. This section defines the term “organization” for the purpose of sec. 4(a)(3) of the Law, and in so doing, establishes a number of conditions that must be met by the organization. In particular, the section prescribes that the organization must prove that it operates in practice and in a regular manner, and has done so for at least a year, that its activities serve a public purpose, and that its assets and income are used only for achieving the public purpose. As noted above, these preconditions prescribed in the definitions section of the Class Action Law demonstrate that the legislature sought to open the door to the bringing of class actions only to active organizations that have proven records in their clearly public area of activity, and which did not incorporate merely for the purpose of bringing a class action.

37.       On the assumption that an organization that wishes to bring a class action has overcome the hurdle of sec. 2 of the Class Action Law, the next hurdle it faces is to prove compliance with the two central conditions for qualification, namely, the conditions prescribed in sec. 4(a)(3) of the Law. First, the applicant organization must prove that the action is within the area of one of its public purposes. This limitation, too, attests to the legislative desire to allow class actions to be brought by organizations only sparingly, in a manner that will ensure that the organization is in fact fit to conduct the class action in the name of the class, inter alia, due to its expertise in and knowledge of that area. Secondly – and this condition apparently constitutes the main obstacle placed before an applicant organization – the organization must convince the court that it would be difficult to submit the application in the name of a person with a personal cause of action. This condition reveals a clear preference of the legislature that class actions not be pursued by organizations, but by a plaintiff with a personal cause of action, who  has been directly harmed, based on an understanding of the importance that a direct victim insists on his rights.

38.       With respect to the statutory requirement of proving that it would be difficult to locate a plaintiff with a personal cause of action, in principle I accept the interpretative approach whereby the word “difficult” must be understood in accordance with the circumstances of each case. Nevertheless, and without making a categorical statement, one can conceive of several indications that would indicate the existence of such a difficulty. Thus, one can imagine that a lack of financial means among potential plaintiffs may indicate a difficulty. Clearly, the higher the anticipated cost of submitting an application for certification of a class action, the greater the concern that a plaintiff with a personal cause of action who would agree to institute the proceeding will not be found. This concern is relevant, for example, in situations in which the class of victims is from a “weak” sector whose members lack sufficient economic means, particularly when the application for certification of the class action must be accompanied by a costly expert opinion. One can also imagine areas or situations in which the direct victims are not aware of the harm done to them due to gaps in knowledge or the absence of the ability to comprehend the harm. In such situations, when the direct victims have difficulty in assessing the damage done to them, it is liable to be difficult to convince them to submit a class action in their own names. Cultural barriers are also liable to make it difficult, at times, to find a plaintiff with a personal cause of action. These are relevant to situations characterized by the existence of a culture gap that deters plaintiffs with a personal cause of action from turning to the courts (see, mutatis mutandis, Yuval Elbashan Access to Justice of Underpowered Communities in Israel 3  Alei Mishpat  497, 510 (2004) (Hebrew)).

39.       It should be emphasized that the burden of proving the difficulty in finding a plaintiff with a personal cause of action lies with the petitioning organization. In this context, I accept the basic approach of the District Court in Hatzlacha v. Cohen [31] according to which the organization must prove that it acted “with due diligence” to locate a plaintiff with a personal cause of action, both in the “quantitative” and in the “qualitative” sense. My view, too, is that there is no reason to accept the argument that it is difficult to find a plaintiff with a personal cause of action where the said argument has not been supported by a true attempt to find one. The basic assumption is that the organization must prove that it tried to find a plaintiff who would meet the conditions of sec. 4(a)(1) of the Law, even though there should be no automatic dismissal of the possibility that there may be exceptional situations in which the court may be convinced that it is difficult to find a plaintiff with a personal cause of action, even where no attempt has been made to approach potential plaintiffs directly. In this context it is possible that the court may be convinced that there is an inherent difficulty or that there are other special, substantial and convincing circumstances which suffice to lead to the conclusion that it is difficult to find a plaintiff under sec. 4(a)(1) of the Law.

40.       Finally, it should be noted that even if the organization does not overcome the hurdles prescribed in sec. 4(a)(3) of the Law, this does not necessarily mean that the application for certification must be dismissed or denied. It should be recalled that the Class Action Law states that insofar as the application for certification of the class action meets the requirement criteria, the court may approve it even in cases in which the applicant party does not meet the conditions prescribed in sec. 4 of the Law. Thus, sec. 8(c)(1) of the Class Action Law states that the Court may approve the action “if it concludes that those conditions can be assured by the addition or replacement of a representative plaintiff or of a representative attorney, or in some other manner,” and sec. 8(c)(2) of the Law states that “…if the Court concludes that all the said conditions in subsection (a) have been met, but that the conditions in section 4(a)(1) to (3), as the case may be, are not complied with in respect of the application, then the Court shall approve the class action but in its Order it shall order the representative plaintiff to be replaced.” In other words, a finding that the organization does not meet the conditions prescribed in sec. 4(a)(3) of the Law does not automatically preclude the action itself, and it is possible to proceed with it by replacing the plaintiff. Thus, for example, if the organization does not meet the conditions of the Law because there is a plaintiff with a personal cause of action, it is possible to replace the organization with that plaintiff and to proceed to adjudicate the case. In the same manner, if the organization does not meet the conditions of the Law in that, for example, its public purpose is different from that of the subject of the action – it is possible to replace it with another organization whose objectives are consistent with the subject of the action (for a more extensive discussion of this matter, see para. 32 in Hatzlacha v. Cohen [31]).

41.       To sum up this chapter, an organization that wishes to bring a class action in place of a plaintiff with a personal cause of action must meet the following cumulative conditions:

a.     First, the organization must prove compliance with the conditions of sec. 2 of the Class Action Law, including that it is a proven, active corporation, and that it has operated in practice and in a regular manner for at least one year, and that the objective of its activity is a patently public purpose;

b.    Secondly, the organization must prove that the action is within the area of one of its public objectives;

c.     And thirdly, the organization must prove that it is difficult to bring an action in the name of a person who has a personal cause of action, where the term “difficult” will be interpreted in accordance with the case and its circumstances, and having regard to a number of indicators as mentioned above, which is not a closed list. As a rule, proving this condition will require that data be presented showing that the organization acted “with due diligence” to find a plaintiff with a personal interest, both in the quantitative and in the qualitative sense, subject to the possibility of exceptional situations in which the court will be convinced that there is an inherent difficulty or that there are other special, substantial and convincing circumstances which suffice, per se, to demonstrate the difficulty in finding a plaintiff with a personal cause of action.

42.       In our case, the District Court held that the Kolech Organization meets the above conditions, and it is therefore a “qualified organization” to bring the class action. My impression is that this conclusion is justified and that there is no basis for intervention. First, it will be noted that the radio station does not dispute the existence of the first condition, which relates to the organization meeting the condition in sec. 2 of the Class Action Law, as it does not object to the factual findings of the District Court that Kolech is “an organization that has operated for several years” (para. 46 of the decision), its activity is carried out in a regular and actual manner, and its declared objective is primarily the public objective of “promotion of the status of women in religious Jewish society and in Israeli society” (ibid.). As opposed to this, the radio station’s arguments focus on challenging Kolech’s compliance with the two conditions prescribed in sec. 4(a)(3) of the Class Action Law, namely, the second and third conditions. According to the radio station, Kolech did not prove that the action deals with an area in which it operates in practice, and primarily, that Kolech did not prove that it is difficult to bring the action in the name of a plaintiff with a personal cause of action.

43.       I will first note that I see no cause to intervene in the determination that Kolech proved that the action is within the area of its public objectives. The District Court based this determination on evidence that was presented to it, and held that the condition is factually met – a determination in which the appeal court does not customarily intervene. Moreover, the radio station’s argument in this context relies on its opinion that the objectives of Kolech are apparently inconsistent with the class that it purports and seeks to represent. According to the radio station, “the purpose of the organization must be identical to that of the class” (para. 42 of the application for leave to appeal). With all due respect, this argument is baseless. As pointed out in the decision of the District Court, sec. 4(a)(3) of the Class Action Law does not include a condition of identity or congruence in the world view of the organization with each plaintiff in the class that was injured. Section 4(a)(3) of the Law concentrates on the question of whether the action addresses the public aims of the organization, and in the present case it may clearly be said that Kolech has set as its objective, promotion of the status of women in the religious community and in Israeli society. The fact that the action also involves women who belong to the ultra-Orthodox community does not indicate a departure from the area of the objectives of the organization in a way that would negate the qualification of Kolech. This is even more true in view of the court’s determination that in fact, Kolech is also active in the ultra-Orthodox sector; that in any case the concession that was given to the radio station was not defined as being for the ultra-Orthodox community only, but “to establish a ‘Torani-traditional-Sephardic radio,’ i.e. to establish a radio station intended for the religiously observant public and not only for the ultra-Orthodox”; and that the radio station itself declared that its listening public is not limited only to ultra-Orthodox listeners (for elaboration, see para. 46 of the judgment of the District Court).

44.       After giving careful thought to the matter, my conclusion is that we should not intervene in the determination that Kolech proved that it was difficult to submit the application in the name of a plaintiff with a personal cause of action. I am not unaware of the fact that Kolech confined itself to noting that “there is an inherent difficulty” in the circumstances of the case, without having tried to prove that difficulty by presenting any facts showing that it acted “with due diligence” to find a plaintiff with a personal cause of action. Similarly, as the radio station contends, with a good deal of justification, it is possible that an approach on the part of Kolech to potential plaintiffs who had been directly harmed by the policy of the radio station would not have been pointless. The argument of the radio station whereby from the findings of the survey that Kolech submitted, it emerges that 2.4% of the women who were asked said that they are prepared to take legal action to change the situation, shows that there are women – albeit only a few – who could and would have been prepared to be plaintiffs in a class action under sec. 4(a)(1) of the Law. However, the District Court found, on the basis of other justified, convincing reasons, that in the circumstances of the case, it is difficult to bring the class action in the name of a plaintiff with a personal cause of action, basing this finding on many logical arguments. I concur with the District Court on this point.

45.       The main reason supporting the conclusion that it would hav been difficult to find a plaintiff with a personal cause of action in the present case is that there is a reluctance on the part of ultra-Orthodox women to stand at the forefront of the battle to promote gender equality in the ultra-Orthodox community, due to their concern that their position in the community will suffer. This conclusion was supported by the testimony of Dr. Hannah Kehat, Director General of Kolech, which was found to be reliable, and I see no cause for intervention. This reason is also consistent with the declaration of the radio station according to which some of the female listeners of the station are accustomed to abiding by the religious code of conduct, such that it is reasonable to assume that they would not rush to initiate a class action, even if they felt degraded and that their dignity had been offended. We encountered a similar phenomenon when we considered the matter of the “Mehadrin bus lines”, when the picture that emerged in relation to gender separation in that case was that “women who did not immediately conform to the new arrangement were subjected to harassment, insults, pressure and threats, and matters reached the point of actual physical violence” (Rimalt, at 117), and that “many of those who objected expressed this position anonymously … for fear of reprisals” (Triger, at 726). Against this backdrop, my conclusion is that indeed, the weight of the cultural aspect in the present case is decisive, and it is of sufficient import to justify the concern that if the Kolech organization had not submitted the application to certify the class action, it would not have been submitted. Moreover – and this is very important in our context – even if I were convinced of the correctness of the argument of the radio station that it would have been possible to find a plaintiff with a personal cause of action who could have submitted the application herself, I do not believe that it would have been right to order that the action be dismissed in limine or denied. At most, an order could have been given to substitute that plaintiff for the organization. For these reasons, my conclusion is that there is no reason to intervene in the determination of the District Court, based on the particular circumstances of the case, that Kolech proved to the extent required that it would be difficult to find a plaintiff with a personal cause of action, within the meaning of sec. 4(a)(3) of the Law.

46.       Hence, the first argument of the radio station whereby Kolech is not “qualified” to bring the class action is rejected. As explained, even though as a rule, a interpretation should be adopted in relation to sec. 4(a)(3) of the Law, in the present case, the conditions for compliance with the section have been proven. Therefore, I recommend to my colleagues that we not intervene in the determination of the District Court in this regard.

 

(D)       Cause of Action

47.       A discussion of the subject of the cause of action must begin with the question of whether the Prohibition against Discrimination Law applies in the circumstances of the case. Insofar as it is found that the Law does indeed apply, and insofar as the policy adopted by the station indeed constitutes prohibited discrimination under the Law, there is no dispute that cause exists for bringing a class action on the basis of a combination of the provisions of sec. 3(a) and item 7 of the Second Appendix of the Class Action Law. The relevant sections for the purpose of analyzing the argument concerning the application of the Prohibition against Discrimination Law are secs. 2(a), 3(a), 3(d)(1), 3(d)(3) and 5(a) of the Law, which state as follows:

   

Definitions	2(a) In this law -
		“Public service” – Transportation Services, communications, energy, education, culture entertainment, tourism and financial services, intended to serve the public.
	[…]
Prohibition against discrimination (Amendment no. 1) 5765-2005 (Amendment no. 3)5774-2014	3(a)	A person who deals in the provision of a product or a public service or in operating a public venue, will not discriminate in the provision of the product or the public service, in allowing access to the public venue or in providing a service in the public venue, for reason of race, religion or religious affiliation nationality country of origin gender, sexual orientation, outlook, political affiliation, age, personal status or parenthood. […]
	(d)	The following shall not be deemed discrimination under this section —
		(1)	If the act is required by the nature or the essence of the product, the public service or the public venue;
		(2)	[…];
		(3)	In the establishment of separate frameworks for men and women, in the event that non-separation will prevent the provision of the product or the public service, or access to the public venue, or provision of the service in the public venue, to part of the public, provided that the separation is justified considering, inter alia, the nature of the product, the public service or the public venue, the extent to which it is essential, the existence of a reasonable alternative, and the needs of the public which is liable to be harmed by the separation.
	[…]
Civil wrong	5(a)	An act or omission contrary to sections 3 and 4 constitutes a civil wrong, and the provisions of the Civil Wrongs Ordinance [New Version] will apply thereto, subject to the provisions of this Law.

 

48.       As stated, the first question on the subject of the cause is whether the Prohibition against Discrimination Law applies. The District Court answered in the affirmative, dismissing the narrow interpretation urged by the radio station to the effect that the Prohibition against Discrimination Law deals only with access to the service or product. The court held that this interpretation is not consistent with the language of the Law or its purpose, and that the prohibition against discrimination in the provision of a “public service” applies not only to access to the broadcasts of the radio station, but to the entire range of services that it provides to its listeners, including newscasts, commentary and programs in which listeners express themselves on the air.

49.       I completely accept the approach of the District Court in this regard, and I see no need to expand at length upon its decision. First, it will be noted that the court discussed the subject of the cause in depth, even though at this procedural stage, an prima facie examination would have sufficed (cf. my opinion in LCA 3814/14 Hogla Kimberley Marketing Ltd. v. Mastei, para. 11 [12]).  On the merits, the interpretation presented by the District Court is compatible with earlier rulings of this Court with respect to the scope of the Prohibition against Discrimination Law, according to which the Law reflects a long-standing trend of extending the scope of application of the principle of equality to areas of private law as well, and that the purpose of the law requires that an interpretation which leaves instances of discrimination in place must be rejected (see, LCA 8821/09  Prozanski v. Layla Tov Productions [7], para. 29; HCJ 746/07 Ragen v. Ministry of Transport [3], per Justice E. Rubinstein, para. 34). An examination of the various legislative proceedings, too, reveals the legislative intent to extend the reach of the Law widely to instances of discrimination, and in particular to phenomena of generic discrimination on the basis of gender (cf., e.g., the Prohibition against Discrimination in Products, Services and Access to Places of Entertainment and Public Places (Amendment no. 4) (Prohibition against Humiliation or Degradation due to Discrimination) Bill, 5774-2013).  It is worth noting that the position taken by the District Court on the question of the prima facie application of the Prohibition against Discrimination Law is also consistent with the position expressed in the report of the Departmental Team, which  stated: Section 3(a) of the Prohibition on Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law 5761-2000 provides that communications services constitute a “public service”. Therefore it is prohibited for the station to discriminate in the provision of the public service due to gender” (para. 179). This position is also compatible with the approaches that support a narrow interpretation in relation to the application of the Prohibition against Discrimination Law (see: Moshe Cohen-Elia, Liberty and Equality in the Prohibition of Discrimination in Products and Services Law, 3 Alei Mishpat 15, 35 (2003) (Hebrew) (hereinafter: Cohen-Elia)).

50.       I will briefly state that the radio station’s focus on the question of access to the radio broadcasts is not clear to me. The fact that women are permitted to listen to the radio station like men does not negate the argument that, at the same time, discrimination was practiced against them in the provision of other services. Moreover, the argument raised by the radio station displays signs of a practice whereby “entry is permitted – but participation is forbidden.” This is similar, therefore, to a club which allows entry to all those who arrive on its doorstep, but which permits only some of those arrivals to take part in the activity going on inside. Even if women could listen to the broadcasts of the station, they were not permitted to take part in the activity included in the broadcast. Can it be said that this practice does not constitute apparent discrimination? It is clear to me that the answer to this question is negative. There is no doubt that some of the services provided by the radio station to its listeners include the possibility of the listeners participating in the programs and expressing their opinions: this is an “activity” (“service”) that the station offers. Therefore, preventing women from invoking this possibility because they are women – to the extent that such prevention is proved – is certainly liable to amount to discrimination to which the Prohibition against Discrimination Law applies. Therefore, the argument of the radio station that the women have no “vested right” to come on air and express their position must be dismissed. The question is not the right of women to participate in the radio broadcasts – and in any case, we are not concerned here with that question – but the right of women to be treated equally, in a manner in which possibilities will not be closed off to them when they are open and accessible to men.

On this matter, it would not be superfluous to mention that a recent case before the courts concerend the refusal of an ultra-Orthodox newspaper to publish the election propaganda of an electoral list of female ultra-Orthodox candidates to the 20^th Knesset, based on the fact that they were women. The District Court expressed its position that this practice, per se, constitutes prohibited discrimination within the meaning of the Prohibition against Discrimination Law, although the application for leave to appeal was granted for other reasons (see: CF (Center-Lod District Ct.) 25435-03-15 Kolian v. Yetedot T.S.M.V. Publishing and Advertising Ltd. [32], per Judge Y. Spasser; LCA 1868/15 Yetedot T.S.M.V. Publishing and Advertising Ltd .[13], per Justice N. Hendel).

51.       In view of my ruling that rejects the narrow interpretation of the radio station in principle, I will now proceed to address the question of whether the policy adopted by the radio station indeed constitutes apparent discrimination for the purposes of sec. 3(a) of the Law, and to the extent that it does so, whether the exceptions specified in secs. 3(d)(1) and 3(d)(3) of the Law apply – exceptions according to which a case will not be deemed discriminatory where “the act is required by the nature or the essence of the product” and in addition that it is possible to establish “separate frameworks for men and women … provided that the separation is justified…”. The argument of the radio station in this context is, as will be recalled, that gender distinction is required due to the traditional, religious character of the radio station, and due to the halakhic position of the rabbinical council, and therefore there is no discrimination, and alternatively, that the exceptions specified in the Prohibition against Discrimination Law apply, and therefore it cannot be sued in respect of that policy.

52.       With respect to sec. 3(a) of the Law, there would seem to be no doubt that the basic assumption is that the policy of the station constitutes discrimination against women in the sense of the Law. As may already be understood from the general discussion above concerning exclusion of women, a norm that prevents women from taking part in an activity in the public sphere only because they are women is presumed ab initio to be a breach of the women’s right to equality, even if at the end of an investigation that assumption is rebutted, and it is found that the gender discrimination is permitted due to a “relevant difference” or for some other justified reasons (on this assumption, see also sec. 6(2) of the Prohibition against Discrimination Law).  In our context, to the extent that it transpires that women were not permitted to participate in the broadcasts of the station, whereas men were permitted to do so, it is not inconceivable that the activity of the station will fall within the bounds of sec. 3(a) of the Prohibition against Discrimination Law. The question which must now be addressed is whether this assumption is apparently rebutted by proof of a “relevant difference” that justified differential treatment of men and women in the circumstances of the case. This question must be examined in the framework of a discussion of the applicability of the exceptions specified in the Law.

53.       With respect to the exceptions, there is no dispute that the balancing formula that appear in secs. 3(d)(1) and 3(d)(3) of the Law allows for recognition of practices involving gender separation between men and women for religious reasons. The legislature explicitly expressed its opinion on this matter in the framework of the sections, and even included a concrete provision in sec. 3(d)(3) of the Law in the matter of arrangements for separation between men and women. However, in order for one of the above two exceptions to apply, it must be proven that the religious norm indeed mandates or at least justifies the adoption of a differential policy towards women. In the professional literature, we find that in order to reach such a conclusion, an examination must be made, inter alia, of the weight of the religious norm amongst the relevant population in view of its culture, and also whether the weight is so great as to tip the balance in its favor, despite the violation of the rights of the individual. It has also been said that one important distinction that might help in weighing the conflicting interests in the matter is the distinction between norms that the religion requires and those that the religion permits. To the extent that the religious practice of separation between women and men is based on a religious precept (commandment), and to the extent that this requirement is found at the halakhic or cultural core, the scales tip in the direction of applying the exceptions, and vice versa. Professor Amnon Rubinstein discussed this at length in his article The Decline, but Not the Death, of Multi-Culturalism, 49(1) Hapraklit 47, 89-90 (2006) (Hebrew):

Another distinction is that made by the Israeli Supreme Court between norms that the religion mandates and norms that the religion permits. Thus for example, Islam does not mandate polygamy, but merely permits it, and therefore the prohibition against bigamy does not violate a religious norm or freedom of religion.

A question of this type arose in the Knesset in its deliberations on the subject of the Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000. The purpose of the Law is “to promote equality and to prevent discrimination in entry to public venues.” The prohibition against discrimination also applies to a person’s gender. The question arose: What is the law in relation to venues that serve ultra-Orthodox Jews or orthodox Muslims in which separation between men and women is required by their culture and their heritage, and without which the women and the men will not use the service or the place? In the Constitution, Law and Justice Committee, which dealt with this subject in a series of sessions in which arguments abounded, opinions were divided. The women’s organizations – which represent those dedicated to equality between the sexes – asked that separation be banned, whereas the ultra-Orthodox representatives, who spoke in the name of multi-culturalism, pointed out that if there is no separation, the ultra-Orthodox community will refrain from using the service or the venue. Ultimately the Constitution, Law and Justice Committee adopted a compromise, which found expression in sec. 3(d)(3) of the Law …

This compromise is problematic in its reference to separation between the sexes, and even more problematic with respect to separation between religions and ethnicities. However, every case must be judged on its merits in accordance with the particular circumstances, and with the criteria for balancing that were proposed above. This, for example, is the case with the Jewish-Haredi or the Muslim community, in relation to which we are concerned with norms that are mandated (and not only permitted) by the religion, and the weight of the religious prohibition is so great and significant that non-separation can prevent use of the service or the product …. It is also necessary to consider the balancing criteria that were proposed above – in relation to the magnitude of the harm to the religious-traditional norm in particular, the weight of the religious norm in the culture, and the question of whether it is a matter of a religious precept or a religious possibility [emphasis partly added – Y.D.].

For a similar approach attesting to the importance of the distinction between an “enabling” religious norm and a religious “prohibition”, see HCJ 153/87 Shakdiel v. Minister of Religion [4], para. 22; HCJ 6111/94 Committee for the Preservers of Tradition v. Chief Rabbinical Council of Israel [14], at 101-102; HCJ 1514 Gur Aryeh v. Second Authority for Television and Radio [15], at 282, in which it was said, for example in the dissenting opinion of Justice D. Dorner, that the criterion is “whether the prohibited action is forced upon those who are observant or whether they are prevented from performing a religious obligation”; and Menachem Elon, The Status of Women – Law and Jurisdiction, Tradition and Transition: The Values of a Jewish and Democratic State 53 (2005) (Hebrew). For criteria that differ slightly from those proposed by Prof. Amnon Rubinstein in his above article, see Harel & Schnarch, at 75; for reservations about the criteria proposed by Harel & Schnarch, see Rimalt, at 127.

54.       In the present case, it cannot be said that religious practice mandates or justifies the application of the exceptions in the Prohibition against Discrimination Law. I find it difficult to accept the position of the radio station whereby its policy is justified by virtue of halakhic norms and the instructions it received, and I certainly do not think that the weight of this norm in the ultra-Orthodox community justifies the apparently severe harm to the basic rights of women. It should be emphasized that even according to the approach of the radio station, the religious norm that underlies the gender distinction in the broadcasts is not a binding norm; rather it is an enabling  norm, and the halakhic opinion upon which the station relies – that of the late Rabbi Ovadia Yosef – stated explicitly that the prohibition on women being heard does not constitute a halakhic prohibition but rather, it is in the category of enhancing the precept (see: para. 62 of the judgment of the District Court; para. 181 of the Report of the Departmental Team). Moreover, the data relating to the present case shows that the cultural and religious character of the radio station has been preserved even after the alleged practice of excluding women from the broadcasts of the station was stopped in the framework of the regulatory processes, and what is more, the scope of the activity of the station has only grown. In these circumstances, it was not proven that the religious norm mandates or justifies adopting a differential attitude towards women, and it is even difficult to argue that ceasing to abide by that norm caused real harm to the radio station. From here it is but a small step to the conclusion that at this prima facie stage, the two exceptions to the Prohibition against Discrimination Law do not seem to apply.

55.       Furthermore, the exception that appears in sec. 3(d)(3) of the Law apparently does not apply in our case, also for the reason that it refers to the existence of “separate frameworks” between men and women, i.e.,  an arrangement of separation, similar, for example, to the circumstances in HCJ 746/07 Ragen v. Ministry of Transport [3]. However, our case does not involve an arrangement of separation, but an arrangement which apparently prevented women, and only women, from participating in the broadcasts of the radio station. For this reason, too, it would appear that the section does not apply in view of its language and its purpose.

56.       It may and should be added with respect to the above two exceptions that despite the fact that the Prohibition against Discrimination Law recognizes them, in any case “not every cultural class practice must be accorded recognition, and the free ‘will’ of a member of a particular cultural class need not always be acknowledged as free will, and not all ‘free will’ need be respected” (per Justice E. Rubinstein in HCJ 746/07 Ragen v. Ministry of Transport [3], para. 10), and clearly in certain cases, in which the harm to the individual is critical, the religious or cultural practice may be ruled out even if it is based on religious precepts and apparently lies at the core of the culture or the religion. This approach has been expressed several times by this Court, which has said, inter alia, that most of the theoretical approaches justify almost categorical subjection of the cultural and religious practices to certain basic criteria, such as that of the right to human dignity in its core sense (cf. the opinion of Justice H. Melcer in HCJ 1067/08 Noar KeHalacha Assoc. v. Ministry of Education, para. 6 [16], and the sources cited there). In this sense, it may be assumed that the exceptions to the Prohibition against Discrimination Law will not apply in those cases in which these criteria are not maintained. In any case, this is over and above what is necessary, for as stated, my conclusion is that there is no apparent ground to invoke the exceptions to the Prohibition against Discrimination Law for the reason explained above, and therefore there was no flaw in the conclusion of the District Court in this context.

57.       I also find no flaw that would justify intervention in the decision of the District Court on the question of immunity by virtue of sec. 6 of the Civil Wrongs Ordinance. On this matter I accept the distinction drawn by the District Court between the period prior to the commencement of regulatory proceedings and the period subsequent thereto. To be precise, there is no dispute that as long as the radio station was subject to close oversight and conducted an ongoing dialogue with the Second Authority, and as long as it operated in accordance with the directives that were addressed directly to it, it had immunity. This determination is also solidly grounded in the case law of this Court (CLA 8014/09 Dikla Insurance Co. Ltd. v. Friedman, para. 5 [17]; CLA 729/04 State of Israel v. Kav Mahshava Ltd., paras. 12-13 [18]). As opposed to this, immunity should not apply to anything pertaining to the period in which the activity of the station was apparently not conducted in accordance with the said directives. In this context, the argument of the station whereby it also enjoyed immunity prior to the commencement of the regulatory process, because in that period it relied on the directives of the Spiritual Committee in the reasonable and good faith belief that this Committee had legal authority by virtue of the terms of the license, cannot be accepted. Even if the terms of the concession recognized the status of the Spiritual Committee, this clearly does not mean that this Committee had the legal authority to confer “legal license” on the radio station to operate in apparent contradiction to the Law. The Spiritual Committee cannot permit an act that is contrary to the terms of the license or unlawful. Moreover, as we have said, the opinion of the Spiritual Committee in our regard did not state that there is a halakhic prohibition on women being heard on air, and therefore the decision to prevent women from participating in the broadcasts was, to a great extent, that of the radio station itself. In these circumstances, and having regard for the prima facie nature of our hearing, the argument of the radio station that its activities were conducted in good faith in the belief that they were legally authorized, in reliance on the position of the Spiritual Committee, must be dismissed.

58.       To conclude the discussion of the issue of cause, I propose to my colleagues that we decide that at this procedural stage, that there are no grounds for our intervention in the determinations of the District Court on this point. As I explained above, no fault can be found in the determination that the Prohibition against Discrimination Law applies, prima facie, in the circumstances of the case. The prima facie determination that the policy of the radio station constitutes “discrimination” within the meaning of sec. 3(a) of the Law is correct, as well. As was further explained, in the circumstances of the case the exceptions found in the Prohibition against Discrimination Law do not pertain, and neither is there room to change the determination of the District Court with respect to the scope of immunity as prescribed in sec. 6 of the Civil Wrongs Ordinance. Hence, the determination of the District Court, namely, that cause by virtue of sec. 3(a) of the Class Action Law has been proved to the extent necessary at this stage, should stand.

 

(E)       The damage and calculation of the compensation

59.       As stated, a large part of the arguments of the radio station deals with the issue of the harm and calculation of the compensation. In this context, the radio station argues that no “harm” was caused to the members of the defined class, and alternatively that the only women who were harmed are the women who asked to be heard and were turned away. It was also argued that calculating the damage is problematic, and that the District Court erred in its ruling with respect to the possibility of awarding compensation “without proof of harm.”  First I will note that I have seen fit to address these arguments immediately following the discussion of the question of cause since, in our case, the two matters are related, as will be explained. On the substantive level, even though I believe that some of the arguments raised by the radio station regarding the harm are correct, my conclusion is that this element was proven to the extent required at this procedural stage, and there is therefore no reason to depart from the final conclusion of the District Court in this regard.

60.       Section 4(b)(2) of the Class Action Law states that in the case of an application for certification of a class action submitted by an organization, the organization must show “that prima facie, harm was caused to a member of the class, or that it is reasonably possible that harm was caused to the class, in whose name the application was submitted.” Clearly, the burden of proof in relation to the element of harm at the stage of approving the application for a class action is not an onerous one. The applying organization is not required to prove the harm to the members of the class in full or a precise manner, but only prima facie; the exact harm will be calculated and assessed in the main procedure. Moreover, the leniency regarding the burden of proof of the harm at the stage of certifying the class action is also expressed in the fact that at this procedural stage, it is already possible to rely on the possibility that ultimately, collective relief will be awarded for the benefit of the class (see: Yuval Procaccia and Alon Klement, Reliance, Causation and Harm in Consumer Class Actions, 37 Tel Aviv U. L.Rev. 7, 33-34 (2014)(Hebrew).

61.       The main question, therefore, is whether Kolech proved, at the prima facie level required at this stage, that harm was caused to the members of the class or to the class itself. This question must be answered in the affirmative. Recognition of the existence of harm and the legal right to receive compensation for it emanate in the circumstances of the case from within the Prohibition against Discrimination Law, even without recourse to other legal frameworks to support the conclusion. The Prohibition against Discrimination Law assumes, as a working assumption, that when there is discrimination within the meaning of its provisions, harm is caused by that discrimination, and that harm is compensable. A basic conception embodied in the provisions of the Law is that “the refusal to allow a person access to a public venue or to supply him with a service or a product, merely because of his affiliation to a class, and particularly a class in respect of which there is a history of past discrimination, constitutes a grave violation of human dignity” (Prohibition against Discrimination in Products, Services and Access to Places of Entertainment and Public Places Bill, 5760-2000). Moreover, the legislature even suggests, in the Prohibition against Discrimination Law, devices for receiving compensation and a ceiling on the amount of compensation that can be awarded without proof of harm.

62.       Prof. Barak Medina adds on this matter as follows:

               The psychological harm involved here is in addition to the direct harm caused to a person who is discriminated against due to the low wages that he earns or due to the inability to purchase some product or service. In terms of economic theory, the psychological harm is calculated according to the sum that the individual would have been willing to pay in order not to incur discrimination. Apparently, the fact that in the absence of legislation, those belonging to the victimized class do not “purchase” their right not to suffer discrimination demonstrates that the monetary value of the harm done to them is less than the utility that the owner of the business derives by virtue of the discrimination, and therefore the efficient consequence is actually to refrain from imposing a prohibition on discrimination.

However, this difficulty can be resolved. First, the special nature of the harm involved here – the feeling of humiliation that derives from the discrimination – rules out a “market solution” to the problem, i.e., it rules out the possibility of preventing discrimination by way of “purchasing” the right not to be discriminated against. As Donohue noted, payment to a business owner in order that he refrain from practicing discrimination creates, of itself, harm and emotional damage of the type that is caused as a result of discrimination (Barak Medina, Prohibition against Discrimination in the Private Sector from the Point of View of Economic Theory, 3 Alei Mishpat 37, 55-56 (2003) (Hebrew) (hereinafter: Barak Medina); emphasis added – Y.D.).

And see also Cohen-Elia:

Israeli law requires individuals to act in accordance with the value of equality, in the sense of discrimination being prohibited. It prohibits discrimination on the basis of race, nationality, sexual orientation and for other analogous reasons, and thereby it realizes a value regarding which there is relatively wide consensus; a value the breach of which is liable to cause acute harm to people and to decrease their autonomy (p. 22, emphasis added – Y.D.).

63.       Another, no less important question that merges with additional questions, particularly with the definition of the class, is: to whom was the harm caused? One could argue that in our case, harm was caused only to women who took active steps and asked to come on air but were refused. However, I think that the discriminatory policy adopted by the station caused harm to additional women as well, even though they did not attempt to participate in the broadcasts, but simply listened to them. The harm to these women is, first of all, the psychological harm inherent in the very knowledge that only because they are women, they are not permitted to participate in the broadcasts of the station. This knowledge is harmful, degrading and humiliating, and it suffices in order to indicate that harm has been incurred by those women. Moreover, harm is also caused in the sense that women refrain from the outset from attempting to be heard on air due to their knowledge that their request would anyway be refused, i.e., there is effective harm to the possibility of access of women to the public service that is being offered. Therefore, it is difficult to accept – at this preliminary stage – the argument that no harm at all was caused to women who “only” listened to the station, even if one may wonder whether a distinction should be made between these women and those who took active steps to be heard on air at the station, on the basis of reasons such as the magnitude of the harm, the degree of distance from the humiliating event and so forth.

What Barak Medina writes later in his article is very apt in this context:

It must be recalled that adopting a discriminatory policy usually has a negative effect on third parties as well, mainly those who belong to the class against which there was discrimination. This is a matter of psychological harm that is caused in light of the knowledge of the existence of the discrimination. These are “external effects”, i.e., the effect of the discriminatory policy on a person who is not party to the transaction between the business owner and the worker or the potential customer …

The negative external effect of adopting a discriminatory policy is significant mainly in the case of supplying a product in the course of “business”, and certainly with respect to providing a public service or operating a public venue. In these cases, even if the business owner does not have a monopoly, and even if he is not supplying an essential product, the policy he adopts is liable to have a negative impact on third parties, beyond the harm to the potential customer of the business owner. In such cases, the assumption is that the extent of the activity of the business – and hence, also, the number of cases in which its potential customers will encounter a discriminatory policy – is relatively high, and so, too, the extent of the “distribution” of the negative impact of its policy. It is thus possible to explain the application of the Prohibition against Discrimination Law with respect to these cases (ibid., at 56-58. Emphasis added – Y.D.).

64.       With respect to the station’s arguments regarding the question of calculation of the harm, it is not necessary that we delve deeply into these arguments at this procedural stage. The entire array of aspects relevant to the issue will be discussed in detail in the framework of the principal proceedings. One cannot deny that, indeed, the task of calculating the value of the compensation in the present case raises complex questions, particularly since the alleged harm deals with subjective, individual feelings of humiliation and violation of dignity. It has been said, in relation to a slightly different issue, that calculation of the damage in cases such as these is liable to be a difficult task, particularly in the case of a class action lawsuit (see, mutatis mutandis, the opinion of my colleague E. Hayut in CA 10085/08 Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel v. Estate of Tufik Raabi [19]). Without expressing any position, I do not rule out the possibility that possible models for awarding compensation will be examined as the need arises, including those contained in secs. 20(a)(3) and 20(c) of the Class Action Law, in the framework of which the possibility of awarding comprehensive monetary relief  and relief for the benefit of the class or the public is regulated. It may also be assumed that in examining the question of compensation, the arguments concerning the difference between the injured parties and the extent of the harm they have incurred will be considered in depth, as will the arguments concerning the possibility of invoking models for calculating harm which are used in cases of discrimination in other areas of law.

65.       In any case, I believe it appropriate to make two comments already at this stage about calculation of the harm and the compensation. One is that the radio station is correct in its argument against the ruling of the District Court with respect to the possibility of awarding compensation “without proof of harm.” In this context, the Class Action Law provides in sec. 20(e) that: “The Court will not, in a class action, award exemplary damages, and it will not award damages without proof of harm, except in an action as specified in item 9 of the Second Appendix; however this will not prevent the award of compensation for damage that is not financial damage…” (cf. also Tnuva v. Tufik Raabi [19], para. 39). Hence, it is not possible to award compensation without proof of harm in the circumstances of the case, notwithstanding the possibility of doing so under the Prohibition against Discrimination Law when the suit is not brought by way of a class action.

66.       Another comment relates to the relief that is being sought. Apparently, and without taking a categorical stand, it appears that the relief that is sought in the present case – Kolech is asking for compensation in the amount of NIS 104,000,000 – raises questions about the appropriate method of calculating the harm in the circumstances of the case. We need not put the cart before the horse. Suffice it to say that the question arises as to whether in determining the compensation it would be correct – also due to the complexity of the circumstances – to attribute weight to the change that the radio station has undergone in the framework of the regulatory process. Even though awarding compensation in the framework of a class action “looks to the past”, weight should, perhaps, be attributed to the fact that the radio station changed its practice and mended its ways through dialogue and with openness, in a manner that actually renders the requested declaratory relief unnecessary. Of course, this issue, too, will be examined and elucidated in the principal process by the District Court.

67.       My conclusion as to the question of the damage is that it has been proven to the degree required at this procedural stage that the members of the class incurred harm due to the policy of the station. As I mentioned above, even though there is justification for our intervention in certain determinations of the District Court in this context, such as the determination with regard to the possibility of awarding damages in the action “without proof of harm”, there is no reason to depart from the final conclusion that the element of harm indeed exists.

 

(F)   Does the action raise substantive questions of fact or law that are common to all members of the class, and is there a reasonable possibility that they will be decided in their favor?

68.       The first condition specified in sec. 8(a)(1) of the Class Action Law requires that there be “common questions” vis-à-vis the members of the class. Difficulty in proving that this condition has been met is especially liable to arise when the action does not deal with a single instance of tortious conduct on the part of the wrongdoer that caused harm to a large number of victims, but rather with a series of behaviors in relation to which the “connecting thread” is not clear. Indeed, it is natural that when several separate instances of tortious conduct are involved, there may be a need to examine different factual and economic data, and various issues may arise in relation to each separate case that will not necessarily be relevant to all members of the class (see: Alon Klement, Guidelines for Interpretation of the Class Action Law, 5767-2006, 49 Hapraklit 131, 140-179 (2007) (Hebrew) (hereinafter: Klement, Guidelines for Interpretation)). In the present case, the radio station contends that “common questions” do not arise amongst the members of the class, since there are differences among the members. It claims, for example, that there are differences between women who sought to be heard on air and were refused, and women who simply listened to the radio broadcasts. Similarly, according to the radio station, there are differences between women whose world view is similar to its own and women whose world view differs. Moreover, there are differences among the various women in the class due to the fact that each one’s experience of harm is individual, as explained above. It was further argued in relation to two specific instances of discrimination that allegedly occurred during the regulatory period, that they, too, do not raise questions that are “common” to all members of the class, but only to the specific women who were harmed.

69.       The arguments that were raised by the radio station in this context disregard the fact that the discrimination in the case before us was a matter of policy, and that it is this fact that underlies the common questions of the members of the class. To be precise, where it is a matter of discriminatory policy, the “connecting thread” between the members of the class is the policy itself that was adopted in relation to them. This is different from discrimination that occurred in various factual situations, in departure from the customary practice of the wrongdoer. It must be recalled that the questions common to a class are usually connected to the liability of the defendant (Klement, Guidelines for Interpretation, at 141). Where the matter is one involving the defendant’s policy, the question of liability for the harm caused by that policy is indeed common to all those harmed, even if the compensation awarded to each of them is different (ibid.: “The difference in the relief cannot, of itself, stand in the way of an action being certified as a class action”). 

70.       The United States Supreme Court, too, discussed this distinction in the case of Wal-Mart Stores, Inc. v. Dukes et al. [36], noting that in proving a pattern or practice, and certainly in proving discriminatory policy adopted by the wrongdoer, a rebuttable quasi-presumption arises whereby all the members of the class suffered from that discriminatory pattern, and therefore they share “common questions” that are connected to the liability of the defendant in relation to this pattern:

               In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that … discrimination was the company’s standard operating procedure [,] the regular rather than the unusual practice” … If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice …

(See ibid., note 7 of the opinion of Justice Scalia. See also p. 7 of the opinion of Justice Ginsburg. Emphasis added – Y.D.).

I would stress that in the Wal-Mart case, it was ruled that the “pattern or practice” were not proved, and I am also aware that the subject of that case was discrimination in employment, which of course has somewhat different aspects from those of our case. In addition, needless to say, the American case must be read with due caution in view of possible differences between the legal systems, inter alia, regarding the question of causes of action and relief. Nevertheless, it may be said with respect to the determination on principle to the effect that discriminatory policy establishes questions that are common to members of the discriminated class, that what was said there is also applicable in our case.

71.       In other words, even if there are, indeed, certain differences in our case among the women who make up the class of victims in its entirety, such as the differences relating to the magnitude and extent of the harm, common questions of fact or law arise in relation to them all. In the circumstances of the present case, the spotlight, from the point of view of the common questions, is focused more on the conduct of the station, and less on the differences that there may be among the women who were harmed. The “common questions” in our case concern the lawfulness of the policy that was adopted by the radio station, and the extent of its legal liability for this policy. Thus, for example, the question of whether the policy of the station even constitutes a tort for which compensation could be claimed is certainly a question common to all members of the class. A “connecting thread” exists with respect to these and similar questions among all the plaintiffs in the class. This is so even if it is possible to conclude that not all of them were exposed to the activity of the station in an identical fashion, or that they were all harmed equally. Therefore, I do not think that there is reason to intervene in the first determination of the District Court that there exists a substantive question common to all members of the class and it is “whether the station acted in a prohibited discriminatory manner against the members of the class in that it prevented women from being heard on air from the time it began operating and until Nov. 6, 2011…” (para. 102 of the judgment of the District Court).

72.       The above reason is, of course, not valid in relation to the period in which the discrimination perpetrated by the radio station was not a matter of policy. In this context, the radio station’s argument that the two particular instances of discrimination that occurred during the period of time in which regulatory procedures were under way do not give rise to questions that are “common” to all members of the class, but rather they are individual and specific in nature with respect to each case, is sound. I tend to agree with this argument due to the change in the set of factual and legal circumstances in relation of the period of time in which the particular instances of violation occurred. To be precise, the policy of the radio station in relation to first period constituted prohibited discrimination within the meaning of the Prohibition against Discrimination Law, which does not enjoy immunity under sec. 6 of the Civil Wrongs Ordinance. The situation is different in relation to the period in which the particular instances of discrimination occurred, that is, in the period from Nov. 6, 2011 until Aug. 28, 2012. Owing to the fact that regulatory procedures were under way during this period, it was correctly found that the activity of the radio station in this period is covered by the immunity granted under sec. 6 of the Civil Wrongs Ordinance. Similarly, the instances of violation that were perpetrated during this period are bound by time and place, and they constitute a departure from the practice at that time. In view of the above, I am of the opinion that due to the possible factual and legal disparities between the periods of time, different questions are liable to arise with respect to the tortious conduct of the radio station during the period subsequent to the beginning of the regulatory processes. Moreover, even were I prepared to assume that these cases give rise to the same “common questions”, it is possible that they are better suited to being adjudicated other than in the framework of a class action, and more will be said about this below.

73.       The second condition prescribed by sec. 8(a)(1) of the Class Action Law requires proof of a “reasonable possibility” that the common questions will be decided in favor of the members of the class, the main objective being to prevent situations in which applications are submitted for certification of class actions even though their chances are slim, thus preventing an unjustified risk to defendants (see: LCA 2128/09 Phoenix Insurance Co. Ltd. v. Amossi [20]; Klement, Guidelines for Interpretation, at 142). I do not think that the case before us is of the type that gives rise to such a concern, in that the various determinations until now lead me to the conclusion that the questions arising here reveal, at the very least, a “reasonable possibility” of ultimately being decided in favor of the members of the class.

74.       To summarize: I do not think that there are grounds for intervention in the determination of the District Court that a question common to all the members of the class exists, and it is “whether the station acted in a prohibited discriminatory manner against the members of the class in that it prevented women from being heard on air from the time it began operating and until Nov. 6, 2011…”, with the main focus in relation to the issue of the common question being on the tortious conduct of the radio station during the period of the declared policy. I would recommend to my colleagues that this question be the focus of the lawsuit, and that the District Court not address questions that relate to the period of time after the beginning of the regulatory process, in which the two concrete instances of discrimination occurred. I would also recommend to my colleagues that we not intervene in the determination of the District Court that a “reasonable possibility” exists that the above question will be decided in favor of the members of the class.

 

(G)       Is a class action the efficient and fair means of deciding the dispute?

75.       As mentioned in the section dealing with the parameters of the discussion (paras. 26-29 above), I do not think that this decision is the appropriate place for a fundamental discussion of the extent to which class actions are appropriate for dealing with the range of cases of discrimination, particularly when the parties raised no arguments on point. The examination required, in accordance with the provisions of sec. 8(a)(2) of the Class Action Law, is whether under the circumstances, when deciding the case relies on the provisions of the Prohibition against Discrimination Law, “the efficient and fair means of deciding the dispute” is a class action. The case law has held that for the purpose of responding to this question it is possible to consider, inter alia, factors such as the size of the class and the extent to which deciding the questions common to all the members will help resolve the individual dispute between each of the members and the defendant. It is also possible to bring into the equation the advantages and the disadvantages of conducting a lawsuit by way of class action, as compared to the conducting of personal actions – “cost versus utility” (see LCA 2128/09 Phoenix Insurance Co. Ltd. v. Amossi [20], para. 19; Klement, Guidelines for Interpretation, at 125-146; Eran Taussig, Appeals in Class Actions, in Hemi Ben-Nun and Tal Havkin,  Civil Appeals  (3^rd ed.) 632 (Hebrew) (hereinafter: Appeals in Class Actions)).

76.       The District Court was of the opinion that in the present case, the advantages of conducting the lawsuit as a class action outweighed the disadvantages involved. It was mentioned, inter alia, that precisely because we are dealing with an “action the main cause of which is unlawful gender discrimination, on the basis of declared policy, and not on the basis of individual cases … there is an advantage to conducting it by way of a class action” (para. 103). It was added that the advantage of conducting the lawsuit as a class action in the circumstances of the case is particularly relevant “where there is a concern about various constraints on members of the class bringing a personal action” (ibid.), and that approving the lawsuit as a class action can realize the whole range of objectives that appear in the Class Action Law, inter alia because this will promote the interest of “enforcement of the law and deterrence against its breach” (ibid.), and because in this way, those women who were harmed will be able “to realize the right of access to the court, including those who find it difficult or who are afraid to turn to the court as individuals” (ibid.).

77.       I concur with the reasons of the District Court in their entirety, and I will further add that I did not find substance in the arguments raised by the radio station regarding its determinations. Thus, for example, the argument that the apparent “difference” among the members of the class means that there is no use in conducting a class action must be dismissed for, as stated, the spotlight in our matter must be turned primarily on the tortious conduct of the radio station. In this sense, the utility in adjudicating this tortious conduct in the framework of a class action far outweighs the utility of individual adjudications through personal lawsuits. In addition, I believe that in the present case, bringing a class action will prevent “erosion” of the rights of the potential plaintiffs in relation to some who, it may reasonably be assumed, would not turn to the courts for relief, so that by approving the class action the goals of deterrence and compensation will be achieved in a better manner than by other procedural means (See Alon Klement,  Overcoming the Advantages of a Single Defendant over Multiple Plaintiffs – The Class Action Device, 21 Mehkerei  Mishpat 387, 401 (2004) (Hebrew)). Moreover, as stated in the decision of the District Court, it is possible that it is the actual conduct of the lawsuit as a class action that allows for means of proof and relief that are not possible in personal actions (see a discussion in this context, although dealing with discrimination in the field of employment, in Alon Klement and Sharon Rabin-Margaliot, Employment Class Actions – Did the Rules of the Game Change? 31 Iyunei Mishpat 369, 410-415(2009) (Hebrew)).

78.       From between the lines of the application for leave to appeal, the argument emerges that apparently the class action is not appropriate in the circumstances of the matter due to the fact that the Second Authority acted on the regulatory plane. The uncertainty in relation to this point increases in view of the fact that the regulatory procedures indeed were productive. The answer to this argument is that the fact that the radio station mended its ways is indeed commendable, however, this does not constitute a barrier to an action for compensation relating to past wrongdoing. The fact that the radio station has made positive progress in the framework of the process of regulation, and that it (so it seems) is conducting itself lawfully at this time, does not immunize it from a suit for the wrongs it perpetrated in the past, even though, as stated, this may be taken into consideration in relation to the compensation. Moreover, as explained above, in the circumstances of the present case there is no dispute that on the legal plane, compensation for discrimination by virtue of the Prohibition against Discrimination Law may be claimed in the process of a class action, and the possibility that these and other bodies have of acting in different frameworks does not negate the possibility of receiving parallel relief  in the framework of class actions (as an aside, one may mention that in the United States, recourse has been made to class actions by plaintiffs who were harmed as a result of gender or racial discrimination – see Appeals in Class Actions, at 636; Brown v. Board of Education [37] – where the United States Supreme Court expressed its opinion that these cases of discriminatory policy, in the area of labor,  for example, are clear examples of cases that are inherently suited to being heard in the procedural framework of a class action: Amchem Products, Inc. v. Windsor [38]).  

79.       My conclusion, therefore, is that there are no grounds for intervention in the determination of the District Court that the class action is the appropriate means for conducting the present dispute, insofar as the period prior to the beginning of the regulatory process is concerned. As opposed to this, and as I explained above, with respect to the period of the particular instances of discrimination, I do not think that a class action is necessarily the efficient means of adjudicating the individual disagreements. As stated, these are two instances of concrete violations which, even if it is ultimately decided to litigate them, should not be adjudicated in the framework of a class action, but rather in the framework of personal actions brought by the women who were allegedly harmed, if they wish to do so. In summary, I shall recommend to my colleagues that even in view of the condition prescribed in sec. 8(a)(2) of the Law, there are no grounds for our intervention in the determinations of the District Court, except for the determination concerning the period of the particular instances of violation.

 

(H)  There are reasonable grounds to assume that the interests of all members of the class will be represented and conducted in an appropriate manner and in good faith

80.       Examination of compliance with these conditions, prescribed in secs. 8(a)(3) and 8(a)(4) of the Class Action Law, is marginal in the circumstances of the case, also in view of the fact that the parties hardly argued the point. In any case, in order to complete the picture I will mention that these conditions, too, have been met in the present case. In my opinion, Kolech has the required tools to conduct the class action in a manner that is suited to the needs of the members of the class, inter alia, in view of its professional familiarity with the field, and having regard also to the conclusion of the District Court which conducted the certification hearing. In addition, I do not think that the case before us gives rise to any concern about the action not being conducted in good faith (cf: CA 4534/14 Daniel v. Direct Teva Ltd., para. 5 [21]).

 

Conclusion

81.       No grounds have been found to intervene in the majority of the determinations of the District Court, nor in its final conclusion whereby the lawsuit is suited to being adjudicated as a class action both in its substance and in the manner in which it was submitted. In particular, no grounds have been found to intervene in the two central determinations according to which Kolech is an organization that is qualified to bring the class action by virtue of sec. 4(a)(3) of the Class Action Law, and there is apparent cause for bringing a class action under sec. 3(a) of the Class Action Law and item 7 of the Second Appendix to that Law.

82.       In view of what I have written above, I propose to my colleagues that we dismiss the appeal, subject to my comments in the framework of the discussion of the question of the harm and calculation of the compensation, and subject to my determination in the framework of the discussion of the issue of the questions common to the class, whereby in adjudicating the action, the District Court will not discuss the violations that occurred in the period of time after the commencement of the process of regulation (from Nov. 6, 2011 until Aug. 28, 2012). Consequently, the decision of the District Court will stand, except for the changes required by virtue of the above.

83.       I also recommend to my colleagues that we decide that the radio station bear the costs of the proceeding and the legal fees of the Kolech Organization, in the amount of NIS 50,000.

 

Justice E. Hayut

I concur in the conclusions reached by my colleague Justice Y. Danziger as stated in para. 82 of his opinion, and I would like to add a few comments.

1.         My colleague concluded that the respondent organization complies with the requirements of sec. 4(a)(3) of the Class Action Law in that it is an organization within the meaning of sec. 2 of the Law that engages, inter alia, in a public purpose that is central to the action, in the name of the class of women who have been harmed by the conduct of the appellant radio station.  Justice Y. Danziger is of the opinion that, as a rule, narrow and cautious interpretation should be employed in removing the procedural barriers placed by the said sec. 4(a)(3) in the path of organizations that wish to submit applications to approve class actions, for fear that lack of caution in this context is liable to increase both the scope of the phenomenon of groundless actions being brought, even in cases in which, prima facie, there is no difficulty in applications being submitted in the name of plaintiffs with personal causes of action (para. 32 of the opinion of Justice Danziger).  However, in the particular circumstances of this case, Justice Danziger found that the Respondent proved to the extent required that it would be difficult to find a plaintiff who had a personal cause of action against the Appellant, and he therefore held that the Respondent met the conditions of sec. 4(a)(3) of the Law, even according to the narrow interpretation that he supports (paras. 45-46 of his opinion).

2.         I, like my colleague, am of the opinion that the Respondent complied with all the threshold conditions specified in sec. 4(a)(3) of the Law, and I would add that there is no small measure of symbolism in the fact that an organization by the name of “Kolech” [translator’s note: “Kolech” means “your (female) voice”] should be the one standing in the front line of the class action on grounds of exclusion  and silencing of the women of the religious community who are among the listeners of the appellant radio station. With respect to symbolism, it should be mentioned that the name of the organization, like the name of the appellant radio station [translator’s note: “Kol BaRamah” means “A voice in Ramah”], are taken from our Jewish sources, and in both of these sources, the voice is that of a woman, the power and Jewish significance of which is indeed great. Thus we find in the Book of Isaiah 40:9: “O Zion, that bringest good tidings, get thee up into the high mountain; O Jerusalem, that bringest good tidings, lift up thy voice [kolech] with strength; lift it up, be not afraid”; and in the Book of Jeremiah 31:14, the voice in Rama is the voice of our matriarch Rachel who is weeping for her children, as it is written: Thus saith the Lord: “A voice was heard in Ramah [kol b’ramah nishma], lamentation and bitter weeping; Rachel, weeping for her children…”.

3.         The central objective that the respondent organization has inscribed on its banner, and which my colleague Justice Danziger discussed, is to pioneer a social and cognitive change on the subject of gender equality in the religious community in Israel. This objective is indeed consistent with the matter for which the Respondent sought certification of the class action, and therefore the District Court correctly found Kolech to be qualified as an organization, from this aspect, to serve as a voice for the class of women who are apparently harmed by the silencing policy adopted by the Appellant. I will further mention that on the level of principle, and unlike my colleague, I tend to the opinion that too narrow an approach in interpreting the threshold requirements of sec. 4(a)(3) of the Class Action Law is liable to detract from the power of the class action as an instrument for promoting public interests. The explanatory notes to the Class Action Bill noted that the law was being enacted in “recognition of the public role of the instrument of the class action for enforcing the law and … the desire to encourage the bringing of class actions which are of public importance” (Explanatory Notes to the Bill). One means that the legislature found for promoting the said objective is the flexibility that it adopted, inter alia, in the area of the laws of standing, in that, similar to the standing accorded to public petitioners in the High Court of Justice (HCJ 428/86 Barzilai v. Government of Israel  [22]; HCJ 910/86  Maj.(ret.) Ressler v. Minister of Defense [23]), and to a person who does not have a personal cause in the laws of tenders (CA 8416/99 E.I.M. Electronics and Computers (1999) Ltd. v. Mifal Hapayis [24]; CA 7699/00 Tamgash Management and Project Development Co. Ltd. v. Kishon River Authority [25], at 883), in the Class Action Law, too, standing is accorded to a wide range of bodies that are active in the promotion of public purposes, allowing them to submit applications for certification of class actions; these include public authorities (some of which, like the Israel Consumer Council, achieved a similar status by way of concrete legislation that preceded the Class Action Law. See: Chap. 6.1 of the Consumer Protection Law, 5741-1981, which was repealed in sec. 33 of the Class Action Law), and organizations as defined in sec. 2 of the Law.

4.         The flexibility in relation to formal-procedural requirements that the legislature adopted in this area of class actions as opposed to regular actions, emphasizing the substantive analytical criteria, also finds expression in sec. 8(c)  of the Law, according to which it is possible to replace the representative plaintiff, and in secs. 20(a)(3) and 20(c) of the Law in which the legislature departed from the normal rules of damages in torts. All this was for the purpose of realizing the rationales and the objectives underlying the institution of the class action as an effective instrument of civil-public enforcement (on this, see my article, The Class Action as a Means of Civil-Public Enforcement 19 Mishpat ve-Asakim (forthcoming, 2016).)

 

Justice D. Barak-Erez

1.  I concur in the judgment of my colleague Justice Y. Danziger, and with the comments of my colleague Justice E. Hayut. Nevertheless, I would like to relate briefly both to the procedural question of bringing a class action by means of an organization, and to the substantive issue of the exclusion of women that underlies it all, in general, and in this case, with its special characteristics, in particular.

 

Bringing a Class Action by Means of an Organization and the Special Difficulties of Action within the Community

2.         Under the Class Action Law, bringing an action by an organization whose objectives comport with those of the action is made conditional, inter alia, on the Court being “satisfied that – under the circumstances of the case – it would be difficult to submit the application in the name of a person…”.  Here, the Law expresses its known preference for a specific injured party standing before the court in order to enable the court to form an unmediated impression of the injury. Nevertheless, it is important to note that the Law makes do with it being “difficult” in to bring the action in the name of a person. The bar that the Law sets on this matter is not low, but neither should it be too high. Indeed, it is normally to be expected that an organization that seeks to sue will show in a concrete manner that attempts were made to bring the action in the names of individuals. At the same time, there may be exceptions to this rule, and in any case its implementation must take into consideration the context and the concrete circumstances of the matter. As a rule, recognition of the power of organizations to bring class actions is one of the innovations of the Class Action Law (see: Steven Goldstein, Comments on the Class Action Law, 5766-2006 6 Alei Mishpat 7, 17-18 (2007) (Hebrew)), and overly-high barriers that would cause a reversion to the approach that prevailed prior to the passage of the Class Action Law ought not to be erected in this context.

3.         More specifically, I am of the opinion that weight should be attributed to the legislative recognition of the fact that bringing an action for discrimination against the members of a weak class involves, by its very nature, a “difficulty”. Several of Israel’s laws dealing with equality, and particularly the Prohibition against Discrimination Law, recognize the right of action of an organization that deals with protection of the rights of a person against whom it is prohibited to discriminate. These constitute exceptions to the regular tort laws. Section 7(a) of the Prohibition against Discrimination Law prescribes as follows on this matter:

               An action in tort under this Law may be brought by a corporate body that engages in the protection of the rights of a person against whom it is prohibited to discriminate under this Law, provided that if the cause of action is discrimination against a particular person, that person has agreed thereto.

Similar provisions may be found in additional laws that are concerned with equality (see, e.g.: sec. 19(53) of the Equal Rights for Persons with Disabilities Law, 5758-1998). These provisions are powerful witnesses to the statutory assumption as to the existence of a difficulty in bringing an action for discrimination when the potential plaintiff belongs to a class that suffers from social weakness.

4.                                                            The above applies with even greater force when already at the preliminary stage of submitting the application for approval of the action as a class action, confrontation is expected between the plaintiff and the social/communal class with which s/he is affiliated. This does not come out of nowhere. In effect, the position adopted by the Respondent regarding the fact that its spiritual leadership supported not putting women on the air, i.e., that this is a policy that had the support of the rabbis –  the leaders of the community – attests in itself to the difficulty inherent in an identified representative plaintiff coming forward. In such a situation, the accompanying social barriers are in the category of res ipsa loquitur.  Moreover, this is not the first time that this Court has been called upon to consider situations of separation between men and women in the public domain. After the commencement of the deliberations in the petition against the separation on the “Mehadrin bus lines” in HCJ 746/07 Ragen v. Ministry of Transport [3], a public committee was convened to discuss the matter (The Committee to Examine Transportation Arrangements on Public Transport on Lines that Serve the Haredi Sector – Concluding Report (2009)). In its report, the Committee discussed women who objected to separation, while careful to preserve their anonymity (they were referred to as G. and H.). As opposed to this, religious women who supported the separation appeared before the Committee and were identified by  their personal and family names (pp. 25-26 of the Report). As such, it is precisely when the subject under discussion is the voice that is not given to women within the community that the path to their being given a voice should not be blocked, even if that path is being paved by an organization. More generally, the justification for allowing the action to be brought by means of an organization, for the purpose of protecting rights, increases when such an action helps in giving a voice to all the members of the class. In other words, bringing a class action by means of an organization in order to help those who belong to the community and are interested in remaining affiliated with it is a means of giving a voice to those whose voices are not heard.

5.         On a more general level, it seems that the “bar” that the organization must reach in order to satisfy the Court that it took sufficient steps to ascertain that there is a difficulty in bringing the action by means of a flesh and blood person must also take into account the costs involved in taking such steps, in order not to place obstacles that are too great in the path of the representative plaintiffs, having regard to the context of the particular action. The application for approval of a class action must, in any case, meet a certain level of requirements, which is not marginal (see: LCA 3489/09 Migdal Insurance Co. Ltd. v. Zevulun Valley Metal Plating Ltd., para. 13 of my judgment [26];  AA 980/08 Menirav  v. State of Israel – Ministry of Finance para. 13 [27]). These are joined by additional conditions with which an organization that wishes to act as a representative plaintiff must comply (see para. 41 of the judgment of my colleague). Against the background of all these, I agree with the comments of my colleague Justice Hayut that it is not appropriate to overburden the organization that seeks to act as a representative plaintiff. One might add that at the stage following certification of the class action, too, the Respondents still have the opportunity to try to prove that – as they contend – the number of women who in fact identify with the claim of discrimination on which this action is based is not large. This question ought to be decided at the stage of adjudicating the action itself.

 

The Characteristics of Exclusion of Women in the Present Case: Discrimination and Silencing

6.         I agree wholeheartedly with the apt and incisive words of my colleague Justice Danziger regarding the harm done by the exclusion of women, and in fact, of any class, from the public domain. Such exclusion is by its very nature a type of discrimination. To this it must be added that the present case is particularly grave due to the fact that the exclusion also involves silencing. As my colleague explained, full participation in the modern world of communications includes the element of active involvement in the opportunity to “be heard” and not only the passive component of “hearing”, just as full participation in the democratic process means not only the right to vote but also the right to be elected. In this sense, the discrimination in this case is harmful not only to equality, but also to freedom of expression in its full sense, having regard to its various objectives (both from the aspect of self-realization of women who are prevented from expressing themselves in the public arena, and from the aspect of their potential contribution to the public discourse).

7.         On a wider view, the “shock waves” of  exclusion such as in the present case potentially impact not only the women who listen to the broadcasts of Kol BaRamah and those among them whose path to participation in the broadcasts is blocked. Prevention of participation of women in the broadcasts contributes to impressing and “transcribing” a constitutive world view upon all the listeners of the radio station, both men and women, and there may well be even wider ramifications. This acquires even greater significance in view of the fact that the modern communications reality has a significant role in the way in which we perceive the world (see: Mike Feintuck and Mike Varney, Media Regulation, Public Interest and the Law 1 (2^nd ed., 2006).

8.         The exclusion of a particular class from the public discourse harms not only the excluded class, but also the discourse itself. The “marketplace of ideas”, which is so important, will not express all the positions and the different variations in society when participation in this marketplace is limited in advance, or when the effective means of participation is blocked. Society as a whole loses as a result. In view of these undesirable ramifications of exclusion for other classes – over and above the class included in the class action – as well, it would appear that recourse to the device of class action is especially suitable here. It is well known that recourse to this procedural device, not only in the context of the concrete case before us, creates positive externalities for the wider public, and not merely for the class represented by the representative plaintiff (see: Guy Halfteck, A General Theory Regarding the Social Value of Class Actions as a Means for Law Enforcement, 3 Mishpat veAsakim 247, 269, 287-289 (2005) (Hebrew); William B. Rubenstein, Why Enable Litigation? A Positive Externalities Theory of the Small Claims Class Action, 74 UNKC L. Rev. 709, 720, 723-725 (2006)).

9.         Finally, the harm involved in excluding women in this case is even more marked in view of the special purpose of granting concessions to specialized television channels and radio stations: the encouragement of pluralism, and to hear and make heard the variety of opinions and classes in the population (see: HCJ 7200/02 D.B.S. Satellite Services (1998) Ltd. v. Council for Cable and Satellite Broadcasts  [28],  at 37, 47); HCJ 6792/10 D.B.S. Satellite Services (1998) Ltd. v. Israel Knesset, para. 58 [29]).

 

Extent and Weight of the Obligation Involved in Exclusion

10.       My colleague Justice Danziger discussed the distinction between the religious norm that mandates or justifies adopting differential treatment of women and a religious norm that merely allows this, and he added that since in what is involved our case is not a binding norm but the enhancement of a precept, the weight of the religious argument here is reduced. My colleague did not base his decision on this distinction (as explained in para. 55 of his opinion). Nevertheless, I wish to address this distinction, due to its extensive discussion in my colleague’s opinion, even if it was over and above what was required. I will begin by saying that I agree that the distinction between a binding norm and an enabling norm is important, but I would add that in cases similar to that before us, it is better not to base a decision on it. First, the answer to the question of whether the practice of separation is an “obligation” or an “enhancement” is liable to be controversial, and the Court ought not to be the arbiter on this question. Second, and more importantly, we must bear in mind the possibility that there may be strict religious approaches that view separation or total exclusion of women from the public sphere as a real obligation. In my view, even if this were the case, it would not be right to accord this consideration precedence in those cases in which the violation touches the core of the right to equality (in the spirit of para. 56 of my colleague’s opinion).

11.       In effect, the matter may be presented as follows: when the practice of separation and exclusion does not stem from a binding religious norm, but from a desire to enhance a precept, the weight that must be attributed to following this practice as against protection of the right to equality should be relatively low. However, the opposite conclusion should not be derived from this, namely, that when the practice of separation and exclusion stems from a binding religious law, it ought to take precedence over the right to equality for that reason alone.

 

Between the Private and the Public

12.       I wish to address an additional aspect relating to the “placement” of the present case on the continuum between the private and the public. The cause of action is grounded in the Prohibition against Discrimination Law, which also applies to use of resources, for which there is no formal limitation as to number or extent beyond the constraints resulting from market conditions (such as businesses of various types). At the same time, the cause of action acquires added power and gravity when the exclusion involves activity to which access is limited from the outset, and which is therefore monitored and regulated by the state. In such cases, in which the activity belongs to some extent or another in the “public” arena as well, the weight of the claim of exclusion is even greater, as is the harm. An example of use of a resource of this type is found in the area of public transport (see: HCJ 746/07 Ragen v. Ministry of Transport [3]). Similarly, a broadcast on a radio frequency constitutes a clear use of a public resource which is even subject to quantitative limitations (see: HCJ 1030/99 Oron v. Speaker of the Knesset [30], at 651). It is therefore important to emphasize that this case does not involve intervention in an internal communal area, but rather, it involves fashioning the face of the public sphere – a fact that adds to the justification for certifying the class action.

 

A Final Word

13.       “A voice is heard in Ramah” – may that also be the voice of Rachel.

 

Decided as per the judgment of Justice Y. Danziger

27 Kislev 5776

9 December 2015

 

 

 

 

 

 

LFA 3151/14

 

           

 

Applicant:                   A

 

                                    v.

 

Respondent:                B

 

                                   

                                   

                                   

           

 

Attorneys for the Applicant:   Doris Golsha-Netzer, Adv.; Roy Ashkari, Adv.

                                     

 

Attorney for the Respondent:             Maxim Lipkin, Adv.

 

 

                                   

The Supreme Court

 

Before: Deputy President E. Rubinstein, Justice Z. Zylbertal, Justice D. Barak-Erez

 

Application for Leave to Appeal the judgment of the Tel-Aviv District Court of March 23, 2014 in FA 21043-02-1311 (Deputy President I. Schneller, and Judges K. Vardi and R. Levhar-Sharon)

 

 

 

 

Abstract

 

In a majority opinion (E. Rubinstein D.P. and Z. Zylbertal J.), the Supreme Court held that the family courts may limit the period of payment of spousal support to a woman due to her refusal to accept a get [Jewish religious divorce], even in the absence of a divorce order by the Rabbinical Court. As an operative outcome, the appeal was granted, as it was held by majority (D. Barak-Erez and Z. Zylbertal J.,) that, under the circumstances, the court should not have set a time limit for the payment of the Applicant’s support.

 

*Family – Spousal Support – Recalcitrant Spouse

*Family – Spousal Support – Right to Spousal Support

*Family – Spousal Support – An Unemployed Woman

*Family – Spousal Support – Rehabilitative Support

 

An application for leave to appeal a judgment by the District Court concerning the fixing of a time limit for spousal support awarded the Applicant despite the fact that the Rabbinical Court did not rule that she is a ”recalcitrant wife”. The application was heard as an appeal.

 

Background: The parties were married to each other for over 35 years. The Applicant was rarely employed outside the home during the marriage, and the Respondent was the sole supporter. The parties have been separated since 2011, and have conducted various legal proceedings related to the separation – divorce proceedings, proceedings concerning the woman’s right to support, and proceedings concerning the division of the family assets. Both the Family Court and the District Court believed the Applicant should be awarded support for a fixed period of time. In the course of the proceedings, the Court addressed the question of whether the Family Court could revoke a woman’s support due to her “get recalcitrance” in the absence of a decision by the Rabbinical Court ordering her to accept a get, and in the absence of a positive finding that the couple’s marriage had come to an end. What are the considerations that the Family Court must take into account when it is requested to fix a time period for support, or revoke the support of a married woman who it believes is refusing to agree to a divorce for financial reasons?

 

The Supreme Court (per D. Barak-Erez J., Z. Zylbertal concurring with the operative outcome, over the dissenting opinion of E. Rubinstein D.P.) granted the appeal:

 

In Justice Barak-Erez’s view, the principle of comity between courts required the civil court’s restraint and thus, in her opinion, as long as the couple’s divorce proceeding is pending in the Rabbinical Court, the civil court may not base its ruling on spousal support upon “get recalcitrance” in the absence of an appropriate finding by the Rabbinical Court on this issue. Justice Barak-Erez added that this conclusion stems not only from the principle of comity between courts, but also from the Jewish religious law that applies to this case, which dictates that revoking the right to spousal support in a case of a divorce obligation must be accompanied (based on many opinions) with supplemental steps that are under the exclusive jurisdiction of the Rabbinical Court, and which require the active involvement of the Rabbinical Court (entrusting a get [Jewish bill of divorce] and the financial obligation required under the ketubah [Jewish marriage contract] to a third party).

 

In her opinion, the  means at the disposal of the civil court for addressing the phenomenon of “get recalcitrance” deriving from financial motivations, is through awarding “rehabilitative” support under the general principles of the civil law (on the basis of the principles of reliance and good faith.) Of course, since these are “civil” principles, they would also apply, mutatis mutandis, to a divorcing man under these very same conditions. In her opinion, it is possible to award rehabilitative support under civil law only where the partner is no longer entitled to support under the personal status law, and this at two points in time: “when before the divorce is granted, there is cause for revoking support; or after the granting of the divorce has extinguished the right to support.” The central factor that must be considered in order to determine wither one of the partners is entitled to rehabilitative support, and its amount, is the prospect for alternative sources of income. Therefore, the questions of the home-based partner’s vocational or professional training and work experience, age (including how close they are to the age of retirement), the value of the couple’s property  and whether it has already been divided, are of importance.  On the other hand, considerations of fault as to the responsibility for the separation are not relevant.

 

As applied to the matter before the Court, Justice Barak-Erez was of the view that the appeal must be granted, and that as long as there is no change in the couple’s circumstances, including the circumstances surrounding the proceedings in the Rabbinical Court, the Respondent must continue to pay the Applicant support as decided by the Family Court, without setting a termination date.

 

As opposed to this, the Deputy President, joined by Justice Zylbertal, disputed Justice Barak-Erez’s position regarding jurisdiction. In their view, under the principle of good faith, the civil courts may revoke a married woman’s spousal support when they are persuaded that the marriage has effectively ended and that the woman refuses to accept her get solely for financial reasons, even in the absence of a finding by the Rabbinical Court that the woman is required to accept the get. The Deputy President explained that often the civil court is called upon to make incidental findings that are required for the determination of the issue of spousal support and property matters that are in its primary jurisdiction (section 76 of the Courts Law.) According to the Deputy President, a civil court’s finding whereby a woman loses her spousal support for being a “recalcitrant spouse” does not lead to the end of the marriage in the Jewish halakhic sense, and does not conflict with the principle of comity between courts. The Deputy President added that he did not rule out the method proposed by Justice Barak-Erez as to the awarding of rehabilitative support in appropriate cases, however in his view, it is a tool in the Family Court’s “toolbox”, which is to be used according to the circumstances of the case in order to resolve the issue of alternative sources of income (while noting other tools, such as an unequal division of resources.)

 

According to the Deputy President, under the specific circumstances of the case at hand, and once the lower courts, including the Rabbinical Court, were persuaded that the marriage had come to an end, and that the Applicant is delaying the divorce only to improve her financial circumstances, the Family Court, and subsequently, the District Court, correctly fixed the period of support payments, and the District Court’s approach which met the Applicant more than halfway, is acceptable. Therefore, in his view, the appeal must be denied. At the end of the period set (December 2014), the possibility to extend the period of support payments would be revisited.

 

Justice Zylbertal, who, as noted, concurred with the view of the Deputy President on the matter of jurisdiction, concurred with the view of Justice Barak-Erez as to the operative result, whereby the appeal must be granted.

 

In Justice Zylbertal’s opinion, the considerations the court must take into account before revoking a woman’s support due to “get recalcitrance” are, inter alia: what is the reason for the refusal – personal vindictiveness or extortion, or a lack of sufficient financial protection for the financially weaker partner upon divorce, and the woman’s ability to continue to support herself after the divorce. In this context, the court must examine the woman’s ability to secure an income, and to this end, it should also consider her age, her share in the husband’s pension, and when she will be entitled to receive her share of those funds.

 

According to Justice Zylbertal, in the circumstances of this case, it is inappropriate to fix a timeframe for the Applicant’s support, both because her delaying of the divorce is not necessarily the result of vindictiveness or extortion, that is – not a lack of good faith that warrants fixing the period of support – and in light of the understandings that characterized the couple’s marriage, the Applicant’s age (over 50), and her prospects of integrating into the workforce during the short adjustment period left until the partners reach the age of retirement.

 

It should be noted that, in addition to the above, the members of the panel briefly discussed an issue related to the matter at hand – the possibility of awarding financial compensation in cases of get recalcitrance in the framework of a tort suit.

 

 

Judgment

 

15th Iyar 5775 (May 4, 2015)

 

Justice D. Barak-Erez

 

1.A married couple are  separated and conducting various, related legal proceedings – divorce proceedings, proceedings regarding the women’s right to spousal support, and proceedings regarding the division of the family property. Under the circumstances, was the Family Court correct in granting the woman spousal support for a fixed period of time, after which the woman would no longer be entitled to support, even if the couple do not divorce? This is the central issue at bar. Its determination raises additional questions, among them: can the Family Court rule that, for the purpose of deciding spousal support, a woman may be deemed a recalcitrant spouse even if the Rabbinical Court refrained from making such a finding in the course of the divorce proceedings between the parties? To what extent may the Family Court consider the fact that the woman lacks the capacity to earn an income, and may it refrain from awarding her spousal support even if she is entitled to such support under the personal-status law, because the couple are about to divorce, or because the Court is under the impression that the woman is a recalcitrant spouse?

 

The Factual Background and the Proceedings thus far

 

2.The Applicant and the Respondent (hereinafter: “the couple” or “the partners”) married in 1976. They are parents to three children, and grandparents to eight common grandchildren. Throughout their marriage, the Respondent worked for a large public corporation, while the Applicant ran their household. The Applicant worked outside of the home for only short periods of time. The couple own a house (hereinafter: the house) to which an additional residential unit is attached, and which is still under mortgage (though its amount is currently insignificant compared to the value of the house.)

 

3.In 2011, a dispute erupted between the partners. About a year and a half before the conflict started, the couple moved into a rental apartment in Holon, and rented out the house they owned, as well as the attached residential unit (which was rented when they resided in the house as well.) In July 2011, as a result of their dispute,  the Respondent left the apartment in Holon where the two resided.

 

4.On August 15, 2011, the Applicant filed suit in the Family Court for support for herself and for the couple’s youngest son, who was a minor at the time (FC 24331-08-11). As we will explain below, this was the suit that led to the application at bar.

 

5.Pursuant to that, several additional suits were filed between the parties. On the same day, the Applicant filed a suit for orders to preserve property rights and for accounts (FC 24358-08-11). On November 16, 2011, the Respondent filed for divorce in the Rabbinical Court, and later filed suit for a division of community property in the Family Court (FC 39732-11-12.) In the course of that proceeding, the Applicant argued that, under the circumstances, the couple’s property should be divided unequally, in view of the fact that she lacks any sources of income, and this under the court’s authority under section 8(2) of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Property Relations Law). On February 24, 2013, the Family Court ruled that if the Applicant wishes to request a remedy of unequal property division, she must file the proper suit. Accordingly, on March 18, 2013, the Applicant filed a suit for resource balancing (FC 33489-03-13,) in which she requested that the balancing of resources deviate in her favor from the principle of equal division (so that she will receive 80% of the community property,) and that it additionally be held that a second apartment that the Respondent inherited from his father is a property subject to resource balancing.

 

6.On September 27, 2011, the Applicant moved out of the Holon apartment and back into the house. On January 4, 2012, the Applicant filed a suit for reconciliation with the Rabbinical Court, and was granted an order for specific residence in the house.[1] 

 

7.On December 12, 2012, the Family Court delivered its decision in the suit for support (FC 24331-08-11, Judge J. Shaked). The Family Court held that, in this case, the traditional grounds recognized in Jewish law for ruling that the wife lost her entitlement to support were not proven. However, the Family Court added that it would seem that the partners lead separate lives, they both view their marriage as having reached a crisis, and that the marital relationship between them had “died”. The Family Court further held that in this regard that when a “dead” relationship is concerned, there is no justification for preserving it by awarding the woman support. The court also noted that awarding support is subject to the good-faith requirement (referencing LFA 3148/07 A v. B (June 13, 2007) (hereinafter: LFA 3148/07)). Therefore, the court held that for the purpose of the proceedings in regard to support, the court should take notice of the Applicant’s refusal to divorce the Respondent “artificially, in order to gain advantages in the legal proceedings between them,” as well as the fact that the Applicant was deliberately delaying the division of common property in regard to the house (which is valued at about two million shekels), as well as the resource balancing between the couple, by moving into the house and even obtaining an order of specific residence (that was still in effect at the time). The Family Court found that, under the circumstances, obstructing the sale of the house by the Applicant was inconsistent with the good-faith requirement.

 

8.In ruling on spousal support, the Family Court took into account the Applicant’s behavior, on one hand, while also noting her age (over fifty), the fact that she had not worked in more than three decades during the marriage, as well as the family’s lifestyle, on the other hand. Against that background, the court ruled that spousal support in this case should be awarded only for a fixed period of time. The Family Court explained that awarding spousal support for a fixed period would ensure legal certainty to both parties so that they might plan their next steps and will be more emotionally and financially free to negotiate and reach an agreement that would end their relationship.

 

9.After examining the Applicant’s expenses, the Family Court ordered spousal support in the amount of NIS 5,650 per month (assuming that she was paying the mortgage on the house), or in the amount of NIS 3,500 (if she was not paying the mortgage), for a fixed period of 24 months from the day the suit was filed, that is until July 15, 2013. Additionally, the Family Court dismissed the Applicant’s suit for support of their son, who was a minor at the time the suit was filed, because the claim was not adequately proven, and considering that at the present time he was already serving in the IDF and did not exclusively reside in the Applicant’s home.

 

10.The Applicant appealed the Family Court’s ruling on spousal support to the District Court  (FA 21043-02-13, Deputy President I. Schneller, and Judges K. Vardi and R. Levhar-Sharon.) On March 23, 2014, the District Court granted the Applicant’s appeal, but only in regard to the date set for the period of support. The District Court held that it was appropriate to fix the period of the Applicant’s support, subject to setting a later date for ending the period during which the Respondent must pay it, as detailed below.

 

11.The District Court ruled against intervening in the amount of the support set by the Family Court, as it was based on factual findings, and limited the discussion before it to the general issue of the possibility of limiting the period of support payment and its resolution in the specific case.

 

12.The District Court noted that the premise for discussion must be that a woman’s support is based on personal status law. At the same time, the District Court reviewed the case-law developments in regard to taking account of the woman’s income prospects in deciding the amount of support, as well as the circumstances of the case (including the length of the marriage and the circumstances of the separation), and the approach that the awarding of support must be subject to the principle of good faith and public policy. As a result, the court noted that where there is “get recalcitrance” by the woman, this would affect her support, while examining whether this should be reflected in the amount or in denying right to support altogether. The District Court commented that denying a woman support on grounds other than religious law ought to serve as a legal tool for overcoming get recalcitrance, and as an incentive for the parties’ divorce, similar to the developments that had taken place in regard to tort claims for get recalcitrance.

 

13.The District Court went on to specify the factors that must be taken into account in considering a woman’s right to spousal support when she is a “recalcitrant spouse.” In doing so, the District Court considered the following factors, without exhausting the list: the primary reason for refusal – is it a result of a desire to continue to receive support, or a result of other proper reasons; the length of the marriage and its quality; the party at fault for delaying the divorce, and the Rabbinical Court’s findings in this context; the lifestyle prior to the separation, including the issue of the woman’s employment and her ability to secure an income compared to that of the husband; and the issue of whether the property matters between the couple had already been resolved. The District Court emphasized that denying the woman support is not a “penalty” and thus, the court must ensure that she has financial resources even when she is refusing the divorce. Additionally, the District Court emphasized that denying the right to support, or reducing it, is based on the principle of good faith – which is not a “one way street” – and thus the husband’s behavior is also important and should be examined from a broad perspective.

 

14.The District Court addressed the Family Court’s finding that, in this case, the woman refuses to arrange the divorce, although the Rabbinical Court did not make such a finding, and decided to intervene in that finding. The District Court addressed that fact that the couple had been married for over 35 years, and the Respondent is the one who elected to leave the family home. Therefore, this is not a case of get recalcitrance, particularly when the Family Court refrained from addressing the circumstances around the husband’s leaving. Additionally, the District Court noted that the Applicant was permitted to demand that the property matters be settled before the divorce, and that in light of the fact that there are financial resources of which the Applicant is entitled to part, a situation in which the Respondent enjoys these resources whereas the Applicant must wait for her share is unacceptable. Additionally, it was held, that even were it appropriate to set a limit to the period of support payments, it would have been appropriate to allow the Applicant a longer period in order to get “organized” for the future. This is because the result of the decision by the Family Court could have been that the Applicant would be compelled to agree to any demand presented to her in regard of the financial and property matters.

 

15.The District Court addressed the fact that the Respondent is expected to retire from his job in several years, and that at that time, the Applicant will be entitled to her share of his pension. On the other hand, the District Court considered the fact that the Respondent’s own entitlement to his pension had not yet materialized. The District Court held that it, indeed, would appear that the couple’s marriage had come to an end, but this finding alone, and the fact that the Applicant was granted an order for specific residence, are insufficient for denying her support considering the other circumstances. Ultimately, the District Court ruled that the date for the  expiration of support would be delayed for a period of three years from the date the Family Court handed down its decision, that is until December 31, 2015, or until the date when the Applicant would start receiving her share in the Respondent’s pension rights, according to the earlier of the two.

 

16.To complete the picture, it should be noted that the order for specific residence awarded by the Rabbinical Court was revoked in its decision of October 14, 2013. The Rabbinical Court noted the civil court’s impression that the marital relationship between the partners had expired, and that the Applicant was not interested in reconciliation. The Rabbinical Court recommended that the couple negotiate in order to end the marriage.

 

17.It should further be noted that on March 12, 2015, decisions were handed down in the two suits filed by the Applicant – for preserving property rights and for resource balancing (FC 24358-08-11 and FC 33489-03-13.) As mentioned, in the course of her suit for resource balancing, the Applicant requested that the property be divided unevenly so that 80% of the property would be handed over to her and only 20% would be awarded the Respondent, under section 8(2) of the Property Relations Law. Additionally, she requested the rights to the apartment that the Respondent inherited from his father. The Family Court was presented with an accountant’s report which pointed to two options for balancing the resources between the parties – one based on the current value of the rights, including the pension rights the Respondent had accrued, and the other based on the date the rights are to be realized. Under the latter option, the Applicant would receive most of the payments to which she is entitled through a monthly allocation of a fixed portion of the Respondent’s pension payments, each, once he retires. The Family Court rejected the Applicant’s claim that the resources be unevenly divided in her favor, as well as her claim to include the apartment inherited by the Respondent as property subject to resource balancing. In effect, it was held that the resource balancing would be even, according to the second alternative presented in the expert opinion, that is, in accordance with the date the pension rights would actually materialize. The Family Court added that it was under the impression that the Applicant was obstructing the divorce and refused to accept a get from the Respondent. As a result, the court held (referencing sections 5(c) and (d) of the Property Relations Law) that for the time being, the Applicant would be entitled to a sum of about NIS 73,000 unconditionally, while the remainder of the sums would be awarded her only later, subject to settling the divorce or any other decision by the Family Court. It was also decided that the Applicant bear the Respondent’s costs in the amount of NIS 59,000. The Applicant informed us that she intended to appeal the judgment. Needless to say, we are not concerned with this, and only mention it to complete the picture.

 

18.We would further add that in the course of the suit for dissolving the common property, and after the Rabbinical Court revoked the order for specific residence, the Family Court ordered to dissolve the community property rights in the house owned by the parties, and appointed the parties’ attorneys as receivers (FC 39732-12-11, decisions dated February 24, 2013, February 25, 2013 and April 14, 2013). Additionally, at the parties’ request and with their consent, a property appraiser was appointed on March 26, 2014, in order to prepare an appraisal of the house  for its sale.

 

The Application for Leave to Appeal

 

19.The application for leave to appeal before us challenges the District Court’s decision in regard to fixing the period of the Applicant’s support. The Applicant focuses her arguments on the fact that the District Court elected, despite the considerations it detailed, to terminate her support at the end of 2015, a date which she maintains is “speculative.” According to the Applicant, the District Court’s decision raises a fundamental question as to the Family Court’s authority to set a fixed period of time for spousal support in order to induce the parties to divorce, a decision which effectively denies the woman support contrary to the personal status law that applies to the parties, and despite the fact that the Rabbinical Court did not find her to be a recalcitrant spouse. In the Applicant’s view, this is a novel decision that provides the Family Court with new tools to compel parties to divorce.

 

20.On the merits, the Applicant maintains that, under the circumstances, her husband must be obligated to pay her support without an end date, and all subject to future developments (including the Respondent’s retirement in about five years time). The Applicant emphasized that she was married to the Respondent for over 35 years, during which time she did not work. She argues that she is currently over 56 years old, she is incapable of working and producing her own income, so that her entitlement to support is essential for her livelihood until she begins to receive her share in the Respondent’s pension in a way that ensures her continual income.

 

21.On the other hand, the Respondent argues that the request fails to invoke any special legal issue that warrants granting leave to appeal. He claims that the District Court ”was very gracious toward the Applicant”, in light of her unreasonable financial demands – demands which he believes hinder the resolution of the conflict by creating an “artificial delay” of the process. The Respondent adds that had the Rabbinical Court panel deciding the case not been substituted, their divorce decree would have been granted long ago.

 

22.The Respondent additionally claims that the Applicant’s conduct and her persistent refusal to accept a divorce in the Rabbinical Court, as well as deliberately delaying the hearings there, in stark contrast to her vigorous activity before the civil courts, should have been considered as bad faith that justifies revoking the support. The Respondent further argues, while addressing the unfolding of proceedings between the parties, that the lower courts examined the proceedings between the parties, as well as the factual circumstances, reviewed extensive evidence and made factual findings in which we should not intervene.

 

23.On May 5, 2015, a hearing on the Application was held before us. In the course of the hearing, the parties provided updates as to the ongoing proceedings between them in the various courts.

 

24.For her part, the Applicant insisted that the Rabbinical Court decided, on March 16, 2015, that her actions did not justify ordering a get, and rejected the Respondent’s request that she be required to divorce. The Rabbinical Court’s decision noted that, in accordance with the Applicant’s declaration, she is willing to live with the Respondent, and it was possible to end the case with the Applicant’s consent to divorce while granting her appropriate and reasonable compensation.

 

25.During the hearing, the Respondent updated us that, in the meantime, a decision was handed down by the Family Court in regard to the division of property between the parties, in the course of the Applicant’s suit for resource balancing. Additionally, the parties updated us that the house has yet to be sold, and that they still await the appraiser’s report on the matter.

 

26.At the end of the hearing, we instructed the parties to submit briefs on the question of whether it is permissible to fix the time period for support during the marriage.

 

27.On May 31, 2015, the Applicant submitted her brief. In her brief, the Applicant explained that requiring the Respondent to pay support stems from the personal status law that applies to them, which is Jewish religious law, which obligates the man to support his wife until the end of their marriage in divorce. The Applicant added that there is no obligation for a woman to work outside the home in order to be entitled to support, where she had not worked before and is unable to meaningfully produce an income, as in her circumstances. The Applicant notes further that there are no grounds to deny her support under the personal status law, and neither is there justification in her case to reduce the support or deny it for lack of good faith, which puts her in an impossible situation wherein she will remain without any source of income for several years until she becomes entitled to her share of the Respondent’s pension payments. The Applicant further argues that, in principle, there is no decision by this Court that has approved the denial or fixing of the term of support for a woman who is not working, is unable to produce an income, and is completely dependent on her husband for her livelihood.

 

28.On June 6, 2015, the Respondent filed his brief. The Respondent addressed a husband’s obligation for support under Jewish personal status law, but noted that the case-law balances these obligations against the principle of good faith, and created pragmatic rules to suit the changing times. Through good faith, he argued, the courts tend to reduce or deny support in general, and spousal support in particular, when necessary, as was done in this case, where the court is under the impression that the suit for support was designed merely to create “artificial pressure” in the property negotiations between the parties. The Respondent maintained that it is, indeed, common for family courts to fix the period of support, and that this approach can also be found in the writings of halakhic decisors. In this context, the Respondent presented the view of Rabbi Shaul Yisraeli  (Responsa Mishpatei Shaul, 5) according to which a man is not obligated to support his wife unless she is with him, “and if she leaves, there is no justification for this [halakhic] regulation as all”. It was also argued that the District Court’s decision is pragmatic and eliminates the need for additional deliberation on the issue of the amount of support and setting the date for its termination, as well as practices of investigations and surveillance of the woman in order to determine the extent of her expenses. The Respondent added that the courts’ approach as to fixing the term of a woman’s support is rooted in rehabilitative support awarded a common-law wife based on general contract law. It was thus argued that where the religious law discriminates against a man compared to a woman, its discriminatory instructions to this effect must be interpreted narrowly. One way of doing so may be fixing the period for support, as was done in this case. Additionally, it was argued that the approach adopted in the  case-law of the family courts is to prevent artificial continuation of the marriage where it no longer exists, and that, in this case, that approach should effectively have led to the denial of support altogether.

 

Discussion and Decision

 

29.After hearing the parties’ arguments, we are convinced that the law requires granting leave for appeal in this case, and we have decided to hear the application as if an appeal had been filed with the leave of the Court. The issue of fixing the period for a man’s support payments to his wife during their marriage is a new question that relates to the intersection between civil family law and the personal status law, as well as the “synchronization” between the decisions of the religious courts (in our case, the Rabbinical Court) and the rulings of the Family Court. In the background, as I will explain below, are additional questions touching on the financial survival of a partner who relies on the marriage in terms of income, considering, inter alia, that under Jewish religious law a woman is not entitled to support after the divorce (but without restricting the discussion in this context only to women, as opposed to men, who depended on the marriage in a manner that impacted their ability to produce an income). For the purposes of examining the question before us, I shall begin by presenting the complex tapestry of the relevant legal issues to be determined – some are matters of substantive law and some are matters concerning the jurisdiction of the relevant judicial tribunals.

 

30.Against this background, I will explore the rules that apply to spousal support, both through the lens of the personal status law that applies to the parties and through the lens of general civil law, all as related to the question of the “division of labor” between the family courts and the rabbinical courts as mandated under current legislation.

 

The Premise: The Connection between Entitlement to Support and the Marital Relationship under Personal Status Law and the Issues it raises

 

31.Section 2(a) of the Family Law Amendment (Maintenance) Law, 5719-1959 [13 L.S.I. 73] (hereinafter: the Maintenance Law) mandates: “A person is liable for the maintenance of his spouse in accordance with the provisions of the personal law applying to him.” Therefore, the premise for the discussion before us is the personal status as it applies to the parties. In our case, this is Jewish religious law, which closely links the woman’s entitlement to support to the marital relationship. As a general rule, only a married woman is entitled to support (subject to considering the income “of her own labor” in setting the amount of support). As opposed to this, after the divorce the woman is no longer entitled to support for herself (and this, as apposed to the maintenance awarded minor children that are, in effect, paid to the woman if the children are in her custody) (see also: Ben-Zion Schereschewsky and Michael Corinaldi vol. 1, 291-379 (2015) (hereinafter: Schereschewsky and Corinaldi)). This approach of Jewish religious law binds the family courts as well. This is an important point of departure for the discussion here, although it is not its final destination, as we explain below and considering the need to account for a wide range of principles that apply in the area of family law, including those drawn from civil law.

 

32.The application of Jewish religious law on awarding support between Jewish partners who married according to Jewish law – which is, as mentioned, the premise for the current legal situation – may occasionally create difficulties, and even incentives for unfavorable conduct. One of the immediate outcomes may be leaving the woman with no source of income after the end of the marriage, and in certain cases, even beforehand. Apparently, this outcome is not anticipated in the case of a woman who has worked and has been fully integrated into the workforce even during the marriage (and in any event, the amount of support to which she is entitled is often balanced against “her own labor”). However, this outcome is also highly problematic when we are concerned with a woman who, under the “division of labor” between her and her partner, did not participate in the workforce, and possibly has no profession or prospects of becoming integrated into the workforce due to her relatively advanced age (even if she may “formally” seek employment, and without detracting from the duty to combat the phenomenon of age-based discrimination). There is, thus, concern that women who divorce at an advanced age, and who are not integrated into the workforce, would descend into poverty, particularly when the community property amassed over the years is itself modest. As a result, women under these circumstances may refuse to divorce, even when there are no real prospects for the marital relationship to continue. This is because when support is contingent upon the marital relationship, as in Jewish law, divorce is likely to cut off their source of income.

 

33.The concern about the implications of ending the marital relationship on the entitlement to support for a woman who did not work during the marriage is exacerbated in those situations where the division of property between the parties is yet to be done. Should the woman stop being entitled to support, on one hand, while at the same time not be awarded immediate control over her share of the community property, on the other hand, the difficult outcome may compel her into a situation of no alternative but to unnecessarily waive some of her rights to the community property, in an attempt to achieve a prompt agreement as to the division of property and the ability to realize it.

 

34.The case before us demonstrates, so I believe, the complexity of the described situation. Of course, get recalcitrance – for financial reasons of any others – must not be encouraged, but it is also imperative to provide solutions for one who relied on the relationship and can no longer be integrated into the workforce, or alternatively requires a relatively extended training period in order to do so (for instance, by acquiring a new profession). This applies, of course, mutatis mutandis, to male partners who have relied on a  relationship in which his partner is part of the workforce and advances in it. Though the personal status law recognizes only a woman’s right to support, as I show below, under the general civil law, in the appropriate cases, a man’s reliance on the marital relationship may also be considered when granting the proper remedy to facilitate “adjustment” to independent financial existence (to the extent the “division of labor” in the former relationship justifies this).

 

 

Jewish Personal Status Law: The Death of Marriage, Obligation to Divorce and the Termination Date for Support

 

35.As noted, since the point of departure in the case before us is the personal status law that applies to the parties, we must first outline its principles in regard to an obligation to divorce and denying a woman’s right to support. In effect, the case before us raises two questions that, while related to one another, must be distinguished from one another. The first question is under which circumstances a woman my be declared a “recalcitrant spouse” even when there are no “classic” grounds for divorce, only because she refuses to divorce despite the fact that her relationship with her husband has reached an end in the sense of “disgust”, often described as the “death of the marriage” (see for example, Avishalom Westreich inhereinafter: Westreich)). The second question is what are the conditions to denying a woman’s right to support under circumstances characterized as the “death of the marriage.” These questions should be addressed briefly – not in order to purport to resolve the religious law disputes regarding them, but in order to understand their scope and their implications to the case before us.

 

36.The death of the marriage as grounds for divorce – as a general rule, there is a dispute among Jewish law decisors as to the whether an irreparable rift between the couple (regardless of the question of fault leading to this situation) justifies obligating a divorce (Westreich, 91). There is, indeed, halakhic support for the view that an irreparable rift in a marriage may give rise to a right to divorce, although that view is not universally accepted (Westreich,  93.) Such an approach is also consistent with economic concepts of human dignity that guide Israeli law. In any event, as I will explain below, determining this question does not “automatically” impact upon the determination in of the support issue. First, even if the Rabbinical Court decides to order the parties to divorce, it must still decide  upon the implications of that decision for the obligation of support. Requiring a divorce may be the “first step” toward revoking the right to support, but such a decision is a separate one, which may involve additional steps such as entrusting the get and the ketubah to a third party, that is depositing them with the Rabbinical Court for the woman. Second, even in the absence of a decision to require a divorce, it may be appropriate, in certain cases, to revoke the right to support, and this, as well, in a decision that may require additional steps such as entrusting the get and the ketubah to a third party.

 

37.Right to Support in the situation of the Death of a Marriage: As was already explained, the woman’s right to support in Jewish religious law stems from the marriage itself. This right expires when the woman is considered “rebellious” under Jewish law or where she is required to divorce under a “classic” ground for divorce, such as adultery (see:  Schereschewsky and Corinaldi, 309). Ordinarily, a woman is entitled to support only when she lives with her husband. When they live separately, the reason for the separation must be investigated (ibid., 335). Generally, a woman loses her right to support when she was the one to leave the home, unless “he was the cause”, i.e., she had a good reason to do so (ibid., 335, 354-57).

 

38.The issue of the right to support becomes more complicated in cases such as the one at hand, that is, in the case of the “death of a marriage.” The issue is partially related to the issue discussed above – whether the “death of a marriage” is grounds for requiring a get. However, as explained, these issues do not fully overlap. Doubts arise, inter alia, from the fact that denying the right to support may be seen as undermining the Decree of Rabbeinu Gershom prohibiting divorce without the woman’s consent due to the fact that non-payment of support may create economic pressure that would compel the woman to divorce against her will. In this context, Rabbi Elijah Mizrachi’s (the Re’em) position is well known. According to him, the husband may be exempted from supporting his wife when he could have lawfully divorced her against her will, but is prohibited to do so only due to the Decree of Rabbeinu Gershom. However, this position is considered, in many ways, a minority approach, and many halakhic decisors establish conditions for exempting the husband from paying support in this situation. Thus, for example, according to the view of Maimonides, this is contingent upon the husband depositing the get and ketubah with a third party. Additionally, Rabbi Herzog wrote, in regard to the approach of the Re’em, that “where the court is persuaded that she is responsible for disturbing a peaceful life (although the law does not require her to accept a get), and that there is no longer hope for restoring peace in the home, then it is permissible to rely on this approach, along while providing compensation so that she is not left without support, but of course this requires care and prudence and serious review in each and every case, in accordance with the situation and the circumstances.” In any event, clearly the basis for releasing the husband from paying support is an authorized finding of the Rabbinical Court that the marriage has come to an end, in terms of a ”disgust” claim (though the Rabbinical Court may refrain from deciding on actually requiring a get). Such a finding, and a consequent denial of support, usually involves entrusting the get and ketubah to a third party, acts that require, of course, active participation of the Rabbinical Court (see also: HCJ 7407/11 A v. Great Rabbinical Court in Jerusalem, para. 12 (January 27, 2013) and references there. For a detailed account of the approaches in Jewish law regarding support where the woman refuses to divorce, see: Rabbi Meir Batist, A Woman Obligated to Accept a Get: Has She Lost Her Support?, 23 125 (2003) (Hebrew); Rabbi Moshe Be’eri and Yuval Sinai, Obligating Support for A Woman Who Refuses a Get, The Center for Applied Jewish Law (February 9, 2007.) (Hebrew)).

 

Questions of Jurisdiction: Jurisdiction over Divorce, Jurisdiction over Support and the Relationship between them

 

39.Questions of jurisdiction must also be examined, alongside the examination of the substantive law, and we must address the dual system of litigation in the area of family law – in the rabbinical courts and in the family courts.  As we will see, the answer to the question before us is, in significant part, as much a result of the division of jurisdiction in family law as of the principles of substantive law that apply in this field.

 

40.As we know, the religious courts have exclusive jurisdiction over matters at the “core” of marriage and divorce. Family courts, too, hold jurisdiction over other matters in the area of personal status law. For the purposes of the case before us, it is unnecessary to elaborate on the distinctions between the different faiths’ religious courts and it is sufficient that we address rabbinical courts’ exclusive jurisdiction over all matters regarding marriage and divorce, as regulated by the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953.

 

41.The Family Court is indeed authorized to hear a claim for a woman’s support, but as already discussed above, under the Maintenance Law the decision itself should be a product of the principles of personal status law detailed above, in this case Jewish law. Accordingly, when the Family Court hears a claim for support, it must determine whether there are grounds to end it in accordance with halakha.

 

42.What, then, must the Family Court do when faced with a claim for support where the husband argues in his defense that he is not obligated to pay because the woman is a “recalcitrant spouse?” The answer is that the Family Court cannot deny the right to support in the absence of an appropriate finding by the Rabbinical Court in the divorce case (this is distinct from the “classic” grounds, such as adultery, which the Family Court can consider independently). Indeed, it would appear that the Family Court may also address questions that are not under its “incidental” jurisdiction, in accordance with its authority under section 76 of the Courts Law [Consolidated Version], 5744-1984, and subject to the Rabbinical Court’s authority to find otherwise (CA 634/61 Makitan v. Makitan, IsrSC 15 945 (1962); Issachar Rosen-Zvi, 295 (2015) (Hebrew)). However, when the question at the heart of the dispute is whether to revoke the woman’s right to support for “get recalcitrance” (in the absence of a decision on this question by the Rabbinical Court,) it would be improper for the Family Court to address the issue. First, a claim of recalcitrance is closely tied to the matter of the divorce, which as noted, is under the exclusive jurisdiction of the Rabbinical Court. Therefore, in a case of a claim of recalcitrance, litigation is conducted concurrently in the Rabbinical Court and the Family Court, and thus it must be viewed from the perspective of the principle of comity between courts (see LCA 4982/92 Tabib v. Tabib, IsrSC 48(3) 390, 294-95 (1994); HCJ 8497/00, Feig-Felman v. Felman, IsrSC 52(2) 118, 134-40 (2003); HCJ 9734/04, A v. Great Rabbinical Court, IsrSC 59(2) 295, 303 (2004)). Under this principle, the Family Court should wait for the decision of the Rabbinical Court in the matter. Reciprocal comity requires that as long as the Rabbinical Court believes that a demand for reconciliation by the party wishing not to divorce is sincere and in good faith, and that the time for determining that the marriage has died has yet to come, the civil court should not rule otherwise while the proceeding in the Rabbinical Court is still pending. As noted, considering the principle of comity between courts is necessary in this situation, since the divorce refusal claim cannot be raised out of thin air without the husband having filed for divorce in the Rabbinical Court. Second, as detailed above, according to religious law itself, denying the right to support in a case of requiring a divorce should be followed (in many opinions) by supplemental steps, such as entrusting the get and the ketubah amount to a third party. Denying the right to support, as a stand-alone measure, does not, therefore, reflect the religious law.

 

43.Waiting for the decision of the Rabbinical Court on the issue of divorce obligation is not expected to create any mishaps, considering the temporary nature of a support decision. A decision to award support is always contingent upon changes in circumstances, and a court may be approached repeatedly to decide the support issue in light of changing circumstances. Therefore, the Family Court need not be concerned that it may award support to a woman despite the fact she may be declared a “recalcitrant spouse.” If and when this happens, her partner may apply to the Family Court to adjust the support award. The logic of this proposed approach can be illustrated by the reverse situation, as well. Consider a situation in which the Rabbinical Court finds that the woman is required to divorce and she refuses to accept the divorce. Could the Family Court nevertheless find that she is not a recalcitrant spouse and that she is entitled to support under personal status law? Because the negative answer to this question is clear, it ought to be clear that unilateral intervention by the Family Court in findings in regard get recalcitrance in order to restrict a woman’s support is unacceptable.

 

44.It should be noted in this regard that the Family Court sought to rely on LFA 3148/07, cited above, as an example of considering recalcitrance when awarding support. However, this decision by my colleague (then) Justice E. Rubinstein, which generally addressed the application of the principle of good faith to issues of awarding support, cannot support this. In that case, it was held that a woman’s support may not be increased beyond the rate she was originally awarded  in light of changes in her former partner’s separate financial circumstances. However, our case effectively concerns the revoking of a woman’s support (in the sense of setting a date for their expiration), rather than merely setting their amount. Additionally, invoking the principle of good faith may not be used as a “detour” to waiting for the decision of the Rabbinical Court that is concurrently adjudicating the very same issue.

 

45.Indeed, we must aspire that the partner delaying the divorce without just cause does not gain the upper hand only because that partner falsely made a reconciliation claim (see also: Pinhas Shifman,  122 (2012) (Hebrew)). However, accomplishing this cannot be through limiting entitlement to support while the divorce proceedings are still pending. Of course, a finding by the Rabbinical Court that the woman is required to accept a get, insofar as there is such finding, would itself serve as cause for amending the support award. However, as longs as the proceeding in the Rabbinical Court is pending, and that court believes the time for divorce has not yet arrived, the civil court cannot base its decision on support on a different finding.

 

The Civil Law: Rehabilitative Support and the Marital Relationship

 

46.Though this was not articulated in this way in the District Court’s decision, the case before us, and similar cases, highlight a real difficulty that repeatedly comes up in divorce proceedings – the disincentive to agree to a divorce when the woman has no independent sources of income, and where, under the personal status law (here, Jewish halakha), divorce would leave her without an income. In effect, the Respondent believes that the Applicant refuses to divorce him only in order to continue to be entitled to support, and it seems the lower courts were under the same impression. The avenue these courts have chosen is problematic in light of the principles detailed above. The lower courts based their decisions on the finding that the Applicant is delaying the divorce only because she wishes to improve her financial situation through the support to which she is entitled as long as she remains married. As noted, the jurisdiction to determine whether this is indeed the case is in the hands of the Rabbinical Court, not the civil court. However, admittedly, the difficulty that the lower courts point out is real.

 

47.I believe that the way to handle this difficulty is different. It should not take the route of denying the right to support based on a finding that the women is a “recalcitrant spouse” (as longs and the Rabbinical Court has not decided this issue in the course of the divorce proceedings), but rather should be based on the recognition that, in appropriate cases, where a woman is divorced after years of not working outside of the home, she should be entitled to “civil” support with a rehabilitative objective, that is “rehabilitative” support according to general principles of the civil law. Of course, since this is a “civil” principle, this must apply, with the necessary changes, to a man who has divorced and is facing the same conditions, as well.  This Court has already said repeatedly that there is a contractual aspect to support, and general principles of fairness and good faith should also be considered on a case-by-case basis. I believe that these are principles that may be taken into account for the purpose of awarding rehabilitative support where, under religious law, the woman does not have a right to support. This would apply to a partner – man or woman – who is left with very limited or no ability to produce an income after the marriage, due to their reliance on the marital relationship and the “division of labor” between the partners during their relationship.

 

48.The right to an award of “rehabilitative support” (under the principles of reliance and good faith) has been recognized by this Court in regard to partners in a  cohabitation relationship that is not subject to regulation by religious personal status law – “common-law” partners (see: CA 805/82 Versano v. Cohen, IsrSc 37(1) 529, 531-32 (1983); CA 2000/97 Lindorn v. Karnit – Road Accident Victims Compensation Fund, IsrSC 55(1) 12, 33-34 (1999)), or even couples married in civil ceremonies abroad (see: CA 8256/99 A v. B, IsrSC 58(2) 213 (2003); HCJ 2232/03 A v. Tel Aviv Regional Rabbinical Court, IsrSC 61(3) 496 (2006) [http://versa.cardozo.yu.edu/opinions/v-tel-aviv-jaffa-regional-rabbinica...).

 

49.To date, this Court has yet to recognize the right of spouses married under Jewish law to “rehabilitative support”. However, at least prima facie, we should not rule out the possibility of awarding support under similar principles of protecting reliance, fairness, and good faith even when the couple is or was lawfully married. For example, consider CA 4590/92 Kahana v. Kahana (January 30, 1994) which addressed the matter of a kohen who married a divorced woman and was obligated to pay her support even after the Rabbinical Court found, in the course of the divorce case, that the woman was required to divorce (given that the marriage was prohibited).

 

50.How can this obligation, to the extent that it regards women, be reconciled with their right to support under religious law? I believe that rehabilitative support may be awarded under the civil law only to a woman who is no longer entitled to support under religious law (and, mutatis mutandis, to a man, too, as he is not entitled to support under religious law to begin with). This may arise at two possible points in time when the man’s duty to pay support expires under Jewish law – either before the divorce is granted but when there is a cause for denying support, or  after the divorce is granted, thus ending the right to support. This is consistent with the approach of Jewish religious law – both relevant points in time, whether before the divorce and after it, are occasions where the marital relationship substantively “ends.” In effect, awarding rehabilitative support even to a woman who was married under Jewish law (subject to appropriate restrictions, such as where she did not work, or worked only on a limited basis, and considering her anticipated challenges in integrating into the workforce) is consistent with the halakhic system in a broad sense. In practice, the woman’s ketubah is meant, inter alia, to guarantee her means of support at least for a period after the end of the marriage, and when she is no longer entitled to support (after divorce) (see for example: Eliav Shochetman, The Woman’s Status in Marriage and Divorce Law, 380, 398-401 (Francis Raday, Carmel Shalev and Michal Liban-Kobi, eds. (1995) (Hebrew)). Adjusting this idea to present circumstances (see and compare: LFA 9606/11 Estate of A (deceased) v. A (May 20, 2013)) supports awarding rehabilitative support to a married woman who was not integrated into the workforce at all, or only partially so, and where the end of the marriage would make it difficult to integrate into the workforce or where time would be needed to adapt in order to do so fully. Additionally, there are halakhic approaches that support awarding compensation to a woman who divorces, as another means (in addition to the ketubah) to provide her a “decent existence” after the divorce, as explained by Menachem Elon in his book (see Menachem Elon, 233-37 (2005) (Hebrew)).

 

51. As noted above, the question of whether the wife has income potential was already examined by the Family Court for the purposes of reducing the amount of the support awarded her under Jewish religious law (see: Halperin-Kaddari, Wife Support: From Perception of Difference to Perception of [In]Equality, 7 767, 789-91 (2005) (Hebrew); CA 6136/93 Bikel v. Bikel (July 6, 1994); CA 5930/93 Padan v. Padan, para. 2 (December 22, 1994)). The other side of the coin would appear to be accounting for a situation where the woman has no income potential, and where this fact results, inter alia,  from her reliance on the marital relationship (as the Court also saw things in the Acase, at 403). Moreover, the enactment of the Basic Laws, and the recognition that the right to a minimally dignified existence is a derivative right of human dignity, appear to reinforce the legal basis for awarding rehabilitative support as a duty stemming from the general  law – regardless of personal status law (though in a manner that is consistent with it, as explained above) – to the extent this is necessary for a minimally dignified existence. Indeed, a divorced woman has no independent right that her former partner ensure her right to a minimally dignified existence. This right is, first and foremost, a right in regard to the state (HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance, IsrSC 60(3) 464 (2005) [http://versa.cardozo.yu.edu/opinions/commitment-peace-and-social-justice... HCJ 10662/04 Hassan v. National Insurance Institute (February 28, 2012) [http://versa.cardozo.yu.edu/opinions/hassan-v-national-insurance-institute]). However, the factor of guaranteeing a minimally dignified existence should influence the interpretation of support law (as this was already considered in the past for the purposes of limiting the scope execution of a support debt (see and compare: LCA 4905/98 Gamzo v. Yeshayahu, IsrSC 55(3) 360 (2001)).

 

52.Rehabilitative support of this type may reduce the incentive for “get recalcitrance” stemming from economic reasons, as well as provide the civil court with an effective tool for considering fairness and good faith. Such rehabilitative support could provide a partial response to the outcome resulting from  partners who contributed to maintaining the household possibly finding themselves in a situation where their work has no realizable “market value” (see: Shahar Lifshitz 332-334 (2005) (Hebrew) (hereinafter: Lifshitz)). To a certain degree, the possibility of awarding rehabilitative support is an obvious supplement to accounting for “career assets” in the division of property (see: LFA 4623/04 A v. B, IsrSC 62(3) 66 (2007) (hereinafter: LFA 4623/04); HCJ 8928/06 A v. Jerusalem Great Rabbinical Court of Appeals, IsrSC 63(1) 271, 280 (2008) (hereinafter: HCJ 8929/06)). Accounting for “career assets” expresses the “advantage” enjoyed by the partner whose work during the years of marriage acquired a special value, particularly where there are clear disparities in income potential because the partner who stayed at home facilitated the working partner’s ability to maximize their income potential (LFA 4623/04, at 86). On the other hand, awarding rehabilitative support also reflects, in appropriate cases, the special “harm” suffered by the partner who exited the workforce and was thus left in a position in which it became difficult to reintegrate into the workforce because of reliance upon the marital relationship and the understandings created within it. Indeed, these considerations may be reflected in the division of property, but that is not always the reality (Lifshitz, at 350-51.) Of course, awarding rehabilitative support must also take account of the manner of the property division– to the extent it already has occurred.

 

53.It is important to emphasize: rehabilitative support is what the title suggests. It is not a permanent entitlement to support, but an entitlement designed to achieve the rehabilitative objective of integration into the workforce – an end that advances dignified existence for the period of “rehabilitation”, which reflects the reliance upon the partnered relationship to the extent that the ability to produce an income was compromised. In practice, this may also be expressed as a “transition” until the realization of a different right to an income, for example, from a pension fund. Therefore,  as a rule, setting a fixed period for the support payments is possible, and may be required, although under certain circumstances this may be for an extended period, particularly where there is a significant difference between the partner who never worked and the supporting partner, and where the separation is at such a late stage of the partnered relationship that the ability of the partner who stayed at home to produce an income is very low.

 

54.Therefore these are considerations that must be taken into account when determining whether one of the partners is entitled to rehabilitative support, and what their amount ought to be. The central issue in this context is the likelihood of alternative sources of income. Therefore, the questions of professional training and work experience of the “home-based” partner, their age (including how close they are to retirement age,) as well as the value of the partners’ property and whether it has already been divided are important. On the other hand, considerations of fault as to responsibility for the relationship ending should not be taken into account. Generally, the prevalent approach to the property and economic aspect of family law is that it should not be subject to fault considerations (see also: HCJ 8928/06; LFA 7272/10 A v. B, para. 24 of my opinion (January 7, 2014)). To this we may add the fact that considering fault may also hinder the rehabilitative purpose of the support award, since it diminishes the abandoned partner’s incentive to rehabilitate through integration into the workforce.

 

55.In theory, one might argue that recognizing the possibility of awarding rehabilitative support will not reduce the phenomenon of “financial” divorce refusal by women in a case in which a woman may attempt to “drag out” the divorce in order to maximize her right to support as long as the marital relationship continues. This is because while recognizing rehabilitative support may address the concern that the partner who did not work during the marriage would be left without any source of income when it ends, it does not negate the fact that a woman is entitled to support under  personal-status law as long as she is married and there are no grounds for denying it, as explained. Rehabilitative support does not diminish this right and thus one might argue that women would attempt to “drag out” the marriage even where they may be awarded rehabilitative support once the marriage is over. Indeed, rehabilitative support does not fully resolve this problem, but I do believe that it significantly reduces it. First, from the moment when there is real “rift” between the parties and the woman no longer lives with her husband (whether by her desire or by his) it is likely she will attempt to return to the workforce or pursue professional training, and the need to do so, in the absence of any obstacle, is part of the good-faith duty imposed by the general law (to clarify, this duty is distinct from the considerations of fault in the relationship’s dissolution). In this context, the time that has lapsed during which the woman could have attempted to return to work may be factored into the decision whether to extend the “rehabilitative support” (considering her circumstances, including her age and health). Second, recognizing the institution of rehabilitative support may be expected to reduce the incentive for artificial delay of the marriage, which burdens partners in a situation of “rift” (and all the more so for the woman, considering the Jewish law consequences of an extra-marital relationship).

 

Other Civil Aspects of Divorce Refusal

 

56.At first glance, the possibility of seeking civil remedies through a tort suit in cases of get recalcitrance would appear to raise a tangential question to those under examination  (see, for example: FC (Jlem) 21162/07 A v. B (January 21, 2010) (hereinafter: FC 21162/07); FC (Krayot) 48362-07-12 A v. B (February 28, 2013); FC (Jlem) 46459-07-12 Z. G. v. S. G. (August 17, 2014)). As noted, in our case the District Court referred to this practice in order to infer that just as divorce refusal may serve as a cause of action in tort, so the Family Court may consider it for the purpose of reducing (or even revoking) the entitlement to support. In my opinion, this analogy is not at all obvious, and I believe it is misplaced.

 

57.I shall first note that the question as to when one may prevail in such a suit has yet to be addressed by this Court, and the case before us is not the proper case for discussing it (for the dispute on this matter see: Yehiel Kaplan and Ronen Perry, Tort Liability of Recalcitrant Husbands, 28 773 (2005) (Hebrew); Yifat Biton, Feminine Matters, Feminist Analysis and the Dangerous Gaps between Them: A Response to Yehiel Kaplan and Ronen Perry, 28 I, 871 (2005)). I shall, therefore, only note  that even according to the view that filing a tort suit for get recalcitrance does not depend on a prior ruling of the Rabbinical Court “obligating a divorce”, this would not ground an analogy that would permit taking the indirect path of denying a right to support that is prescribed by Jewish law, without an authorized decision by the Rabbinical Court as to the “death of the marriage”. There are several reasons for distinguishing the two types of suits, as I shall explain below.

 

58.In my opinion, the primary reason for distinguishing between the cases is that the right to support ordinarily concerns the ongoing maintenance of the woman entitled to support. Therefore, revoking it may affect her ability to survive in the most basic sense, as earlier explained. A decision to revoke entitlement to support is an extreme act when compared to awarding compensation for get recalcitrance (which, in any event, is subject to the rules governing execution of judgments, which condition enforcement upon ensuring that the party concerned be left with the means for existence). Moreover, denying the right to support may leave the woman destitute, and thus lead to “surrendering” to accepting a divorce in order to survive. On the other hand, taking the opposite step of increasing the support amount paid by the man (even in the absence of a divorce obligation by the Rabbinical Court) would necessarily be limited by laws restricting enforcement so as to ensure the right to a minimally dignified existence, as held in the Gamzo case. The result may, therefore, be asymmetrical for men and women.

 

59.Another, more formal but not unimportant reason for the distinction derives from the fact that tort suits for get recalcitrance are adjudicated exclusively under civil law, in accordance with the tests of the tort of negligence, and in any event, the matter is given to the exclusive jurisdiction of the civil courts. On the other hand, determining issues of support is contingent on the marital relationship and draws upon religious law.

 

From the General to the Particular

 

60.In light of the legal principles detailed above, I am of the opinion that the appeal should be granted.

 

61.First, the District Court (and prior to that, the Family Court) was guided by considerations of preventing “get recalcitrance”, but did so without positively determining that the Applicant is required to accept a get, and this while a parallel proceeding on the matter of the divorce was pending before the Rabbinical Court, which holds exclusive jurisdiction over the matter. A woman’s right to support cannot be revoked merely for considerations related to the subject matter of divorce refusal, without a positive finding of the Rabbinical Court that the woman is required to  accept a get. It must be either one or the other – if the woman is a recalcitrant spouse in the sense that the Rabbinical Court found her to be required to accept a get, or it is found that the marriage has come to its end and the get and her ketubah amount were deposited for her, with all that implies,  then she is not entitled to support under religious law. Or, if she is not a recalcitrant spouse, there are no grounds for revoking her support under religious law and neither can it be set for a fixed period of time at this point.

 

62.Indeed, it would appear from the Regional Rabbinical Court’s decision to revoke the specific residence order, as well as from its most recent decision, which was presented before us, that the Rabbinical Court was also under the impression that the marriage between the parties has, to a large extent, come to an end. However, the Rabbinical Court refrained to find as such, and also refrained from finding that the Applicant was required to accept a get. Instead, the Rabbinical Court sufficed in recommending that the partners reach an agreement between themselves. Of course, such findings are dynamic, and to the extent that the Respondent is able to persuade the Rabbinical Court that his wife is a recalcitrant spouse, this finding would have clear implications as to her entitlement to support, as well.

 

63.In our case, no “classic” ground was found, in the words of the Family Court, for revoking the Applicant’s support under religious law (see para. 17 of its opinion). The District Court did not find otherwise, but only wished to take into account, inter alia, the fact of the woman’s “recalcitrance”, although it noted that under the circumstances this was not “recalcitrance” that immediately leads to revoking the right to support. The District Court addressed additional considerations that are relevant to the “rehabilitation” of the marital relationship and the extent of her fault in ending it. I do not believe that these findings can stand. As explained above, to the extent that at this stage there are no grounds under religious law to deny the Applicant’s support (and even more so in light of the most recent decision of the Rabbinical Court presented to the Court) – she is lawfully entitled to it. In addition, to the extent that it be held in the future that the Applicant is not entitled to her support under religious law (and I do not, of course, take any position in this regard), then it would also be necessary to explore whether she must be awarded rehabilitative support, under the principles outlined, and as a result of a concrete examination of the woman’s prospects for securing an income. Indeed, the District Court noted that in setting the amount of support, a court must consider various factors, including whether the woman would have sources of income. The District Court even stated that one of the rationales for the award is affording the Applicant a reasonable period of time to prepare for the future. However, in applying this principle, it did not clarify to what extent the time it set might facilitate the woman’s ability to secure an income when that period of time comes to an end.

 

64.As noted, after the delivery of the District Court’s decision regarding support, which this proceeding concerns, a decision as to the division of the community property was also handed down, which was presented to us. The Respondent may, therefore, wish to argue that the community property at the woman’s disposal would serve as her source of income. However, this argument must be examined on its merits, and we cannot make the desired assumption. What matters for our purposes is that when the decision regarding support was delivered, there still was no decision regarding the property, and its outcome could have left the Applicant with no source of income. On the merits, the consideration of the woman’s share of the community property for the purposes of her ongoing income must factor in the date of sale of the house, the expected sale price to be received, and other information, while examining the woman’s living expenses during the time she may remain without a source of income, and the fact that she relied on the partnered relationship with her husband and the “division of labor” in that framework.

 

65.Under these circumstances, I would propose that my colleagues decide that the Family Court’s decision as to fixing the period of the support be reversed, and that to the extent that there is not change in the couple’s circumstances, including the circumstances relating to the proceedings in the Rabbinical Court, the Respondent continue to pay the Applicant’s support in accordance with the Family Court’s decision, without setting a time for the payments’ expiration.

 

66.I wish to end my opinion by expressing hope that despite the conflict between the parties and the great pain they have inflicted on one another, they may find the strength to ultimately conclude all the proceedings between them, which at the end of the day, benefit neither of them.

 

Afterward: Between the Principle of Good Faith and the Rules of Jurisdiction

 

67.At this stage, after completing my opinion, I have received the opinion of my colleague Deputy President E. Rubinstein. My colleague believes that fixing the term of the support awarded a woman by reason of “recalcitrance” should be permitted even without an appropriate ruling by the Rabbinical Court, on the basis of the required application of the good-faith principle. He further explains that such decisions may “encourage” the parties to reach agreements and end the marriage. I wish to disagree in this regard, although, of course, I do not dispute the general statement that the principle of good faith should appropriately apply to an adjudication between parties in the area of family law, just as it must apply to any other issue.

 

68.Indeed, there can be no dispute that the principle of good faith is an overarching principle of Israeli law, and rightly so. Additionally, I concur with my colleague that the principles of fairness and decency can also be found in the fundamental principles of Jewish law itself, and that is encouraging. However, as I explain below, the dispute between us does not concern whether the principle of good faith obligates the parties and the trial court, but other questions – how it ought to be implemented, and primarily which court does Israeli law entrust with ruling on the question of the death of the marriage, and what are the consequences of that finding for personal status law?

 

69.Given that in the matter of the parties’ before us two parallel proceedings are pending – both in the Rabbinical Court and in the Family Court – I do not believe that we can accept a situation wherein the Family Court issues a ruling concerning recalcitrance that is inconsistent with the rulings of the Rabbinical Court on this very same issue. Insisting on the principle of comity between courts, a point whose importance my colleague, too, emphasizes, is not consistent with conflicting rulings on this matter on an issue that is at the core of the Rabbinical Court’s jurisdiction, and while this issue is yet pending before it.

 

70.My colleague explains that the special care that the Rabbinical Court exercises in regard to recalcitrance must be taken into account. My view is different. The Family Court cannot impose sanctions under the Rabbinical Courts (Enforcement of Divorce Judgments) Law, 5755-1995, against the husband where it is persuaded that he is a recalcitrant spouse in the absence of the proper finding by the Rabbinical Court, regarding which the Rabbinical Court also exercises great care. Similarly, there is no place for the Family Court to deviate from the Rabbinical Court’s position to the detriment of women in matters of support. Otherwise, we may undermine the delicate balance upon which the division of jurisdiction in Israeli family law is founded.

 

71.Even on the merits, I do not believe that the principle of good faith is directed, in this case, at setting support for a particular period of time. My colleague bases his position, inter alia, on the set of incentives that influences women’s conduct during divorce proceedings, and points to the contribution of the position he expresses in his opinion to promoting compromise between the parties. This is but one possibility. However, a no less reasonable possibility is that of “pressuring” a woman who has no independent sources of income to agree to divorce under unfair conditions, only because of her concern over becoming truly impoverished. We must remember that the procedural equality between the couple when one has a steady income and the other lacks a steady income is a fictional equality, and in this sense, the proverbial sand in the hourglass runs out unilaterally to the woman’s disadvantage.

 

72.The response to my colleague’s concern about divorce “extortion” by the woman may be found in other proceedings of a civil nature. This solution is preferable because it does not involve putting existential pressure on a woman left without a steady income, but rather allows for appropriate “recalculation” after the fact, to the extent it is needed.

 

73.Should my opinion be accepted, I would propose that the appeal be granted as stated in paragraph 65 above, and that the Respondent bear the Applicant’s costs in the amount of NIS 20,000.

 

 

 

Deputy President E. Rubinstein:

 

1.I have carefully read my colleague Justice Barak-Erez’s comprehensive opinion. Her opinion presents weighty questions for consideration, however, at the end of the day, I cannot concur in her opinion as to the outcome of this case, although the idea of rehabilitative support she discusses is appealing. Should my opinion be heard, the District Court’s decision – which, in essence, took the same route as the Family Court – would be upheld. I shall restate the gist of the matter, as my colleague presented the details of the proceedings. We are concerned with a couple who married and lived together for 35 years, after which they separated and proceeded to sue each other. Over the years, the husband (the Respondent) worked continually at a regular workplace, carrying pension benefits, whereas the Applicant worked at home and managed the household. She worked out of the home for only brief periods of time. I shall not go into the issues of property described by my colleague, as we are here concerned with the issue of support. The Family Court believed that in light of the Applicant’s refusal to divorce in order to gain advantages in the property proceedings, and for considerations of good faith, support must be set for a fixed period of time that would take all the factors into account. The period set was for two years from the date of filing the suit in 2011. The District Court noted that refusal of a get affects support, but that in this case the Rabbinical Court has yet to decide on the issue of recalcitrance, and the personal status law applies. Thus the support was set for three years from the date of the Family Court’s decision (December 12, 2012) or until the day the Applicant begins receiving her share of the Respondent’s pension, according to the earlier of the two. Hence the application, and it should be noted that we tried unsuccessfully to lead the parties to a compromise.

 

Support for Fixed Periods

 

2.My colleague believes that as long as there are no grounds under personal status law to revoke a woman’s support, it must be awarded as her legal right. Indeed, in her view, it is incorrect for the Family Court to revoke a woman’s support when the Rabbinical Court refrained from finding that she is a recalcitrant spouse in the course of the divorce proceeding.

 

3.Indeed, as my colleague also noted that, under personal status law, only a married woman is entitled to support. This rule binds the Family Court, which follows personal status law in matters of support (section 2(a) of the Family Law Amendment (Maintenance) Law, 5719-1959; B. Schereschewsky and M. Corinaldi, , vol. 1 (2015) 291-92) (Hebrew), yet, as my colleague carefully explained: “This approach of Jewish religious law … is an important point of departure for the discussion here, although it is not its final destination, as explained below and considering the need to account for a wide range of principles that apply in the area of family law, including those drawn from civil law” (para. 31) (emphasis added – E.R.). One of these – and one of the most important – is the principle of good faith.

 

4.Our law recognizes the principle of good faith as a “‘royal, multi-faceted provision” (HCJ 1683/93 Yachin Plast v. National Labor Court, IsrSC 47(4) 702, 708 (1993) (per Barak J.) which casts its net over the different areas of law (CA 2070/06 Equipment and Construction Infrastructures Ltd. and Others v. Attorney Yaakov Greenwald – Receiver (2008)). The principle of good faith is a flexible legal rule, and the court may fill it with content and meaning, and determine whether any particular act deviates from it or complies with it (CA 467/04 Yitach v. Mifal Hapayis (2004)). In this regard, President Barak’s well-known statement in (CA 6339/97 Rocker v. Solomon, IsrSC 55(1), 199 (1999) is apt: “The principle of good faith establishes a standard for the behavior of people who are each concerned with their own interests. The principle of good faith holds that protecting one’s own interest must be fair, and considerate of the justified expectations and proper reliance of the other party. Person-to-person, one cannot behave like a wolf, but one is not required to be an angel. Person-to-person, one must act like a person” (at 279).

 

5.In CA 10582/02 Ben Abu v. Hamadia Doors Ltd., (2005) (hereinafter: the Hamadia Doors case) I was presented with the opportunity to address the moral aspect of the principle of good faith:

 

I will admit without shame that, in my view, the subject of good faith crystallizes moral principles into the law. As Justice (emeritus) Professor Itzhak Englard said in his lecture The Principle of Good Faith in Israeli Civil Law: “There is basis for the view that the aspiration for comprehensive application of the principle of good faith is also based on the desire to incorporate moral values into human relations, including in the commercial field” (lecture in a judges’ conference in Paris, June 2004, p. 2)… in CA 1662/99 Haim v. Haim, IsrSC 56(6) 295, 340, Justice Strasberg-Cohen wrote that the “theoretical foundation for the doctrine of estopple, like the principle of good faith, is rooted in principles of decency and morality,” and she quoted Professor G. Shalev (Promise, Estopple, and Good Faith, 15 Mihspatim 295, 313 (1989))… I cannot but concur with these words of truth, and under section 61(2) of the Contracts Law, they extend over the entirety of private law…” (para. 15).

 

It should be added that “good faith” is not a common term in Jewish law (although linguistically, the origin of the term “good faith” [tom lev] is in the language of the Bible – “In the integrity of my heart [tom lev] and clean hands” (Genesis 20:5)). In his paper Comments on the Draft Civil Code, 5771-2010, in light of Jewish Law (2011) [Hebrew], Dr. M. Wigoda explains that our Sages recognized three other principles that reflect different aspects of the principle of good faith: “Do what is right and good”, “one is compelled not to act in the manner of Sodom" (one is compelled not to abuse a legal right), and the rule of “lacking faith” (originally this phrase referred to reneging on a promise, and later referred more broadly to reprehensible conduct due to a moral flaw, as opposed to breeching an explicit lawful duty); see also Moshe Silberg, Such is the Way of the Talmud (1964) (chapter 7, pp. 97ff.) [Hebrew]). Dr. Wigoda explains that: “these rules are perceived both as general standards that create certain duties, and as principles that control the entirety private law” (pp. 4-5.) Additionally, according to the commentator to Maimonides’ Mishne Torah, Rabbi Vidal of Tolosa (Spain, 14^th century) (Laws concerning Neighbors 14:5): “And thus [the Torah] said, and you shall do the good and righteous, meaning that one must conduct well and honestly with people, and it was not proper in this matter to command details as the Torah’s commandments are eternal and for all time and apply to every matter and issue,  and one is obligated to do so, but the attributes and conduct of people change with the times and the people. The Sages wrote some useful details under these rules, some are absolute rules and some preferred and ways of piety, and this is all said by them.” See also the Hamadia Doors case (para. 16), particularly as to how the principle of good faith is reflected in the principle “what is hateful to you do not do to others,” and as Hillel the Elder said “this is the entire Torah, and  the rest is commentary, go study” (Babylonian Talmud, Shabbat 31a); and also see there one of the questions by which a person is judged by the heavenly court – “did you deal faithfully?” To summarize, good faith is a central legal and moral principle that must interpreted and applied according to the circumstances of the case, and must not be forgotten.

 

6.In CA 32/81 Tzonen v. Stahl, IsrSC 37(2) 761 (1983) then Justice M. Elon first applied the principle of good faith to spousal support obligations: “Although it is a statutory obligation, it has a contractual nature and it is rooted in the marital relationship, which is itself – by nature and at its core – a contractual relationship” (at 771). In LFA 3148/07 A v. B (2007) (hereinafter: LFA 3148/07) in which the Applicant petitioned to increase her support due to the improvement in her partner’s financial circumstances, I noted:

 

As a general rule, the court must consider not only whether a change in support should be considered under personal status law, but also how awarding increased support as requested would influence the entirety of the relationship, for better or for worse, and particularly whether it is requested in good faith. In our case, therefore, there is no reason to intervene in the decisions of the lower courts, which addressed the entirety of the relationship between the parties… [para. 6(4)) (emphasis added – E.R.)].

 

It should be noted that LFA 3148/07 concerned a decision not to increase spousal support, whereas our case concerns revoking it, and see my colleague’s comments in paragraph 44. Put simply, in these situations the court must exercise exponentially more caution on a legal and the human level. And yet, I believe our words are apt in these situations as well.

 

7.Considering the principles of personal status law under which a woman may be denied her right to support, the family courts have reached the conclusion, under general civil-law principle of good faith, that even if the personal status law obligates the husband to continue supporting his wife, in the case of a long separation and a marriage that has effectively ended (“a marriage on paper”) it may be appropriate to relieve the husband of the obligation to pay support. The family courts did so where they were satisfied that the woman’s objection to the divorce stemmed from her interest in support, and believed it was a “ruse”:

 

To summarize things thus far – only when we are concerned with a long separation will the court carefully consider the matter before it from all angles, and scrutinize its circumstances and root causes. This examination is broad, comprehensive, and multifaceted. However, the court will not easily stray from the primary duty that Jewish law imposes on the husband to pay his wife’s support, and make recourse to the possibilities for relieving him of that fundamental responsibility. The court will also consider who is to blame for the separation, whether there is a real chance for reconciliation between the parties, whether the Rabbinical Court required a divorce or merely recommended it, whether the Rabbinical Court ruled as to reconciliation, who is refusing the divorce and whether this refusal is merited, whether all the property issues between the parties have been resolved, and other factors. After the court has gathered the relevant facts, it must attempt to examine them through two lenses, one is the lens of the essence of the law as it is reflected in halakhic decisions and its interpretation under the civil law, and the other, that of the heart of the law, that is, the principle of good faith, a principle which can take the sting out of the law and reconcile it with logic and common sense… [FC (Fam. Petach Tikva) 51689-11-12, I.L. v. E.L. (2013) para. 28) (Judge Weizman); see also FC (Krayot) 11495-11-08, A v. B (2010); FA 765/05 (Jlem) A v. B et al.  (2006) and many others].

 

And also see that decision in regard to the need to strike a balance between  personal status law and “applying moral norms stemming from the principle of good faith, which also have a place in Jewish law” (para. 18).

 

Clearly, the principle of good faith, which covers all areas of life and applies to relationships between strangers in one-time contractual relations, certainly holds an important place when two individuals who decided to join their lives together wish to end their relationship. I believe that a different conclusion would lead the Family Court to do a disservice to this area of the law, by encouraging the continuation of a marriage that has ebbed, by the artificial means of continuing spousal support in a case of “a marriage on paper.”

 

8.However, this reflects one – fundamental -- aspect of the problem. Of course, I am aware that in many cases the woman is left without a source of income after the marriage ends (R. Halperin Kaddari, Wife Support: From Perception of Difference to Perception of [In]Equality, 7 ebrew))and of the concern about the consequences of the end of the marriage for the woman’s entitlement to support when she has not worked outside the home during the marriage – and I would emphasize: did not work outside of the home, as the common term “did not work” does an injustice to a woman who worked, sometimes to exhaustion, in performing household tasks – increases when the division of property between the couple is yet to be completed. These situations were common in past generations, and even though today there are very many couples where both partners work outside the home for purposes of income and for purposes of self-fulfillment, there are still couples, as in our case, where the woman did not work outside of the home for years, or hardly did so, and often, even when she did work, it was limited and her professional advancement was hindered due to the demands of child raising. Nevertheless, it is hard to accept denying the Family Court the option of encouraging the parties to negotiate, with its understanding of the complex dynamics of life, and its practical experience with cases of the sort (to complete the picture regarding the background for get recalcitrance by a man, and Jewish law’s solutions, see: HCJ 6751/04 M. S. v. Great Rabbinical Court of Appeals, IsrSC 59(4) 817 (2004) and the amendment to the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (Amendment 1 of Section 11 of the Rabbinical Courts (Enforcement of Divorce Judgments) (Temporary Provision) Law, 5755-1995, as well as Yehiel S. Kaplan, Punitive Maintenance as a Solution to the Plight of the Wife of the Recalcitrant Husband, 10 381 (2005)). The solution to the difficulty my colleague describes, which I do not take lightly at all, is provided by the law in the authority granted the court under section 8(2) of the Spouses (Property Relations) Law, 5733-1973, to make an unequal division of assets, along with the additional powers it provides. This is expressed in the Explanatory Notes to the Spouses (Property Relations) (Amendment 4) Law, 5769-2008:

 

Section 8 of the Law establishes that under special circumstances that justify it, the competent court may decide that the balancing of the assets of the partners will not be carried out by means of an equal division between them, but according to a different equation. It is proposed to make clear that in determining such  a division, the competent court also factor the future assets of each of the partners (such as goodwill, professional degrees, professional experience, and workplace tenure) and the income prospects of each of them (section 5(2)). In western countries, there is a growing trend in legislation and jurisprudence of considering the financial gaps between the spouses in proceedings for the division of community assets, inter alia, when awarding one-time or periodic compensation to the weaker partner. Often, these gaps are a result of one partner forgoing their professional development and the consequent income prospects in order to allow the other partner to do so (see Shahar Lifshitz, On Past Assets and Future Assets and the Philosophy of Marital Property, 34(3) Mishpatim 627 (2005), primarily p. 728ff. (Hebrew)) [(emphasis added – E.R.) (Spouses (Property Relations) (Amendment 4) (Earlier Balancing of Assets), 5767-2007, H.H. 163)].

 

Moreover, the current state of the law allows partners who did not earn an income – mostly women – to share the pension that their partner receives upon retirement, as in this case, which has great significance.

 

It should be noted that in our matter, the court (FC 24358-08-11 and FC 33489-03-12) did not find it appropriate to rule in that manner, despite the Applicant’s request, for its own reasons. I shall address the issue of rehabilitative support below.

 

9.My colleague further explains in her opinion that it is inappropriate for the court to consider the matter of get recalcitrance, which is given to the exclusive jurisdiction of the Rabbinical Court. She emphasizes – and this is undisputed – that the situation must be must be viewed from the perspective of the principle of comity between courts, and that it is difficult to accept that in a situation in which the Rabbinical Court believes that the reconciliation claim by the party who does not wish to divorce still stands and that ordering a get would be inappropriate, the Family Court should rule otherwise. The principle of comity is undisputedly a central principle of our system (HCJ 8578/01 Haliva v. Haliva, IsrSC 56(5) 634 (2002)), and the civil courts are scrupulous in that regard, and we need not address the complex questions of res judicata. I am the last to take comity between courts lightly. However, the rabbinical courts  have halakhic concerns regarding the matter of a get, which is an extremely complex subject (“Rabbi Judah said in Samuel’s name: One who does not know the peculiar nature of divorce and betrothal should have no business with them” (a, and they should, of course, be respected. But the civil court sees a broader picture in the financial matters. The Family Court has jurisdiction over issues of support, and it is required to adjudicate under personal status law. It is only logical that in that framework, weight will be given to the general principles of the civil law, as well. Moreover, the courts are often called upon to make incidental rulings that are necessary for deciding upon the support issue (section 76 of the Courts Law (Consolidated Version), 5744-1984). It should be further noted, and this may be the main point, that a finding as to the lack of likelihood for reconciliation (“the death of the marriage”) does not imply a halakhic obligation to divorce, and the lack of a divorce obligation does not mean there was good faith. The possibility for reconciliation, or the lack thereof, is determined by examining the entirety of the relationship between the parties over the years, as we can also see in our matter (see the decision of the Rabbinical Court (Rabbinical Court Judges Rabbi Domb, Rabbi HaLevi, and Rabbi Zer) of October 14, 2013, where the court noted that “it seems the Respondent’s goal is that she have a whole house rather than a peaceful home”). Indeed, the Family Court handed down its decision on December 12, 2012, about ten months before the Rabbinical Court’s decision, and at the Applicant’s request, the Rabbinical Court initially attempted, as is usually the case, to explore the possibility of reconciliation.

 

10.My colleague reminds us (in para. 36) that, in cases in which the Rabbinical Court has orders a get, revoking the right to support  may be accompanied by supplementary steps such as entrusting the get and the ketubah amount to a third party. The issue of entrusting the get is generally relevant in the case of a recalcitrant husband, while the matter of the ketubah is, of course, highly relevant to the general proceedings as to property. My colleague ably reviewed the halakhic literature on the topic of “the death of the marriage.” In my view, the question before us is whether to maintain the moribund marriage  through “artificial respiration” merely because of the property dispute. In general, I do not believe that the doors of the family courts are barred when the Rabbinical Court, for its own considerations, has yet to rule on ordering a get, while the Family Court is persuaded there are no prospects for the marriage, although appropriate caution should be exercised. The Family Court holds jurisdiction over the subject of  support, and in considering the overall picture, there is no reason for it not to see the couple as it truly is, where the get is clearly serving as a “property weapon”.

 

11.In this case, under the circumstances described – and given that the lower courts, including the Rabbinical Court, were, in fact, under the impression that the marriage had reached its end and that the Applicant was delaying the divorce in order to improve her financial situation – I am of the opinion that the Family Court was correct in its decision, as was the District Court, to award support for a fixed period of time. Therefore, the approach of the District Court, which took further steps to accommodate the Applicant, is acceptable to me.

 

Rehabilitative Support

 

12.My colleague proposes awarding rehabilitative support in cases where the partner is no longer entitled to support under personal status law, and this at two possible points in time: “either before the divorce is granted but when there is a cause for denying support, or after the divorce is granted, thus ending the right to support” (para. 50). I am not certain whether the term “rehabilitative support” is appropriate, and perhaps “bridging support” is preferable where the support is meant to bridge the period remaining until retirement. This mechanism is primarily rooted in the desire to assist the partner (in the majority of cases, the woman) when she lacks independent sources of income, and where there is reliance on the partnered relationship. I agree with my colleague’s holding that “in appropriate cases, where a woman is divorced after years of not working outside of the home, she should be entitled to ‘civil’ support with a rehabilitative objective, that is ‘rehabilitative’ support according to general principles of the civil law.” (para. 47); this on a case by case basis, including examining the partner’s possibility to integrate back into the workforce, and the entire property arrangement between the couple.

 

13.The basis for awarding rehabilitative support where they were not agreed upon in advance is, as my colleague noted, as well, also to be found in the principle of good faith, which attributes to the couple a normative intent as to support (LCA 8256/99 A v. B, IsrSC 58 (2) 213 (2003)). In appropriate cases, I believe that this is even consistent with the spirit of section 8 of the Spouses (Property Relations) Law, which – as noted – seeks to grant the court flexibility in balancing resources and to deviate from the principle of equal distribution prescribed by the law. This can be seen, in my view, as an attempt to achieve “real equality” as opposed to “formal equality.” Indeed, when we are concerned with “rehabilitative support” we are not concerned with a permanent entitlement to support, but rather with an entitlement designed at rehabilitation until another entitlement to income materializes, while considering the factors of good faith and fairness in this regard, as well.

 

14.In addition to the cases referred to by my colleague in regard to partners who are not “regulated” by religious law, the family courts have, on more than one occasion, awarded rehabilitative support to partners married in accordance with Jewish law. For example, in FC (Haifa) 7282-12-09 A v. B (2011), support was awarded after the couples’ divorce (before the issue of the community property and its division was decided) in light of the woman’s financial dependence on her partner after 28 years of marriage, during 16 years of which she managed the household. Also see FC (Krayot) 11495-11-08, mentioned above, where it was held that the right to support would be for a fixed time in light of the principle of good faith and in order not to perpetuate a “marriage on paper”. It was held that should the parties divorce beforehand (thus prima facie extinguishing the obligation for support under personal status law), the woman would be awarded rehabilitative support. In practice, this mechanism facilitates a divorce where the relationship has died, while granting the woman support for an additional period of time. To a certain extent, it could be said that we are concerned with semantics, that is, with a formula designed not to cause friction with the Rabbinical Court, but its goal is to achieve the same material outcome that the lower courts reached in our case, although by a different path.

 

15.I do not rule out this manner of awarding support in appropriate cases, however, in my opinion, it is a tool in the Family Court’s “toolbox” that should be used in accordance with the circumstances, in order to solve the matter of alternative income. However, I fear this method does not always solve the cases of “dragging out” a moribund marriage by artificial means, in order to achieve economic advantages, and I am not certain that it leads to more attempts to integrate into the workforce than before.

 

16.It would not be superfluous to note that support under the personal status law is clearly to be paid when the husband is the recalcitrant spouse, and further discussion of this matter would, indeed, be superfluous.

 

17.And now to the case before us. With all due respect, I disagree with my colleague’s statement in paragraph 63. At the end of the day, once I have not seen fit to bar the way to the civil courts considering the “clinical death” of the marriage, I see no flaw in the position of the lower courts here, including the District Court’s fixing of support for a relatively extended period of time. It is entirely possible that the District Court’s ruling is what prompted reaching a decision as to the property.

 

18.In concluding,  I would note that I will not address the issue of tort claims in cases of recalcitrance, which raise significant questions (FA (Tel Aviv) 46631-05-11 A v. B (2014); FC (Jlem) 1748/06 A v. B (2011); FC (Jlem) 6743/02 K. v. K. (2008)), though I, with all due respect, and with proper concern for the issue of a “coerced get” [get me’useh], which is often at the basis of such disputes (due to the fear that the husband’s consent to the divorce was a result out of concern about tort damages rather than his free will), believe the path to compensation should not be barred. In this context, also see the Professor A. Radzyner’s enlightening article,  “The Essential Thing is not the Study, but the Deed”: Get Procedures after Tort Claims and the Policy Respecting Publication of Rabbinical Court Judgments, 44(1) M  5 (2105). It should be noted that, according to this article, a get can be granted even after compensation is paid. I believe that a decision to revoke support is no more harsh than a decision finding that a  recalcitrant husband is a tortfeasor and a nuisance, and liable for compensation.

 

19.In closing, I think it appropriate to briefly address my colleague Justice Erez-Barak’s response. I fear that I do not agree with presenting the matter as a binary dichotomy between the jurisdiction of the Rabbinical Court in matters of divorce and the jurisdiction of the Family Court in matters of property. The Family Court, in adjudicating matters of property, which are undisputedly within his primary jurisdiction by default, sees the picture before it in the matter within its jurisdiction (that is, matters of property) and must render judgment. It does not consider factors of halakha, and does not end the marriage in the halakhic sense. However, it is not required to grant one of the partners, be it the husband or the wife, a perpetual key. Surely, my colleague has no intention of presenting the Family Court or the District Court as insensitive to distress of the male or female partner who has no source of income, or to the rights of women. And indeed, this is not the case in general, nor is it the case before us. The Family Court, like the District Court, as fair courts, will know how to navigate in the appropriate cases, and properly examine good faith in matters of property before reaching a decision. The Rabbinical Court’s jurisdiction stands and is respected. Finally, as for the comments by my colleague Justice Zylbertal, I believe his concern as to the possibility of filing tort claims for get recalcitrance, which he wishes to put at center stage, should not be taken lightly. His reasons for disputing our colleague Justice Barak-Erez’s distinction between suits for fixing periods of support for recalcitrance and tort suits for recalcitrance are essentially acceptable to me.

 

20.In conclusion, in light of the above, should my opinion be heard, the District Court’s decision would be upheld, and support would be paid until the date set. At the end of that period, it will be possible to reexamine the situation between the parties, and whether there might be any justification for rehabilitative support on the basis of a new request.

 

21.After reviewing the opinion of my colleague Justice Zylbertal, and having been left in the minority as to the operative outcome, I would suggest that, at the end of the day, the gap between my colleagues’ positions as to the outcome and my own is not so wide. My colleague Justice Barak-Erez proposes that the Respondent continue to pay the Applicant’s support as decided by the Family Court, without determining a termination date, whereas, in my opinion, the situation ought to be revisited at the end of such period – this coming December of 2015, when the possibility for extending the period of support may be considered. In any case, as my colleagues are in the majority in this matter, the operative outcome is according to the opinion of my colleague Justice Barak-Erez.

 

 

 

 

Justice Z. Zylbertal:

 

1.I have carefully read the compressive, thorough opinions of my colleagues Justice D. Barak-Erez and Deputy President E. Rubinstein. I will begin by stating that in the disagreement between my colleagues, I concur with the outcome arrived at by Justice Barak-Erez, whereby the appeal should be granted as set out in paragraph 65 of her opinion. Nevertheless, as will be explained below, I cannot concur with all the principled findings that led my colleague to that outcome, and I concur with the opinion of the Deputy President on the main point of dispute between my colleagues.

 

2.The discussion here may be divided into two primary issues: the first, on which my colleagues are divided, is the question of jurisdiction (or, at least, how it is exercised). Is the Family Court permitted to revoke a woman’s support without a prior decision by the Rabbinical Court requiring that she accept a get, and without a positive finding that the couple’s marriage has come to an end? My colleague Justice Barak-Erez’s position is that the principle of comity between courts calls for restraint by the civil court, and therefore, in her opinion, as long as the divorce proceedings are pending in the Rabbinical Court, the civil court cannot base rulings as to the issue of support on “recalcitrance” in regard to the get in the absence of an appropriate finding by the Rabbinical Court on this issue. Justice Barak-Erez added that this conclusion results not only from the principle of comity between courts, but also from the Jewish religious law that applies in our case, according to which revoking a right to support in a case where a get has been ordered must (in the opinion of many) be followed  by supplementary steps that are within the exclusive jurisdiction of the Rabbinical Court, and that require the active involvement of the Rabbinical Court (entrusting the get and the ketubah amount to a third party.)

 

The Deputy President disputes Justice Barak-Erez’s position on the matter of jurisdiction. His position is that the civil courts may revoke a married woman’s support when they are satisfied that the marriage has effectively ended and that the woman refuses to accept her get only for financial reasons, even in the absence of a finding by the Rabbinical Court that the woman is required to accept the get. The Deputy President explained that the civil court often makes incidental findings that are required for determining the issue of support and the property matters under its primary jurisdiction (section 76 of the Courts Law [Consolidated Version], 5744-1984). In the Deputy President’s view, the civil court’s finding that a woman must lose her support because she is a “recalcitrant spouse” does not lead to the end of the marriage in the halakhic sense, and does not deviate from the principle of comity between courts.

 

3.My colleagues’ positions are well reasoned and internally consistent, and each expresses important (sometimes conflicting) principles that are necessary for a functioning legal system. Still, my position is that a broader perspective as to the unfortunate phenomenon of “get recalcitrance” tips the scale in favor of the Deputy President’s position, and thus, on the fundamental issue in question, I join his opinion. I will explain my conclusion below.

 

4.Both the Deputy President and Justice Bark-Erez briefly discussed an issue that is tangential to ours – the possibility of being awarded monetary compensation in cases of get recalcitrance through a tort suit (see paras. 56-59 of Justice Barak-Erez’s opinion, and para. 18 of the Deputy President’s opinion.) Indeed, in recent years, various legal and halakhic means have been explored in order to contend with the harsh phenomenon of get recalcitrance, including the option of filing a tort claim against the recalcitrant party. In this context, Justice Barak-Erez’s position on the jurisdiction issue, as presented above, may – by a possible analogy – lead to the outcome that it will not be possible to award tort damages against a recalcitrant spouse in the absence of a positive finding by the Rabbinical Court  requiring the husband to deliver a get. Justice Barak-Erez considered this possibility in noting:

 

In my opinion, this analogy is not at all obvious and I believe it is misplaced… There are several reasons for distinguishing the two types of suits, as I shall explain below.

In my opinion, the primary reason for distinguishing between the cases is that the right to support ordinarily concerns the ongoing maintenance of the woman entitled to support…A decision to revoke entitlement to support is an extreme act when compared to awarding compensation for get recalcitrance…Another, more formal but not unimportant, reason for the distinction derives from the fact that tort suits for divorce refusal are adjudicated exclusively under civil law, in accordance with the tests of the tort of negligence, and in any event, the matter is given to the exclusive jurisdiction of the civil courts. On the other hand, determining issues of support is contingent on the marital relationship and draws upon religious law.

 

5.With all due respect, in my view, the distinction my colleague proposes is not problem free. I fear that her position may seal the fate of tort claims against recalcitrant spouses in the absence of appropriate findings by the Rabbinical Court, and this despite my colleague’s clarification that such an analogy is misplaced. Below, I will attempt to explain why I believe that such an analogy is possible, as well as the problems posed by the reasons for distinguishing between the two claims that my colleague addressed, and why, in my opinion, such a distinction is inappropriate.

 

At the end of the day, both in regard to tort claims and support claims, the civil court will be called upon to determine whether one of the partners is a “recalcitrant spouse.” This issue, which goes directly to the issue of the state of the couple’s marriage, is subject, as noted in my colleague’s opinion, to the exclusive jurisdiction of the Rabbinical Court. It can be further assumed that when a support suit (as in our case) or a tort claim for get recalcitrance is filed in the civil court, a parallel  divorce proceeding is pending in the Rabbinical Court, such that the principle of comity between courts applies equally to both types of claims. Therefore, it is not impossible that establishing my colleague Justice Barak-Erez’s position as binding precedent whereby the civil court may not determine that the woman is a “recalcitrant spouse” in the absence of a finding to that effect by the Rabbinical Court would, in practice – and without persuasive reasons for distinguishing the two types of claims – lead to an analogous conclusion with regard to tort claims for get recalcitrance. In other words, in the absence of a finding by the Rabbinical Court that the man is required to issue a get, it will be impossible for the civil court to find that the husband is recalcitrant and order that he pay compensation in a tort action. In this context it should be emphasized that rabbinical courts are very cautious, for their own reasons, in regard to ordering a man to deliver a get, and it often takes many years from the beginning of the conflict and the filing of the divorce suit until the Rabbinical Court orders that the issuance of a get is required. It should also be noted that the family courts, which have been hearing tort claims for get recalcitrance in recent years, vacillated on this issue, but it would appear that the prevailing approach allows them to grant such claims (under the tort of negligence) even in the absence of “get obligation” by the Rabbinical Court (see: FC (Jlem) 46459-07-12 Z. G. v. S. G. (August 17, 2014) para. 51). As noted, I fear that accepting my colleague’s approach, and its resulting application to the parallel case of tort claims against “recalcitrant spouses” as well, would lead to a change in the current state of the law regarding such claims, which is, in any event, somewhat vague, and will seriously undermine the possibility of employing one of the central tools for combating this wrongful phenomenon.

 

6.Justice Barak-Erez, who is aware of the possible ramifications of implementing her position in regard to tort claims for get recalcitrance, made it clear that she believes that the analogy above is misplaced, and even provided two reasons for her distinction between the types of claims. In doing so, my colleague attempts to alleviate the concern for the undesirable consequences of her position in the context of the general fight against the phenomenon of get recalcitrance to which I referred. However, as I will explain below, I do not believe that there is any real justification for the distinction proposed by my colleague. Moreover, I believe the proposed distinction may lead to a lack of coherence and legal consistency, and create different laws for recalcitrant husbands and recalcitrant wives. Therefore, I am unable to agree with my colleague’s fundamental position, as well as with the attempt to restrict that position so that it would apply only to limiting the periods for the payment of support in response to get recalcitrance, as opposed to tort claims in which the civil court must consider which of the parties is the recalcitrant spouse. I shall explain my position.

 

As noted, my colleague gave two reasons for a distinction between suits for limiting the period of support due to get recalcitrance and tort suits for get recalcitrance. The first and central reason is that a decision to revoke a woman’s support is a harsher act in comparison to awarding compensation for get recalcitrance. Therefore, as I understand it, her position is that the civil courts must not be granted authority to revoke a woman’s support without “speed bumps” of sorts, or threshold requirements, in the form of the Rabbinical Court’s order requiring the issuance of a get, because of the severe consequences of such a decision. On the other hand, as the argument goes, awarding compensation for get recalcitrance would not render the recalcitrant spouse impoverished or in a state of existential distress, and thus my colleague is willing to permit the civil courts to rule on this matter even without “speed bumps” or other moderating mechanisms. With all due respect, I cannot agree. Indeed, a decision to deny support to a woman who for years relied on her husband’s income may have a dramatic effect on her life and bring her to a state actual poverty. Therefore, my position is that clear rules must be established as to the circumstances under which it may be possible to revoke a “recalcitrant” woman’s support, so that reducing women to poverty will not be possible (see, for example, my position in regard to fixing the support of the Applicant at bar, below.) We must assume that the family courts will act responsibly in regard to the issue of revoking a woman’s support, and will rule in accordance with the guidelines that will be established in the case-law as to the circumstances in which a woman’s support may be revoked for being a “recalcitrant spouse.” I shall further comment that even under my colleague’s approach, revoking support from a “recalcitrant wife” would be possible after the Rabbinical Court orders her to accept a get, so that the harsh outcomes of revoking the support would not be fully prevented, but only delayed until after the Rabbinical Court hands down an appropriate decision. I do not see much point in this. A decision to deny a woman support for “recalcitrance”, whether it is given before the “get obligation” by the Rabbinical Court or after it, must, in any case, be made very carefully, with consideration for the reason for the recalcitrance, the woman’s prospects of supporting herself, and the understandings between the couple throughout the marriage (and on this – in detail – below). Therefore, I do not share my colleague’s position that the harsh consequences of revoking support of the recalcitrant spouse warrant a distinction between such a suit and a tort claim for recalcitrance. In my view, a finding whereby a civil court may revoke a woman’s support only after she is required to divorce by the Rabbinical Court is merely delaying the inevitable, but it does not offer a real solution for concerns about reducing the recalcitrant woman to a state of poverty. Below, as noted, I will discuss the considerations that the civil court must weigh before reaching a decision with such dramatic consequences, and this, I believe, would provide a real response to the concerns my colleague has raised.

 

The second reason my colleague mentioned for distinguishing between suits for denying a woman’s support and tort claims for “get recalcitrance” is based on the fact that tort claims are adjudicated exclusively under civil law, and that jurisdiction over them is granted only to the civil courts. As opposed to this, according to Justice Barak-Erez, ruling on the matter of support depends on the marital relationship and draws upon religious law. Here, too, I am not persuaded that the distinction my colleague proposes will indeed be possible, inasmuch as the tort cause of action – the get recalcitrance – is itself dependent upon religious obligations and norms stemming from the applicable religious law, and it may not be viewed as a classic, “pure” civil tort claim, as my colleague implies.

 

I would further add that the distinction proposed by my colleague between the two claims – that claims to revoke a woman’s right to support would require a positive finding of the Rabbinical Court requiring a get, but that such a finding would not be required in tort claims against a recalcitrant spouse – may be interpreted, and with some justification, as an improper distinction between the law applicable to recalcitrant husbands and the law applicable to recalcitrant wives.

 

7.In conclusion, though it is clear from my colleague’s opinion that, in her view, there is no place for an analogy between her general position on denying support and the tort claim for get recalcitrance, I believe that such an analogy is possible and even warranted, and I do not find it proper or possible to distinguish the two cases. Therefore, although this consideration is beyond the scope of this case, I saw fit to emphasize it and bring it to center stage as a primary consideration for joining the position of the Deputy President on the issue of jurisdiction. As stated, the fundamental positions of my colleagues are possible, in my view, in terms of their logic and the important values that each expresses. Therefore, in determining which of the two is preferable, and with a broad perspective as to their future ramifications, I find that Justice Barak-Erez’s position strikes a hard blow that significantly restricts the powers of the civil courts when dealing with the difficult phenomenon of get recalcitrance. Therefore, and as it is possible in our legal system, as extensively detailed in the Deputy President’s opinion, my position is that the civil courts are authorized, in principle, to revoke the support of a “recalcitrant woman”, even in the absence of an explicit ruling by the Rabbinical Court requiring her to accept a get. Therefore, as stated, my position on the issue of jurisdiction is as that of the Deputy President.

 

8.The second question that should be discussed after determining the matter of jurisdiction, is what considerations the court must contemplate before revoking a woman’s support due to “get recalcitrance”, and whether, under the circumstances of this case, fixing a time period for the Applicant’s support was proper.

 

Indeed, we must assume that leave for appeal on a “third incarnation” would not have been granted were this issue adjudicated on its own and independently from the jurisdiction question, because it seemingly does not raise an issue of public or general importance that goes beyond the matter of the direct parties to the proceedings (LCA 103/82 Haifa Parking Lot Ltd. v. Matzat Or (Hadar Haifa) Ltd., IsrSC 36(3) 123 (1982.)) Leave to appeal was granted in our case because of the public and general importance of the jurisdictional question, discussed above. Having concluded that the Family Court is authorized, in principle, to fix a time period for a woman’s support due to “get recalcitrance” even in the absence of a positive finding by the Rabbinical Court, the fundamental question that was the reason for granting leave to appeal is decided, and it is held that the lower courts’ ruling was within their competence. Therefore, we could have stopped here and upheld the District Court’s ruling without further intervention into the operative, concrete matter before us. This is the path that the Deputy President adopted in reaching the conclusion that support should be paid to the Applicant until the date set by the District Court (that is until December 31, 2015). The Deputy President added that, at the end of that period, it would be possible to reconsider the situation between the parties, and whether there is justification for awarding rehabilitative support on the basis of a new motion. On this point, my position diverges from that of the Deputy President. I believe that once leave for appeal was granted on the fundamental question, and once a comprehensive, in-depth discussion into the case at hand was conducted, the door is now open to consider the additional questions the case raises, including the matter of the actual application in the circumstances before us. Moreover, as will be explained below, this question, too, has fundamental, broad consequences that go beyond the particular matter of the parties (on the broad jurisdiction of appeals courts over family court decisions, see Chemi Ben Nun and Tal Havkin, The Civil Appeal 568-71 (3rd ed., 2012) (Hebrew)).

 

9.What, then, are the considerations the Family Court must consider when it is called upon to fix the period for support or revoke the support of a married woman merely because she is delaying the divorce and refusing to accept her get for financial reasons?

 

I have noted above that the phenomenon of get recalcitrance is wrong and severe. It exploits the get – which is a “ticket” out of a failed marriage – as a bargaining chip for extortion. Often male partners refuse to release their wives from a marriage in which they are no longer interested, and condition their consent on financial demands and compromises in which the women partners forgo their property rights. In my opinion, this wrongful and painful phenomenon requires that we find legal and halakhic tools that would respond to the plight of those who for many years (often – their fertility years) beg for the possibility to end a marital relationship which they do not wish to continue, and for the possibility to move on to a new relationship.

 

10.Though I present this phenomenon in a gender-based manner, clearly when the woman refuses to accept a get and allow the husband to end the marriage and go on with his life in order to compel him to forgo his property rights or for sheer vindictiveness, the matter is just as serious. Parenthetically, I would note that, nevertheless,  the distress of women who are refused a get is more extreme than that of men, primarily because a married woman may not start a new family with another man (that is “move on with her life” without a get) without her new children being considered mamzerim [bastards] in the eyes of Jewish halakha. Married men do not face this problem, and the may go on with their lives and raise new families without the having the cloud of halakhic “bastardy” hanging over the heads of their future children.

 

11.In light of all this, it is clear why, in appropriate cases, the Family Court must be allowed to deny incentives to recalcitrant men and women who act out of a lack of good faith (to put it mildly). However, in my opinion, the matter at hand is not among those cases, at least not obviously. We must distinguish between recalcitrance that is rooted in personal vindictiveness or extortion, and recalcitrance that is rooted in the absence of adequate financial protection for the financially weaker party in a divorce. It seems that when the support guaranteed to a woman who, as in our case, managed the household for decades and never integrated into the workforce or acquired a vocation or profession, is absolutely stopped upon divorce (without simultaneously providing a solution for her financial distress in the division of property), she must not be condemned for refusing to divorce due to her economic dependence on her husband. Surely, this is not analogous to the more difficult case of a “get recalcitrance” which, as noted, involves extortion and vindictiveness (Shahar Lifshitz, Family and Property Relations: Challenges and Tasks subsequent to the 4th Amendment of the Property Relations Law, 1 Hebrew)and see the references there; and also see the end of section 5A(d) of the Spouses (Property Relations) Law which mandates that “the refusal of the applicant [for balancing resources – Z. Z.] to waive rights to which they or their children are entitled by law, shall not be deemed an absence of good faith”).

 

12.Indeed, there are currently many legal tools designed to contend with the financial distress of the “home-based” partner and the inequality in the ability of partners to produce income when the division of labor during the marriage was the “traditional division.” A significant number of these tools were mentioned, in one way or another, in the opinions of my colleagues, as well. These include, for example, “rehabilitative civil-support,” which was discussed at length in the opinion of Justice Barak-Erez, as well as the possibilities for an unequal balancing of resources, for division of human capital and resources, and compensation for career losses. Indeed, as a general rule, the court adjudicating the end of the couple’s marriage has a full “toolbox” that is meant to bring about a just outcome, as well as  the economic protection of the “home-based” partner after the divorce.

 

13.Sadly (and this is regretfully typical of proceedings between partners due to the split jurisdictions in the area), the picture before us at this point is only very partial and limited. The full picture of the couple’s assets and its division has not been presented to us, and the parties did not present arguments on the issue of balancing the assets between them or the division of non-monetary assets such as human capital or career assets. Although the Family Court did decide on the issue of the division of assets between the couple (and denied the woman’s request for an unequal division in her favor), the Applicant informed the Court that she intended to appeal that decision (and we were not informed as to whether any appeal was actually filed). In any event, there is not doubt that in the absence of many relevant details as to the Applicant’s ability to maintain herself after the divorce, it is extremely difficult to reach a just outcome on the matter of support in and of itself. That being the case, and although we are unable to “complete the task”, neither are we free to absolve ourselves of it [ 2:16]. We must, despite our  frustration, determine only the issue before us solely on the basis of the facts and arguments of which we are aware.

 

14.Before us is a couple that, until the dispute between them erupted, were married for about thirty-five years, raised three children, and lived a shared, full life together that included shared vacations and a warm relationship (see para. 31 of the District Court’s decision). Over the course of  the marriage, the Applicant hardly worked outside of the home, and she is currently over fifty years old. In other words, during all of her adult life, the Applicant relied on the income of the Respondent, her husband, and did not acquire a profession or professional experience through gainful employment. It is therefore understandable why, when the dispute between the couple began, the Applicant became concerned about the implications of a future divorce for her financial circumstances and daily survival, and why she filed a suit for support. Similarly, it is understandable that as long as the entirety of the couple’s financial relationship and division of property has not been settled, and lacking any secure, stable source of income, the Applicant refused to divorce and forgo the support to which she is lawfully entitled. Thus, I do not find that the Applicant’s delay of the divorce necessarily proceeds from  extortion or vindictiveness, and it is entirely possible that the refusal to divorce before a final determination as to the division of the property between the couple derives from a concern over coming out of the divorce process having lost everything and without financial support.

 

To all the above we must add the fact that the Respondent is expected to retire relatively shortly (and in any event, in the next few years), and there is no dispute that the Applicant will be entitled to pension rights accumulated until the time of the rift. In other words, effectively the matter of the Applicant’s entitlement to support concerns only a short period of time, which is a “transitional period” of sorts, until the Respondent retires and she receives her share in his pension rights.

 

15.This being the case, my position is that, under the circumstances of the case, in light of the Applicant’s age (which is not very far from retirement age) and her limited prospects of integrating into the workforce, gaining experience and earning a satisfactory income during the short time left until the Respondent’s retirement,  setting a fixed period for her support would not be appropriate. The District Court noted that one of the rationales for fixing the term of support was to allow the Applicant a reasonable amount of time to prepare for her future. However, as my colleague Justice Barak-Erez noted, in applying that principle the lower court did not explain to what extent the term it set (about three years from the date of the Family Court’s decision) is supposed to serve the woman’s ability to produce an income when that term comes to its end.

 

We must bear in mind that requiring the Applicant to go out and attempt to integrate into the workforce may be an excessive burden in view of the short period of time she would be able to work before both parties reach the age of retirement. Above all, and this must be emphasized, after many years of common effort in maximizing the couple’s assets (including, the Respondent’s ability to produce an income), it would be unjust  that the Applicant be the one to bear the primary financial costs of the divorce, and it would be unfair that her quality of life and financial security be compromised while the Respondent continues to enjoy a high salary and the lifestyle to which he has been accustomed. Requiring a woman in her fifties to integrate into the workforce within three years (for any job?  for any pay?) only because her husband decided that he wishes to end the marriage between them is unreasonable. And it should further be emphasized that the Respondent’s decision to divorce the Applicant is a legitimate decision, in and of itself, but it does not allow shirking the responsibility stemming from decades of understandings that led to the current state of affairs. Therefore, my position is that, in the case at hand, the term of the Applicant’s support must not be fixed as long as she does not receive her share in the Respondent’s pension rights.

 

16.As noted, this finding relies upon an incomplete picture of the facts and data related to the division of property between the couple. Therefore we should make it clear that this determination would not permit the Applicant to “double dip”. If it be decided in any of the other proceedings conducted between the partners that she is entitled to any periodic payments that represent her share in the Respondent’s monthly salary (in the form of civil support, an unequal division of resources, career assets, and the like), it will be appropriate to set off the payment of support, which is designed to realize the very same goal.

 

17.In light of the above, we would again make it clear that there may indeed be cases in which the civil court would be authorized to fix a woman’s support for a set period, even in the case of a woman who did not work outside the home for many years. For example, a woman facing a long period of time until the age of retirement may acquire a profession, gain experience and stand on her own two feet financially within a reasonable adjustment period (the length of which would depend on the concrete circumstances). During the adjustment period, the woman would be entitled to her support (or to a similar amount through one of the other legal tools at the court’s disposal), until she realizes her income potential. There is also great significance to the nature of the relationship during the years of marriage, and primarily to the question of whether the man encouraged his wife to manage the household and thus forgo acquiring a profession or higher education, or whether he did all he could to facilitate her personal and professional development, and it was she, contrary to his wishes, who chose to stay at home. These considerations are relevant and must be taken into account by the Family Court when adjudicating a request to fix the period of support for a woman who has no independent sources of income.

 

18.Before concluding I would emphasize that I am not ignoring the concern that a decision not to set a fixed time for the Applicant’s support may become an incentive for her, and for other woman under similar circumstances, to continue to refuse to divorce. Nevertheless, we cannot ignore the fact that negotiations between the parties over a future settlement are not conducted in a vacuum. The parties know that if they do not arrive at an agreement, the compulsory arrangement the court will establish will be in accordance with the relevant legal rules. Therefore, it may be assumed that husbands – like the Respondent in our case – who foresee a high probability of being obligated to pay their wives’ support (or another financial obligation that would reflect the future support of their wives through one of the other possible legal tools) would conduct the negotiations over the division of property accordingly. To the extent that the negotiations for a settlement between the couple would include a proposal for periodic or fixed payment of equivalent value to the woman’s support payments, and the woman would still maintain her refusal to divorce as an  extortionist or vindictive tactic, the court may take this into consideration and fix the period of her support, and thus somewhat mitigate the concern over incentivizing wrongful refusal.

 

19.In conclusion, on the fundamental question at issue in this application for leave to appeal, I concur with the position of the Deputy President: the family courts may fix the term of support for a woman by reason of get recalcitrance, even in the absence of an order by the Rabbinical Court requiring a get.

 

However, my position is that under the circumstances of the case at hand, fixing period of the Applicant’s support would not be appropriate, both because her delay of the get in not necessarily a result of wrongful vindictiveness or extortion, that is, we are not concerned with a lack of good faith that would justify setting a time limit for support, and in light of the understandings that characterized the couple’s marriage, the Applicant’s age and her prospects for integrating into the workforce during the short adjustment period left until the partners reach the age of retirement. Therefore, under the circumstances of this application for leave to appeal, I concur with the operational outcome of my colleague Justice Barak-Erez, as detailed in paragraph 65 of her opinion. The case is remanded to the Family Court to rule on the matter of support in accordance with the Rabbinical Court’s updated decision and in accordance with the considerations outlined above. Until a further decision by the Family Court, the Respondent shall continue to pay the Applicant her support as decided, without fixing a date for the termination of payment.

 

                                                                                   

                                                                                   

 

The Appeal is granted in regard to the operative outcome, as stated in paragraph 65 of the opinion of Justice D. Barak-Erez. The Respondent will bear the Applicant’s costs in the amount of NIS 20,000.

 

Given this 23^rd day of Heshvan 5776 (November 5, 2015)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In the response of Rabbi Ovadiah Yosef he states, among other points:

 

Ostensibly, we can say that the Rabbinate should not be lenient in their supervision of the restaurant’s kosher status, so long as the [owner] does not agree to follow all the instructions [of the kosher supervisor] whether they relate to Biblical transgressions or Rabbinical ones… but here, there is rabbinical supervision upon all the food, [attesting to] its kosher status, and the fact that there may be individuals who wish to eat dairy after meat, [which the kosher] supervisor cannot prevent because of the freedoms that prevail in our country, has no bearing upon the kosher status of the food.

I note that later on in his response, Rabbi Yosef mentions that he agrees with the ruling of Rabbi Feinstein as stated in the aforementioned Responsa Iggrot Moshe.

Finally, I would also like to add that if the aforementioned honorable Rabbis have been able to adopt this more flexible approach for the purpose of attaining their main goal of ensuring the distribution of kosher food, even with regard to the issue of consuming dairy products after eating meat which, according to everyone, is [directly] connected to the laws of kosher, it is still further appropriate to consider a similar approach regarding issues unrelated to the kosher status of food and its preparation.

Needless to say, this consideration is brought forth as an afterthought, as our decision is binding by the force of judicial exegesis, as explained above.

4. As I have said, I agree with the decision of my honored colleague, Justice Or, that the temporary order is to be made permanent.

 

Decided upon the decision of Justice Or. Today, 3 Sivan 5750 (May 27, 1990)

 The Supreme Court sitting as Court of Administrative Appeals

AAA 662/11

 

Before:                                                The Honorable Justice E. Hayut

                                                The Honorable Justice N. Hendel

                                                The Honorable Justice U. Vogelman

 

The Appellants:                       1.  Yehudit Sela

                                                2.  Sima Ben Haim

                                                3.  Peri Shahaf

                                                4.  Yinon Sela

                                                5.  Yoav Ben Haim

                                                6.  Katy Shilo Oliver

                                                7.  Michael Ayash

                                                8.  David Cohen

                                                9.  Amnon Ben Ami

                                                10. Zachary Grayson

                                                               v.

The Respondents:                   1.  Head of the Kfar Vradim Local Council, Sivan Yehieli

                                                2.  Kfar Vradim Local Council

                                                3.  Oriette Amzalag

                                                4.  Shimon Amzalag

                                                5.  Victor Haziza

                                                6.  Tibi Hertz

                                                7.  Jacques Ben Zaken

                                                8.   Nissim Avital

 

Appeal of the judgment of the Haifa Administrative Affairs Court (The Honorable Judge R. Sokol) in AP 21404-06-09 of Dec. 23, 2010.

Date of hearing: 29 Adar 5774 (March 31, 2014)

 

Attorneys for the Appellants: Avi Weinroth, Adv.; Amir Lockshinsky-Gal, Adv.

Attorney for the Respondents: Haim Pitchon, Adv.

Attorney for the State Attorney’s Office: Tadmor Etzion, Adv.

 

Facts:   An appeal of the decision of the Haifa Administrative Affairs Court, dismissing the petition of the Appellants and holding that the court should not intervene in the decision of the Kfar Vradim local council according to which a women’s mikve (ritual bath) would not be constructed in the town in the near future.

Held:   As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes. In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention.

            It is clear that the council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects.

            Although the council’s decision relied upon the recommendations of the committee for examining criteria for the construction of public buildings in the village, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. However, that does not mean that the council is bound by the recommendations of the criteria committee, which is merely an advisory body. Under the circumstances, the decision to rescind its decision to build a mikve in the village, adopt the recommendations of the criteria committee in full, and refrain from taking action in the near future to establish a mikve in the town does not pass the reasonableness test, and does not reasonably balance the needs of the religiously observant female residents of the community, who are required to fulfil their religious obligation of ritual immersion, against the budgetary considerations and the available land resources.

            The religious obligation of ritual immersion is an integral part of the life of a religiously observant, married woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to the free exercise of religion and religious practice. No mikve has ever been built in Kfar Vradim. Given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the nearby towns on foot.  Under the circumstances, the absence of a mikve in the town deprives the female residents of the town of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community.

            The primary consideration that led to the decision was the limited resources available to the council. In its deliberations, the council could, indisputably, give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, under the circumstances of the instant case, the resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant. Under those circumstances, the weight of the budgetary consideration relative to the opposing interest was limited.

            That being so, in circumstances in which appropriate weight was not given to the substantial harm to the religiously observant, female residents of the town by the absence of a mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was given disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the council due to external funding – The Court held that the council’s decision not to erect a mikve was unreasonable and must, therefore, be annulled.

 

Judgment

 

Justice U. Vogelman:

 

            An appeal of a judgment of the District Court sitting as a Court Administrative Affairs in Haifa (the Honorable Judge R. Sokol), denying the petition of the Appellants, and holding that the court would not intervene in the decision of the local council of Kfar Vradim (hereinafter: the Council or the Local Council) not to erect a mikve for the women of the town in the near future.

 

Background

1.         The town of Kfar Vradim was established in the western Galilee following a government decision made in 1978. The town currently has some 6,000 residents. Some of the residents (many dozens of families according to the Appellants) define themselves as religious or traditional. In the past, the authority to plan, develop and market building lots in the town was held by the Kfar Vradim Development Corporation Ltd. In 2008, that authority was transferred to the Council. In 2005, the Local Council and the Ma’ale Yosef Regional Religious Council agreed that the former would be responsible for providing religious services in the village, including “family purity and the instruction of brides”. No mikve was ever erected in Kfar Vradim, and the closest mikves [ritual baths] for women are a short drive away, in the neighboring communities. Over the last few years, some of the local residents began working toward the establishment of a mikve in the town.

2.         On March 12, 2007, the National Religious Services Authority in the Prime Minister’s Office (hereinafter: the Authority) undertook to provide an “extraordinary budget” in the amount of NIS 745,000 for the building of a mikve in the town (hereinafter: the EB). The Local Council was asked to approve the Authority’s offer in order to receive the EB, and on May 22, 2007, it decided to approve it on condition that the Authority agree to exempt the Council from any obligation to finance the construction or maintenance of the mikve. The Council then completed the necessary application for receiving the EB – deleting the sections regarding the Council’s obligation to participate in financing – and returned it to the Authority, while emphasizing the condition that the Council not be required to fund the construction or maintenance of the mikve in any way. At the Council meeting, the chairman at the time informed the Council that, in a meeting with the Minister for Religious Affairs, the Minister informed him that the application to receive the EB would not be approved due to the reservations and deletions made in the application, but added and promised that the maintenance of the mikve would be financed by the Religious Services Authority, and that no funding would be required of the Council. In the course of that Council meeting, Mr. Amnon Ben Ami (Appellant 9, hereinafter: the Donor) – a community resident who had contributed monies in the past for the construction of the community’s synagogue – asked that the mikve be attached to that synagogue, and agreed to guarantee that the maintenance of the mikve will not require funding by the Council. At the end of the meeting, the Council decided “to approve the EB as is, without any changes, and in the “Stage B zone” (by the term “Stage B”, the Council was referring to a particular area in the village).

3.         Pursuant to that decision, on Oct. 23, 2008, the Council published a public tender for the construction of the mikve (hereinafter: the Tender). A petition submitted in regard to alleged flaws in the tender process was dismissed on Nov. 6, 2008, following a declaration by the Council that it would not open the bid envelopes until after the elections for the Local Council and until a decision was reached by the new Council in regard to opening the envelopes (AAA 10/08 (Haifa Administrative) Akirav v. Kfar Vradim Local Council (Nov. 6, 20018)). On Nov. 11, 2008, elections were held for the Local Council, in which a new Council head was elected (Respondent 1). On Nov. 16, 2008, the outgoing Council head requested that the Israel Lands Administration suspend the Council’s request to allocate land for the construction of the mikve, and instead, allocate the land for the construction of the Tefen comprehensive high school. This suspension request resulted from a compromise agreement, granted court approval in 2008, under which the Council agreed to allocate land for the construction of the Tefen school in its jurisdiction (AP (Haifa Administrative) 630/08 Association for the Ma’alot and Region Experimental School (R.A.) v. Industrial Local Council Migdal Tefen (Sept. 4, 2008)).

4.         On Dec. 22, 2008, the new head of the Council informed the bidders of the cancellation of the Tender, and the sealed envelopes were returned to the bidders unopened. In the course of February 2009, a decision was taken to change the location for the construction of the Tefen school, and to allocate other land in the town for that purpose. A Council meeting was held on May 13, 2009. In the course of the discussion of the allocation of land for religious purposes, the head of the Council requested the repeal of the decision of the previous Council in the matter, and added that the Tender for the building of the mikve had been cancelled due to a problem concerning the allocation of the land, and because there was no available budget and the Donor had not provided his share. It was further noted that, in the meantime, the Ministry of Religious Services’ commitment to underwrite construction of the mikve had lapsed. At the end of the meeting, the Council decided to repeal the decision of the previous Council from Nov. 18, 2007 in regard to the synagogue and mikve in Stage B (hereinafter: the Repeal Decision). As a result of this decision, several dozen residents organized in order to bring about its repeal. When their efforts failed, they submitted a petition against the Council’s decision to the Haifa District Court in its capacity as a Court of Administrative Affairs.

 

Proceedings in the Lower Court

5.         In their petition to the lower court, the Appellants argued that the Council’s decision to suspend and cancel the Tender for building the mikve should be annulled, and that the Respondents should be ordered to publish a new tender. A hearing was held on Sept 8, 2009. In the course of the hearing, it was argued, inter alia, that a decision could not be made to construct a mikve, or any other public building, without clear criteria for the allocation of public resources. In the end, a procedural agreement was reached between the parties under which the proceedings in the case would be adjourned for six months, during which the Council would establish criteria for the allocation of land for public buildings and for budgetary support for public purposes. It was agreed that those criteria would “relate to all the needs of the village, including religious needs, among them the construction of a mikve”; and that “in the framework of the criteria that will be established by the Council, the Council will consider the public desire and all the public needs, and will take the public’s constitutional rights into account. In addition, the Council would consider the burden on the public purse […] [and in that regard] the possibility of obtaining public or other funding for the construction of public buildings, including public funding already approved […], and the possibility of combining different needs together in order to reduce and save expenses”. It was made clear that the agreement would not derogate from any of the parties’ claims in regard to the petition itself.

6.         On Dec. 14, 2009, pursuant to the procedural agreement, the Council decided to establish a committee to evaluate the criteria for constructing public buildings in the town (hereinafter: the Criteria Committee or the Committee). The Committee comprised nine members, including representatives of the Appellants. Following five meetings and a public discussion to which the entire community was invited, the Committee presented its conclusions. The Committee decided that the priorities for the construction of public buildings in the town should be based upon a group of criteria, and quantified the relative weight that should be given to each criterion, as follows:

 

            Criterion                                                                                              Relative Weight

1. Expected number of users                                                                                    30%
2. Necessary for well-being in the town                                                       25%
3. Appropriate to the character of the town                                     25%
4. Cost relative to number of expected users                                                10%
5. Possibility of fulfilling the need in neighboring communities                  10%

 

            In light of these criteria, the members of the Committee ranked the list of 17 public buildings required by the town. After the mikve placed last under each of the criteria, separately and cumulatively, the mikve was ranked last in priority for the construction of public buildings required for the town.

7.         On April 21, 2010, the Council ratified the Committee’s recommendations, and explained that the priorities would serve as a “compass” for the Council’s decisions in this area, but added that the recommendations do not relieve the Council of its authority to consider each case on its merits. Following the ratification of the recommendations, and in light of the low ranking given to the construction of the mikve, the Appellants submitted an amended petition in which they reiterated the claims made in the original petition, and added claims against the criteria established and the method for ranking public buildings.

The Judgment of the Lower Court

8.         On Dec 23, 2010, the lower court (the Hon. Judge R. Sokol) dismissed the petition and assessed NIS 20,000 against the Appellants for costs. At the beginning of its judgment, the court explained that the fundamental rights of the Appellants to freedom of religion and worship were not in question, but the discussion must be focused upon the question of the criteria for the allocation of public resources in the local authority and the lawfulness of the procedures adopted by the Respondents. The court found that the building of the mikve required the allocation of public resources – land and budget – for construction and maintenance. The court explained that even if the Appellants expect to raise contributions for the project, those contribution are not expected to eliminate the need for public resources, but only to limit the costs. Against this background, the court rejected the Appellants’ claims in regard to the Repeal Decision, as well as the Council’s decision – made following the recommendations of the Criteria Committee – to rank the mikve as the lowest priority in the list of public building construction in the town (April 21, 2010).

9.         As for the Repeal Decision, the court found that since the allocation of land for building of the mikve was contingent upon conditions that were not fulfilled – the money was not provided by the Donor, and the Religious Affairs Authority required an unconditional undertaking that the Council underwrite the construction and maintenance costs – the Council’s decisions were lawfully repealed. Moreover, the Council was at liberty to repeal those decisions inasmuch as they were not made in accordance with the criteria established later in accordance with the Council’s new policy, and because the circumstances under which the decisions were made had changed after it was decided to allocate the land for the building of a school.

10.       All of the Appellant’s arguments against ranking the mikve as the lowest priority for the construction of public buildings were dismissed, as well. As for the claim that there was insufficient factual basis, the court found that the Committee’s reliance upon the data of the Council, upon oral and written public requests, and upon the Committee members’ personal knowledge of the town was reasonable, and that the Appellants had been given an opportunity to present data to the Committee as they wished. It further held that the statements of the Committee members in regard to the town’s future did not testify to the existence of improper considerations in regard to preventing an increase in the number of observant residents in the town, and that that the worldviews of the Committee members in regard to the needs of the community were relevant and required for addressing the matter. As for the Appellants’ claim that the criteria established under the procedural agreement were not included in the final list of criteria, the court held that the procedural agreement could not limit the Council’s exercise of its discretion, and that the said agreement was not intended to establish the criteria, but rather to set out the considerations that the Council should take into account in deciding upon those criteria, which it did. It was further found in this regard that the Council’s decision not to include the availability of resources as a criterion was intended to prevent the use of contributions in order to erect buildings for which there was no real need, and was, therefore, a relevant, legitimate consideration. The court added that the ritual needs of the residents are seen to by the Ma’ale Yosef Regional Religious Council, and that there are mikves in neighboring communities. It held that the absence of a mikve in the town presented a hardship for residents seeking to fulfil the religious obligation of ritual immersion, but it did not prevent the fulfilment of that obligation. Lastly, the court held that, in view of the appropriate judicial restraint to be shown in regard to intervention in administrative discretion, the court should not intervene in the criteria in a manner that would grant priority to the construction of the mikve.

            That is the background that led to the appeal before this Court.

 

Arguments of the Appellants

11.       The Appellants ask that the Court set aside the judgment of the lower court, annul the Council’s decision of May 13, 2009 (in regard to the EB and the allocation of land for the construction of the mikve), and of April 4, 2010 (in regard to ranking the mikve as the lowest priority for public buildings required in the village), and invalidate the recommendations of the Criteria Committee. The Appellants further ask that we order that the Council erect a public mikve in reliance upon the funding from the Ministry of Religious Services, and apply for an extension for obtaining the EB, as may be necessary.

12.       According to the Appellants, the construction of a mikve in the town will protect the right of the residents to freedom of religion and worship, on the one hand, while not affecting the communal resources, on the other. The Appellants argue that the mikve can be combined with another public building, such that it will not detract from the land available for public use, while its construction and maintenance will be funded through state funding and not from the Council’s budget. Under those circumstances, they argue, the Council’s decision to refrain from building a mikve in the town was disproportionate and unreasonable, and derived from improper, extraneous considerations that arose from a desire to preserve the secular character of the community and keep religiously observant people out of the village. They further raised a series of flaws in the Council’s decision-making process in the matter. The Appellants also argued that there were factual errors in the lower court’s judgment, among them, the finding that the mikve was to be built in reliance upon funding by a private donor (whereas, they argues, the funding was to be provided by the State); the finding that the Appellants claimed only a burden upon their constitutional right to freedom of religion and worship (whereas, according to the Appellants, they claimed a real infringement and absolute denial of the ability to perform the religious obligation on the Sabbath and holidays); the finding that allocating land for the mikve was contingent upon conditions that were not met (whereas the Council decided, on Nov. 18, 2007, to waive the conditions it had previously set for the building of the mikve).

 

Arguments of the Respondents

13.       The Respondents support the judgment of the lower court. First, they argue that there were no flaws in the work of the Criteria Committee. On point, the Respondents argue that the Criteria Committee rightly decided that the availability of resources should not serve as a criterion for the construction of public buildings, as otherwise, the Council would have to erect every building for which there was outside funding; that the possibility for combining a number of functions in one building should not be considered in the framework of establishing criteria, as it is a preliminary stage; and that the constitutional rights of the residents should not serve, in and of themselves, as a criterion, and it is sufficient that they are taken into account in the framework of the established criteria. It was further argued that, at present, there were other public buildings that remained to be built, for which the residents had long-ago paid the development costs The Respondents are of the opinion that once the parties decided upon the establishing of the Criteria Committee, there was no longer any justification for reexamining the Council’s decisions prior to the establishing of the Committee, and moreover, in light of the decision of the former Council head to build the Tefen school on the lot, the Council had no choice but to cancel the Tender; in any case, the Council is permitted to decide upon a change of policy; and that, in any case, the requisite preconditions for carrying out the repealed decision – full outside funding and available land – were not met.

 

Proceedings before this Court

14.       On Sept. 6, 2012, a hearing was held on the appeal (E. Hayut, U. Vogelman, Z. Zylbertal, JJ), in the course of which the Court recommended that the parties attempt to settle the dispute amicably and out of court, inter alia, in light of the suggestion that arose in the course of the hearing that it might be possible to build the mikve privately in the town’s commercial center. On Nov. 11, 2012, the parties informed the Court that no agreement had been reached, and that the possibility of building a private mikve as suggested was in doubt inasmuch as it was contingent, inter alia, upon obtaining a zoning variance. Following a further hearing before this panel (E. Hayut, U. Vogelman, N. Hendel, JJ) on Nov. 4, 2013, the Court requested that the State (the Ministry of Religious Services, and, if necessary, the Israel Lands Authority) declare its position on the matter.

15.       The State submitted its reply on Dec. 24, 2013. The reply stated that the Council could submit a request for funding for the construction of a mikve, which would be considered based upon the criteria of the Ministry of Religious Services, and that it was possible to erect a “standard” public mikve in reliance upon state funding. However, it was noted that there are cases in which the local council participates in certain related costs (such as, environmental development and various complimentary costs), and that, as a matter of course, the Ministry of Religious Services requires that the local authority undertake – as a condition for receiving funding – to pay the difference, if any, between the cost of construction and the funding. It was further made clear that there was no need to allocate specific land for the purpose of submitting the application, and that the salary of the mikve attendant would be provided by the Ministry of Religious Affairs, prorated in accordance with the number of users. It was further explained that the state does not participate in the construction or maintenance of private mikves. As far as the allocation of land was concerned, the Israel Lands Authority informed the Court that, after investigating the matter with the engineer of the Lower Galilee Local Building and Planning Committee, it found that there are three lots in the town– lots 718, 720 and 856 – that could be appropriate, in terms of planning, for the construction of a mikve. In light of the above, we were informed that “The State is of the opinion that there is a possible course for the erection of a mikve in Kfar Vradim, the construction of which will be funded (entirely or primarily) by funding from the Ministry of Religious Services. This, if an application is duly submitted on the prescribed dates, and subject to its examination in accordance with the criteria, and its approval”.

16.       Following the State’s reply, the Appellants submitted an urgent request for an interim order. The Appellants asked that we order the Respondents to submit an application to the Ministry of Religious Services for funding for the erection of a public mikve in accordance with the State’s recommendation, in order to meet the timetable for receiving the funding in 2014. The Respondents opposed the request, arguing that they should not be ordered to submit such a request before the matter is approved by the Council in an appropriate administrative procedure. On Dec. 29, 2013, we dismissed the request for an interim order, and ordered that a date be set for a further hearing of the appeal, in which the State’s representative would also participate.

17.       In updated notices submitted on Feb. 28, 2014 and March 3, 2014, the parties informed the Court that the attempt to initiate the erection of a private mikve had failed due to the Local Council’s decision to deny the request for a zoning variance, and that it the possibility of obtaining such a variance was now unclear inasmuch as it would only be possible to resubmit the request after the completion of the parcelization process for the commercial center. We were further informed that the parties remained divided on the issue of allocating Council resources for the construction and maintenance of a public mikve.

18.       On March 31, 2014, this panel conducted a further hearing of the appeal, in which the attorney for the Respondents claimed that there were planning and practical problems in regard to constructing the mikve on lot 856, which had been mentioned in the State’s reply. At the conclusion of the hearing, we ordered that the Respondent’s attorney submit a notice to the Court, no later than April 6, 2014, detailing the planning and other problems cited in his arguments in regard to lot 856, which had been found suitable, in terms of planning, for the erection of a mikve, as well as in regard to the other lots in the area that might be suitable, and that the State’s attorney then submit an updated notice in regard to the possibility for allocating a lot for the erection of a mikve.

19.       On April 6, 2014, the Respondents submitted an update in which they informed the Court that it would not be possible to build a mikve on lot 856, inasmuch as it would require a new urban development plan and the adjustment of infrastructures; because the type of use of the buildings surrounding the lot was not appropriate for the building of a mikve; and because part of the lot had been sold to a private individual. Therefore, according to the Respondents, the possibility of building the mikve in the commercial center would be preferable, since work on the project had begun (without a permit). On May 1, 2014, the State submitted a further notice in which it stated that building a mikve of lot 856 was possible. The State explained that there are no current negotiations for the transfer of parts of the lot to private hands; there is no need for a new, detailed plan for erecting a mikve, as the current plan is sufficient; and that nothing about the type of use of the surrounding lots would prevent the building of a mikve on the lot. It further noted that a mikve could also be built of lots 718 and 720, both from a planning and practical point of view. The State further explained that building a mikve in the area of the commercial center would involve planning and practical problems: under the relevant plan, the area is zoned for “commercial purposes”, and therefore the erection of a mikve would require initiating planning proceedings in order to change zoning; the proximity to commercial areas is incompatible with the operation of a mikve; and the ownership of the lot and construction violations had yet to be resolved. As for funding the building of the mikve, the Council could submit an application for funding to the Ministry of Religious Services for 2015, which would be reviewed in accordance with the Ministry’s criteria that would be published in the final months of the current year.

 

Deliberation and Decision

            Is the Kfar Vradim Council’s decision to rescind its decision to erect a mikve in the town and refrain from acting towards its construction compatible with the rules of public law? That is the question that we must decide.

 

The Scope of Judicial Review over a Local Authority’s Decision in regard to Allocating Public Resources

20.       The Kfar Vradim Council is a local council authorized to decide how resources will be allocated, subject to the provisions of the law. Indeed, “What use a local authority will make of its property, and to what extent will it permit an individual to use it and when will it refuse, is the question that the authority itself, through its elected representatives, is authorized to decide” (HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council, 16 IsrSC 2101, 2114 (1962) (hereinafter: the Peretz case)). As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes (whether we are concerned with a local authority or a governmental authority). In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention. Such restraint is a corollary of the principle of the separation of powers. In this regard, the words of Justice S. Netanyahu are apt:

 

“The Court will not instruct the authority how to allocated and divide its resources. Requiring an expenditure for a specific purpose must come at the expense of another, perhaps more important, purpose, or perhaps, require enlarging the budget it is granted by the state treasury, which must then come at the expense of other, perhaps more important, purposes. This Court is not the authorized body, and cannot treat of the allocation of the public’s resources” (HCJ 3472/92 Brand v. Minister of Communications, 47 (3) IsrSC 143, 153 (1993) (hereinafter: the Brand case); and see HCJ 2376/01 Federation of Local Authorities in Israel v. Minister of Science, Culture and Sport, 56 (6) IsrSC 803, 811 (2002)).

 

            Despite the broad reach of discretion and the narrow scope of judicial review that it implies, it is clear that the Council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. As Justice H. Cohn put it:

 

“The private sphere is not like the public sphere. In the former, one grants at will and denies at will. The latter exists for no reason other than to serve the public, and has nothing of its own. All it has is held in trust, and it has no other, different or separate rights or obligations than those that derive from that trust or that are granted or imposed by the authority of statutory provisions” (HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem, 25 (1) IsrSC 325, 331 (1971); and see HCJ Israel Contractors and Builders Center v. State of Israel, 34 (3) IsrSC 729, 743 (1980); the Peretz case, at p. 2115).

Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria (see: HCJ 3638/99 Blumethal v. Rehovot Municipality, 54 (4) IsrSC 220, 228 (2000); HCJ   5325/01 L.K.N. Association for the Advancement of Women’s Basketball v. Ramat Hasharon Local Council, para. 10 (June 2, 2004); AAA 5949/04 Mercaz Taxi Ltd. v. Hasharon Taxi Service Ltd., para. 16 (Nov. 28, 2005); and see and compare: HCJ 59/88 Tzaban v. Minister of Finance 42 (4) IsrSC 705, 706 (1989); HCJ 637/89 A Constitution of the State of Israel v. Minister of Finance, 46 (1) IsrSC 191, 200 (1991); HCJ 5023/91 Poraz v. Minister of Construction and Housing, 46 (2) IsrSC 793, 801 (1992); and also see: Dafna Barak-Erez, Administrative Law, 231-235 (2010) (Hebrew); Yitzhak Zamir, The Administrative Authority, 246-248 (2d ed., 2010) (Hebrew); for the anchoring of these principles in the Directives of the Ministry  of the Interior, see: Circular of the Director General of the Ministry of the Interior 5/2001 “Procedure for the allocation of land and buildings without or for minimal consideration” 4-11 (Sept. 12, 2001)). Before reaching a decision on the allocation of public resources, the authority is required to “establish for itself priorities and precedences, and rules and guiding criteria for their application, which must meet the test of reasonableness, and which it must apply equally. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects” (the Brand case, at p. 153).

We will now turn to an examination of whether the decision of the Local Council in the case before us was taken in a proper administrative process, and whether it falls within the scope of the discretion granted the Council.

 

Review of the Decision of the Local Council

21.       I will begin with the conclusion before presenting the analysis: In my opinion, the Council’s decision not to move forward with the building of a mikve for women in the town in the near future does not pass the reasonableness test. Under the special circumstances of the case, I find that the Council’s decision did not reasonably balance the need of religiously observant women to observe the religious obligation of immersion against the budgetary considerations and the available land resources. Under these circumstances, addressing the other claims of the Appellants in regard to flaws that they believe fell in the decision-making process is superfluous, as I shall explain.

22.       As we know, an administrative decision is reasonable if the decision is made as a result of a balance between relevant considerations and interests that have been given appropriate weight under the circumstances (see HCJ 389/80 Golden Pages Ltd. v. Broadcasting Authority, 35 (1) 421, 437 (1981)). Indeed, “A decision may be flawed even when the authority weighed only the relevant considerations, without a hint of an extraneous consideration in its deliberations, if the internal balance among the considerations and the internal weight assigned to each consideration were distorted” (HCJ 1027/04 Independent Cities Forum v. Israel Lands Authority Council, para. 42 (June 9, 2011); Barak-Erez, at p. 725). Examining the reasonableness of the Council’s decision therefore requires that we look at the nature of the considerations that it weighed when it reached that decision, upon the manner of striking the balance, and upon the weight assigned to each consideration. Although the Council’s decision relied upon the recommendations of the Criteria Committee established to set criteria for the construction of public buildings in the town, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits.

23.       What weight was the Council required to assign to the recommendations of the Criteria Committee in examining the possibility of acting to erect a mikve in the village? Having established the Criteria Committee for that purpose, the Council was required to take note of the Committee’s recommendations in deciding upon the manner for allocating the town’s resources. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. It is decided law that “in the absence of an administrative flaw in the opinion of the advisory body, special reasons and extenuating circumstances are required in order to justify deviation from its opinion, especially when the authority is the one that established the advisory body and authorized it to carry out its task” (HCJ 5657/09 The Movement for Quality Government in Israel v. Government of Israel, para. 48 (Nov. 24, 2009); and see HCJ 8912/05 Mifgashim Association for Educational and Social Involvement v. Minister of Education, Culture and Sport, para 16 (March 14, 2007)). However, that does not mean that the Council is bound by the recommendations of the Criteria Committee, which is merely an advisory body. On the contrary, the Council is required to exercise its discretion independently. As Justice Y. Zamir aptly stated: “[…] a recommendation is only a recommendation. In other words, a recommendation does not exempt the authority from the duty to exercise its own discretion. The authority must weigh the recommendation and decide if it would be appropriate, under the circumstances, to accept or reject the recommendation” (HCJ 9486/96 Ayalon v. Registration Committee under the Psychologists Law, 5737-1977, 52 (1) IsrSC 166, 183 (1988); and for a more detailed discussion, see Zamir, at pp. 1219-1222).

24.       Thus, the Local Council was required to examine each request to erect a public building individually, on the basis of the recommendations of the Criteria Committee, while taking into account all the considerations relevant to the decision. In the matter before us, the Council did not discuss the possibility of proceeding with the erection of the mikve in the town in its meeting on April 21, 2010, and from the documents submitted to us, it would appear that this possibility was also not addressed on its merits in the meetings held thereafter. In fact, it would appear that in the Council’s opinion – as can be inferred from the responses that it submitted throughout the proceedings in this case – there was no need for any concrete consideration of the possibility of erecting a mikve in the town once the project was ranked last in the list of public priorities. From the moment that the Council failed to consider the request to erect a mikve in the town on its merits, not deciding to consider the subject of erecting a mikve in the town in the near future was tantamount to a “decision” as defined by law (see sec. 2 of the Administrative Courts Law, 5760-2000, according to which the lack of a decision is deemed a “decision of an authority”; and see HCJ 3649/08 Shamnova v. Ministry of the Interior, para. 3 (May 20, 2008)). Against the said background, the question before us is whether, under the circumstances of the instant case, the Council’s decision to rescind its decision to build a mikve in the village, to accept the recommendations of the Criteria Committee in toto, and therefore refrain from acting in the near future toward the erection of a mikve in the village, does not deviate from the scope of its discretion.

 

The Reasonableness of the Council’s Decision – The Proper Balance of Relevant Considerations

A.        Considerations supporting the erecting of a mikve in the town – the needs of the religiously observant residents

 

25.       Section 7 of the Jewish Religious Services Law [Consolidated Version], 5731-1971 (hereinafter: the Jewish Religious Services Law) provides that the religious councils of the local authorities are competent to provide for the religious services of the residents. The subject of “family purity”, which concerns the operation of ritual baths, is among the religious services for which the religious councils are responsible (see: HCJ 516/75 Hupert v. Minister of Religion, 30 (2) IsrSC 490, 494 (1976); HCJ 6859/98 Ankonina v. Elections Official, 52 (5) IsrSC 433, 447-448 (1998); HCJ 4247/97 Meretz Faction in the Jerusalem Municipal Council v. Minister of Religious Affairs, 52 (5) IsrSC 241, 251 (1998); HCJ 2957/06 Hassan v. Ministry of Building and Housing – Religious Buildings Development Section (July 16, 2006); Shelly Mizrachi, Religious Councils 7-6 (Knesset Research and Information Center, 2012) (Hebrew); Hadar Lifshits and Gideon Sapir, “Jewish Religious Services Law––A Proposed Framework for Privatization Reform”, 23 Mehkarei Mishpat - Bar-Ilan Law Studies 117, 147-148, 153-154 (2006) (Hebrew)).

26.       Mikve services for women are necessary to maintaining the religious lifestyle of Israel’s religiously observant population. Ritual immersion in a mikve is a vital need for those who observe the laws of “family purity”, which require a women to immerse in a mikve after her monthly period. As is commonly known, the observance of the religious obligation of immersion is deemed very important in Jewish law, to the extent that religious decisors have ruled that erecting a mikve takes precedence even over erecting a synagogue (Yalkut Yosef, Reading the Torah and the Synagogue, secs. 152-153) (Hebrew). The obligation to immerse in a mikve forms an integral part of the life of an observant, married Jewish woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to freedom of religion and worship, which our legal system has recognized as a fundamental right of every person in Israel, although the case law has not yet established that it imposes a positive obligation requiring that the State allocate public resources for the provision of religious services. In the framework of this appeal, I will not attempt to provide a precise definition of the interrelationship between the right to freedom of religion and worship and the State’s obligation to provide religious services, as in any event, as will be explained below, an administrative review of the authority’s decision in this case, in accordance with the accepted standard of review, leads to the granting of the appeal (on the recognition of the importance of the right to freedom of religion and worship in this Court’s decisions, see: CrimA 112/50 Yosifof v. Attorney General 5 (1) IsrSC 481, 486 (1951) [http://versa.cardozo.yu.edu/opinions/yosifof-v-attorney-general]; HCJ 866/78 Morad v. Government of Israel, 34 (2) IsrSC 657, 663 (1980); HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, 34 (2) IsrSC 657, 663 (1980); HCJ Foundation of the Movement for Progressive Judaism in Israel v. Minister of Religion, 43 (2) IsrSC 661, 692 (1989); HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 3261/93 Manning v. Minister of Justice, 47 (3) IsrSC 282, 286 (1993); HCJ 4298/93 Jabarin v. Minister of Education, 48 (5) IsrSC 199, 203 (1994); HCJ 257/89 Hoffman v. Director of the Western Wall, 48 (2) IsrSC 265, 340-341 (1994); HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority, 55 (4) IsrSC 267, 277 (2001) [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r... HCJ 11585/05 Israel Movement for Progressive Judaism v. Ministry of Absorption, para. 16 (May 19, 2009); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras. 71-72 (Aug. 1, 2010); and see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter-Rights, vol. 2, 769-774 (2014) (Hebrew) [published in English translation as: Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge, 2015)]; Amnon Rubenstein and Barak Medina, The Constitutional Law of the State of Israel, 354-378 (6^th ed., 2005) (Hebrew); Daniel Statman and Gideon Sapir, “Freedom of Religion, Freedom from Religion and the Protection of Religious Feelings”, 21 Mehkarei Mishpat - Bar-Ilan Law Studies 5, 7-38 (2004) (Hebrew)).

27.       As noted, there is no religious council in Kfar Vradim (the Ma’ale Yosef Regional Religious Council is responsible for providing religious services in the town, under an agreement signed in 2005 with the Local Council). Therefore, the Appellants directed their request to the Local Council. No mikve has ever been built in Kfar Vradim, and the religiously observant residents of the town must travel to neighboring towns in the Ma’ale Yosef Regional Council District in which there are mikves, and that are a short drive from the town. According to the Respondents, inasmuch as there are mikves in the neighboring towns, the harm to the ability of the town’s religiously observant residents in observing the obligation of immersion is not significant, and is merely an inconvenience. It is further argued that even if there were a mikve in the town, due to the town’s topography and the winter weather, the residents would have to drive to the mikve and could not go on foot. And in any case, the ratio of the number of mikves in the area relative to the population is among the highest in the country when compared to various cities. As opposed to this, the Appellants argue that we are not concerned with a mere “inconvenience” but with an absolute denial of the possibility of performing the religious obligation of ritual immersion. They argue that the absence of a mikve in the town deprives women whose day of immersion falls on a Sabbath eve or on a holiday from performing the obligation at its prescribed time. It is argued that when the immersion day falls on a Sabbath eve or on a holiday, one cannot drive to the mikve, and since it is practically impossible to walk to the neighboring mikves, the possibility of observing the obligation of immersion on such days is entirely denied them. In this regard, the Appellants explain that Jewish religious law ascribes supreme importance to the observance of the obligation of immersion at its prescribed time, because “[…] it is a religious obligation to immerse at the prescribed time so as not to refrain from procreation even for one night” (Shulhan Arukh, Yoreh De’ah, Laws concerning Niddah, 197:2). It is further argued that the said harm is exacerbated because not immersing at the prescribed time deprives the observant families of the ability to observe the obligation of onah (marital relations), sometimes for several days (when holidays coincide with the Sabbath eve). Lastly, the Appellants argue that the absence of a mikve in the town even makes it difficult to observe the obligation of immersion on weekdays, as there is no available public transportation by which one can travel to the mikves in the neighboring communities.

28.       After considering the arguments, I find that given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the neighboring communities on foot.  Under the circumstances, the absence of a mikve in the town cannot be said merely to “inconvenience” the religiously observant residents. The absence of a mikve in the town – given its particular circumstances – completely deprives the female residents of the town whose prescribed day of immersion falls on a Sabbath eve or holiday of the ability to perform the religious obligation of immersion at its proper time, and as a result, also deprives them of the possibility of performing of the religious obligation of onah. Thus, the women of the town are deprived of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community, and which is substantively connected to the expression of their personal and group identity. As Justice E. Arbel aptly stated:

 

“We recognize the importance of a mikve for the public, and certainly for the public that uses it. The mikve is of great importance for the traditionally observant family unit, and the authorities are required to provide this service for the interested public as part of the provision of religious services by the authorities. It is also important that the mikve be situated within reasonable walking distance from the homes of the public, for those who are Sabbath observant. However, these considerations, that should not be underestimated, must be weighed against other needs that are of public importance, and against the character of the community that resides in the place, as well as against other alternatives for the erection of public buildings, as noted” (AAA 2846/11 Rehovot Religious Council v. Claudio, para. 19 (Feb. 13, 2013) (hereinafter: the Claudio case).

 

            Thus, the need of the religiously observant female residents to observe the obligation of ritual immersion at its prescribed time – a practice whose realization derives from the autonomy granted every person, as such, to follow the dictates of her conscience and faith, and observe the rules and customs of her faith – must be granted significant weight in the framework of the decision-making process in regard to the erection of public buildings in the town (compare: the Gur Aryeh case, at p. 278). However, the need of the religiously observant residents for the erection of a mikve in the town must be balanced against the opposing considerations. What, then, are the opposing considerations that tilted the scales in favor of the Council’s decision not to move forward on the construction of a mikve in the town in the near future?

 

B.        The “Budgetary” Consideration

 

29.       As best we can understand from the Respondent’s response, the primary consideration that led to adopting the decision was the limited public resources available to the Council. According to the Respondents, the construction of a mikve in the town would require that the Council allocate public monies and land at the expense of other public construction of greater importance. Indeed, “it is decided law that a public authority may, and even must, consider budgetary restrictions in the framework of its discretion, as part of its public obligation” (see: HCJ 3071/05 Louzon v. Government of Israel, 63 (1) IsrSC 1, 39-40 (2008) [http://versa.cardozo.yu.edu/opinions/louzon-v-government-israel]; HCJ 3627/92 Fruit Growers Association v. Government of Israel, 47 (3) IsrSC 387, 391 (1993); HCJ 2223/04 Nissim v. State of Israel, para. 29 (Sept. 4, 2006); HCJ 9863/06 Association of Combat Leg Amputees v. The State of Israel, para. 13 (July 28, 2008); HCJ 1662/05 Levi v. State of Israel, para. 51 (March 3, 2009); Barak-Erez, at pp. 661-663, 745-746; Aharon Barak, Proportionality in Law: Infringing Constitutional Rights and its Limits, 460-461 (2010) (Hebrew) [published in English translation as Proportionality: Constitutional Rights and their Limitations (Cambridge, 2012)]).  In the matter before us, among its considerations, the Council could certainly give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, as shall be explained below, under the circumstances of the instant case, the Council resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant.

30.       In regard to the allocation of land for the construction of the building, the State informed us that there are, at present, at least three available lots in the town that would be appropriate for the construction of a mikve, in terms of both existing planning and practicality. In addition, there is a possibility – that the Respondents do not deny – of incorporating the mikve in other public buildings. In such a case, building the mikve will not come at the expense of public land earmarked for other purposes. As for financing, the matter can be divided into two parts: the monies required for constructing the building, and the monies needed for maintenance. As far as financing the construction is concerned, it is clear from the State’s response that if the Council’s application for funding the construction of a mikve is approved – and there is no reason to believe that it will not be reapproved, in light of the letters from the Ministry of Religious Services and the fact that an EB was already approved in the past for the construction of a mikve in the town – the construction of the mikve will be financed from state funds, and not from the Council’s budget. The Local Council will incur expenses only if the cost of construction exceeds the funding due to deviation from the budgetary framework, or if it will be required to bear certain related costs (such as environmental development and complementary costs). As for maintenance costs, according to the State’s response and the letters from the Ministry of Religious Services, the salary of the mikve attendant will be paid from the budget of the Ministry of Religious Services, prorated to the number of users, while maintenance (electricity, water, etc.) will be funded in part by users’ fees collected by the attendant. Thus, the Council can expect to pay only a small, insignificant part of the ongoing expenses of maintaining the building. Under these circumstances, in which the construction and maintenance are barely likely to come at the expense of the limited resources of the Council, the weight of the budgetary consideration is limited relative to the opposing interest.

 

2.         Preserving the Secular Character of the Town

 

31.       The parties are divided on the question of whether the Council’s decision gave weight to the consideration of protecting the town's secular character. According to the Appellants, the main consideration that grounded the Council’s decision not to erect a mikve in the town was the desire – that they consider an extraneous, improper consideration – to preserve the secular character of the town and to keep the religious community away. As opposed to this, the Respondents claim that the consideration of preserving the secular character of the town had no weight in the Council’s decision. The question if and under what circumstances a local authority may entertain the consideration of preserving a particular character of the town is complex (and compare: HCJ 528/88 Avitan v. Israel Lands Administration, 43 (4) IsrSC 297 (1989); HCJ 4906/98 “Am Hofshi” Association for Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing, 54 (2) IsrSC 503, 508-509 (2000); and for an opposing view: HCJ 6698/95 Ka’adan v. Israel Lands Administration, 54 (1) IsrSC 258 (2000) [http://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-admin... and see: HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister for Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras 68-90 (Aug. 1, 2010); the Claudio case, at para. 12; Statman and Sapir; Gershon Gontovnik, Discrimination in Housing and Cultural Groups, 113-127, 201-209 (2014) (Hebrew)). We need not decide this issue in the matter before us, as even if we assume – to the Respondent’s benefit – that the consideration of preserving the town’s character carried no weight in the Council’s decision – as they claim – the decision must, nevertheless, be voided because it did not strike a proper balance between the considerations that were taken into account even according to the Respondents, as we shall explain below.

 

C.        Balancing the various Considerations and Examining the Reasonableness of the Decision

 

32.       Having reviewed the considerations on both sides of the scales, all that remains is to examine whether the decision struck a reasonable balance between those considerations. In doing so, we should bear in mind that such balancing does not, generally, lead to a single, reasonable result. Indeed, the Council enjoys some latitude in which different and even opposing decisions may coexist. However, in the circumstances of the instant case, I find that the Council’s decision not to act toward the erecting of a mikve in the town does not fall within that discretionary latitude. As is commonly known, the weight to be assigned to budgetary considerations is examined, inter alia, in relation to the importance of the opposing rights and interests (see: Barak-Erez, at pp. 746-747; and also see the citations at fn 86, loc. cit.). In the matter before us, the harm to the religiously observant women in the town, which I discussed above, is of significant force, whereas the “price” involved in erecting the mikve is minor. In this context, we should recall that the Council already decided several years ago to erect a mikve in the town, but chose to rescind that decision for “budgetary” reasons that would seem no longer to exist. In this situation, the Council’s decision not to erect a mikve in the near future does not grant adequate weight to the harm caused to the religiously observant women, to the availability of external funding that would render the burden upon the Council insignificant, and to the possibility of incorporating the construction of the mikve within the framework of a building with another purpose, in a manner that would limit the need for a separate allocation of public land, and preserve it for other, necessary public purposes.

33.       In the final analysis, in the circumstances of the present case, in which appropriate weight was not assigned to the substantial harm to the religiously observant, female residents of the town due to the absence of mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was granted disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the Council due to external financing, I find that the Council’s decision not to erect a mikve was unreasonable and must, therefore, be quashed. In light of the long “history” of the proceedings in this matter, we do not find it appropriate to remand the matter to Council, yet again, inasmuch as, under the circumstances, the decision required is the erection of the mikve with due haste (and compare, for example: HCJ 1920/00 Galon v. Release Board, 54 (2) IsrSC 313, 328 (2000); HCJ 89/01 Public Committee against Torture in Israel v. Release Board, 55 (2) 838, 878 (2001); AAA 9135/03 Council for Higher Education v. Haaretz, 60 (4) IsrSC 217, 253 (2006) [http://versa.cardozo.yu.edu/opinions/council-higher-education-v-haaretz]; AAA 9353/10 Yakovlev v. Ministry of the Interior, para. 19 (Dec. 1, 2013).

 

Conclusion

34.       Given the conclusion reached, I would recommend to my colleagues that we grant the appeal such that the judgment of the lower court be reversed and the appeal granted. The Kfar Vradim Council is ordered to act immediately to erect a mikve on one of the lots in the town listed in the State’s reply – or some other lot that it may find appropriate – such that construction will commence as soon as possible, and no later than a year and a half from the date of this judgment. The Council may submit an application for funding support for the erection of the mikve from the Ministry of Religious Services with due speed. Respondent 2 will pay the Appellants’ costs in both instances in the amount of NIS 25,000.

                                                                                                            Justice

 

Justice E. Hayut:

I concur.

                                                                                                            Justice

 

Justice N. Hendel:

I concur.

                                                                                                            Justice

 

Decided in accordance with the opinion of Justice U. Vogelman.

Given this 14^th day of Elul 5774 (Sept. 9, 2014).