Jewish Law

 

legal world has not yet had the time to properly address these issues, and it falters behind them, as it does following the other dramas of the superior technology era. This was described nearly two decades ago by author Y. Green (In Vitro Fertilization through the Prism of Consent (1995)):

 

"The longing for a child is common knowledge that requires no proof. Spouses, who experience difficulties in having children, make and will make any effort in order to be blessed with children: emotional, physical and financial. They are also willing to 'sign' any undertaking, provided that their heart's desire is fulfilled. Medical technology in the fertility field has developed at an incredible pace in recent years. Solutions, which were considered science fiction only a few years ago, are slowly becoming an almost daily reality. There is a great blessing alongside this development, which grants more and more couples of various degrees of infertility a chance to expand the family. However, as chances increase and the potential of being blessed with children increases, so increases the risk involved in the various stages of the process, both to those born (sic.) and to the infant to be born in this way" (ibid, p. 9).

 

Before us is a chapter in this complex whole, on an unfinished road, and we will clearly not attempt – nor need we in this case – to encompass the full human issue, nor the legal one, relating to parenthood in the modern era; as we shall hereinafter see, this issue may be reviewed through the prism of more than one family of law, but none is exhaustive. As President Shamgar (Retired) stressed already at the outset:

 

"Any conversation with respect to issues of birth affairs is, by nature, pretentious and stirs oversensitivity. It is pretentious – since before us are complex and multifaceted issues, the legal aspect of which is unable to exhaust their nature and description. There is a kaleidoscope of elements here, which are anchored in various disciplines, medical, philosophical, theological and social, which do not fit within the standard legal compartmentalization and are not fully exhausted by the employment of legal criteria alone. Thus, in such areas, cautious legal treading is suitable… These issues evoke oversensitivity, because they directly touch on the exposed nerve of existence. Although the vast majority of legal issues of various types are taken, by mere nature, from life, there are issues that attack the problematic nature of our human existence head-on, at the core, rather than indirectly…" (President Meir Shamgar "Issues on Matters of Fertilization and Birth" 39(a) HaPraklit 21 (1989).

 

3. This is also the case before us, and therefore we shall guide ourselves with this advice before we embark on the journey. This is the order of the discussion: firstly, we shall briefly address the normative framework concerned, the factual background of the case and the parties' claims; we shall examine the nature of the right to parenthood, and we shall examine the standing of the Petitioner vis-à-vis the standing of the donor, who asserts autonomy in deciding the use of his sperm, in view of this right. We shall thereafter briefly address additional aspects of the issue, and mainly the contractual regulation of sperm donation. Finally, we shall articulate the evident need, in this case, for the in-principle regulation of the entire field by the legislator.

 

4. We shall forerun and state the principal part of our ruling. Needless to say, we feel – as does the attorney for the Respondents and even the anonymous donor himself – human sympathy for the Petitioner, who requests that her children by a sperm donation carry an identical genetic constitution, which apparently proved successful – thank God – with her first-born daughter. However, we have come to the conclusion that precedence should be afforded to the donor's position and to his personal autonomy. With all due understanding of the Petitioner's claims in the field of private law, contract law and even in the field of administrative law, with respect to the reliance interest – these do not amount in value to the dominancy of the aspect of personal autonomy under the circumstances of the case. The donor has formed his position, according to what he stated orally (his written response is more general) as a penitent (Chozer B'Tshuva), and it appears that there is also a religious facet to his position. However, even without such facet, one can understand the position of a person who, after reflection, reached the conclusion – which had not occurred to him in the past, when deciding to donate sperm for such or other considerations – that he no longer wants there to be children by his sperm in the world, whom he did not choose and whose mother [he did not choose], with whom he has no relation and who will not be raised by him; it being [the case] even if he is not liable to them under the presently practiced law (and incidentally, there is a possibility that under Hebrew law, even if they are not entitled to child support from him, they are entitled to inherit him). In our opinion, the autonomy aspect overshadows the other considerations, as we shall explain below.

 

The Normative Framework

 

5. Sperm donation and the management of sperm banks in Israel are currently not regulated by primary legislation, but rather by the Public Health  (Sperm Bank) Regulations, 5739-1979 (the "Regulations") and circulars of the Director General of the Ministry of Health, which are issued thereunder (these regulations were promulgated by the Minister of Health by virtue of the Consumer Services Act (Sperm Bank and Artificial Insemination), 5739-1979; for criticism, see Pinhas Shifman "Determination of the Paternity of a Child Born by Artificial Insemination", 10 Mishpatim 63, 85 (1980); further see (in respect of the status of administrative directives) Yoav Dotan Administrative Directives (1996), 27-39). The last Director General Circular, of May 22, 2008, entered into effect on January 1, 2009, and is the principal part of the normative basis, on the administrative directives' level, for our discussion at this point. The Director General Circular mainly regulates the conditions for recognition of a sperm bank and prescribes rules with respect to the retention of information regarding sperm units and donors – a problematic issue in and of itself, as we shall briefly mention hereinafter. The Director General Circular also defines the procedure required both of the donor and of the recipient of the donation.

 

6. The donor, alongside whose donation there is a certain financial benefit, fills out a "Donor Card" form (Exhibit B to the Respondents' response), which requires general details, including name, identity number, a general description of appearance, and data regarding physical examinations, which are intended to negate the existence of illnesses in his body. The donor also fills-out a "Consent of a Sperm Donor" form (Exhibit C to the Respondents' response), in which he declares by his signature as follows:

 

"I agree to donate of my sperm for use thereof for the artificial insemination of women or for research purposes, according to the considerations of the sperm bank. I hereby agree and declare that I will not be entitled to receive any details of the identity of the women, and their identity shall remain confidential. Furthermore, my name and my identity or any detail about me will not be provided to any person and will also remain confidential, except for a cross-check of these data with a center for national donor registration and national registration of persons ineligible to marry".

 

This statement is required under Section 25(e) of the Director General Circular, which determines that "[T]he sperm of a donor shall not be taken nor received nor used for artificial insemination, unless the donor shall have given his consent to the use of the sperm" (emphasis added - E.R.). The donor also states that he is willing to undergo medical examinations and that to the best of his knowledge he is not suffering from an illness or family history, which might disqualify his donation. The forms do not address the issue of consent withdrawal or additional issues such as a quantitative limit of the possible amount of inseminations by the donation (such as inseminations that produced a pregnancy, as distinguished from unsuccessful attempts).

 

7. A similar personal data card is filled-out by the recipient of the donation (Exhibit D of the Respondents' response), which one of two consent forms is added to, in accordance with her family status: one consent form for spouses, and another consent form for a single mother [who is] a "single woman" (Exhibit E-1 and Exhibit E-2 to the Respondents' response). The second form, which is the one relevant to the case at hand, mainly includes a statement as to the explanation the recipient of the donation received with respect to complications and side effects (and a waiver of future claims in respect of such matters), and as to the practical prospects of impregnation as a result of the insemination. As pertains to the sperm and the donor, the recipient of the donation states as follows:

 

"I consent that the donor or donors of the sperm that will be used in the insemination, or the sperm itself, be chosen by the physician and according to his discretion and with his consent and I will not be allowed to know the identity of the person whose sperm is used, or his attributes, or any other detail related to him or to his family" (emphasis added – E.R.).

 

8. As we can see, the only documents that include the parties' consent, each separately, do not address the issue of donation withdrawal at all. These matters were presented somewhat in length, since, in the situation before us – a ruling on which is "the lesser of two evils", and involves a measure of harm to one of the parties – it is appropriate to examine how to avoid such situations in the future, rather than merely how the current situation will be resolved.

 

The Case At Bar

 

9. The Petitioner is a single woman, born in 1974, holding Israeli and American citizenships, and a resident of the Unites States for the past 17 years. In 2010, the Petitioner's first-born daughter was born via fertilization treatments, during which use was made of the sperm donation of an anonymous unknown donor (Respondent 3, hereinafter the "Donor"), which the Petitioner received from the sperm bank at the Rambam Medical Center in Haifa (Respondent 2, hereinafter: the "Sperm Bank"), which is under the supervision of Respondent 1 (hereinafter: the "State"). Following the birth of her first daughter, the Petitioner purchased - apparently at the first opportunity she had – the option to use five additional sperm units of the Donor, to be kept at the Sperm Bank for an annual fee. For this purpose, the Petitioner filled out a sperm reservation form and paid the required amount. It was stated on this form that:

 

"The sperm bank undertakes to use its best efforts to keep these sperm units, but will not be responsible in any manner for a loss, harm or other use of these sperm units" (emphasis added – E.R.; Res/3).

 

10. On December 1, 2011, the Sperm Bank received a letter from the Donor, in which he stated his wish that use of the sperm donation that he had made in the past be discontinued, among other things, in view of a change in his lifestyle (Res/4); following is his letter verbatim:

 

"My name is ________, in the past I was a sperm provider to the sperm bank managed by you and I ceased this activity several years ago.

Due to a change in my lifestyle, use of my sperm by the sperm bank at the present and future time raises a problem for me. I approached you several months ago with a request to cease use of my sperm. At first I was told that I had no right or say on the matter, and afterwards it was said that in any event the use of my sperm had already been discontinued, so that there was no problem.

After a medical-legal inquiry, it was clarified to me that I have a veto right on the matter, despite the contract between us.

My request to you is a formal letter of statement that no use is presently made nor will it be made in the future by the entity managed by you (the sperm bank)".

 

Following this letter, the Bank notified the Petitioner (on January 10, 2012), that she would no longer be able to use this sperm donation. Subsequently and in view of the Petitioner's appeals to the Bank's manager, the Bank's manager contacted the legal advisor to the Ministry of Health and forwarded the reply of the legal office to the Petitioner, whereby "[A] consent which is unlimited in time is not "everlasting" and the sperm donor who previously agreed to donate his sperm may recant at any time [so long] as "irreversible reality" has not been created". It was stated that under the facts of the case, such a reality had not been created, and it was assured that the money that had been paid for reservation of the sperm units would be refunded (letter of January 11, 2012 by Dr. A. Leitman, Manager of the Sperm Bank; Res/5). The Petitioner requested not to destroy the donation and to allow her to exhaust the legal avenues; the Sperm Bank's manager accepted her request.

 

The Petition

 

11. On May 22, 2012, the present petition was filed claiming that the Respondents' decision to prevent the Petitioner from using the sperm units that had been saved for her infringes upon her constitutional and contractual rights, is unreasonable and should be annulled. The Petitioner's claims may be separated, in general and for the sake of discussion, into two levels. The first, claims on the level of public law, and mainly the impingement on her right to parenthood. The second, on the level of civil law, rights by virtue of a contract between the parties, by virtue of proprietary ownership and more.

 

First Level – the Right to Parenthood

 

12. The Petitioner claims that there is presently no dispute as to the standing and importance of the right to parenthood, a "fundamental human right which every person is entitled to", a natural right which is established in Basic Law: Human Dignity and Liberty; hence, this right may be limited – as argued – only under the conditions of the Limitation Clause (to substantiate her position, the Petitioner referred to the rulings of this court in CA 451/88 John Does vs. the State of Israel, IsrSC 44(1), 337 (1990); in CFH 2401/95 Nachmani vs. Nachmani, IsrSC 50(4) 661 (1996); in HCJ 2458/01 New Family vs. the Committee for Approval of Embryo Carrying Agreements, the Ministry of Health, IsrSC 57(1) 419 (2002)). The Respondents' decision impinges – so it is mentioned – on her right, since following the birth of her first-born daughter it may "seal the Petitioner's fate, remaining a mother of a single child only, and forgoing her wish to have the family she was hoping to have" (Paragraph 21 of the Petition).

 

13. Moreover, per the Petitioner's position, there is a parallel infringement upon her right to a family, another derivative of the protection of human dignity and the autonomy of individual will. To her mind, this right has a higher status than the other constitutional human rights, such as the right to property and to freedom of occupation. Furthermore, beyond the infringement on her constitutional rights – so it is argued – the Respondents' decision is marred by unreasonableness, and is therefore void ab initio. It is further argued that the Respondents' decision impinges upon her daughter's rights to siblings in general, and to biological siblings in particular.

 

Second Level – Contractual and Other Causes

 

14. The Petitioner also claims that the Donor gave his consent to use of his sperm – informed consent; and therefore his present request to prohibit the use of his sperm constitutes a breach of contract, both vis-à-vis the State and the Sperm Bank, and vis-à-vis herself, as a third party to the contract. Moreover, the State and the Bank are themselves in breach of the contract they entered with the Petitioner: the Petitioner fulfilled the procedure determined thereby as required; she gave financial consideration for the sperm units. As stated, at no stage of the proceedings was the possibility of the Donor withdrawing his consent raised before her. Since the Petitioner relied on this representation (in view of the manner of presentation of the sperm donation by the State and the Director General Circular) and chose to bring her first born daughter into the world from the Donor's donation, it may no longer be said, per her position, that an "irreversible reality" has not been created. It is difficult – so it is argued – to assume that the Petitioner would have consented to undergo the insemination process knowing that the Donor might change his mind at any time. It is further argued that the Donor sold his sperm, and therefore cannot retroactively demand that no use be made of the donation without cause under law, like any other sale contract that confers ownership upon the purchaser.

 

15. The Petitioner also claimed that a change in the circumstances of the Donor's life may not serve as cause for his retraction of the consent, and the reversal of the Respondents' decision does not constitute an impingement on the best interests of the child or on public policy. It was further argued that the damage to be caused to the Petitioner as a result of the upholding of the Respondents' decision is disproportionate; it is argued that the Petitioner's time to undergo another fertilization is running out, beyond the fact that the mere impediment to having additional children who have the same genetic constitution, as aforesaid, might prevent her from having more children. Conversely – it is so claimed – the Donor "has finished his part", and no cooperation is required of him for the purpose of continuing the process; he is not the parent of the child to be born, and therefore this does not involve the coercion of parenthood; his right to personal autonomy is thus not violated.

 

16. It is finally argued that upholding the Respondents' decision will have severe across-the-board implications on sperm recipients of donations in Israel. The donor's option to retract his consent at any time creates uncertainty in the planning of a future family, as it leaves the recipients of donations under the shadow of the "concern that the donor they chose will change his mind". This compromises the ability to plan a family according to the circumstances of every woman's life and wishes. This might – as asserted – lead to many donors withdrawing their consent, and gravely harm sperm banks in Israel and their stability. In order not to render the Petition redundant, an interim order has been sought to order the Respondents to prevent the disposal of the donation until the Petition is decided.

 

The Response of the Respondents and the Hearing before us

 

17. On July 10, 2012, the State's response was filed, which argued that indeed it is undisputed that the core of the right to parenthood and the right to family gives rise to a protected constitutional right deriving from the right to dignity, and established in Basic Law: Human Dignity and Liberty. However, the case at bar does not concern the exercise of the right to parenthood, but rather the right to birth children who are full biological siblings, and the right of a child to a sibling or a full biological sibling; these rights do not exist in law, and therefore the Petitioner cannot point to an infringement on her constitutional rights. The State emphasizes that the Petitioner's aspiration is understandable in and of itself, yet under the circumstances of the matter – even if the Petitioner's position is accepted as to the infringement on the rights conferred upon her – her right is outweighed by the right of the Donor not to be a biological parent against his will. It is argued that, although in re Nachmani it was decided to hold the right to parenthood superior to the right not to be a parent, the factual situation in that case was such that Ms. Nachmani no longer had the option of being impregnated by other sperm, i.e., a situation of the absence of a possibility of biological parenthood other than by means of Mr. Nachmani's sperm. This is not – so it is argued – the situation at hand, and the Petitioner has other options for exercising her right to parenthood. Furthermore, the Petitioner has no "biological link" to the sperm contemplated in the Petition, as was the case in re Nachmani (which, as may be recalled, concerned fertilized ova) – and a fertilization process has not commenced in the case at hand.

 

18. With respect to the second level of arguments, it is maintained that although the Sperm Bank offers recipients of donations a same-donor sperm storage service (for a fee), such storage, at most, creates "a priority" over other recipients of donations; such storage does not ensure use of the sperm, nor does it obligate the sperm donor or the bank to make use of the sperm in circumstances where this is impossible. It is further asserted that the Petitioner cannot claim that had she been aware that the Donor may retract his consent she would have used other sperm, because this right is available to each one of the sperm donors, whoever they are, so long as no irreversible reality has been created. It is emphasized that in the consent form that the Petitioner signed, it was clarified that the choice of sperm is ultimately entrusted to the physician according to his discretion; that is to say, the choice is subject to the discretion of the representative of the sperm bank from the outset, and is not guaranteed to the recipient of the donation in advance. On the contractual level, it is argued that a contract whose expiration date has not been determined is not in force and effect forever and ever, and after a reasonable time, in the framework of the duty of good faith, a party to the contract may – so it is claimed – notify the other party of his intention to be released from the contract; such – in view of the elapse of time and change of circumstance.

 

19. To reinforce its position, the State sought to draw an analogy from the Ova Donation Law, 5770-2010, which expressly regulates the option of an ovum donor to withdraw her consent "at any time prior to the performance of the act, which she agreed to designate the ova retrieved from her body to, and in respect of consent to designate ova for implantation – at any time prior to the fertilization of the ova" (Section 44 of the Ova Donation Law). It is also claimed that a similar analogy may be drawn from the Patient's Rights Law, 5756-1996, which prescribes that the patient's consent is required not only at the medical treatment stage, but throughout the continued treatment in its entirety (Section 13(a) of the Patient's Rights Law). According to the State's position, it emerges from these two laws that the legislator adopted an approach whereby infringement upon a person's right to autonomy is only merited in rare events of concern of grave danger, or at the stage of "irreversible reality"; this is not the case in the matter at hand. It was agreed that an interim order be issued, which prevents the disposal of the sperm donation until the court rules on the Petition. It was also requested that the Donor be joined as a respondent in the Petition, as the person whose rights might be compromised as a result of the Petition.

 

20. The Donor, who was joined in as a respondent, had been requested to provide his response to the Petition (the decision of Justice Solberg of July 13, 2012, in which the interim order in consent was issued, as well as aforesaid), and after numerous attempts and efforts by the Sperm Bank's manager his response was received. At first, the Donor had notified the Sperm Bank's manager that he was willing to meet outside hospital grounds, in order to refrain from exposure "due to his current situation as a penitent", but failed to hold the appointment (notice by the State of August 15, 2012). Following the decision of November 6, 2012 (toward the hearing), in which the Donor's position had been requested once more, and it had been stated that if such response is not presented, "the court may consider this conduct in his ruling, without, of course, expressing an opinion as of this time", the Donor provided his position. In a letter of November 13, 2012, the Donor noted that, at the time of the donation "I had considered the act an ideal thing for childless women, and I am not playing innocent here, the money given was also a motive, but the desire to do good was the main thing"; however, "Afterwards, I changed my lifestyle and beliefs. The aforesaid act is presently incompatible with my world view, and in my opinion, the damage it holds is greater than the benefit, both to me, to my relatives, and to the woman who is the recipient of the donation and her children who are born by the sperm of a stranger". The Donor expressed his sympathy for the Petitioner's wishes, he also explained that since providing the donation, he got married and had a son; he is not interested in adding injury to his wife and hurting his children by adding a terrible uncertainty to their lives, "in the knowledge that they have siblings they do not know"; and it was further stated: "I am not interested in having a child born by me, without me being able to give him love, and without me loving his mother". At the bottom line, the Donor requested that use no longer be made of his sperm and expressed his apologies to the Petitioner for all the sorrow he had caused her as a result of these proceedings.

 

21. In the hearing before us, on November 14, 2012, the Petitioner's attorney reiterated her arguments with respect to the infringement on her right to parenthood and her reliance on the representation before her. At the same time, the State's attorney reiterated the difficulty in recognizing the Petitioner's right, and asserted the need to regulate the area through primary legislation.

 

 

Ruling

 

22. We are not dealing with a binary decision between "good and bad", or between right and wrong – both of the parties before us are "right" from their subjective point of view; we are dealing with human emotions of the both of them, and as pertains to the Donor – also internal feelings that derive from a current viewpoint. I believe that our decision must reflect the weight of the values of the law in a proportionate manner; there is no illegitimate position before us, as stressed by Justice (his former title) Witkon a long time ago:

 

"As with most problems of law and of life in general, it is not the choice between good and bad that makes the decision difficult for us. The difficulty lies in the choice between various considerations, all of which are good and worthy of attention, yet in contradiction with one another, and we are required to determine the order of priority among them" (CA 461/62 Zim Israel Navigation Company Ltd. vs. Maziar, IsrSC 17(2)1319, 1337 (1963)).

 

Such is also the case before us. It does not concern the elimination of one of the interests that lie in the balance, but rather the relative preference of one over the other. As we have noted at the outset, this case raises questions of numerous fields of law. The issue may be looked at through the prism of contract law, property law, and, naturally, from the angle of administrative law. Each one of these perspectives may serve as fruitful grounds for a rich and innovative discussion. However, I believe that, at the end of the day, the most appropriate and correct perspective for a ruling on the issue is through the right to dignity and autonomy conferred upon any person to tell the story of his life, as we shall see below. Therefore, the discussion will principally revolve around this angle of the subject, yet, as aforesaid, we shall also address some of the claims raised by the parties on the other levels of discussion. We shall already state at this point that it is worthy to once more call upon the legislator to regulate the issue through primary legislation.

 

Preface – Of Interests and Rights

 

23. Legal reality often summons a fundamental contest between various legitimate considerations and values; obviously, such cases raise uncertainties and the need for an objective outline, to the greatest possible extent, of the craft of ascribing priority among them. Not every interest is protected by the law, and it depends upon circumstances even where a fundamental legal right has been recognized by law (of the classification of interests as rights, see HCJ 1514/01 Gur Aryeh vs. Second Television and Radio Authority, IsrLR 267, 275 (2001), in the judgment of President Barak, and compare to the dissenting opinion of Justice Dorner, ibid, p. 284; HCJ 6126/94 Senesh vs. the Chairman of the Broadcasting Authority, IsrSC 53(3)817 (1994); Oren Gazal Ayal and Amnon Reichman, "Public Interests as Human Rights", 41 Mishpatim 97 (5771)). Thus – for example – freedom of speech, which is recognized as a fundamental right in our legal system (HCJ 806/88 Universal City Studios vs. Films and Plays Censorship Board, IsrSC43(2)22 (1989)), receives legal protection on the political level, as the core of the right, but will not necessarily receive a similar protection on the level at the distant periphery of the recognized right, which collides with other interests; the farther you go from the core of the recognized right, so it is possible that under certain circumstances a certain act will not fall within the protection of the law. The question is thus twofold: whether the act falls under the definition of the fundamental right, and whether, under the circumstances, it is protected by the law, after the balance against other interests and rights (see ibid, p. 33-34, President Barak). In order to complete the picture, we shall note that the classification of the considerations at stake as rights or as interests defines the formula of the balance between them, and the normative superiority of one value over the other or their equal value (see Re Gur Aryeh, p. 284); however, the mere classification and the balancing manner ("horizontal" or "vertical") do not necessarily decide the concrete question before the court, since a weighty interest in vertical balancing, such as the interest of the security of the State and the public, may prevail in certain cases over a fundamental right (see HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel vs. Minister of the Interior, [2006](1) IsrLR 202, 339 - President Barak; and compare with the position of former Deputy President Cheshin, p. 457-459, and the position of Justice (his former title) Rivlin, p. 555-559 (2006)).

 

24. The tough question – which was raised in re Nachmani under the special circumstances thereof – with respect to the classification of the right to parenthood against the right not to be a parent and the normative status of the one against the other, is not raised in the case at bar; because, as we shall see, harm to the core of the right to parenthood has not been proven, and, in fact, if harm has taken place in the matter at hand, it pertains to the right to autonomy; in this situation again, at most the issue concerns the right of the Donor to autonomy against the right of the Petitioner to autonomy, all as shall be specified below.

 

Of the Right to Parenthood

 

25. Indeed, on the one hand, the Petitioner stands before us with her heart's desire to bring into the world another child from the Donor's donation, having full genetic siblinghood with her daughter. On the other hand, there is the Donor, who asks to prevent further use of the sperm donation he made in the past, and prevent an insemination process, that would make him, against his will, a genetic father to at least one more child, even if without ties with the child and obligations to him. Justice Strasberg-Cohen described this in re Nachmani as two sides of the same coin (see re Nachmani, p. 682), yet, according to her statements as well, a mixture of interests lies at the balance, and even if these interests may be referred to under the general term of right to parenthood and the right no to be a parent, this matter is not thereby exhausted; see the essay of the scholar Daphne Barak-Erez, "Of Symmetry and Neutrality: Reflections on the Nachmani Case", Iyunei Mishpat, 20(1)197, 198 (5756). I shall note already at this point that I do not believe that this case requires legal innovation with respect to the right to parenthood and the right not to be a parent, since the Petitioner's right to parenthood is undisputed, and the question is whether one should recognize the interest of parenthood necessarily by the sperm of the specific donor, as protected under one of these rights.

 

26. Indeed, despite the different reasoning in re Nachmani and the disagreement between the members of the panel, including among the justices of the majority, it appears that there is presently no longer a dispute with respect to the status in-principle of the right to parenthood – and this is true also in the case at bar. In other cases as well, the perception that the natural right to parenthood is conferred upon every person has been established, as emphasized in CFH 7015/94 the Attorney General vs. Jane Doe, IsrSC 50(1)48, 102:

 

"It is the law of nature that a mother and father will naturally hold their son, raise him, love him and see to his needs until he grows and becomes a man. This is the instinct of existence and survival in us – 'the call of blood', the ancient longing of a mother to her child – and it is common to man, beast and bird. 'Even sea-monsters [jackals – M.C.] offer their breast and nurse their young' (the Book of Lamentations, 4:3)…this tie is stronger than anything, and is beyond society, religion and state…the law of the state did not create the rights of parents toward their children and toward the entire world. The law of the state addresses something already made, it aims to protect an inborn instinct within us, and it transforms an 'interest' of parents to a 'right' under law, to the rights of parents to hold their children" (Justice (his former title) M. Cheshin).

 

            And elsewhere, Justice Cheshin emphasized:

 

"The State argues and maintains as follows: a woman does not have the "right" to surrogacy; it is as though the issue of surrogacy is 'off-limits' and therefore a discrimination argument is an unmerited argument. According to this claim, because a woman is not entitled, ex hypothesi, to need a surrogacy process, a woman's claim of discrimination will consequently not be heard …I have found this argument difficult to comprehend…undoubtedly, the argument of a 'right' under law is a misplaced argument, certainly after the Surrogacy Law, which regulates the issue of surrogacy as it does. Whereas prior to the Law (and the regulations that preceded it), and there being no prohibition on surrogacy, one might argue that a woman, any woman, did have, a 'right' to surrogacy. In any event, the argument of a right to surrogacy is not to the point, yet, the main thing is that the 'right' we speak of – the right to parenthood – is a right that nature brings to us; it is of this right that we speak, not of the right to surrogacy by law (HCJ New Family, p. 445; emphasis added – E.R.).

 

27. These words are also relevant to the matter at hand (also see HCJ 2245/06 Dovrin vs. the Israel Prison Service (June 13, 2006): "Family and parenthood are the consummation of the natural urge for the continuity of generations and the self-fulfillment of the individual in society"; ibid, paragraph 12 – Justice Procaccia). It is only natural that we mention at this point, that one of the first and foremost commandments is "[B]e fruitful and multiply and fill the earth" (Genesis, 1:28). And this is a deep aspiration, not to be taken lightly. Rachel says to Jacob (Genesis, 30: 1) "[G]ive me children, or else I die". The longing of the mothers, Sara, Rebecca and Rachel, and Hanna, the mother of Samuel, as well as the mother of Samson, all of these are documented in the Bible. The divine promise is " [T]here shall be no male or female barren among you..." (Deuteronomy, 7:14). The visitation of barren women is entrusted to the Almighty and to the righteous (Genesis Rabbah, 77), but the key of birth ("key of life" – "Maftea'ch shel Haya") is not entrusted to an agent and remains in the hands of the Almighty (Babylonian Ta'anit 2, 1-2); see also the ethics book Messillat Yesharim [lit. "Path of the Upright"] by the RaMHaL (Rabbi Moshe Haim Luzzato), the Sanctity chapter. Indeed, in any situation in which the person claiming a right to parenthood requires the approval of use of a new technology in order to enter the world of parenthood, a claim may be voiced that such person does not "hold the right to a particular treatment", he does not hold the right to insemination treatments, to surrogacy and the like. However, the core of the right to parenthood is the practical ability to bring children into the world. Just as the State does not require a "parenting license", so it may not prejudice a person's right to parenthood without weighty pertinent reasons (see CA 413/80 Jane Doe vs. John Doe, IsrSC 35(3)57, 81-82 (1981)). In such situations, wherein a person requires a certain medical treatment in order to be included in the parent circle, non-administration of the treatment infringes upon his right. Naturally, the right to parenthood is also relative, but there can be no dispute that in such cases there is a concrete infringement on the protected interest.

 

28. I shall briefly address the classification of the right to parenthood (also see the words of Justice Goldberg, re Nachmani, p. 723-724). This point was extensively articulated by Justice Strasberg-Cohen (in a dissenting opinion) in re Nachmani:

 

"The classification of norms that regulate activity in relationships between man and his fellowman has occupied more than a few legal scholars and academics of various fields…legal rights in their strictest sense are the interests that the law protects by imposing duties on others in respect thereof. Conversely, legal rights, in their broadest sense, also include interests that are recognized by the law, against which there is no legal duty. These are liberties…Where a person has a right, which is a liberty or permission, he is under no duty toward the State or toward another to refrain from committing the act, just as he is under no duty to commit the act, which he is at liberty not to commit. A right, which is a freedom or a liberty, does not hold the power to impose a duty on another and to demand that he commit an act, which he is free not to commit…

 

The right to be a parent is, by its very nature, essence and characteristics, a natural, innate right, inherent to human beings. It is a liberty against which there is no legal duty, neither in the relationship between the State and its citizens nor in the relationship between spouses. The right not to be a parent is also a liberty, it is the right of an individual to control and plan his life. Indeed, non-parenthood in and of itself is not the protected value. The protected value in non-parenthood is the liberty, privacy, free choice, self-fulfillment and the right to make intimate decisions..." (ibid, p. 681-682; emphasis added – E.R.).

 

            And like her, Justice Dorner in the same case:

 

"Liberty in its fullest sense is not merely the freedom from outside interference by the government or by others. It also includes a person's ability to direct his lifestyle, fulfill his basic wishes and choose from a variety of possibilities while exercising discretion. In human society, one of the strongest expressions of an aspiration, without which many would not consider themselves to be free in the full sense of the word, is the aspiration for parenthood. This is not merely a natural-biological need. It concerns a freedom, which, in human society symbolizes the uniqueness of man. 'Any man who has no children is as good as dead' said Rabbi Yehoshua Ben Levi (Nedarim, 64, B [19]). Indeed, whether man or woman, most people consider having children to be an existential necessity that gives their lives meaning. Against this basic right, which constitutes a key layer in the definition of humanness, we are required to examine the right not to be a parent. The foundation of the right not to be a parent is the individual's autonomy against the interference of the authorities in his privacy." (re Nachmani, p. 714-715).

 

29. Hence, the right to parenthood is a liberty, in the legal sense thereof – the right that fellowman and the State not interfere in the individual's actions and not obstruct the fulfillment thereof; a right against which there is no positive duty to act. However, an additional distinction emerges from these words, which pertains to the two layers of this right. The first layer, which holds value in and of itself, is the ability to fulfill the reproductive ability and become a biological mother or father. The second layer, which is also the one underlying the right not to be a parent, is the ability of a person to choose how to fulfill his natural right, i.e., the first layer. The second layer is at the periphery of the right to parenthood, it is not intended to protect the value of bringing children into the world in itself, but rather other values, such as the right to privacy, autonomy and the free choice of with whom, how and when, if at all, to bring children into this world (including the ability to plan a family). This point was articulated by the scholar Green in his aforementioned book:

 

"There are two facets to the right to be a parent: one facet, which to distinguish from the other shall be referred to as the factual, biological-physical facet, namely the right to belong to the parent population and have the status of a parent. The other facet is the right to decide if, when, with whom and in what way to exercise the first facet of the right to parenthood" (Green, p. 68).

 

30. The right not to be a parent, as aforesaid, is based on the protected value of autonomy; on the face of it, in Israeli society in particular and perhaps in the free world in general, there is presently no value in and of itself in not being a parent; even if the Sages have said "[I]t is better for a man not to have been created than to have been created" (Babylonian, Eruvin, 13, 72), they added in the same breath "[and] now that he has been created, let him examine his deeds". In re Nachmani (p. 710-711), Justice Tal emphasizes the commandment "[B]e fruitful and multiply" (Genesis 1:28), which we have mentioned, and the words of the Sages (Babylonian Yevamot 63, 2): "Tanna, Rabbi Eliezer says that every person not engaged in bearing fruit and multiplying is as though spilling blood". Indeed, Rabbi E.M. Shach, may he rest in peace, told the story of the Chofetz Chaim, Rabbi Israel Meir HaCohen, may he rest in peace (HaMe'ot, the 19^th-the 20^th), who was deliberating in his times whether to give a couple a blessing for fertility because "children are an immense responsibility, it being a deposit from Heaven", and he saw the difficulty in raising children in a generation whose behavior is lawless and immoral (see Rabbi Asher Bergman The Use of Torah (Year 5758), 139). However, one way or another, everyone, or virtually everyone, would certainly agree that the right to parenthood includes a core value which stands on its own – to bring children into the world – and protects the value of autonomy. Scholar Barak-Erez wrote of this rationale in her aforementioned essay:

 

"This assumption of symmetry between the rights requires further inspection. Albeit captivating, it is far from being self-evident. It is not at all clear whether the right to be a parent and the right not to be a parent should be discussed on the same level only due to their allegedly being symmetric. In other words, the existence of symmetry between the two rights may not be assumed merely because they hold both ends of the rope of parenthood.

 

As a rule, the right to "have" and the right to "not have" are not always equivalent. Is the right to life completely equivalent to the right to die? ... This is not a sole example. From the fundamental principle of freedom of speech develops both the right to speak and the right to be silent. However, does it thence result that the right to speak is always equivalent to the right to be silent? … In order to decide the question of balancing the rights, one must address the justifications that underpin them … Justice Strasberg-Cohen determines that 'the right to parenthood derives from the right to self-fulfillment, liberty and dignity'. If the focus is on 'self-fulfillment', the right to parenthood is part of the idea of the autonomy of will: the law respects the individual's choices, including the choice of self-fulfillment through parenthood. When the right is perceived in this way, when it is the will that takes the focus, the balance between it and the decision to avoid parenthood is supposedly simple, since the court also respects this decision in the name of the autonomy of will.

 

However, there is only a semblance of simplicity here. Firstly, even were we to deem the right to parenthood and the right to avoid parenthood merely as derivatives of the autonomy of will, the symmetry between them would not be imperative. We do not respect every will, nor should every will be respected to the same degree. Beyond this, the main criticism is directed against the narrow perception … in my opinion, one should unravel in it [in the right to parenthood – E.R.] many additional facets. The right to be a parent is an independent right, rather than a mere expression of the autonomy of individual will. The realization of the option of parenthood is not just a possible way of life, but rather it is rooted in human existence. One may find it a cure for loneliness; another will thereby cope with the consciousness of death. Indeed, the choice to avoid parenthood is a possible way of life, which society and law need to respect" (p. 199-200).

 

31. We shall also recall the position of Justice Goldberg, who noted in re Nachmani that "[I]n the dispute before us a positive right and a negative right face one another", both of which are derived from the right to autonomy (ibid, p. 723); but, in contrast, the position of Justice Turkel in that same case, who emphasized:

 

"The modern view, social and legal, recognizes the autonomy of the will of the individual. Hence derive and stand, ostensibly, one against the other, the right to be a parent and the right not to be a parent… Indeed, as cited by Joseph Raz from the essays of Prof. Gans and Dr. Marmor: 'An autonomic person is a person who writes his life story himself'. However, to use this simile, is there indeed symmetry between the rights of each of the spouses to write his own life story himself? In my view, there is no symmetry between the rights, despite the 'external' similarity between them, and the right to be a parent may not be deemed merely as a derivative of the autonomy of will, which stands against the right not to be a parent. Still, even if we deem both of the rights as such derivatives, they are not of equal value and standing, as though existence and nonexistence are equal to one another, and as though they are the symbols 1 and 0 on the computer under the binary method" (ibid, p. 736-737).

 

I believe that this last position is closer to the position I support, whereby the right to parenthood includes an independent value component that exceeds the right to the autonomy of will, unlike the right not to be a parent, which is anchored in the autonomy.

 

32. We have thus found that the right to parenthood is, on the face of it, a cardinal value in and of itself, natural and primeval, and with high-ranking on a human scale of values; this is joined by the autonomy embodied in the choices of the individual related thereto. We have also seen that, in contrast, the right not to be a parent does not include a protected independent value, but is rather intended to protect the personal autonomy of a person in his choice (not to be a parent, or not to be a co-parent with a certain woman or man). It shall be noted that even those who side with this right being only an interest, see it – so it appears – as an interest that should be protected legally; see the words of Justice Tal in Re Nachmani (ibid, p. 701), who had reservations with respect to this classification. Now that we have established the characterization of the right to parenthood and the right not to be a parent, we shall now move forward to an examination of the standing of the Petitioner and the Donor.

 

Of the Standing of the Petitioner

 

33. It appears that, in the case at bar, the infringement upon the Petitioner's right does not pertain to the core of the right to parenthood. The primary basis of this right is the practical ability to be included in the "parent circle", and bring a child into this world; there is no actual dispute that such option is, thank Heavens, available to her from a practical standpoint. The Petitioner is healthy and fit to bring a child into this world and is not bound (as was the situation with Ms. Nachmani at her time) to the Donor in the case at bar. She is able to act soon to receive another sperm donation at her preferred timing for undergoing additional insemination treatments. The Petitioner claims that impingement upon the ability to choose with whom to bring children into this world is sufficient in order to be sheltered by the legal right to parenthood. However, in practice, this is not an infringement upon the right to parenthood, but rather, as explained above, at most, and this is highly doubtful, an infringement upon the periphery protected by her right to autonomy (without, for now, addressing the question of the scope of protection, whether the right was indeed violated and whether, on proper balance, it is deserving of protection). It is a major question, and I believe that as a rule the answer thereto will not be positive, whether the right to autonomy has been infringed upon by the focusing thereof on the sperm of John Doe the Donor and no other, at any rate where an anonymous donor is concerned.

 

34. It is claimed in this respect that "once the Petitioner arrived at the decision to bring children into this world from one donor only, and once she executed this decision when giving birth to her first-born daughter…the Respondents' decision infringes upon the Petitioner's right to parenthood" (Paragraph 21 of the Petition). However, as emerges therefrom, the Petitioner is not seeking protection of the core of the right to parenthood or of her autonomy, but rather of her right to parenthood from a specific person, or her right to a child having a specific genetic constitution.

 

35. In order to assert the difficulty in legally protecting the Petitioner's interest to again conceive by the same genetic constitution, we shall compare her situation with the situation of a married woman who gave birth to a first child in wedlock, and whose husband promised her that they would have another child. This is not identical, of course, but both of them hold the same promise in-principle, that the second child to join the family would have the same genetic constitution of the first child, i.e. a biological son or daughter by the same father. Can the law enforce this promise when the husband decides to dissolve the marriage, and consequently also infringe on the mother's interest of parenthood to children of the same genetic constitution (or the right of the child to a full genetic sibling)? Can one point to a protected legal interest, other than the interest of reliance, and the prima facie interest that contracts should be honored, although, of course, one may not, as a rule, disparage them? It is my opinion that the answer to these questions cannot be affirmative, and the power of the interest of reliance and agreement is insufficient. Moreover, the infringed interest in the case of the married woman as described may even be stronger in relation to the case at hand, since her reliance is perhaps greater in view of the close relationship between her and her husband; it is recalled that in the case at hand the choice is also subject to the discretion of the treating physician, as aforesaid (see above, according to Annex E-2 to the Director General Circular). Indeed, on the face of it, one might argue that the contractual relationship in a case of sperm donation attests to a choice to follow a different path to parenthood, "businesslike" or "financial", of the type that grants security that is not extant in an intimate set of understandings. We shall hereinafter return to an analysis of the issue on this basis, and shall already state here that this proposition cannot be held.

 

Interim Summary

 

36. We have addressed the nature of the right to parenthood and the right not to be a parent. We have seen that the first includes a separate independent value, recognized by law, which concerns the mere possibility of bringing children into this world, as well as an additional protection of the value of the autonomy of the designated parent (in this case – the Petitioner); the second principally includes the value of the Donor's autonomy. In the case at hand, we have found that the Petitioner is not fighting here for her core right to parenthood, which, in itself, no one is infringing on, but is rather seeking protection over her choice and her desire for parenthood from a specific person. We shall now move forward to examine the standing of the Donor. Such examination shall address, inter alia, the Petitioner's claim that the Donor's right to autonomy is not infringed upon (see Paragraph 15 above).

 

Of the Status of the Donor

 

37. As aforesaid, the core of re Nachmani was the difficulty to weigh, one against the other, the will of Mr. Nachmani not to be included in the "parents group" against his wishes, and the wish of Ms. Nachmani to enter such group. Both parties held the entrance key together, with one pulling out and the other pulling in; things also went as far as the biological stage of fertilization, which naturally intensified the difficulty, and the infringement upon the core of the parties' protected rights. In the case at hand, can the Donor point to a similar infringement? The issue we are concerned with indirectly raises a question complex in its own right that has yet to be fully addressed by law, which is the determination of the paternity of a child born by sperm donation; the question of what weight to ascribe the interest of autonomy – or none at all, as the Petitioner claims – of the Donor is inseparably linked to the question of in what social and legal sense he is a father.

 

38. In the case at hand, we shall not rule on this question, which may be deserving of determining by the legislator, but we shall hereinafter address it in the Halakhic context. The question before us is a complex question of values, and therefore the legislator takes precedence over the court in the ability to reach  a comprehensive and balanced arrangement, within which the gamut of the considerations of principle and practicality that are relevant to regulation will be taken into account. This was carried out in the Ova Donation Law, and the Agreements for the Carriage of Fetuses Law (Approval of Agreement and Status of the Newborn), 5756-1996 (even if there may be such or other criticism of these arrangements).

 

39. The normative framework – which includes, as aforesaid, the aforementioned Consumer Services Act, the regulations promulgated thereunder and the Director General Circular – does not decide this question; the courts that addressed this issue also refrained from setting a broad "paternity test", which exceeded the concrete case of the parties before it. In Re Salameh (CA 449/79 Salameh vs. Salameh, IsrSC 34(2)779 (1980)), it was ruled that a husband, who had given his consent to an insemination procedure, is liable for child support for the child born by the sperm donation of a stranger. It was ruled that the origin of child support was contractual, and therefore the question of the husband's status as a father did not require deliberation. Presently, as a solution in-principle for this matter as aforesaid, the consent forms of spouses include an explicit undertaking by the male spouse to assume full legal responsibility over the child. It should be noted that in Re Salameh and in the other cases raised in case law, a relation of paternity of the anonymous donor was never claimed; but, such rulings are instructive in a qualified manner with respect to the lack of status of the donor. The discussion of the husband's obligations for child support implies that there is no intention to attribute a similar legal liability to the anonymous sperm donor:

 

"At the base of these decisions, there implicitly lies the assumption that the sperm donor is not a father, although an unequivocal announcement in this spirit cannot be pointed to (Ruth Zafran "Family in the Genetic Era –Defining Parenthood in Families Created through Assisted Reproduction Techniques as a Test Case", Din U'Dvarim, B 223, 252 (Year 5766); original emphasis – E.R.).

 

Indeed, as the author shows, there are also different voices (see AP (Tel Aviv) 10/99 Jane Doe vs. the Attorney General, IsrDC 5760(1)831, 855) – but, in any event, there is no positive determination of parenthood with respect to the donor. To summarize this point, on the face of it, current law does not attribute "paternity" to a sperm donor in the classic legal sense of imposing child support. However, I believe it is clear that the mere fact that the donor does not owe legal duties to the infant born by his sperm does not negate the infringement on his autonomy – as the Petitioner claimed. We shall hereinafter address the mental implications of this infringement; prior thereto, we shall address the differences between the case at bar and re Nachmani.

 

40. Following the decision in re Nachmani, Mr. Nachmani was to become a father, both genetically and psychologically-socially: the theoretical child (who, as aforesaid, was not born at the conclusion of this sad story), was meant to know his father, and his father was meant to know him. Moreover, even if an indemnification contract could have been made between Mr. and Ms. Nachmani, which exempted the father from any future obligation, including the right (and the obligation inherent thereto) to visitation, beyond the aforementioned obligation of child support (since no consent of the unborn child to waive his rights was granted), the infant would have had the ability to insist upon his rights himself. It is also clear that it is not self-evident that an agreement between parents would negate, in effect, all of the father's duties (see Isaac Cohen "The Independent Legal Standing of a Minor in Family Law – Processes, Trends and Methods for Rebalance" Mishpatim 41 255 (5771)). Justice Strasberg-Cohen clarified these implications (in a dissenting opinion) in re Nachmani:

 

"Refrainment from forcing parenthood on a person unwilling to assume it is reinforced in view of the nature and hefty weight of parenthood. Parenthood involves an inherent limitation of the future freedom of choice, in imposing on the parent a duty that encompasses most of the fields of life. A person's introduction into parent status involves a significant change of his rights and obligations. Once a person becomes a parent, the law imposes on him the duty to care for his child. This care is not a casual one, but rather the duty to place the best interests of the child at the top of his priorities. A parent cannot deny the needs of his child simply because it is inconvenient for him to fulfill them. The responsibility of a parent to the well being of his child also holds tortious and criminal aspects. This responsibility incorporates the normative expectation of our social values and legal system, from the individual, with respect to his functioning as a parent. The highly significant implications that stem from this status mandate that the decision to be a parent be entrusted to the person and to him alone" (ibid, p. 683-684; emphasis added – E.R.).

 

41. The situation at hand is materially different. As aforesaid, if the Petition is approved, there is a certain chance that the Donor will become the genetic father of additional children (to the extent that the medical treatment is successful). Indeed, in the practical sense, this is an anonymous donor – with respect to whom, unlike other places in the world and other proceedings such as adoption, the child is not entitled to request information at the age of majority) (Rule 24 of the Director General Circular; for a discussion on the question of donor anonymity, see Report of the Public Committee for Examination of the Legislative Regulation of the Issue of Fertility and Reproduction in Israel, p. 34-36; Ruth Zafran "'Secrets and Lies' – the Right of AID Offspring to Seek Out their Biological Fathers" Mishpatim 35 519 (5765)). At this stage, it should be noted that the question of anonymity is a topic for debate in its own right, since against it stands the right of "a minor child, not to be suppressed all of the days of his life from knowing the identity of the father that had begot him" (see CA 548/78 Sharon vs. Levi, IsrSC 35(1)736, 758 – Justice (his former title) M. Elon); however, this question has not yet been examined in the context of the sperm donor. The fact of anonymity in the present state of affairs detaches the donor from nearly any "fatherly" context other than the genetic context, which remains concealed. On the face of it, according to present law, the donor owes no financial, social or other duty to the infant. In fact, it is not at all clear if and how the donor would know that he became a father, since, as aforesaid, this is subject to the success of the medical procedure, and without an inquiry on his part he will not learn about it. This also emerges from the statements of President Barak in re Nachmani, underscoring the situation of Mr. Nachmani compared with the one of an anonymous donor:

 

"At the foundation of the understanding between the parties – whether we deem it a contract or an agreement which is not a contract, and whether we deem it common property or we deem it a unique "phenomenon of law" – is the premise of a shared life. Once this foundation is removed, the foundation on which the relation between the parties is based is removed. If Danny Nachmani had been asked prior to the commencement of the fertilization procedure, whether he would be willing to go through with it even after separating from Ruth Nachmani, his sure answer would have been negative. It may be assumed that this would have also been the answer of Ruth Nachmani. In truth, they had not entertained this question, but the essence of the agreement (or the understanding) between them – an agreement for the birth of their child in common – is based on this premise. This is the basis for any act in the fertilized ova. This is the foundation of their entire inter-being. This is the infrastructure of their parenthood. It is not 'single family' parenthood. The sperm donor is not unknown. It is co-parenting on each and every ground" (ibid, p. 790; emphasis added –E.R.).

 

42. It may be gathered from these words, that the infringement upon Mr. Nachmani's autonomy was a harsh one, and pertained to the core of the right not to be a parent. In contrast, the infringement in the case at hand is weaker, which does not pertain to the core of the right. The remaining link, excluding possible changes in the law, is principally genetic – "a genetic father", not a father in the full social and legal sense of the term. However, as we have reiterated above, the fact that, in the case at hand, the impingement is reduced to the genetic element of parenthood does not nullify the infringement upon the autonomy. It is this issue that we shall now address.

 

 

Infringement against the Donor

 

43. In the broad context, no few writings have addressed the weakening of the model for determining parenthood on a genetic basis compared with models of physiological parenthood, social-functional parenthood (or, by another name, "psychological parenthood"), and other models such as the model of the best interests of the child and models based on the parties' consent (for elaboration, see Y. Margalit "Of the Determination of Legal Parenthood in Consent as a Solution to the Challenges of Determining Legal Parenthood in Modern Times" 6 Din U'Dvarim 553 (5772), and mainly the review in Chapter E thereof). Without expressing a position with respect to the dilemma of determining parenthood in such situations, it is clear today, when the genetic model no longer stands alone, and all the more so in a case of sperm donation, wherein no one "operatively" claims the donor's paternity, that such genetic connection is possibly not the be-all and end-all (see CA 3077/90 Jane Doe vs. John Doe, IsrSC 49(2)578, 599-605 (1995)).

 

44. Indeed, after years of going hand in hand with the genetic model exclusively (a position reflected in two of the central legislative acts in respect of the determination of parenthood – Section 3(a) of the Women's Equal Rights Law, 5711-1951 and Section 14 of the Legal Capacity and Guardianship Law, 5722-1962 – despite there being no definition of the term parent), the legislator also went some distance in the movement away from the genetic model, in determining parenthood in the new Surrogacy Law not by the direct genetic model, but rather by a "parenthood order" (the Agreements for the Carriage of Fetuses Law, Section 10); similarly, Section 42 of the Ova Donation Law also prescribes: "An infant born as a result of an ovum donation, will be the child of the recipient of the donation  for all intents and purposes" (emphasis added –E.R.), i.e., a determination of parenthood without a genetic relation to the recipient of the donation, but rather merely a physiological connection.

 

45. However, even if we were to find voices – and these are not the central voices – according to which the genetic link has weakened in the social and legal sense, especially in the context of sperm donation, it still carries a hefty weight; however, in any event, the infringement upon the autonomy is still concrete and strong, and it ultimately tips the balance in the case at bar. This is how the Donor himself described it in his aforementioned letter:

 

"The aforesaid act [the sperm donation – E.R.] is presently incompatible with my world view… I am not interested in having a child born by me, without me being able to give him love, and without me loving his mother. I see a connection between my genetic constitution and these conditions…"

 

46. The harm to a man, as a result of his feeling – even if it came about later and at first he had believed otherwise – that a child who is the fruit of his loins "walks about the world", and he is unable or unwilling, whether on religious grounds or in terms of the resources of time and emotion, to dedicate his love and attention to him – is inevitable, and touches upon his subjective moral conscience. The legal and Halakhic distinctions mentioned above are of no use to this person; this harm was described by the scholar Chaim Ganz:

 

"My sights are set on the interests that people have not to be in situations in which they are not fulfilling what they consider to be their emotional and moral duties, or the interests they have not to be in situations in which they pay too high a price in order to fulfill their moral duties, or not to be in situations in which they are indecisive as to whether to fulfill their emotional and moral duties or feel guilty for not fulfilling the same (Chaim Ganz "The Frozen Embryos of the Nachmani Couple" Iyunei Mishpat 18 83, 99 (5754)).

 

47. It appears to me that these words may be on the mark with respect to the Donor's feelings in the case at hand, as reflected in his letter to the court. It is for this purpose that the rule determined is that society may not, in the absence of weighty reasons, interfere with the intimate questions of reproduction. We must keep in mind that the sperm donor is not expressing a position in principle against bringing children to the world, as he has also married and has had children. Rather, it is hard for him to feel that the children to be born by his donation will not be his children, nor will they have the benefit of his affection, nor will they be the fruit of his love. We cannot dispute the weight of these things. As stressed by Justice (his former title) Or in Re Daaka:

 

"This right of a person to shape his life and his fate encompasses all of the central aspects of his life - where he shall live; what he shall do; whom he shall live with; what he shall believe in. It is central to the being of each and every individual in society. It bears an expression of recognition of the value of each and every individual as a world all its own. It is essential for the self-definition of every individual, in the sense that the gamut of the choices of each individual defines the individual's personality and life… The right to individual autonomy is not limited to this narrow sense, of the ability to choose. It also includes another tier – a physical one – of the right to autonomy, which pertains to a person's right to be left to his own devices…this right implies, inter alia, that every person has the liberty from interference with his person without his consent… the recognition of a person's right to autonomy is a basic component of our legal system, as the legal system of a democratic state…it constitutes one of the central expressions of the constitutional right of every person in Israel to dignity, which is established by Basic Law: Human Dignity and Liberty" (CA 2781/93 Ali Daaka vs. the 'Carmel' Hospital, Haifa, IsrSC 53(4)526, 570-571 (1999)).

 

48. Just as the initial choice, for such or other reasons, to make a sperm donation, with all of the implications entailed therein, was the Donor's – while his approach to values was different – so is the choice to retract his consent. As defined by the Director General Circular:

 

"Donor sperm shall not be taken, nor received nor used for artificial insemination, unless the donor shall have given his consent to the use of the sperm" (Rule 25(e); emphasis added – E.R.).

 

That is to say, consent is required for the mere taking of the sperm, for its receipt by the Sperm Bank and for the use thereof. Thus, for instance, it is clear that if a sperm donor had regrets, at the stage in which no use whatsoever had been made with his sperm – the bank would not have conceived of claiming that the donor had no right to recant (and for the purpose of further discussion, that the donor breached the contract with the bank). The significance of this is not that a sperm donor’s refusal for his sperm to continue to be used will be accepted under any circumstances; the stage in which the request is brought forth is relevant and even critical. There may be good and hefty reasons not to allow a sperm donor to recant, such as in a situation like the one created in re Nachmani; all the more so if conception has occurred. But other than under such circumstances, his right to retract and the infringement on this right bear actual weight and tip the scales. Indeed, he had given his consent and had received payment, however this is not an ordinary "transaction", but rather an issue that holds a fierce emotional aspect. The command of the conscience and feelings of the Donor is a matter of values and cannot be simply quantified in the legal sense; as emphasized by Justice Goldberg in re Nachmani:

 

"[The issue – E.R.] is by nature not within the framework of an existing legal norm. It may not be cast in the legal molds of a contract or a quasi-contract. It is entirely within the emotional-moral-social-philosophical realm. Hence, an explanation of the normative vacuum and the inability of the customary legal rules to resolve the dispute" (ibid, p. 723).

 

Like him, Justice Kedmi stressed that "[T]he answer shall thus be found in the internal world of values of each one of us. I also do not hesitate to say that it may be found in the cache of emotions inside the heart of each one of us" (ibid, p. 735). Even if the case at bar is not the same "borderline case" as was re Nachmani, we must acknowledge our limits when assessing the degree of harm to the donor, whose present point of view imposes such and other moral duties on him, in which bringing children into the world, who would not grow up to be his actual children, is opposed to. We shall mention again, that the entry, as argued, of the Donor into the religious world brings with it a harm that stems from this world of values. As aforesaid, a common opinion in the Halakha prohibits a Jew from making a sperm donation due to the prohibitions of emitting sperm in vain, the concern of future mishaps such as consanguineous marriage, levirate marriage (Yibbum) or renunciation thereof (Halizah) (see Paragraph 57 below). We shall also hereinafter address the status of the infant. Insistence on autonomy in the question of what will be done with a man's sperm does not need to come from a religious source; but entrance into the religious world may enhance it, as probably occurred in this case, and this should be respected. Again – this is no trivial matter; sperm is a type of man's continuity, hence the importance of the autonomy of a man to decide as to the use thereof, even if he initially believed otherwise. This is "high-level autonomy".

 

49. Finally, the harm to the Donor is not limited to the ability to choose not to be a father, but rather also extends to his autonomy to decide with respect to his status as a father. That is to say, a man who sees the genetic-biological parenthood or the "blood relation" as giving rise to moral duties of his as a father is harmed in his autonomy by both the denial of the choice, in and of itself, and by the nonfulfillment of his duties according to his conscientious or religious approach.

 

The decision in the case at bar

50. I believe, that in view of the analysis presented thus far, in the conflict of interests at hand, the Donor's wish to not be a genetic father to additional descendants prevails, within the bounds of autonomy, over the Petitioner's interest to bring children into the world, sharing the same genetic constitution; this last interest is legally insufficient to nullify of the Donor's right to change his mind. The parental liberty requires the cooperation of two people, within a marriage or another family unit, including – although with much lower force – within a single-sex family unit, through sperm donation; and it may be through a third party such as the Sperm Bank. Obviously, there are differences between the aforesaid situations, which may, under different circumstances, change the outcome; however, in the matter at hand I found no grounds to justify subjecting the Donor's wishes to the purpose of upholding the Petitioner's wishes.
51. The protection of the Petitioner's right to have children sharing the same genetic constitution stops where it clearly conflicts with the Donor's right. In a regime of relative rights, there is no right which grants its holder absolute superiority of exercise. Therefore, the acceptable interests underlying the Petitioner's arguments yield to the Donor's right to autonomy (see and compare with the opinion of Justice Mazza in re Nachmani, p. 750-751).
52. I am afraid that – with all human understanding for the Petitioner's feelings – the interest of conceiving from a certain individual, as stated in the Respondents' reply, is not recognized by law and is not protectable. Moreover, even if we were to assume that the matter at hand may be deemed as violation to the Petitioner's autonomy to choose with whom to have children, the Petitioner would receive no protection; since as aforesaid, we are concerned with a liberty, the fulfillment of which requires the cooperation of another:

"The right to be a parent and the right not to be a parent are two rights which despite being two sides of the same coin, do not share identical characteristics. Each in itself lies within the framework of individual liberties; the distinction between the two levels of rights is not in the one being a positive right versus another being a negative one, but in the fact that the right to be a parent belongs to the group of rights which require the cooperation of another individual for its consummation, whereas the right not to be parent is reduced to the individual himself… if the right to be a parent had been one of the rights in the strict sense, with a respective duty against it, there would be no need – on the theoretical level – for  consent from the outset, since once there is a duty the only remaining question is that of the appropriate remedy. Since the right is a liberty against which there is no corresponding duty, but rather an opposing right, and since two are needed for its consummation, the individual in need of the cooperation must obtain the same from the other party by obtaining his consent throughout. The right to be a parent requires – in the event of refusal by the partner – a positive coercive judicial act, whereas the right not to be a parent requires non-intervention and non-interference with the liberty of the individual who refuses to become a parent. Since the "refusing" partner has a right to not be a parent, he should not be subjected to such coercive order. Fulfilling the right of the individual seeking to be a parent by imposing a duty on an individual who does not is contrary to the essence of the liberty and violates its spirit" (the Nachmani case, p. 682-683 – Justice Strasberg-Cohen).

In re Nachmani – in which two rights weighed on the scale: the core right to be a parent, i.e. the mere ability to become a parent on the one hand, and on the other hand the right to autonomy, i.e. the right not to be a parent – it was ruled that under the circumstances the right to be a parent prevails. In the case at bar, on the other hand, the Petitioner cannot indicate violation of the right to be a parent. The issue at hand is her desire to conceive from the sperm of a specific person, against the wishes of that person to not be a parent again – even if, as aforesaid, a merely genetic parent – by way of sperm donation, it seems that there is no room to rule in favor of her petition.

53. It should be emphasized, as aforesaid, that in the case at bar, the Petitioner has indicated, at the most, violation of the right to autonomy. There is no violation of the Petitioner's right to become a parent herself, and the question is from whom she shall conceive; therefore – even if we assume, for the sake of the discussion, that the Petitioner's right to autonomy has been violated, and as aforesaid, I do not believe that it has been violated, and certainly not severely so– as opposed to the Nachmani affair, the conflict and ruling in the case at bar pertain to the Petitioner's right to autonomy versus the Donor's right to autonomy; and as mentioned, "we do not respect every wish, and not all wishes are to be equally respected" (Barak-Erez, p. 199). In the contest between these two "autonomies" it seems – without, of course, wishing to hurt the Petitioner's aspirations and feelings – that the Donor prevails. His case concerns an "active" legal measure – use of his sperm, whereas her case concerns a "passive" circumstance – preventing the use of the Donor's sperm. 
54. It may be that the interest of contractual reliance was violated in this case, and perhaps also additional public considerations and interests (such as the lateral effects and the need to preserve the stability of the Sperm Bank). However, the law, as in similar cases, avoids coercion with respect to the intimate questions of human life in the absence of weighty considerations (see the aforementioned CA 413/80; Pinchas Shifman "An Involuntary Parent – Misrepresentation Regarding the Use of Birth Control", 18 Mishpatim, 459 (5749)). And we shall reiterate – the force of the Petitioner's interest – with no offense, cannot tip the scales against the Donor's autonomy.
55. We spoke at length, since – as aforesaid in the preface – the avoidance of future cases is to be considered, and the possible lateral effects should also be addressed. The issue at hand calls for the intervention of the legislator. At this point it should be mentioned, as noted by the scholar Y. Green in another book he wrote on the issue ("Procreation in the Modern Era: Law and Halakha (2008), p. 99): "Caution should be exercised when holding a discussion on the in-principle, theoretical level, which is detached from the specific case to be decided. There is nothing "easier" than a theoretical discussion, but the solution is required for the specific case. It seems that the discussion in the appeal in re Nachmani demonstrates so".

Ostensibly, the aforesaid should have sufficed to conclude the discussion in the present case, however, I deem it fit to briefly discuss the position of the Hebrew Law on the issue of sperm donation and the status of the donor, since in some of the contexts contemplated, and in particular on the issue of attributing the newborn to the sperm donor, Hebrew Law has significant weight in shaping the Israeli law as well as some of the arguments on other levels of the discussion mentioned, and explain why the outcome in the case at bar does not change.

The Position of Jewish Law

56. The possibility of giving birth as a result of artificial insemination, although by chance, is mentioned already in the Talmud (Babylonian, Tractate Hagigah 14, 72-15, 71) in reference to the prohibition of the High Priest to marry a woman who is not a virgin (Leviticus 21, 13 and 15): a pregnant woman who claims to still be a virgin is permitted to the High Priest since "she may have conceived in the bath", i.e. from the penetration of sperm to the uterus, other than by way of sexual intercourse but by chance, while washing in a bath to which human sperm was ejaculated. The Halacha distinguishes between questions such as whether the technique of artificial insemination is in itself permitted (and in the present context, whether sperm donation is prohibited), and the Halakhic and legal consequences of insemination that has taken place. Regarding the mere donation of sperm by a Jew, Prof. Rabbi Avraham Steinberg writes "New Technologies in Fertility Treatments – Halakhic Aspects" a chapter from his book in "Halakhic Medicine", which was discussed at the Rabbinical Judges convention in 5772, that "a Jew who donates sperm to an unknown woman violates the prohibition of wasting sperm…", this is according to various sources such as Rabbi Moshe Feinstein (Letters of Moshe Even HaEzer I titles 10-11) and Rabbi A.I. Waldinberg, et al. (Tzitz Eliezer 9, 51).
57. Regarding the status of the newborn, Halakhic literature offers – amongst the modern adjudicators and their interpreters – different opinions, of which some are stringent (i.e. frown upon the mere artificial insemination from an unknown Jewish donor, and consider the donor to be the newborn's father, and therefore – in the case of a married woman – there is a fear of bastardry), and some are lenient, severing the tie and not necessarily attributing the newborn to the sperm donor, and also permit him to enter the assembly with no fear of  bastardry. One of the Halakhic questions is whether the child is deemed a "Shtuki", i.e., "one who knows his mother but not his father" (Mishnah, Kiddushin, 84 42), who is an doubtful bastard; see, among other interesting articles and dissenting opinions in Techumin 24 (5764); Rabbi M. Ralbag, in his article, "Attribution of a Newborn Conceived by Artificial Insemination" (p. 139), concludes that "a child who is born to a single woman by way of artificial insemination and with sperm taken from the sperm bank, either abroad or in Israel, shall not be deemed a Shtuki, who is prohibited for fear of bastardry, but is legitimate and may marry a legitimate Jewish woman" (p. 147). This is supported, inter alia, by central opinions in Halakhic adjudicative literature such as Rabbi Moshe Feinstein, Rabbi Shalom Mashash and others. On the other hand, see Rabbi Y. Epstein, "The Pedigree of a Newborn Conceived by Sperm From a Sperm Bank", ibid, p. 147, who concludes that "it seems that the child who is conceived by the fertilization of a single woman without knowing who is the sperm owner, increases the number of Shtukim in the world, and it should be avoided as much as possible" (p. 155); further see: Rabbi G. Orenstein "IVF – Attribution of the Newborn and the Command of Propagation", ibid p. 156, whose general approach (p. 156-157) is that the newborn is attributed to the father, which obviously adds to the Donor's dilemma. Also see: Prof. Rabbi Avraham Steinberg, Halakhic Medical Encyclopedia (Second Edition, 5748), p. 148; and his article "Artificial Insemination", Weekly Torah Portion Leviticus, edited by A. Cohen and M. Vigoda (5774), 102; A. Green "Procreate", p. 125-180. Prof. Rabbi Steinberg in his aforementioned essay "New Technologies in Fertility Treatments – Halakhic Aspects" believes that in general, "artificial insemination of a married woman by an unknown donor who is a Jew is prohibited, since this act entails so many Halakhic and moral-social faults". And he explains, that some believe that the prohibition is from the Torah, and some believe otherwise, and attribute the prohibition to moral-social considerations, such as detachment of the child bearer from marriage and turning "the birth of children into an arbitrary mechanical issue, denied of all the human qualities which make man God's partner in the act of creation". He further notes that there may be Halakhic complications of prohibited marriage of relatives and questions of inheritance – among other things, the newborn shall not receive, de facto, part of the inheritance of the sperm owner, even under methods which consider him his son. The sperm owner-donor – according to that method – is the newborn's father for all intents and purposes, and therefore the newborn is "prohibited to the relatives of the sperm owner, inherits his assets, his mother is exempt from Yibum and Halizah and he is liable for his child support" (I shall note that with respect to child support and similar issues, there are also other opinions). The aforesaid is in addition to the fact that "a priori, the artificial insemination of a single woman is prohibited. Under special circumstances, one should seek advice", and there are cases in which this shall be permitted, "such as when a single woman has made efforts to marry, and failed, and she reaches the end of her fertile years and she longs for a child, to be 'a cane to her hand and a hoe for her burial' (Yevamot 65, 2), all in accordance with the rabbinical judge's discretion, and the permitted conditions of artificial insemination". I shall add: in other words, the case of a woman who wants a child also in order to have someone to lean on in her old age – that would justify seeking the advice – and probably leniency.
58. And see, recently, the ruling of the Rabbinical Courts in (Beer Sheba) 90215/01 Jane Doe v. the Attorney General (Kislev 15, 5773, November 29, 2012), which concerned the status of a minor who was born to a single mother from artificial insemination, and the identity of the sperm donor was unknown. The Court ruled that the minor is allowed to enter the assembly, giving specific reason that artificial insemination creates no fear of bastardry, and it was, inter alia, stated (Paragraph H): "clearly if the newborn conceived by artificial insemination it not attributed to his father, there is also no fear of bastardry", since "the law that sperm is attributed to the sperm donor is not sufficiently clear and proven". And I shall add, that already two decades ago, Rabbi S. M. Amar, the present Rishon LeZion (Sephardic Chief Rabbi of Israel) and then a Rabbinical Judge in Petach Tikva, wrote in his book Hear Shlomo B', (Even HaEzer, Article B, p. 150-156) with respect to a child conceived by artificial insemination, that he should be permitted, and see the summary of the Halacha there, and this is also, as far as I am aware, his clear opinion today. Also see interpretation by Sara Hatab to the ruling of the Judicial Court in Beer Sheba ("Inglorious Bastards", Tsedek – Makor Rishon (Justice, Primary Source), Shvat 14, 5773 – January 25, 2013).
59. From the research literature which quotes the words of adjudicators, we will note that Prof. M. Corinaldi, in his book, "Laws of Personal Status, Family and Inheritance – Between Religion and State, New Trends (5764) also addresses the approach of the Hebrew law to the issue of sperm donation, pursuant to his previous essay – "The Legal Status of a Child who is Conceived by an Artificial Fertilization from an Unknown Donor or by an Ovum Donation" Jewish Law Annual 18-19, 295 (5752-5754). His starting point is the answer of Rabbi Peretz, one of the authors of Tosafot (annotations to the Talmud) in the 13^th century (of whose opinion has two versions); see p. 79-81. According to Rabbi Peretz, "a baby born to a married woman from the sperm of an unknown man – and not through prohibited intercourse – e.g. conception through a sheet – is not a bastard ("legitimate newborn") since there is no forbidden intercourse or partner". This answer is the Halakhic foundation, for example, for the aforementioned opinion of Rabbi Moshe Feinstein, see references on p. 81, note 30; in addition, the words of Rabbi A.I. Waldinberg are quoted (Tzitz Eliezer 9, 51 Section 200, 249), similarly to the opinion of Rabbi Feinstein, who believes that in the absence of ordinary intercourse, there is no fear of bastardry, since “anyway he did not come close to a woman, and it was for monetary consideration that he gave his sperm for that purpose, and the woman conceived anyway, without him positively taking action to consummate the conception. Moreover, in this case the act of the physician followed, in the absence of which the sperm of that man is allegedly discarded into the trees and stones…". Prof. Corinaldi concludes that the Halacha also makes room for a method whereby a man who agrees to the use of his sperm for an unknown woman "is deemed as a man who deposits his sperm in such a way as to expire the natural connection, and there is no genealogical connection formed between himself and the newborn – who is deemed as lacking pedigree on the father's side"; and Rabbi Bazmach Uziel (Shaarey Uziel B' 234) speaks in the same spirit. "For a man's pedigree is not attributed to him unless created in the usual manner through physical intimacy…" (p. 82-83). Dr. Michael Vigoda – "The Status of Those whose Conception is from the Sperm Bank", Weekly Torah Portion 5767 (282) – notes that Rabbi Yechiel Yaacov Weinberg, in Q&A Sridey Esh (Rabbi A.A. Weingurt's Edition) A', 49, considered an individual who was born by fertilization to be a Shtuki and is deemed as a bastard, but on the other hand Rabbi Ovadia Yosef ruled leniently. The author also quotes Rabbi Asher Weiss who tends to be lenient, as the insemination is completely detached from intercourse (similar to the aforementioned opinions of Rabbi Finstein and Rabbi Waldinberg); and see additional references there. Dr. Vigoda's conclusion is that "it seems that the proper solution is to properly regulate, at the very least, this highly sensitive issue and set forth rules of registration and control to ensure, on the one hand, that a woman shall not receive sperm from a relative or an illegitimate person, and enable the prevention of relative-marriages, and on the other hand, keep in confidence the identity of the donors… it is important to verify that the informed consent of those who need the services of sperm banks shall include an understanding of the Halakhic meanings of the procedure, and the sooner the better". With respect to the Sperm Bank, also see the lecture of the Rabbinical Judge, Rabbi David Malka, "Halakhic Aspects in the Activity of a 'Sperm Bank'", the Rabbinical Judges Conference, 5768. With respect to the Halakhic concept of parentage, also see Eran Shiloh, "More on the Halakhic Concept of Parentage – 'For Your Son to be Removed'" Weekly Torah Portion, 324 (5768).
60. It transpires from all of the aforesaid, that on the one hand there is a substantial school, mighty pillars to lean against, taking the position which detaches the parental connection from the donor, and some believe otherwise. As in this issue on the whole, I shall join Dr. Vigoda in his call for the legislator to intervene, and to my mind, in the directions he suggested. However, in the current state of affairs, a donor might find himself under a concern with respect to his Halakhic status in the various aspects, regarding both the donation itself and its consequences, and this might constitute a component of and support a position which has reservations regarding the donation and its consequences as expressed by him in the case at hand, without myself riveting or necessarily joining that.

The set of contracts between the parties and other arguments

61. Ostensibly, as aforesaid, we could have viewed this case also through the glasses of the private law and the contracts law; the term contract has different meanings and interpretations, but it is common to consider a document which expresses the parties' wishes and reflects a "promise" that is to be respected as a contract to which the contract law shall apply anyway (see Gabriela Shalev, Contract Law – General Part, Towards Codification of the Civil Law (5765) p. 13). Apparently, the aforementioned set of forms creates two contracts between three parties – between the donor and the Sperm Bank, and between the Sperm Bank and the recipient of the donation; indeed, there is no contract between the donor and the recipient of the donation. However, the application of contract law shall not change the outcome; the same values and consideration discussed thus far shall also be expressed here, through the principled concepts: the principle of good faith; public policy; and the principles of justice in the enforcement of a contract. Good faith, for example, is a window through which the values of our legal system and the values of public law flow into private law. The bottom line is therefore that the implementation of the aforementioned law and principles lead to the same outcome also according to contract law, although the potential problems as a result thereof are complex (for example, the question may rise, whether the contracts in the case at hand should be viewed as standard contracts pursuant to the Standard Contracts Law 5743-1982); it would not be appropriate to rule on these questions within a coincidental discussion, without sufficient foundation for the discussion.
62. In re Nachmani, Justice Dorner stressed why according to her, the contract law should not be applied to that case:

"… An agreement to have children is not a contract. It is presumed that spouses would not be interested in applying contract law to matters of that sort… anyway, even if it would have been proven that this was the parties' intention, it would still not be in their powers to give the agreement between them the effect of a contract, since a contract to have children is against public policy…

Nevertheless, the fact that an agreement to have children is not a contract does not entirely nullify the legal effect of the agreement or even a representation of consent, since in balancing the parties' rights there is room to also consider the fulfilment of the agreement between them, or the existence of a representation of an understanding. An agreement, as does a representation, may entail expectations and even reliance. These are to be considered among the other considerations affecting the balance (ibid, p. 717)).

Indeed, the picture in the case at bar is different: and in my opinion the set of agreements in the case at bar should not be deemed as void in view of public policy (see paragraph 35 of the Petition); it seems that the continuity of sperm banks, which assist many people every year to consummate the right to bring children into the world, is a public interest; therefore, the creation of a consensual and steady set of agreements which sustains the sperm banks is a public interest, and of course a clear interest of the parties. Certain reinforcement may be found in the attitude of case law to the aforementioned issue of child support; the Courts' willingness to recognize child support of a husband of a recipient of a donation by virtue of a contractual undertaking between them reinforces the conclusion that the contract law and the private law may resolve such issues. In this matter, see the Salameh case; FC ( Jer) 10681/98 John Does v. John Roe (September 19, 2000); and the opinion of Justices Or (p. 764) and Zamir (p. 780) and President Barak (p. 790) in the Nachmani case; also see Y. Margalit "Towards Determining Legal Parentage by Agreement in Israel", 42 Mishpatim 835; 887, (5772). Further reinforcement may be found in the approach of Israeli law to the violation of a marriage promise, an approach which deems the consent to marry a non-enforceable consent, however a compensable one (see CA 5258/98 Jane Doe v. John Doe, IsrSC 58(6) 209, 220-225 (2004)). Nevertheless, I must pose a "warning sign" here; as we are not concerned with "regular" contract law, of the economic sphere. The issue at hand comprises significant emotional components, and the perspective of contract law is only one part of the picture.

63. Still in the sphere of contract law, the Respondents argued, and rightly so, that the contract between the donor of sperm and the sperm bank can be viewed as a contract which is not limited in time, and therefore such that each of the parties may terminate following a change of circumstances, subject to the duty of good faith. Indeed, supplementary interpretation of a contract in which no time limit has been set forth as an integral part thereof, leads to the conclusion that the parties did not presumably intend to be bound by the contract indefinitely. (CA 9609/01 Mul HaYam v. Adv. Segev, IsrSC 58(4) 106, 141 (2004)). The Petitioner claims that the Donor's part ends upon the sale of the sperm to the bank, and the present case does not concern the termination of an indefinite contract. I cannot agree with this; there is great doubt in my mind whether we can draw an analogy to the sale of a car, for example, to the sale of sperm. I believe, with all due cautiousness, that an individual selling his sperm – if we call the donation a "sale" – does not confer upon others proprietary ownership of the "usual" kind in his unique genetic constitution (and so, for example, it does not seem that he confers the right to genetic "duplication" – had it been possible, of course); in other words, the sperm bank does not acquire "proprietary ownership" of the genetic code of the donor in a manner which detaches him – as per the Petitioner's claim – from the continuation of the process (and the same is relevant also to arguments regarding the acquisition of the right to preserve sperm units or any other proprietary right). This is a complicated question, but it seems that it can be assumed that this is a contract with no time limit, which does not confer a proprietary-ownership right – and therefore a party to the contract may withdraw his consent.
64. As aforementioned, this possibility is not a "veto right" of the donor throughout; the "point of no return", wherein the balance of rights and interests shall change, and that donor shall loose the legal possibility to terminate the contract and retract his donation, may vary in accordance with various considerations; these include, inter alia, the force of the consent and the way in which it was expressed at the outset (e.g. the difference between written and oral contracts), the point in time in which the termination of the contract is requested; the type of process and physiological affinity under discussion (in this way, for example, I doubt – as aforesaid – whether a way back is possible in case the sperm donation has already been fertilized into an ovum of the recipient of the donation within an IVF, and certainly, a fortiori, there will be no way back when a pregnancy is carried by the recipient of the donation's body or a surrogate mother's body); the law pertaining to the determination of parentage in such a case, the consent of the other parties to the cancellation of the process (since there may be more than two parties to the contract – e.g. in the case of full surrogacy); and obviously, the best interest of the born child – and the list is not a closed list (for the beginning of a discussion of these issues, see Y. Margalit, ibid, p. 874). Note that the dispositive consent in itself does not define the point of no return; it is determined by law. Such is the case also in the Ova Donation Law, from which the Respondents wish to conclude; see Section 44, whereby a donor or a patient may withdraw from a consent that was given with respect to the extraction of ova from her body "at any time prior to the performance of the procedure to which she had agreed to designate the ova extracted from her body, and with respect to consent to designate ova for implantation – at any time prior to the fertilization of the ova, and she will be under no civil or criminal liability for the withdrawal of her consent as aforesaid". It should be noted at this point, that even if the legislator made no statement in the matter at hand, this Law can serve us at least as reinforcement of the conclusion to which we have arrived, since it addresses, in essence, a very similar issue.
65. In the case at bar – as indicated above – not one of the contractual documents between the parties include reference to the possibility that for reasons other than the quality of sperm or its medical suitability, the recipient of the donation shall be unable to be inseminated by the sperm donation which she selected according to the general data available to her; most certainly there is no concrete addressing of the question of retrieving the donation – hence the Petitioner's reliance. The mere option to pay for safeguarding of sperm units implies that possibly the formulators of the said forms did not perceive a possibility of withdrawal of consent. However, as emphasized above, a priori and regardless of the donor's wishes, the wishes of the recipient of the donation are subject to the discretion of the attending physician (Annex E-2) in all aspects pertaining to the selection of sperm to be used, and the bank further disclaims any responsibility "in any manner whatsoever for the loss, damage or other use of such sperm units" (Res/3). In such a case, in which the parties did not address in advance the possibility of withdrawn willingness regarding the use of the sperm, it should be incorrect to assume for them that it does not exist (since the contract nevertheless does not, as aforesaid, prevail their lawful rights). Moreover, this issue also affects the legitimate reliance interest of the Petitioner, which unequivocally carries weight, but does not tip the scales, inter alia, in consideration of the aforementioned contractual situation. Furthermore, in terms of the aforementioned point of no return, additional considerations lead to the acceptance of the Donor's withdrawal of consent, and in particular the lack of any physiological affinity thereto by the Petitioner at this point in time.
66. Finally, and without making a definitive ruling, I shall also mention the rule stipulated in Section 3(4) of the Contracts Law (Remedies for Breach of Contract), 5731-1970, which determines the "justice exclusion" to the enforcement of a contract (see Gabriela Shalev and Yehuda Adar – Contract Law – Remedies: Towards the Codification of Civil Law (5769) p. 230). This issue was also discussed in re. Nachmani, as stressed by Justice Strasberg-Cohen (dissenting opinion):

"In the field of liberties, the law avoids forcing an individual to do that which he is not compelled to do, also in other contexts in the sphere of inter-personal relationships between humans. Every individual has the right to be married. However, there is not dispute that an individual who had been promised marriage, a promise that was broken, shall not receive from the Court a remedy of enforcing that promise. Every person has a right to start a family and have children. However, there is no dispute that the State – whether directly or through the Courts – shall not enforce an individual to have children against his will, even if he had promised his spouse to do so, and even if the spouse has relied thereon and perhaps even entered the marriage upon reliance and expectation of the same. And why is this not done? Not only because a mandatory injunction cannot force action (other than, perhaps, by way of contempt of court proceedings until the "recalcitrant" shall accede), but because of the in-principle and normative reason therefor, which is the law's refraining to call upon coercive measures for the purpose of fulfilling the heart's desires of one spouse, in contrary to the wishes of the other" (ibid, p. 683).

In my opinion, the aforementioned considerations are also relevant with respect to this exclusion, such that the contract – even if we accept the breach argument – may be viewed, in its current form and under the circumstances, as a non-enforceable contract (for a discussion of the considerations within the exclusion of justice, see Shalev & Adar, p. 231). Indeed, this brief discussion is far from exhausting the questions raised by this case; as aforesaid, I did not find that contract law indicates a weighty interest that calls for an outcome different to the one we reached. However, the tarrying in regulating the whole issue by legislation is evident.

Lateral Effects of the Case and a Call upon the Legislator

67. The main concern arising from the case at bar is the damage to the stability of the sperm banks in Israel, through the issuance of a "carte blanche" for donors to withdraw their donation as well as through recipients of donations who, similarly to the Petitioner, asked the specific sperm bank to reserve additional donations for them, and shall realize that this option is not guaranteed. The stability of this institution is, as aforesaid, a public and human interest of the highest degree. The uncertainty in this area – a result of the unsteady normative arrangement – undermines, a priori, the public's possibility to rely on the receipt of a sperm donation. The solution therefor is in the hands of the legislator.
68. For a review of the numerous problems arising from the lacking normative arrangement, see for example HCJ Salameh, p. 784; HCJ 998/96 Yarus Hakak v. the Director General of the Ministry of Health (February 11, 1997); Shifman, p. 85; Margalit "Towards the Determination of Consensual Legal Parentage", p. 885-889; Shamgar, p. 37-38; Corinaldi, p. 325-326. We are concerned with morally sensitive and complex issues, which should not remain in the sphere of uncertainty and partial regulation. We refer not only to the aforementioned lacking forms but also to additional aspects, such as determining fatherhood and the issue of anonymity, limitation of the number of sperm units from a single donor, the medical examinations for donors and recipients of donations and the way of management of the sperm banks (for background, see the comprehensive audit by the State Comptroller, Annual Report 57B for 2006, p. 417-447). It would not be farfetched to assume that had the issue been handled thoroughly, the unfortunate case at bar could have been prevented, or, in the very least, all concerned parties would have known their rights in advance, rather than in retrospect.
69. In the meanwhile, and as a temporary measure, it is appropriate that the Respondents shall amend the consent forms of donors and recipients of donations in order to ensure that all concerned parties are aware of and understand their rights. So long as there is no legislation in this field, to regulate and define the donor's option to withdraw his consent, sperm banks must present recipients of donations with an accurate picture of the legal situation, in order to not promise what might not be fulfilled.

Comments before conclusion

70. My colleague, Justice Barak Erez referred (paragraph 14) to the sensitive issue of organ donation and to the fact that organs are not deemed as negotiable merchandise, although it is currently acknowledged by the Organ Implantation law 5768-2008; in this matter, she mentioned also other bodily donations, but stressed that "the recognition of the possibility to donate blood, sperm or ova did not turn them into 'assets' for all intents and purposes". I shall note that in HCJ 5413/07 Jane Doe v. the State of Israel (2007) I had the opportunity to address the approach of the comparative law and the Hebrew law in the area of organ donation from the living (see paragraph 9). I consent with my Colleague's comment, and shall stress the special sensitivity in these issues which require – on the one hand – a broad human perspective, and on the other hand, taking one step at a time in making the arrangements.
71. My colleague further justly referred (paragraph 19) to Directive 1.2202 of the Attorney General (of Heshvan 1, 5763-October 27, 2003) in the matter of "the obtaining of sperm post-mortem and the use thereof". I was the Attorney General at the time this directive was issued, and I remember the in-depth discussions involved therein, "from a broad moral-social perspective, which attributes significant weight to the concrete wishes of the individual in question (the deceased)…" (Section 4). It was further stated there, that "the Attorney General's position is based mostly on two central principles: one is respecting the deceased's wish which derives from the principle of the individual's autonomy and right to his body, and the second is the wish of his spouse…" (Section 9). In the matter at hand, however, I shall stress that the individual's autonomy of will played a major role in the decision therein, and was a leitmotif of the Directive. 
72. Reading the opinion of my colleague, Justice Amit, I shall note that his comment (in paragraph 8) regarding Section 3(4) of the Contract (Remedies) Law is based on FH 21/80 Wertheimer v. Harrari, IsrSC 35(3) 252 (1981); but see Sahlev & Adar paragraph 6.60-6.62 on p. 229-231 and note 189 there, with respect to the legal outline. As for justice itself, we are considering the enforcement of the contract on which the donor is signed, and enforcement is requested with respect to him, which is the reason for the reference made to the section in this context; and as recalled, to my mind, the decision lies in another legal field, such that the question I addressed related to the legal tool in the civil realm for applying these principles.
73. With respect to the relationship between the donor and the spouse in re Nachmani (paragraph 21 of my colleague, and paragraphs 40-42 of my opinion) as compared to the case at bar, indeed this is a "genetic" father who shall probably remain anonymous to his child, as obviously his child shall remain to him, rather than the "known" fatherhood discussed in re Nachmani. However, in my opinion the question, ultimately, is not whether the biological father shall come across the newborn, as could have been the case therein, but rather what goes through this father's mind, knowing that there is a child born of his sperm in the world, and such issue, as aforesaid, may permeate and deeply disturb his peace of mind, all in accordance to the individual in question and his feelings (as also noted by my colleague in paragraph 24).

Conclusion

74. The Petitioner's desire and wish to bring into the world another child from the sperm donation of the Donor are understood, and are also hard not to sympathize with. However, we cannot legally enforce that wish under the circumstances herein. The Donor's right to autonomy prevails over the interests at the basis of the Petition. The Nachmani case did not recognize an in-principle right to have children with a specific person; it recognized that in the absence of any other possibility to bring a child into the world, and under exceptional circumstances (inter alia, after the consummation of an IVF) the right to be a parent might prevail over the right of another person to not be a parent and to autonomy. This is not the situation in the case at bar. The Petitioner's right to be a parent, and her ability to parent, are not dependent on the sperm donor; furthermore, the Petitioner has no "advanced" affinity to the sperm, other than the payment for the storage of the specific sperm donation, prior to the Donor's request to withdraw his donation. Under these circumstances, the Donor's right to autonomy prevails. However, the current case highlights – as aforesaid – the necessity to regulate this area by the legislator, and as a first step, on the governance level, to amend the consent forms and the Director General's circular. We do hope that the Petitioner shall be able to consummate her right to be a parent as she wishes later on in life; the distress that was surely caused to her is not little, and we are deeply sorry for this. Indeed, the decision to donate sperm – and I find this term suitable also in view of the symbolic amount of money received by donors for providing the sperm – must be taken seriously and after considerable deliberation. Donors must know that their informed consent to give sperm to another person is relied upon by other human beings who wish to plan their lives and bring children into the world. Therefore, this decision cannot be easily revoked, and the revocation cannot be guaranteed under all circumstances, and it depends on the stage of the procedure; i.e. in the absence of a full normative arrangement, it is contingent on the circumstances, pursuant to the considerations reviewed above.
75. To conclude, we do not accept the Petition. Under the circumstances, there is no order for settlements.

Justice

Justice D. Barak-Erez

1. "If only I had a son, a little boy, with dark curly hair, and bright", wrote the poet, Rachel. It is hard to resist the natural yearning for parentage. However, despite the sympathy it raises, the focus of the Petition before us is nevertheless different. The question is not whether the Petitioner will be able to consummate her desire to be a mother of children, but rather whether she is entitled, under the circumstances, to consummate her plan to be a mother of children who all share one genetic father, and therefore share the same dark (or golden) curly hair. 
2. Being the question at hand, I consent with the outcome reached by my colleague, Justice E. Rubinstein – although not without regret. I share the main conclusions of my colleague's comprehensive judgment; however I would like to clarify my opinion with respect to some of the reasons underlying the same, considering the legal and human complexity of the Petition.

The Framework of Discussion – Private Law or Public Law

3. A priori, the Petition before us was presented as based on contractual foundations. The Petitioner had her first daughter through the use of a sperm donation made by Respondent 3 (the "Donor"), which she received from the Sperm Bank of Rambam Medical Center, Respondent 2 (the "Sperm Bank"). After the birth of her daughter, the Petitioner made annual payments to the Sperm Bank to store for her additional sperm units donated by Respondent 3. Payment for the storage of the sperm units was arranged through a form of the Sperm Bank, titled, "Request for Storage of Sperm Units". The Donor, on his part, provided his sperm units to the Sperm Bank after having signed consent for their purpose of fertilizing women who apply to the Sperm Bank for that purpose, or for research purposes. In other words, the sperm donation was also regulated in a contractual form between the Donor and the Sperm Bank. The Petitioner therefore argues, that the contract law requires the acceptance of her Petition, as pacta sunt servanda. She argues that the contracts entered between the Donor and the Sperm Bank or between herself and the Sperm Bank contain no reservation regarding the regret of the sperm donor, and therefore the signed undertakings are valid and binding.
4. The first question to be reviewed is then whether the contractual framework upon which the Petition is based is the correct or exhaustive, normative framework for the discussion of the rights of the parties. Like my colleague, Justice Rubinstein, I believe that the answer to this question is negative. Indeed, there are two contracts executed with the Sperm Bank in the background of the parties' arguments – the Donor's donation contract on the one hand, and the Petitioner's purchase contract on the other. However, the existence of these contracts is not independent of the set of values at the basis of the legal system. The foundational values of the system "permeate" as well into the realm of contract law and affect their basic perceptions, including their public policy (see: Aharon Barak "Protected Human Rights and the Private Law" Klinghoffer Book on Public Law 163 (Itzchak Zamir, Editor, 1993); Daphne Barak-Erez & Israel Gilad "Human Rights in Contract Law and Tort Law: the Quiet Revolution" Kiryat HaMishpat H 11 (2009)). A different, and possibly more worthy, way to present the issue is that the constitutional law is the basic foundation on which other fields of law are built, which are therefore also shaped by the values and principles of constitutional law.
5. Hence, in my opinion, the correct path in examining the question before us should be based, first and foremost, on identifying the public rights and interests which are relevant to the case at bar. However, I will demonstrate below that in fact, the private law's perspective of this case does not yield a clear and unequivocal outcome as the Petitioner claimed. Moreover: insofar as we are concerned with principles from the sphere of private law, more than one legal framework may be perceived as relevant to the discussion of the case at bar – the law of property, contract law (including the distinction between a for-consideration contract and a gift contract) and more (for the possible effect of the legal sphere within which the issue is discussed, compare: Daphne Barak-Erez "Of Symmetry and Neutrality: Reflections on the Nachmani Case" 20 Iyunei Mishpat 197, 207-212 (1996) (hereinafter: "Barak-Erez, Symmetry)).

Public law: the right to be a parent, the right to dignity and the right to autonomy of will

6. In the present case, several rights play side by side in the legal arena, which should be well defined and distinguished. The Petitioner comes before this Court on behalf of two rights which she claims – the right to be a parent and the right to autonomy of will (which was also consummated under the circumstances in her contract with the Sperm Bank). Indeed, the right to be a parent was already recognized in the ruling of this Court, including in the present context, which concerns the desire to consummate the right through fertilization technology, in the series of rulings known as the "Nachmani Affair" (see: CA 5587/93 Nachmani v. Nachmani, IsrSC 49(1) 485 (1995) (the "First Nachmani Case"); CFH 2401/95 Nachmani v. Nachmani, IsrSC 50(4) 661 (1996) (the "Second Nachmani Case"; as well as other cases (also see: HCJ 2458/01 New Family v. the Committee for the Approval of Embryo Carrying Agreements, the Ministry of Health, IsrSC 57(1) 419 (2002)). The same applies to the right to autonomy of will, which was defined in the case law as one of the expressions of the right to human dignity (see for example: CA 294/92 Chevra Kadisah Burial Society "Jerusalem Community" v. Kastenbaum, IsrSC 46(2) 464 (1992)). In fact, the Petitioner's arguments, by virtue of the two rights, merge at least in part. Indeed, she presented an argument seeking to be founded upon the right to be a parent, but in fact she is seeking protection of the right to be a parent in a specific way – through control of the identity of the genetic father of her children. Considering the fact that she may consummate her choice to become a mother also through other sperm donors, her request is actually in the periphery of the right to be a parent, rather than in the center thereof, and it is connected, to a large extent, to the desire to protect the Petitioner's autonomy of will in all aspects pertaining to the consummation of the right to be a parent.
7. Against the Petitioner's right to autonomy in consummation of the right to be a parent, stands the Donor's negative right not to be a parent (in the format of anonymous biological parentage). This right to avoid parentage (and for the sake of accuracy, the genetic parentage of an additional child) is a right that is fundamentally tied to human dignity. Insofar as we are concerned with the right to be a parent, under the present circumstances the collision of rights can be described as the collision between a peripheral expression of the right to be a parent in its positive aspect (a demand to consummate it with respect to a specific genetic father) and the objection to be a parent, which is closer to the core of this right in its negative aspect (since it is a general objection to genetic parenting in the framework of sperm donation, and not just the genetic parenting with respect to a specific mother). The right to not become a genetic parent, which is derived from the negative aspect of the right to be a parent, is in some ways similar to other expressions of the right not to be a parent, but is also different from them – considering the lessened burdens entailed in merely genetic parenting, as distinct from parenting which creates further affinities between a father and a newborn, and imposes additional legal obligations. Hence, the balances pertaining to the scope of its protection shall also be different. See and compare: Glenn Cohen, The right not to be a Genetic Parent, 81 USC L. Rev. 1115 (2008) (in this article, wherein the author calls to recognize the right to avoid genetic parentage as a distinct right, he expresses his opinion that the waiver thereof is to be allowed, but only when the waiver is explicitly and clearly made). In any case, for the continuation of the discussion, the reference to the recognition of this right shall suffice. The balance between this right and the Petitioner's rights is yet to be reviewed.
8. Part of the complexity which the case at bar arises derives from the fact that the parties herein raise arguments concerning different aspects of the very same right – the right to human dignity, within which the Israeli constitutional law has recognized both the right to autonomy and the right to be a parent on its various aspects (including the right to avoid parenting). This is not a "vertical" balance made within the limitation clause of the basic laws, but rather a "horizontal" balance between rights, and to a great extent, between different aspects of the very same right.
9. In the past, this Court was required to face the question of balancing the right to be a parent and the right not to be a parent, in re Nachmani. After numerous disagreements, the majority opinion in the additional hearing supported the mother's right in that case to consummate her right to be a parent. In other words, in the balance between the right to be a parent and the right to non-parenting, the right to be a parent prevailed in that case. However, the circumstances of the case and the nature of the conflicting rights therein were different. In re Nachmani the Court was required to rule in the question of ova which were fertilized with the father's sperm, under circumstances in which the woman's chances to fertilize other ova of hers were extremely low, perhaps non-existing, i.e. deciding in favor of the woman was based on the protection of her right to any biological parenting – as distinct from protection of the manner of consummation of the right to be a biological parent, such as in the case at bar. The potential father's objection was raised at a time when the reliance of the woman on his consent was decisive and irreversible. The case at bar differs from re Nachmani in some important aspects. First of all, we are not concerned with the mere possibility of the Petitioner to become a mother. Second, we cannot indicate significant reliance such as in re Nachmani. The Petitioner paid to store additional sperm units of the Donor only after having given birth to her daughter. Indeed, as per her claim, which was not contradicted by the Ministry of Health, according to the policy of the Sperm Bank she only could have asked that sperm units are stored for her after the success of the first fertility treatment. This matter was not sufficiently clarified to us, but even if this is so, the Petitioner did not rely on the option to store the Donor's sperm units prior to the fertilization process. Moreover, if the Donor's position is accepted, the Petitioner shall not be required to undergo additional difficult physical treatments (such as the additional ova extraction). Essentially, the injury to the Petitioner is expressed in dashed, unfulfilled expectations. It is noteworthy that in protecting the rights of the female spouse in re Nachmani – by recognizing the existence of reliance – Israeli law (justifiably) went much further than the common practice of other systems. To compare, it is noted that in the matter of Evans v. United Kingdom, App. No. 6339/05 (2006), which addressed an issue similar to the Nachmani affair, the European Court recognized the right of a father to withdraw his consent to an IVF procedure even at a stage in which his sperm was already used for fertilization (similarly to the ruling in England in this matter – Evans v. Amicus Healthcare and others [2004] 3 All E.R. 1025. Anyway, as aforesaid, there is no doubt that the irreversible nature of the situation created in re Nachmani, as well as its affinity to the core of the right to be a parent, varies from the case at bar. It is important to emphasize that the point of "no return" in re Nachmani was the creation of the fertilized ovum, and therefore, in my opinion, there is no doubt (an addition which I make in reference to the opinion of my colleague, Justice Rubinstein in Paragraph 65 of his ruling) that had the fertilization of the Petitioner's ova by the Donor's sperm been completed in the case at bar, he could not have withdrawn his consent. In that state of affairs, accepting the Donor's position might have forced the Petitioner to repeat the painful procedure of ova extraction, and again go through the agonizing anticipation for the outcome of their fertilization (which is never guaranteed). This cannot be accepted.
10. In fact, the comparison to re Nachmani is illuminating in one other aspect pertaining to the grounds at the basis of the Donor's objection to the continuation of the fertilization procedure. In the First Nachmani Case, Justice T. Strasberg-Cohen supported – at that time as part of the majority opinion, and later in a dissenting opinion in the additional hearing – the prioritizing of the right not to be a parent, also in consideration of the economic burdens entailed therein (ibid, p. 501). In contrast, in the case at bar, the argument on behalf of the right not to be a parent is not at all based on the fear of monetary obligations towards the anticipated newborn, but is rather made on behalf of emotion, pain and identity (compare: Barak-Erez, Symmetry, p. 201). From this perspective, it is easy to be convinced that the emotional injury to the Donor is significant – clearly he is not motivated by additional reasons of an economic nature. Indeed, in some way the hurt to the Donor is less acute than in the case wherein the question is whether use can be made of a sperm donation for the purpose of first-time fertilization (a case wherein avoiding use of the sperm shall absolutely prevent the situation of being a parent to a child whom the Donor shall not know and not raise). The injury entailed by genetic parentage of the Donor to a boy (or a girl, in this case) unknown to him has already been partly inflicted, as far as he is concerned. However, one cannot dismiss the damage caused to the Donor by increasing the hurt through genetic parentage of additional children, against his will and understanding.
11. The distinction between the protection of the right to be a parent and the limited protection of the desire to consummate the right to be a parent in a specific way is also recognized in other contexts. Despite the in-principle recognition of the right to be a parent, parents cannot, under the usual circumstances, choose the sex of the fetus, although this can be done through using relatively simple technology and scientific tools. The right to be a parent, in this context, is the right to be a parent of a child, not a child whose sex was pre-chosen. The right to choose the sex of the fetus is regulated, for the time being, in the circular of the Director General of the Ministry of Health, and is only granted in very limited contexts (see: The Ministry of Health, Director General Circular" Selecting the sex of the fetus in IVF Procedures" (2004)), under circumstances of a genetic disease in the family, which is identified with one of the sexes. (see further: Ruth Zafran "the Scope of Legitimacy in Selecting the Genetic Characteristics of a Newborn by his Parents – Selecting the Newborn's Sex for Social Reasons as a Test Case" 6 Mishpat Ve'Asakim, 451 (2007)). Indeed, a distinction can be made between preference with respect to the newborn's sex for emotional and cultural reasons and preference such as the Petitioner's, to bring additional children into the world, to be full biological siblings to her daughter, a preference which may have rational reasons (such as in contexts in which a donation of organs is needed in the family). Therefore, the comparison between the situations is not complete. Moreover: apparently, the Petitioner's preference is also a known preference among those who are assisted by fertilization technologies in similar situations (see for example, the instance brought by Anne Reichman Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80, Iowa L. Rev. 265 (1995)). However, the said comparison indicates the fact that the protection of the right to be a parent does not mean protection for the full liberty with respect to the manner of its consummation. For that purpose, balances are required against other rights and interests, including the rights of the sperm donor, in the case at bar.
12. One might add, that also with respect to other rights, there is a distinction between the broad protection for the core of the right, and the limited protection for specific choices regarding its consummation, the price entailed in which it is to be balanced against other rights or other social interests. For example, the Israeli law recognized the right to education as a basic right. This right includes the rights of the parents to be senior partners in the formulation of their child's education. However, this right does not mean the right to always determine to which school their child shall attend and what would be the curriculum in that school (compare: Yoram Rabin, the Right to Education (2002)).

The law of property and the bounds of commodification

13. A first connecting point between the realm of human rights and that of the private law, in which the Petitioner claims her rights are grounded, is expressed in the assumption that the Petitioner has acquired full ownership of the Donor's sperm. This assumption is based on the perspective that "everything is negotiable", and raises a discussion regarding the boundaries of commodification. The question is whether body organs, or other intimate aspects of the human behavior, are indeed commodities for all intents and purposes. Is sperm donation really a tradable commodity, no different to a chair or a table, which were sold for a fair price? The answer to this question is not at all obvious. Not everything is for sale. As technology develops, new questions arise with respect to the scope of tradable commodities and the level of willingness to deem anything which can be technically transferred as a commodity (see, in general, Rethinking Commodification (edited by Martha M. Ertman & Joan C. Williams, 2005; Lori Andrews & Dorothy Nelkin), Body Bazaar – The Market for Human Tissue (2001); Michael Sandel, Justice – What is the Right Thing to Do? 88-112 (2012)).
14. At this time in Israel, human organs are not a regular, tradable commodity (for different opinions on this issue, see and compare: Joshua Weisman "Organs as Assets" 16 Mishpatim, 500 (1986); Gad Tedeschy "The Ownership of Organs Taken from a Living Person" 38 HaPraklit, 281 (1991)). Indeed, for pragmatic reasons, the possibility to donate body organs has been recognized, when the donation does not harm the donor's health (see: HCJ 5785/03 Gidban v. the State of Israel, the Ministry of Health, IsrSC 58(1) 29 (2003)). Today, this possibility is anchored in the Organ Implantation Law 5768-2008 (the "Organ Implantation Law") (see mostly Sections 13-17 of the Law). In addition, the transfer of tissues and cells which are perceived as renewable or non-vital is possible in the format of a donation or a quasi-donation (to which the Organ Implantation Law does not apply – the definition of "organ" in Section 1 of the Law excludes "Blood, bone marrow, ovum and sperm"). Blood donation is considered as not only possible, but also desired, and the Law recognizes the possibility to receive with respect thereto an "insurance" for the receipt of blood donation to the person, his spouse and children under the age of 18 (according to the blood insurance regulations of MADA). Over the years, in recognition of the renowned importance of the consummation of the right to be a parent, certain physiological aspects of the fertilization process also became transferrable, in a format which is defined as a donation, but in fact entails certain consideration, which is defined as compensation for effort and inconvenience, as opposed to payment of an actual price. The field of sperm donation has been regulated for quite some time now (pursuant to the People's Health Regulations (Sperm Bank) 5739-1979 (the "Sperm Bank Regulations")). Later on, the issues of surrogacy procedure were also regulated (pursuant to the Embryo Carrying Agreements Law (Approval of Agreement and Status of the Newborn) 5756-1996 (the "Surrogacy Law")), as was the issue of ova donation (pursuant to the Ova Donation Law 5770-2010 (the "Ova Donation Law")). It is important to note that in all of these instances, the laws or regulations did not recognize sperm, a uterus or ova to be an "ordinary" commodity on the market. On the contrary; despite the fact that in all of these cases payment is made to those defined as "donors", such payment is limited in scope, supervised and defined as compensation for effort and inconvenience, as distinguished from consideration for the body parts or the use thereof (see: Section 6 of the Surrogacy Law and Section 43(a) of the Ova Donation Law, similar to Section 22 of the Organ Implantation Law). The issue is not specifically regulated in the regulations pertaining to sperm donation, since this is not an overall arrangement within primary legislation. The decisions to open the door for such limited transference of body organs were no simple decisions. On the one hand, it is a necessity that should not be condemned, or at least is understandable, but on the other hand, they threaten to turn people into commodities or a container for potential commodities, which literally has a price. The disputes in this question continue. The recognition of the possibility to donate blood, sperm or ova did not turn them into "assets" for all intents and purposes.
15. The decision regarding the transferability or partial tradability of body organs, or renewable body organs as in the present case, does not need to be all embracing. As we realized, the arrangement applicable to sperm donations recognizes the possibility to transfer sperm for the use of the Sperm Bank, against some consideration, which is not a full market "price". However, this does not mean that the sperm thus turns into an ordinary tradable commodity. The limited commodification is embodied in strict regulation of the price and limitations on the transfer of sperm to third parties (which is only allowed for the purpose of fertilization or research). We face the question of whether the limited tradability of sperm cells should also be asserted through a withdrawal right, to be enfolded in the consent to donate sperm, and which allows the donor to withdraw his consent prior to the fertilization process. I believe that the answer to this question, in instances such as the case before us, in which the Petitioner did not change her position to the worse, is positive.
16. The necessity to recognize the limitations that should be imposed on viewing body organs as tradable and transferrable property may be demonstrated through examples that go beyond the facts of the current case. Would we perceive a situation whereby the "neutral" attitude towards the proprietary and business nature of purchasing the rights to the sperm cells would lead us to recognize the possibility to cast an attachment thereon? Would a person who donates his body to science be prohibited from reversing this decision, even though he signed an undertaking of a decisive nature in this matter?
17. This attitude is also reflected in the Ova Donation Law. Pursuant to Section 44(a) of that Law, "a donor… may withdraw her given consent… at any time prior to the performance of the procedure for which she agreed to designate the ova which were extracted from her body, and with respect to a consent to designate ova for implantation – at any time prior to the fertilization of the ova, and she will be under no civil or criminal liability for the withdrawal of her consent as aforesaid". The explanatory notes to the bill of the Ova Donation Law, 5767-2007, are illustrative of the issue we are concerned with: "the consent of a woman to donate ova from her body in accordance with the provisions of the proposed law, involves significant results – giving birth to a child who is the biological child of that woman, while she waives any parentage affinity towards him. Therefore, such a donor should be allowed to withdraw her consent with respect to the procedures performed in the ova extracted from her body, at any time prior to the performance of the procedure to which she has agreed to designate such ova, and with respect to consent to designate ova for implantation – at any time prior to the fertilization of the ovum" (explanatory notes to Section 42 of the bill).
18. Indeed, Israeli law does not specifically regulate the issue of withdrawal of consent in all aspects pertaining to sperm donations, since the issue is not yet established in primary legislation. However, it would be reasonable to conclude that the statutory arrangement applicable to ova donation reflects the perception of the Israeli legislator regarding the limitation, which would be appropriate to apply to the use of reproduction substances that are provided by way of donation. It is possible and appropriate to apply here the principle whereby acts of legislation that regulate similar issues should be interpreted such that they are consistent with one another, in a manner that promotes the values of the system.
19. The reluctance to apply a full property regime to sperm cells is also expressed in the regulation of the use of sperm cells of a deceased person. The use of sperm cells under such circumstances is decided in consideration of the wishes of the person from whom it was taken, and not on the grounds of proprietary principles. In Israeli law, the position that guides the regulating of this issue, as formulated by the Attorney General, is that the use of sperm cells of a deceased person is based on the assumption of his estimated wishes. See: "The Retrieval and Use of Sperm After Death " the Attorney General Guidelines no. 1.2202 (5763). A similar approach is also expressed in the rulings of the courts of other legal systems. In the precedential judgment, wherein a dispute took place over the rights to sperm of a deceased person, between a sperm bank and his widow – Parpalaix v. Cecos (1984), the court in France rejected the position of the sperm bank which claimed a proprietary right, and favored the widow, who presented indications to the deceased's wishes that she will be fertilized by his sperm (further see: E. Donald Shapiro & Benedene Sonnenblick, The widow and the Sperm: The Law of Post-Mortem Insemination, 1 J.L. Health 229 (1986-1987); Gail A. Katz, Parpalaix c. Cecos: Protecting Intent in Reproducting Technology, 11 Harv. J. L. & Tech. 683 (1998)). Likewise, in Hecht v. Kane, 16 Cal. App. 4^th 836 (1993), in which the parties to the dispute were the spouse of a person who had committed suicide, and his adult children. The California Court rejected the attitude that considers the frozen sperm units, which the deceased left behind, as property for all intents and purposes, belonging in his estate. This ruling stated that the question of using the sperm units should be answered after further investigation regarding the deceased's wishes. The ruling further clarified that insofar as his spouse shall be granted rights to these sperm units, she will be able to use them only in an attempt to conceive thereby, and not for any other purpose. This reservation once again brought into focus the limitation of treating sperm units as "ordinary" property (further see: Bonnie Steinbock, Sperm as Property, 6 Stan. L. & Pol'y Rev. 57 (1995); Ernest Waintraub, Are Sperm Cells a Form of Property? A Biological Inquiry into the Legal Status of the Sperm Cell, 11 Quinnipiac Health L. J. 1 (2007).

Contract law: Contract Interpretation and Waiver of Right 

20. From the law of property to contract law. Insofar as we are in the realm of contract law, the first question is the scope of liability of the sperm donor, pursuant to the language of the undertaking form that he has signed. And to be more concrete: does the language confer upon him a right to change his mind, or alternatively – deny him the right to reverse?
21. The letter of consent, which a sperm donor is required to sign, appears in Annex C to the Circular of the Director General of the Ministry of Health "Rules regarding the management of a Sperm Bank and Instructions for the Performance of Artificial Insemination" (2007). This letter of consent includes the following language of undertaking: "I agree to donate from my sperm for the use thereof for artificial insemination of women or for research purposes, as per the considerations of the Sperm Bank". This language does not include explicit reference to the sperm donor being granted a right to change his mind. Yet, nor does it explicitly deny such a right. In other words, the (current) letter of consent signed by sperm donors is silent in this matter. An interpretive question therefore arises: how should this silence be interpreted? Considering the fact that the sperm donation pertains to the personality of the donor and his dignity, it is appropriate that the waiver of the right to reverse be regulated, at least, by an explicit reference to the issue in the letter of consent. A separate question is whether it is appropriate to allow an individual to irrevocably waive the right to withdraw the donation under circumstances in which no irrevocable reliance has been created by a fertilization procedure that has already begun. However, it may be stated that, in the least, the arrangement that denies the right to reverse in cases such as the one before us (prior to the use of the donor's sperm for the purpose of fertilization) should be explicit and clear (as also noted by Cohen in his aforesaid article). This is emphasized even more if we take into account the view of the sperm donation as a "donation" or "gift", in contrast to a "sale", as shall be specified below.
22. In order to complete the picture, it is important to reiterate that the Petitioner signed the documents pertaining to the storage of sperm units only after having given birth to her first child. These documents too, make no explicit reference to the question of the donor's withdrawal, and they further state that the Sperm Bank shall not be liable for the "loss, damage or other use of such sperm units".
23. It is noteworthy that such issues, which are so sensitive and so essential for the parties involved, as well as for the public interest in its broad sense, should be explicitly regulated, rather than requiring, in retrospect, the interpretation of experts – not only for legal considerations but first and foremost for reasons of fairness. Undoubtedly, one of the important lessons to be learned from this case is the preparation of suitable forms for the signature of sperm donors and women who wish to conceive by sperm donation, to be also accompanied by detailed and clear explanatory sheets.

Contract law: a for-consideration contract or a gift

24. Insofar as the case is also reviewed from the contractual perspective, it is appropriate to further inquire whether the consent to sperm donation is a regular consent, or one which is rooted in the Gift Law (pursuant to the Gift Law 5728-1968 (the "Gift Law")), or should at least be discussed while concluding from this law (see and compare: Mordechai A. Rabello, The Gift Law, 5728-1968 212 (Second Edition, 1996)). A major difference between the law which applies to a regular contract and that which applies to a gift contract (whether totally unilateral or accompanied by a condition is an obligation) is the recognition of the right of reversal which is granted under certain conditions to the giver of the gift, out of recognition that he is performing an act of benevolence, an act which benefits the other. Section 5(b) of the Gift Law 5728-1968 (the "Gift Law") stipulates, "so long as the receiver of the gift did not change his situation in reliance of the commitment, the giving party may withdraw it, unless he had waived this permission in writing". Section 5(c) recognizes the possibility of withdrawal of a gift also due to "considerable deterioration in the financial condition of the giving party". These provisions do not necessarily apply to the case at bar, since one may assume that the gift in this case was concluded in an act of conferral (Section 2 of the Gift Law). Furthermore, the sperm donation still involves payment, although not large. However, if only by way of syllogism, these arrangements indicate that the legislator chose to be compassionate and measured towards those who a priori expressed these virtues through their own altruistic act. In this context, it is particularly worthy to emphasize the following two: first of all, Section 5(b) stipulates that the prevention of withdrawal from the person who obligates himself to the gift requires "a written waiver of this permission". In other words, the wavier of the giver of the gift of the right to withdraw his obligation requires specific and formal arrangement. Secondly, Section 5(c) of the Gift Law refers to a change in the economic situation of the giving party since it concerns the typical case that the Law addresses – a gift of economic value. Insofar as a sperm donation is concerned, by way of syllogism, a change in the personal situation may be relevant, for the same reasons.
25. Indeed, sperm donors often do not attribute much importance to the personal aspect entailed in the donation. However, in those cases in which the sperm donor later feels sadness and remorse regarding his willingness to take part in this process, should society treat him with the same legal rigidity which should apply to a merchant who canceled a merchandise transaction? I think not. This is required by the virtue of humanness. In my opinion, in the present case, it is of no particular importance that the donor had a "change of heart" following repentance ("Tshuva"). The main issue is that he feels true remorse regarding the sperm donation, whether the reasons therefor are religious, moral or emotional (for a distinction between the right to freedom of religion and protection of religious feelings, see and compare: Danny Statman & Gideon Sapir "The Freedom of Religion, Freedom from Religion and Protection of Religious Feelings" 21 Mechkarei Mishapt 5, (2004)). I wish to further note, in this context (in reference to section 61 of my colleague's ruling), that I do not believe that the review of the Halakhic sources which he refers to eventually affect the conclusion we reached in this case. It seems that my colleague, Justice Rubinstein, does not believe so either. On the contrary, as my colleague noted, some adjudicators take a stance that detaches the parentage affinity between the sperm donor and the newborn, and consider the sperm of the donor to be "abandoned" (see: Michael Corinaldi "The Legal Status of a Newborn Conceived by Artificial Fertilization" 4 Kiryat Ha'Mishpat 361, (2004)). Also amongst the stringent adjudicators, who recognize the affinity of the newborn to the sperm donor, some limit this stringency to certain issues only (prohibition of incest) and not to others (such as child support and inheritance) (see: Yossi Green "Is There a Solution to the Problem of Bastardry through Medical Technologies in the field of Fertilization?" 7 Moznei Mishpat 411, 422-425 (2010)). Under these circumstances, in my opinion, no weight is to be attributed to the fact that other, more stringent, approaches can also be taken, of which the Donor himself did not claim.

Contract law, contractual adversary and normative duality

26. Insofar as the Petitioner's argument is seeking foundation in contract law, it is important to pay attention as well to the lack of contractual adversary between her and the sperm donor. Insofar as the Petitioner has a contractual right, such right derives from an agreement she had with the Sperm Bank (which on its part obtained the sperm donation within a separate contractual arrangement with the Donor). The payment made by the Petitioner was also transferred by her to the Sperm Bank, unrelated to the earlier payment made by the Sperm Bank to the Donor. Hence, the correct perspective for the review of the scope of her contractual rights should focus on the contract she has with the Sperm Bank. This contract is not only subject to the regime of contract law, but is also under the yoke of public law – being a contract made with a public body, in this case a governmental hospital. It is further subject to public law, alongside contract law, according to the concept that is called "normative duality" (see, for example, Daphne Barak-Erez, Citizen Subject -  Consumer,  Law and Government in a Changing State 234-238 (2012)). The governmental hospital is also expected to act in the framework of this contract out of commitment to the principles of public law that it is bound to. In this context, it must also examine whether the case calls for the application of the rule of rescission, which enables an administrative authority to be released from a contract it entered for the purpose of protecting an important public interest (see: Daphne Barak-Erez, "The Rescission of a Government Contract: A Test Case of Normative Duality" 11 Ha'Mishpat, 111 (2007)). The public interest in this case also includes the protection of the rights of sperm donors, as shall be specified below.
27. As a rule, we must additionally review the question before us from the perspective of the duties of the governmental hospital towards the sperm donor. The governmental hospital is to also take into consideration the donor's rights. In fact, the question is not if the governmental hospital should be considerate towards the donor, but rather what should the scope of such consideration be. To illustrate, a simpler case than the one before us can be imagined – that of a donor who regrets his donation after its delivery had been completed and before a specific woman had asked to make use of his sperm for the purpose of fertilization. Under these circumstances, would a stringent attitude of the sperm bank, whereby once the sperm donation is completed there is no longer room for regret, be accepted as reasonable? I think the negative answer to this question is obvious. On the other hand, the answer to the opposite extreme case is also clear, when use has already been made of the sperm for the purpose of fertilizing ova, such as in re Nachmani, and therefore reversal is no longer a possibility. The case at bar is an interim case. For the reasons explained thus far, I believe that here too, the "point of no return" is yet unformulated.

Comparative law and the limitations thereof

28. A new and complex question such as the one before us, ostensibly directs us to the almost infinite reserves of comparative law, as a source for inspiration and learning. In fact, this is a blessing, which in the present circumstances is of limited benefit. The answer to the question is necessarily founded on ethical and ideological views, which are often culture and geography dependent. Indeed, a sample review of other systems – wherein the discussion is often still unconcluded – indicates that there is no agreed answer to the question. Moreover, the answer provided for the question depends on resolving other questions, such as the question whether the identity of the sperm donors may be disclosed to the children born from their sperm upon their maturity. For example, in England, sperm donors are allowed to withdraw their donation (see: Human Fertilization and Embryology Act 1990, Schedule 3, Section 4(2). Further see: Peter D. Sozou & Others, Withdrawal of Consent by Sperm Donors, 339 British Medical Journal 975 (2009)). The English attitude regarding this issue is part of a broader perception which also recognizes the possibility of withdrawal of a donation when an ovum had already been fertilized by the donor's sperm, as ruled in re Evans, mentioned above, which expresses an opinion different than that of Israeli law, as formulated in re Nachmani (further see: Heather Draper, Gametes, consent and points of no return 10(2) Human Fertility 105 (2007)). Recognizing the option granted to sperm donors to withdraw their donation is expressed in Australian legislation (wherein the issue is not regulated on a federal level, but rather by state legislation only. See: Human Reproductive Technology Act 1991, Section 22 with respect to Western Australia, and Assisted Reproductive Treatment Act 2008, Section 20 with respect to Victoria). Canada offers another approach. The regulations which regulate the issue there – Assisted Human Reproduction (Section 8 Consent) Regulations, 2007, issued under the Assisted Human Reproduction Act, 2004 – distinguish between a situation in which sperm or ovum are provided for the purpose of fertilization within a relationship with the provider of sperm or ovum, and sperm or ovum donation for a third party. While in the first situation consent may be withdrawn at any time so long as no use was made of the sperm or ovum, this cannot be done in the latter situation, if notice had been given by the third party that the donated substance was designated for him (in fact, as in the case of the Petitioner). This arrangement is considered to set the "point of no return" much earlier, and was criticized on these grounds. See: The Standing Senate Committee on Social Affairs, Science and Technology, Ninth Report (14 February 2007), at p. 2. And further see: Porsha L. Cills, Does Donating Sperm Give the Right to Withdraw Consent? The Implications of In Vitro Fertilization in the United Kingdom and Canada, 28 Penn. Int'l L. Rev. 111 (2009). A relatively unconventional approach may be found in Spanish Law (Law 14/2006 dated May 26, 2006 on Fertility Assisting Technologies – Técnicas de reproducción humana asistida). Section 5 of this Law allows the sperm donor to withdraw consent, but limits this right to circumstances under which he needs the sperm cells for his own needs, and stipulates that under such circumstances the donor shall be required to compensate the relevant sperm bank. The Bill that was drafted by the American Law Institute regarding this issue – Model Act Governing Assisted Reproductive Technology – includes a detailed arrangement with respect to the manner of granting consent to IVF procedures, by all parties involved therein, including the donor. According to Section 201 of this bill, the information regarding the consent and its boundaries should also be provided orally as well as in writing, while explicitly addressing the question of the right to withdraw the donation, and the time at which it expires. The section further stipulates that the right of withdrawal is effective only so long as the sperm cells were not transferred, but this rule is intimately connected to the overall regulation of the issue of informed consent and the information provided prior to its granting.

Expectations, heart's-desires, protected expectations and rights

29. The Petitioner's heart-desire to be a mother of children who all share the same genetic father is therefore not fulfilled. Her expectations are frustrated. However, from the legal aspect, such expectations do not enjoy full legal protection. Essentially, the Petitioner did not rely on the possibility to receive additional sperm donations from the same donor prior to giving birth to her firstborn. She paid in order to secure the use of the donor's additional sperm units only after successfully conceiving from the donor's sperm. As transpires from the above discussion, it is possible that even the reliance of a woman on the purchase of several sperm units by the same donor would not suffice to prevail over the donor's right not to be a parent, under circumstances in which no further injury is caused to the woman. Nevertheless, in the case at bar, we cannot indicate reliance of the petitioner on the possibility to secure the use of several sperm units of the same donor prior to the original fertilization from which she had her daughter, as distinct from interrupting her expectations further down the road.
30. An additional perspective to review the case pertains to the comparison between the Petitioner's expectations to consummate parentage of several children with one genetic father, and the ability to protect this kind of expectation in the ordinary course of life. Indeed, in most cases, partners who choose to make a home and bring children into the world hope and plan that, insofar as they wish to have several children, their lives will enable them to jointly parent children who are full biological siblings to each other. This expectation may materialize, and indeed it often does. However, this is not always the case. Partners may separate, for example. In such cases, even if one of them did have an expectation to consummate joint parenting of several children with the partner from whom they separated – such expectation is not a protected one. Indeed, there is additional hardship in the situation of the Petitioner, who has no direct connection to the person from whose sperm she conceived. She cannot persuade him and directly appeal to his feelings, as distinct from the case of a "regular" separation. Truly, the Petitioner differs from a woman who conceived by a partner with whom she has an ongoing relationship which naturally experiences ups and downs, and in which it is obvious that family planning is the responsibility of both partners, and not just one of them. The comparison is therefore incomplete. However, it highlights the fact that the law does not protect, under regular circumstances, the expectation to give birth to full biological siblings. My conclusion in this context is similar to the conclusion reached by my colleague Justice Rubinstein (Section 35 of his ruling). In a broader perspective, the absence of legal protection of a family model which is close to that of a traditional family, a family which includes several biological siblings, integrates into the growing recognition that our society includes different types of families, whose members can and should experience happiness in their lives (further see: Sylvia Fogel Bijawi "Families in Israel – between the Familial and Post-Modernism" Gender, sex, Politics (Dafna Azrieli and Others, Editors, 1999)).
31. In view of the considerations presented in the discussion thus far, it is also doubtful whether the Petitioner's expectations are worthy of full protection. Such full protection would cause a disproportionate harm towards the sperm donor. In addition, broader policy considerations might add to the aforesaid, pertaining to over-deterrence of potential sperm donors in the future (and particularly in consideration of the fact that already now there is chronic shortage of sperm donors. See: Background Document regarding Sperm Donation in Israel 2 (the Knesset's Research and Information Center, March 1, 2005)). It can further be assumed that these considerations shall also be reviewed when additional questions regarding the rights of sperm donors are raised in the future, e.g. with respect to the expectations of children who are born from sperm donation to seek out the identity of the biological father (see and compare: Ruth Zafran "Secrets and Lies – The Right of an Offspring to Seek Out their Biological Fathers, 35 Mishpatim 519 (2005)). To emphasize: the Petitioner in this case is not paying the price of protecting these future donors, insofar as they shall seek such protection. The required outcome in the case at bar is also the desired outcome in other instances, and not vice versa.

Technology, Science and Law

32. The case at bar is yet another example of the new challenges presented by scientific and technological progress. From a medical aspect, a woman who seeks conception may select the preferred sperm donor after having reviewed his specifications as well as the availability of a sperm unit "inventory" provided by him. The availability of such possibilities to her join many other situations in which technology creates new opportunities – freezing ova or storing sperm (for future use thereof), early detection of embryo genetic diseases, and more. These situations repeatedly raise the question of whether the availability of a certain mode of action, as a matter of science and technology, necessarily entails the existence of a right to use it, and that the exercise of such right is not to be limited. In the present case, since there is a technical possibility to use the additional sperm units of the Donor, the assumption lying at the foundations of the Petition was that it would be possible to actually use them, without limitation. Indeed, the technology opens up new horizons, allowing us additional choices. However, the fact that certain scientific and technological possibilities allow us to take certain steps does not, in itself, confer the right to do so. Surely this must be considered when against the possibility to use the technology stands, not only a vague concern of potential implications for society, but a concrete sperm donor whose rights are expected to be injured.

 

 

Legislation and preliminary arrangements

33. The situation revealed to us with respect to the regulation of sperm donations is far from satisfactory. Such an essential issue, with implications on the consummation of the right to be a parent, as well as on family law in general, is lacking proper legislative regulation. The operation of a sperm bank is only loosely regulated by legislation, and even this is only by secondary legislation – the Sperm Bank Regulations. These regulations limited the management of a sperm bank to recognition by the Director General of the Ministry of Health, and further stipulated that the artificial insemination from a donor shall only be performed in a hospital which has a sperm bank and by sperm which was obtained from this bank. More detailed arrangements only exist in the form of a circular of the Director General of the Ministry of Health, as explained earlier, and this, too, lacks reference to fundamental issues, such as the one before us. The current situation therefore has two flaws: first of all, the current regulation does not address essential and important questions; second, in any event, the regulation is not by primary legislation which contains preliminary arrangements, as required by the Court's ruling (see: HCJ 3267/97 Rubinstein v. The Minister of Defense, IsrSC 52(5) 481 (1998); HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. the Prime Minister of Israel, IsrSC 61(1) 1 (2006)). This state of affairs is improper, as a matter of principle, and further contributes to situations in which expectations are created in the hearts of the involved parties, in the absence of clear regulation. This is stated a fortiori, since the issue of sperm donations is not regulated by primary legislation at all, as distinguished from situations where primary legislation exists, but it is not sufficiently detailed (for various approaches regarding the scope and status of the duty to stipulate preliminary legislative arrangements, see: Gideon Sapir "Preliminary Arrangements", 32 Iyunei Mishapt 5 (2010); Yoav Dotan "Preliminary Arrangements and the New Principle of Legality" 42 Mishpatim 379 (2012); Barak Medinah "The Constitutional Rule regarding the Duty to Stipulate 'Preliminary Arrangements' by Law – Response to Yoav Dotan and Gideon Sapir" 42 Mishpatim 449 (2012)). A law addressing the issue, had one been enacted, could have clarified what is the "point of no return" in a sperm donation process, in terms of the donor's ability to withdraw his consent, and further stipulate rules in other matters of general public importance, such as the scope of use of sperm units donated by a single donor (through determining a clear boundary in this area). A law regulating the issue may also set forth arrangements pertaining to the scope of information which the sperm donor is entitled to receive (e.g., could he know whether children were born from his sperm). For example, under the current circumstances, a clear rule which would have "blocked" such information could possibly make it somewhat easier for the donor, since the implementation thereof would have spared him the positive knowledge that his sperm was practically used for a successful fertilization (although such a rule would not necessarily guarantee that future donors will not seek to withdraw their donation).

 

 

Of the law and beyond

34. Be that as it may, one can sympathize with the Petitioner, even though the law is not on her side. Although the Donor's refusal regarding use of his sperm for additional fertilization is founded on emotional grounds, which can be respected, the Petitioner's struggle and pain might lead him to further deliberation, after the legal proceeding is concluded. He is under no legal obligation to do so. He can most certainly consider it ex gratia.

Justice

Justice I. Amit

1. I concur with the outcome reached by my two colleagues, and like them, I too face the outcome we reached with a heavy heart.

Since my colleagues elaborated in their thorough analysis of the field, I shall limit myself to the odds and ends that they have left behind, and try to shed light on other aspects of the issue that are presented to this Court for the first time.

The Petitioner and the Donor in the prism of civil law

2. The outcome of the Petition is derived from the legal tools that we shall choose for analyzing the issue at hand. My opinion is that had we chosen the "realm" of civil law only, it seems that the Petitioner would have prevailed.
3. Two contractual systems apply to the "asset" under our discussion. The one – between the Donor and the Sperm Bank, and the other – between the Petitioner and the Sperm Bank, and there is no contractual adversary between the Donor and the Petitioner.

"Sale" is defined in Section 1 of the Sale Law 5728-1968 (the "Sale Law") as "the transfer of an asset in consideration for a price". In the relationships between the Donor and the Sperm Bank, the Donor may be deemed as having sold his sperm for a consideration – not symbolic but also not particularly high – and the ownership of the sperm transferred to the Sperm Bank, under Section 33 of the Sale Law, which stipulates that in the absence of another understanding, the ownership of the object of sale is transferred by delivery. My colleague, Justice Rubinstein, believes that sperm donation should not be deemed as a sale, since it is impossible to transfer proprietary ownership in the Donor's genetic code in order, for example, to "duplicate" him genetically (Section 63 of his ruling). My colleague, Justice Barak-Erez, indicated the ruling of the California court, which ruled that the deceased's spouse is entitled to receive his sperm units in order to try and conceive thereby, and not for any other purpose, as an additional example which illustrates that we are not concerned with regular property (Section 19 of her ruling).

However, these examples do not preclude the classification of the donation as a sale transaction, and the proprietary nature of the deal, since there is no prevention that a sale contract shall be executed for a specific purpose, while limiting the buyer with regards to the use of the object of sale, without this derogating from the validity of the transaction as a sale transaction, which transfers the ownership of the object of sale. In the case at bar, the form signed by the Donor explicitly states that the donation is made for the purpose of fertilization, or for research purposes. The contractual limitation with respect to the non-use of the Donor's genetic constitution for purposes other than fertility or research, does not, in itself, derogate from the validity of the sale contract and the effect of the proprietary transfer made thereunder.

4. My colleague believes that due to the nature of the object of sale, it should be assumed that the Donor did not intend for the contract to be indefinite, and since no expiry date has been determined therein, a built-in contractual withdrawal option exists, which requires the Donor's ongoing consent throughout the process. However, if we consider the sperm donation to be a sale transaction, this is not an indefinite contract, but rather a one-time agreement, exhausted upon the transfer of sperm to the Sperm Bank against the payment received by the Respondent, and therefore the Respondent cannot retract the contract. As far as I know, also according to the common practice at governmental and private sperm banks, the Donor's consent is not required in each and every instance in which any use is made of the sperm donated by him.

My colleague believes that an interpretive question arises regarding the way to interpret the silence of the letter of consent on which the sperm donor is signed with respect to the right to withdraw his consent. However, this question already includes the assumption that regular contract law should not be applied in our case. Indeed, a regular sale contract does not include a "withdrawal clause", and the withdrawal of consent is deemed by contract law as a breach of contract, which entitles the injured party to the remedies set forth in the contract or by law.

5. Even if we view the Donor not as one who has sold his sperm but rather as one who gave it as a gift – by reason of the use of the word "sperm donation" and the consideration, which totals several hundred Shekels only – this shall not suffice to change the outcome of the transfer of ownership of the sperm. The term "movable property" is defined in Section 1 of the Movable Property Law, 5731-1971 (the "Movable Property Law" as "tangible assets, other than land" and the Law also applies to rights, mutatis mutandis (Section 13(a) of the Movable Property Law). Hence, the Donor can be deemed as one who gave "movable property" as a gift, which was completed upon delivery of the sperm to the Sperm Bank. The ownership of a movable gift transfers immediately upon delivery, according to Section 2 of the Gift Law, 5728-1968 (the "Gift Law"), which stipulates that "a gift is completed upon the transfer of the object of gift by the giving party to the recipient, while both agree that the object was given as a gift". The aforesaid, together with Section 6 of the Gift Law, which stipulates that in the absence of specific provisions of the law, the "ownership in the object of gift transfers to the recipient upon delivery of the object to his hand, or by the delivery of a document which entitles him to receive, and if the object is in the possession of the recipient – upon the delivery of notice by the giving party to the recipient regarding the gift". Since we are concerned with a concluded gift, Section 5 of the Gift Law, pertaining to an undertaking to give a gift and the possibility of the giving party to withdraw the gift under certain circumstances, does not apply.
6. The aforesaid notwithstanding, I am willing to assume that had the Petitioner not been in the picture at all, then in the event that the Donor would have asked to retract the sale/gift transaction for reasonable arguments, there would be room to accept his demand, and had the Sperm Bank refused to do so, we would probably deem its position as insistence upon a right in bad faith, considering the special nature of the object of sale/gift. However, the state of affairs changes upon the introduction of a third party, which modifies the set of considerations. There are many examples therefor in legislation and case law, such as the provision of Section 15(b) of the Agency Law 5725-1965, which stipulates that if the third party did not know of the termination of agency, it is entitled to consider it as ongoing. This provision was elaborately discussed in the rulings in CA 4092/90 Mitelberg v. Niger, IsrSC 48(2) 529 (1994), and CFH 1522/94 Niger v. Mitelberg, IsrSC 49(5) 231 (1996), and see the opinion of Justice Cheshin in the appeal (p. 553):

"We do know, that Shmuel did not change his situation, that no third party came to the house, and the dispute remained inter partes – between the same parties and with no intervention of a third party. …to reiterate: had the interest of a third party been introduced into the system, we may have ruled otherwise. However, this did not happen, and therefore we ruled as we did".

7. On the level of the relationships between the Petitioner and the Sperm Bank, the Petitioner may be viewed as having acquired the Donor's sperm units. Indeed the sperm was not transferred to her physical possession, as sperm units are only stored at the sperm bank, through a special freezing method (in liquid nitrogen, at a temperature of minus 196 degrees), however the Sperm Bank agreed to store the Respondent's sperm for the Petitioner, as indicated by the form which title is "Request for Storage of Sperm Units". This fortifies the Petitioner's status as owner of the sperm, in view of the definition of storage in Section 1 of the Guarantee Law 5727-1967, as "lawful possession, which is not by virtue of ownership" – the lawful possession is by the Bank, however the Petitioner is the owner. Note that the Petitioner's consent to subject the use of the sperm to a physician's medical-professional discretion does not prejudice her proprietary ownership of the sperm. A condition whereby the Petitioner exempts the Sperm Bank from liability regarding "loss, damage or other use of such sperm units", has nothing to do with the issue of the Donor's withdrawal, and can be seen as an exemption clause in guarantee-owner relationships.
8. My colleague proposed to apply the exclusion of unjust enforcement pursuant to Section 3(4) of the Contracts Law (Remedies for Breach of Contract) 5733-1973 (the "Remedies Law"). However, this exclusion is applicable to the relationships between the Donor and the Sperm Bank, and there is doubt whether it can be applied to the relationships between the Donor and the Petitioner, since the ownership in the Sperm already transferred to the Petitioner, and also due to the absence of contractual adversary between the two (compare FH 21/80 Wertheimer v. Harrari IsrSC 35(3) 253 (1981), in which the majority opinion ruled that Section 3(4) of the Remedies Law applies to relationships between the first buyer and the seller, and justice considerations of the direct parties to the contract may be taken into account, whereas justice considerations of the second buyer may not). In any case, the application of justice considerations under Section 3(4) of the Remedies Law in favor of the Donor, cannot guide us on our way to solving the riddle, since the question of what is the just solution under the circumstances is the very question in dispute between the parties.
9. The aforesaid legal analysis, in the prism of civil law, is based on the assumption that sperm may be seen as "Movable property" as defined by the Movable property Law (See Section 5 above, and similar definition in the Interpretation Ordinance [New Version] and the Interpretation Law 5741-1981) and as a tradable asset, in proprietary and contractual aspects. The opinion of some adjudicators in accordance with Hebrew law, who deem the donor's sperm to be "abandoned", also ostensibly supports the proprietary aspect, as one of the clear characteristics of the right to ownership is the right to abandon or destroy the object of ownership (Joshua Weisman Property law: General Part 89, 108 (1993) ("Weisman Property Law")).

However, the question whether a human body organ is an "asset", in which ownership may be transferred, is not clear of doubts. It is hard to deem as "property" something that the legal system does not allow the purchase of ownership in, and the Israeli legal system objects to human trafficking and objects to organ trafficking, even though it does allow the donation thereof (Weisman Property Law, p. 91; Joshua Weisman "Organs as Assets" 16 Mishpatim 500 (1987)). With respect to renewable organs such as sperm, ovum, bone marrow or blood, and in contrast to organs such as kidney or cornea, the mere donation does not prevent the donor of personal use of the asset, which shall be available to him again in the future. Moreover, as far as I know, and with due cautiousness, as we were provided no factual foundation on the matter, there is trade and "import" of sperm from abroad to sperm banks in Israel (and perhaps also "export" of sperm overseas), which indicates the tradability of sperm as an asset for all intents and purposes. Therefore, it is easier to consider such "organs" as "assets", and it seems that this is why the legislator allowed their transfer from one person to another, and allowed the receipt of some consideration therefor (Gad Tedeschy ""Property and Transferability: the Ownership of an Organ Taken from a Living Person" 38 Hapraklit 281, 282 (1998); Daphna Lewinsohn-Zamir "Transplantation from a Living Body in Israel: Experience and Problems" 38 Hapraklit 300 (1988)).

On the other hand, an argument may be raised whereby sperm or ovum cannot be compared to other renewable organs, and not even to organs such as kidney or cornea, since the masculine and feminine gametes (sperm cells and ovum cells) enable the birth of a child, thus "perpetuating" the donor's genetic constitution for eternity. Through this prism, the donation of sperm or ovum is a very fateful matter.

The bottom line is, that even if there is room to implement civil law to the donation of sperm, and although "commercially" the definition of sperm differs from other body organs, we do not conclude that this is a regular "asset", and the sale of sperm is not the same as that of moveable objects, to which trade practice and market price can be applied. Therefore, apparently there is no dispute that as a rule, the donor should be allowed to withdraw his consent, so long as we are concerned with the relationships between himself and the Sperm Bank only. The real relevant question is whether sperm is such a special "asset", whose unique characteristics are of such force as to overcome the weight of a third party (the Petitioner) who enters the scene?     

10. The answer to this question is a matter of ideology, and like my colleagues, I too believe that civil law is not the only applicable law in this case, and is definitely not exhaustive, and we must seek answer in other legal realms (on the importance of the classification and delineation of the legal realm, see: Isaac Amit "On the blurring of bounds and boundaries and uncertainty in the law" 6 Din U'dvarim 17 (2011)). The decision of which legal tool is selected, or in which "realm" of the law to classify the issue under discussion, is in itself a principled decision that might affect the final outcome.  

Analogy to ovum donation

11. The legislator did not regulate the issue of sperm donation by primary legislation and therefore there is no legislative reference to the issue of withdrawal of consent by the donor. A private bill regarding sperm donations was submitted to the Knesset in March 2011 by Knesset Member Otniel Schneller, and it allows withdrawal of consent by the donor, only in such cases in which the sperm donor wishes to designate his sperm in advance for a specific recipient of the donation, and when he wishes to withdraw the donation prior to the performance of insemination in the recipient of the donation.

The circular of the Director General of the Ministry of Health, stipulating rules pertaining to the management of sperm banks (circular no. 20/27 dated November 8, 2007) refers to withdrawal of consent only in such cases in which a woman wishes to conceive a child in joint parenthood with a person who is not her spouse, and then they are both required to present an agreement which addresses the possibility of the parties to withdraw their consent, and what would be the use of the genetic constitution upon such occurrence (Section 31B of the circular). In Section 25(e) of the Director General's circular it is stated that "Donor's sperm shall not be obtained, received or used for the purpose of artificial insemination, upon the fulfilment of one of the following: […] the donor did not give his consent in writing, on a form as specified in the donor's file". Apparently, it can be argued that the donor's consent needs to be obtained in each and every stage, but it transpires from the form on which the donor signs, that his consent for the provision of sperm and the use thereof is given simultaneously and after the sperm is obtained and received, there is no need to receive separate consent for the use thereof. As aforesaid, and as far as I know (no factual foundation was presented to us with regards to this matter), this is also the common practice, and the various sperm banks do not inform the donor, all the same obtain his consent, prior to making use of his sperm.

12. Therefore, there is currently no reference by the legislator, or by the secondary legislator, to the question whether a sperm donor is allowed to withdraw his consent, and until what stage. Upon facing a void, we must resort to analogy. The law of analogy is currently established in our law by the Act of Foundations of Law 5740-1980, which stipulates that "had the Court encountered a legal question to be resolved, and found no answer thereto in a legislative act, in case law or by analogy…". And yet, with respect to an issue that is very close to the matter at hand, the legislator had set forth an arrangement in the Ova Donation Law, 5770-2010 (the "Ova Donation Law"). Section 16 of the ova donation Law stipulates four acts which the donor is entitled to order with respect to the ova extracted from her body, as follows: implantation of the ova; freezing ova for the purpose of future use by herself; research; exterminating of the ova. Consent with regards to implantation may be given for a specific or unlimited time. The possibility to withdraw consent is set forth by Section 44(a) of the Law, as follows:

Withdrawal of consent and change of designation

1. A donor or a patient may withdraw consent given by her pursuant to Sections 15, 16 or 27, as the case may be, at any time prior to the performance of the act to which she agreed to designate the ova which were extracted from her body, and with respect to consent to designate ova for implantation – at any time prior to the fertilization of the ova, and she will be under no civil or criminal liability for such withdrawal of consent.

An ovum donor is therefore allowed to withdraw her consent until that point in time in which the donated ovum has been fertilized. If and insofar as we adopt this solution by way of syllogism also to the case at bar, then we reached a solution for the issue submitted to us, and we are not obligated to resort to "the principles of liberty, justice, equity and peace of the Jewish heritage" and to the Hebrew law on which my colleague, Justice Rubinstein, elaborated in his ruling.

13. As determined by the legislator, the moment a shared genetic constitution is created, the interest of the donor no longer stands alone, and she cannot withdraw her consent due to the introduction of a third party – the other partner to the genetic constitution. In this perspective, it can be argued that the analogy between ovum donation and sperm donation is naturally called for – so long as no use has been made of the sperm, the donor may withdraw his consent, but upon use of the sperm and fertilization of the ovum, we face a "point of no return" in view of the shared genetic constitution which was created (with reflection to civil law, see Section 4 of the Movable Property Law, which addresses the combination and mixing of movable property).

Why does the Ova Donation Law establish the fertilization stage (and not the stage of implantation or re-implantation) as the "point of no return" with respect to the donor? Did the legislator seek to avoid the need to address the medical-legal-moral-philosophical-religious issues pertaining to the time of creation of life and the status of a number of cells that have divided following an IVF? I found no grounds for this assumption in the Ova Donation Law, in the explanatory notes thereto or in the legislative history, however it can be supported by common sense.

According to this explanation, setting the "point of no return" at the time of the fertilization of the ovum is not arbitrary. In this way, as long as no use has been made of the Respondent's sperm, it can be argued that the Petitioner has no right to a specific child from his sperm, since so long as the child is not conceived (non-existence), the concrete right to his birth is yet unestablished (compare to statements made regarding "wrongful life" – David Heyd "The Right to be born free of birth defects?" Moral Dilemmas in Medicine, 255, 258-259 (Raphael Cohen-Almagor, Editor, 2002)). This is not the case in the post-fertilization stage, when the vague right to a specific child now has a concrete object, and a right is established for the mother to bring into the world the child that had already begun to be created (for a discussion of the time of formation of actual existence as opposed to potential existence, see: David Heyd, Are "Wrongful Life" Claims Philosophically Valid? 21 Israel L.  Rev. 574, p. 578 (1986). Some believe that after the fertilization, the interest of the embryo taking shape to be born is added to the set of balances (for a dissenting opinion, see Andrei Marmor "The Frozen Embryos of the Nachmani Couple: A Reply to Chaim Ganz "Iyyunei Mishpat 19. 433, 436-439 (1995)).  

14. The simple meaning of the analogy is therefore supportive of the conclusion that also with respect to the sperm donor, the point of no return is the fertilization of the ovum. However, in my opinion, an in-depth review of the issue may lead the analogy to the Ova Donation Law to a different outcome, and at least to a conclusion that no analogy can be drawn between the case at bar and the arrangement set forth in that Law, in view of the material differences between sperm donation and ovum donation.

In contrast to ovum donation, the issue of sperm donations is yet unregulated by primary legislation. Even according to the private bill of Knesset Member Schneller, as well as pursuant to the current circular of the Director General, all that is required for a sperm donation in Israel is the obtainment of the donor's consent on the proper form. On the other hand, ova donors are required to receive a written approval from an approval committee which comprises of physicians, a social worker, a psychologist, an attorney and a representative of the public or a cleric; the donor is provided with specific written and oral explanation regarding the essence of the procedure and the donation; she is required to undergo a medical and psychological examination in order to confirm her fitness to give the donation; the approval committee is to be convinced that the donor's consent was given "of sound and disposing  mind, out of her free will and free of family, social, economic or other pressure" (Section 12 of the Ova Donation Law). The reason for the aforesaid procedure derives from the fact that the donation of ovum involves a complex procedure for the donor, as distinct from sperm donation, which does not involve invasive procedures or medication treatment.

15. The procedure of sperm donation also varies greatly from that of an ovum donation. Sperm donation is performed, as aforesaid, through a sperm bank, and the sperm units are stored in freezing for many years, such that the recipients of donations can select from the supply available to them the sperm that meets their needs and desires. The sperm bank serves as a mediator between the sperm donor and the recipient of the donation, and in addition to the service of storing the sperm under the required conditions it is further responsible for the obtainment of the sperm from the donor and the transfer thereof to the recipient of the donation. In a sperm donation, the donor who already delivered the sperm unit is not at all involved in the procedure, and the recipient of the donation may acquire sperm units, which the donor gave at a time which is of no relevance to her, and is no longer depending on cooperation on his part.

This is not the case with the procedure of ova donation, which requires cooperation between the donor and the recipient of the donation. This is a complex procedure, in the course of which the donor undergoes hormonal treatment over a period of several weeks, aimed to stimulate the ovaries. During that period of time, the donor is being monitored, including ultrasound checkups and blood tests, and she is obligated to avoid smoking, drinking alcohol and having unprotected sexual intercourse. Concurrently, the recipient of the donation also undergoes hormonal treatment, which is aimed to thicken the endometrium such that it can accept the implanted ova. All of the above is carried out while "synchronizing" the menstrual cycle of the donor and the recipient of the donation, such that the uterus of the recipient of the donation shall be ready to receive the ova soon after its extraction from the donor. Immediately upon the extraction of ova from the donor (within a time frame that does not exceed several hours), they are fertilized by sperm in various techniques which are not relevant to the issue at hand, and which are related, inter alia, to the quality of sperm. The fertilized ovum is incubated in the laboratory, and after several days (48 hours to five days) the conceived embryos – or perhaps the divided cells – are inserted into the recipient of the donation's uterus. In contrast to sperm donation, the donation procedure involves risks for the donor, and contrary to sperm donation, the possibility to freeze ova is limited, since the quality of an ovum decreases after freezing and defrosting. For this reason, as far as I know, there is currently no "ova bank" in Israel, in contrast to an "embryo bank" of fertilized ova.

I elaborated on the medical procedure not in order to enrich the reader's knowledge of the wonders of creation and of technology and medicine, but rather to indicate the material difference between sperm donation and ovum donation. The procedure of sperm donation is simple, does not require any medical procedure, and the main medical burden is carried by the recipient of the donation. On the other hand, the procedure of ovum donation requires lengthy cooperation between the anonymous donor, who carries the main burden, and recipient of the donation.

16. As aforesaid, a [ova] donor may not withdraw her consent from the moment of fertilization of the ova, which is performed, as a rule, immediately after the extraction. The donor may not withdraw her consent even if the ova have not yet been implanted in the recipient of the donation's uterus, and even if the sperm by which the ovum has been fertilized is from an unknown donor who is not the recipient of the donation's spouse, even though the recipient of the donation does not ostensibly have a "strong" reliance interest, since the ova were not yet implanted in her uterus, and therefore the avoidance of conception does not involve an invasive procedure on her body.

The explanatory notes to this section state as follows: (Governmental Bills 2007, 311):

"A woman's consent to donate ova from her body pursuant to the provisions of the proposed law entails significant outcomes – the birth of a child who is the biological child of that woman, while she waives any parenthood affinity toward him. Therefore, such donor should be allowed to withdraw her consent with respect to the procedures performed in the ova extracted from her body, at any time prior to the performance of the procedure to which she has agreed to designate such ova, and with respect to consent to designate ova for implantation – at any time prior to the fertilization of the ovum. The donor shall be under no civil or criminal liability due to her aforesaid withdrawal. A donor who so withdrew her consent, shall return the compensation given to her for the extraction of ova for implantation purposes or for her consent to allocate the excess ova extracted from her body for implantation".

The explanatory notes seem to be "unsynchronized" with the language of the Law, which sets the point of no return at the stage of fertilization. It is ostensibly reasonable that had the legislator wanted to allow a donor to withdraw her consent, in view of the significant outcome of the birth of a child and waiver of parentage affinity towards him, he would have also allowed the donor to withdraw her consent prior to the implantation of the ova in the recipient of the donation, and in case of an unsuccessful implantation, allow her to withdraw her consent prior to an additional implantation in the recipient of the donation (which in turn requires receipt of a renewed approval in order to examine if the conditions stipulated by law for the implantation – Section 19(c) of the Law – still exist).

The reason for the determination of the time of fertilization as the point of no return is based in the aforementioned stages of fertilization and implantation, which are separated by several days at the most. Considering the complex procedure that the donor undergoes, the legislator enables her to withdraw her consent at any time until her share is completed and the ovum is extracted from her body and fertilized immediately thereafter. The extraction of the ovum and the fertilization should be viewed as one stage, and considering the implantation being performed within no longer than several days, perhaps the three stages (ovum extraction-fertilization-implantation) should also be deemed as one. After the donor had completed her share, the power of decision is transferred to the recipient of the donation, who also began hormonal treatments, although less complex. For this reason, there is doubt if one can draw an analogy to the consent withdrawal right which is granted to the ovum donor – whose cooperation is required up until the extraction of ova and the fertilization which is performed immediately thereafter – to a sperm donor who has no part in the medical procedure entailed in the fertilization and whose cooperation is not at all required before the fertilization.

17. Moreover, it can be argued that an analogy to the Ova Donation Law is called for in the case at bar, however such analogy leads us to an entirely different conclusion. Hence, the donor may indeed withdraw her consent until the stage of fertilization, but in fact, considering that the extraction of ovum and the fertilization are performed "as one" (at most within several hours apart), it can be stated that the donor is prevented from withdrawal, the moment of extraction of the ovum from her body. Similarly, the sperm donor shall be prevented from withdrawal after the sperm leaves his body. In other words, since the point of no return is, de facto, not the fertilization but actually the extraction of ova, which are then immediately fertilized, the analogy to the case at bar is the moment of ejaculation and delivery of sperm.
18. In view of the aforesaid, there is doubt whether an analogy can be drawn from the Ova Donation Law to the case at bar, and in any case, the analogy to the Ova Donation Law does not lead us to an unequivocal answer to the issue at hand.
19. Interim summary: we resolved that in the settling of the competition between the Petitioner and the Donor from the perspective of civil law, the Petitioner ostensibly prevails; however, the choice whether to follow civil law depends on the principled question of how much we are willing to attribute to the uniqueness of sperm as an "asset". On the one hand, we can allegedly conclude, by way of syllogism, from the arrangement set forth in the Ova Donation Law, that in the case at bar as well, the point of no return is the stage of fertilization; however on the other hand, in view of the differences in the procedure entailed in ova donation, an analogy to that arrangement might lead to the outcome that the point of no return is the delivery of sperm, and, in the least, that there is no room for such syllogism.

Having failed to find an answer to the question before us, we must continue wandering the paths of law in search for a solution.

Analogy from a woman who does not need sperm donation

20. My colleagues indicated that a married woman or a woman who has a spouse and does not need a sperm donation also has no conferred right that all of her children be born from her spouse, and she is not "immune" from separation and divorce, or – god forbid – death of her partner. Thus they conclude that the rights of the Petitioner should not be secured to a greater extent than in the ordinary state of affairs.

However, the comparison to a woman who has a spouse is incomplete, not from the point of view of the recipient of the donation and not from that of the father. A recipient of donation such as the Petitioner has a possibility to secure in advance, at a high level of certainty – subject to medical and other constraints – that all of her children be born from the same genetic father, since to that end she paid and "secured" the donor's sperm units. On the other hand, an "ordinary" spouse may bear an economic price (child support and property division) and an emotional-mental-social price involved in the process of divorce and separation, whereas the sperm donor pays no price for his withdrawal of consent (other than, perhaps, an obligation to return the amount received at the time for the sperm donation). Hence, the concern pertaining to negative lateral effects in issuing a "carte blanche" to all donors to withdraw their donation, as elaborated by my colleague in Sections 68-70 of his ruling.

Analogy to and distinction from the Nachmani case

21. My colleagues indicate several distinctions between the case at bar and the Nachmani case which indicate that the level of expectations and reliance of the Petitioner in this case, is far lower than that of the female spouse in re Nachmani. According to this method, the necessary outcome is that the Petitioner be denied.

However, this is not the case from the perspective of the donor in the case at bar, whose injury is far lower than that of the male spouse in re Nachmani. A involuntary father, who knows the identity of the mother and the child born to him against his wishes, and might also come across him in everyday life, as in re Nachmani, cannot be compared to the anonymous donor in the case at bar. In the ordinary state of affairs, the donor is not even supposed to know whether use has been made of his sperm for fertilization, how many times it has been used, if the use of his sperm was successful, whether his sperm was used for the fertilization of a married woman or a single one and the identity of the happy mother. In this aspect, the emotional injury to the donor in the case at bar is much smaller than that of the male spouse in re Nachmani. According to this method, the reduced magnitude of the injury to the Donor, tips the scales in the direction of the Petitioner.

Hence, also the comparison to re Nachmani may yield different outcomes. The injury to the Petitioner is smaller than that of the female spouse in re Nachmani, but so is the injury to the Donor smaller than that of the male spouse in re Nachmani.

Analogy from the laws of rescission of contract and administrative promise

22. My colleague proposed, inter alia, to apply to the hospital the principles of public law and the rule of rescission of contract. I shall add to the aforesaid an analogy to the law of administrative promise, which allows an authority to withdraw its promise upon the existence of legal justification.

Indeed in the case at bar we are concerned with a governmental hospital, but according to the Sperm Bank Regulations pertaining to sperm donation, a hospital is not necessarily a governmental hospital, and the implementation of the principles of public law shall not always be applicable. Essentially, the rule of rescission is contingent on public interest (essential public needs), and an administrative promise withdrawal is contingent on legal justification. This does not promote the issue at hand, since the question whether there is a justification or public interest to allow the Donor to withdraw his consent, is the very core of the dispute before us.

Between autonomy and parenthood, and between a right and an interest

23. My colleague, Justice Rubinstein, based his opinion on a principled preference of the Donor's right to autonomy, over the Petitioner's interest to conceive specifically by his sperm.

The case law and legal literature provides us with the distinction between protection or injury of a right, and protection or injury of an interest (see, for example: Oren Gazelle Ayal and Amnon Reichman "Public Interests as Human Rights?" 41 Mishpatim 97 (2011); Zamir Ben Bashat, Erez Nachum & Amir Colton "The Public's Right to Know: Reflections following APA 398/07 The Movement for Freedom of Information v. the Tax Authority" 5 He'aarat Din 106 (2009) and the references there). Between rights it is common to make a horizontal-internal balance, whereas the balance between a right and an interest is vertical-external (Gideon Sapir "Old versus New – on Vertical Balancing and Proportionality" 22 Mechkarei Mishpat 471 (2006)).

The mere distinction between a right and an interest sometimes serves to determine a different level of legal protection, in the words of my colleague: "the classification of the considerations at stake as rights or as interests defines the formula of the balance between them, and the normative superiority of one value over the other or their equal value". Alas, sometimes it is unclear whether the outcome preceded the classification or vice versa (Michael Dan Birnhack "Constitutional Geometry: The Methodology of the Supreme Court in Value-based Decisions" 19 Mechkarei Mishpat 591 (2003)). In my opinion, the injury to the Petitioner should not be classified as an injury to an interest, but rather as an injury to the positive right to be a parent, against which stands the injury to the Donor's negative right to autonomy, as per Section 6 of the ruling of my colleague, Justice Barak-Erez (on the right to be a parent in the context of fertilization, see: Vardit Ravitsky "The Right to be a Parent in the Era of Technological Fertilization" Moral Dilemmas in Medicine 137, 141 (Rafael Cohen-Almagor, Editor, 2002)). Therefore, a horizontal balance is called for between the two conflicting rights, and the distance from the core of the right shall be expressed in the outcome of the balance and not in the mere classification as interest against right.

24. The outcome of the balance depends on the distance of the right from the core of the right, and this may provide an answer to the issue before us. The farther the right is from its core, the lesser its force and vice versa, the weaker the force of the right is, it shall be positioned further away from the core of the right. Clearly this is not a scientific-physical measurement of the distance of the right from the "magnetic pole" wherein it stands, and the force of the right also derives from the motives at its basis. To demonstrate:

Would we recognize the Petitioner's (sic) right to withdraw his consent had he declared that he objects the use of his sperm for the fertilization of a single woman, but is consenting with regards to the fertilizing of a married woman?

And had the Donor casted a "veto" on the use of his sperm for the fertilization of a woman from a certain ethnic group, as distinguished from another ethnic group?

[Parenthetically – Section 13(e)(4) of the Ova Donation Law requires informing the recipient of donation if the donor is married or of a religion different than hers].

And had the Donor's withdrawal of consent been totally arbitrary, with no reasoning and no explanation? And had it been based in greed, attempting to get the Petitioner to pay him additional amounts?

I believe that in the aforesaid cases we would say that the Donor's right is weakened, and removed further from the core of the right, since the motivations on which it is founded are not "solid", and as such, we shall not be willing to view as justifications for the withdrawal of consent. Therefore, I believe that the Donor's "change of heart" with respect to this willingness to donate sperm is not enough, and we should further examine the reasons and motivations which lead him to withdraw his consent, and accordingly determine the degree of the right, and consequently – its distance from the core of the right.

25. The difficulty multiplies in view of issues that are not limited to the balance between the Donor and the Petitioner. For example, would the outcome change had it transpired that the daughter conceived by the recipient of the donation from the Donor's sperm has an interest of her own in the birth of the "potential sibling", such as her need of bone marrow donation? (And I am not referring to the legal-ethical questions that such a situation of "my sister's keeper" might raise).
26. The task of concluding is not ours, and we shall leave, questions and challenges to be resolved when they occur.

In the case at bar, it seems that the (positive) right of the Petitioner to conceive from the same genetic father is distant from the core of the right to be a parent, whereas the (negative) right of the Donor not to be an involuntary father is at the core of the right to autonomy, and I see no relevance, in this respect, to the fact that the Donor already has an offspring from his sperm. To the Donor, the question is "to be or not to be" – whether to at all be a father to another offspring carrying his genetic constitution or not, whereas for the Petitioner the question is not whether to be a mother but rather who shall be the father. Indeed, it cannot be denied that the Petitioner's wishes that all of her children shall carry the same genetic constitution are of considerable force. In the case at bar, the ovum is of the Petitioner's and even if her petition is denied her children will still carry her genetic constitution, and shall be half-siblings. This is different from a theoretical case in which also the ovum is not from the recipient of the donation, and the use of the sperm of a different donor for each fertilization shall mean that the children are not even genetically half-siblings, which would have increased the force of the recipient of the donation's right.

The bottom line in the case at bar is that in the competition between the Donor's core-negative right (the right to autonomy) and a right which is not the core of the positive right (the right to be a parent), the Donor prevails. I shall end with a short quotation from the letter sent by the Donor to the Court, speaking for itself: "I am not interested in having a child without being able to provide love to him, and without me loving his mother".

 

 

To conclude, I concur, although with a heavy heart, with the outcome reached by my colleagues.

Justice

Decided as per the ruling of Justice E. Rubinstein.

Issued today, 25 Shvat 5773 (February 5, 2013).

Justice

Justice

Justice

 

Supreme Court of Israel

HCJ 129/13

 

Before:            The Honorable President A. Grunis

                        The Honorable Vice President M. Naor

                        The Honorable Justice E. Rubinstein

 

Petitioners:      1. Eli Axelrod

2. Moshe Axelrod

v.

Respondents: 1. Government of Israel 

2. Israeli Knesset

3. Ministry of the Interior

 

Petition to grant an order nisi

 

Date of Hearing: 21 Shvat 5774 (January 22, 2014)

 

On behalf of Petitioners:           Adv. Eli Axelrod

On behalf of Respondents 1,3: Adv. Ran Rosenberg

On behalf of Respondent 2:     Adv. Dr. Gur Bleigh

 

Judgment

 

President A. Grunis and Vice President M. Naor:

1.         This petition seeks to bring before this Court again a difficult and painful problem. This problem pertains to citizens of Israel, many thousands of them, who cannot marry in this Country because they are not members of one of the recognized religious groups, or one of them is not a member of one of those groups. In addition the petition relates to those who can marry in Israel, but do not wish to do so in a religious ceremony.

2.         The stated problem has been presented to this Court in several petitions argued in the last few years: HCJ 7127/11 Center for Jewish Pluralism v. Government of Israel (Dec. 5, 2011); HCJ 1143/11 Jerusalem Institute for Justice v. The Knesset (Oct. 18, 2012). The first petition was deleted and the second was denied, in both cases after the petitioners accepted the recommendations of the different panels hearing the cases to retract the petitions. There is nothing novel in the current petition in comparison to the previous ones. Clearly, the solution to the difficult problem has to be by way of Knesset legislation. However, the Court cannot order the legislature to legislate. There is a dramatic distinction between striking down a law due to a constitutional defect, and ordering the legislature to regulate a certain issue in legislation. The additional claims raised by the petitioners, including the one pertaining to the Marriage and Divorce (Registration) Ordinance and its treatment of civil marriage, do not substantiate a cause of action.

3.         Regrettably, we do not see a basis for the Court’s involvement.

 

President, Vice President

 

Justice E. Rubinstein:

A.        I join my colleagues’ judgment. I would like to note that, sadly, the problem invoked by the petitioners is very old, and has worsened with the wave of immigration from the Commonwealth of Independent States (former Soviet Union) from the late 1980’s, as it is undisputable that large numbers of those entitled to Shvut in a family’s two generations are not Jewish according to Halacha; even though they are of Israel seed, through father, grandfather, or grandmother.

            I would be the last to support intermarriage; however a solution to citizens seeking to marry must be given to them within their country. In my opinion in LFA 9607/03 Ploni v. Plonit (2006), paragraphs J-K, I said about them:

“Intermarriage, a painful issue since ancient days (see, during the first return to Zion – Ezra 9 1-2, 12 and chapter 10, and Nehemia 9 31), makes my heart cringe, due to its meaning in the historical respect and its impact on the state of the Jewish people and its size, to an existential degree … (But) I doubt that closing our eyes to the fact of these difficulties is the way to deal with intermarriage, given the factual and legal reality that has evolved over the years … It seems that the wave of intermarriage, which appears with great force within a big part of the Jewish diaspora and exists among our people as well since the waves of immigration of the previous decades – is not going to be stopped in this way, and attending to the larger matter is beyond the judicial scope … The place for decision is the legislature … the Legislature ought to consider an arrangement that would be suitable to those Israelis who cannot marry in Israel (emphasis in original – E.R.); I dare say, that if it were possible to persuade each and every Jewish man and woman, for many good reasons, to marry members of the Jewish people, there would be no-one happier than me, certainly so after a third of the People was decimated in the Holocaust. But since this is not the reality, the state should provide the suitable solutions, of course while accounting for its Jewish and democratic character – as well as for the slippery slope that can ensue.”

 

The son of a Jewish father and a non-Jewish mother – Petitioner 1 did nothing wrong. He is an Israeli citizen, as good as any of us, subject to duties and entitled to rights, including the right to marry. Since the 1970 amendment to the Law of Return, 1950, and the addition of Section 4A, the right to marry applies also to citizens entitled to Shvut and to their offspring. The Law on Matrimonial Partnership for People without Religion, 2010, does not apply to the Petitioner, since he seeks to marry a Jewish woman. He apparently chose not to convert into Judaism although he considers himself Jewish; to me this would have been a practical and commendable solution, but it is up to him and his personal decision. Therefore the state should devise a fair solution to those like him, one that would not make any of its citizens feel as if they are “second rate.” Indeed, the difficulty in this is clear and for that reason the Law on Matrimonial Partnership was dedicated to those without a religion, as its name suggests; however a solution to the complex question is required, while reserving marriage to the religious groups within themselves; the issue is clearly in the purview of the legislature.

 

Justice

 

The petition is denied. Given the circumstance no fees will be assessed.

 

Entered today, 25 Shvat 5774 (Jan. 26, 2014)

 

President                             Vice President                             Justice

The Supreme Court sitting as a Court of Appeals for Administrative Affairs

 

 

AAA 2469/12

 

 

Before:                                                The Honorable President A. Grunis

                                                The Honorable Deputy President M. Naor

                                                The Honorable Justice E. Rubinstein

 

 

The Appellants:                      1.    Morris Bremer

                                               2.    Eddie Weisbaum

                                               3.    Motty Maoz

                                               4.    David Haimov

                                               5.    Eliyahu Miller

                                               6.    Yitzchak Elkoser

                                               7.    Pinchas Tzelik

                                               8.    The General Association of the Merchants and the Self-Employed

 

v.

 

The Respondents:                   1.    The Tel Aviv-Jaffa Municipality

                                               2.    A.M.P.M.

                                               3.    Tiv Taam Daily Ltd.

                                               4.    Tiv Taam Reshatot Ltd.

                                               5.    Tiv Taam Hacarmel Holdings Ltd

                                               6.    Tiv Taam Hodnigs (sic.) 1 Ltd.

 

                                               Appeal of the judgment of the Tel Aviv-Jaffa Administrative Affairs Court dated February 22, 2012, in AP 2500/07, given by the Honorable Justice E. Covo.

 

Date of Session:                                  23^rd of Nissan, 5773 (April 3, 2013)

 

On behalf of Appellants 1-7:              Adv. Ivri Feingold

 

On behalf of Appellant 8:                   Adv. David Shub

 

On behalf of Respondent 1:                Adv. Rachel Avid

 

On behalf of Respondent 2:                Adv. Meir Porges;Adv. Shlomi Bracha

 

On behalf of Respondents 3-6:           Adv. Ronen Buch; Adv. Eli Shimelevich

 

 

 

Judgment

 

Deputy President M. Naor:

 

1. Before us is an appeal against the judgment of the Tel Aviv-Jaffa District Court, sitting as an Administrative Affairs Court (Deputy President E. Covo) in AP 2500/07 dated February 22, 2012. In the judgment, the Court rejected the Appellants' petition to instruct the Tel Aviv-Jaffa Municipality to close various businesses that are open on the Sabbath.

 

 

Background

 

2. Appellants 1-7 are owners of retail businesses selling food (grocery stores), which operate in the city of Tel Aviv-Jaffa (hereinafter: the "Appellants"). Appellant 8 serves as the representative of merchants in Israel on various matters. Respondent 1 is the Tel Aviv-Jaffa Municipality (hereinafter: the "Municipality"), while Respondents 2-6 (hereinafter: the "Respondents") operate "supermarket" stores across the city of Tel Aviv-Jaffa. The Respondents operate their businesses during all days of the week, including the Sabbath. This, in violation of the Tel Aviv-Jaffa (Opening and Closing of Stores) By-Law, 5740-1980 (hereinafter: the "By-Law"), which prohibits opening stores on the day of rest.

 

3. Prior to filing the petition to the Administrative Affairs Court, the Appellants approached the Municipality a number of times so that it would exercise its authority and close the Respondents' businesses. On July 26, 2007, the Appellants received a response from the Municipality's Inspection Department, that each Sabbath, businesses operating on the day of rest are fined in the amount of NIS 660. On July 15, 2007, the Appellants sent an additional letter in which they requested that the Municipality take action to close the businesses, pursuant to its authority by virtue of the Business Licensing Law, 5728-1968 (hereinafter: the "Business Licensing Law" or the "Law"). Until the submission of the petition which is the subject of the Appeal, the Appellants did not receive any response on the merits of the issue.

 

The Proceedings in the Administrative Affairs Court

 

4. The Appellants' complaint in their petition was that the Municipality is refraining from enforcing the laws related to observance of the weekly day of rest, as it is not taking action to close the businesses that are open on such day. They argue that the Municipality must close the businesses that are open on the Sabbath, pursuant to its authorities by virtue of the Business Licensing Law, the Municipalities Ordinance [New Version] (hereinafter: the "Municipalities Ordinance") and the By-Law. The Appellants argued that the Respondents gain a competitive advantage over the Appellants due to their openly violation of the Law, since the Respondents attract consumers who prefer to do their shopping on the Sabbath. Had the Respondents refrained from violating the Law, so it is argued, such consumers would do their shopping during the week, and at least some of them would do so at the Appellants' businesses. According to the Appellants, the Respondents' conduct amounts to "unfair competition" which compromises the Appellants' right to freedom of occupation. As such, the Municipality has a duty to take action against the Respondents, in accordance with the Business Licensing Law. The Appellants further argued that closing the Respondents' businesses is necessary in light of the social and religious objectives of the day of rest, and since the operation of the Respondents' businesses on the Sabbath constitutes a nuisance and adversely affects the residents' quality of life.

 

5. The Municipality, on its part, argued that it enforces the observance of the day of rest in accordance with what is determined in the Law and in accordance with its administrative discretion. According to it, it is not permitted to exercise the sanctions prescribed in the Business Licensing Law in order to prevent competition or to preserve the sanctity of the Sabbath, since these are not among the purposes of the Law. As for the By-Law: the Municipality argued that it is indeed acting by virtue thereof, since the By-Law, which prohibits the operation of businesses on the Sabbath, only permits imposition of monetary fines, and such fines were indeed imposed upon the Respondents. According to the Municipality, by virtue of the Municipalities Ordinance, it is vested with authority to approach the Municipal Court and to request to close a business transgressing the provisions of the By-Law, however, it argues, the exercise of such authority is subject to discretion. In the judgment it was even noted that in the case at hand, the Municipality decided not to exercise its authority in accordance with a general policy, which, according thereto, derives from the population's needs and desires. The Respondents, in general, joined the Municipality's arguments.

 

6. During the hearing of the petition, the Administrative Affairs Court instructed the Attorney General to submit its position on the matter at hand. The Attorney General did not appear at the petition hearing however submitted his position in writing. According to that stated in his position, the Municipalities Ordinance authorizes the local authority to arrange the opening and closing of businesses, inter alia, on days of rest, and taking religious tradition reasons into consideration, and grants it the enforcement and inspection authorities in the matter. The authority of local authority to arrange this matter is grounded in the perception that the authority, which represents the local residents, must strike a balance "between the interest of preserving the nature of the Sabbath as a day of rest, which has both national and social characteristics, and making certain economic activity possible." Having said that, the Attorney General emphasized that he attaches importance to the enforcement of the by-laws promulgated by the local authorities "for obvious reasons of maintaining the rule of law, and in light of the public interests of protecting the nature of the Sabbath as a day of rest, in accordance with the characteristics of each area, and taking the composition of the local population into consideration, as prescribed in the By-Law."

 

Finally, the Attorney General stated that the Business Licensing Law is not relevant to the matter, since this law was not intended to be a means of enforcing the By-Law regarding the operation of businesses on the Sabbath and on days of rest.

 

7. In its judgment, the Court addressed two main questions: Are preventing unfair competition and preserving the sanctity of the Sabbath among the objectives of the Business Licensing Law and is the Municipality permitted to close businesses that operate on the Sabbath by virtue of this law; and are there other laws that authorize the Municipality to enforce the closing of the Respondents' businesses on the Sabbath, and if so, does the Municipality's decision not to exercise its authority to request to close the businesses justify the Court's intervention.

 

8. As for the first question, the Court ruled that preventing unfair competition is not included among the purposes of the Business Licensing Law, which are listed in Section 1 thereof, based both on the language of the Law, and in accordance with case law. The Court explained that while freedom of occupation must be taken into consideration in the framework of the Law, only the freedom of occupation of the license applicant should be examined, "and the Municipality does not have the authority to consider the impact of giving a certain person the possibility of opening his business, on the level of competition in the market, or how it shall impact another person's income" (paragraph 16 of the judgment). According to the Court, such considerations could empty of content the Business Licensing Law, which was meant to ensure that businesses that comply with the purposes of the Law shall be entitled to a business license. The Court further ruled that the "inconvenience" caused to the Appellants' businesses does not constitute an infringement of their freedom of occupation, since they are all subject to the same Municipality policy. Therefore, the Court ruled that the Appellants were not discriminated against and their freedom of occupation was not infringed. As for preserving the sanctity of the Sabbath, the Court ruled that this is a clear religious purpose, which is a matter of public controversy, and in any event is not listed among the purposes of the Business Licensing Law. As such, it is not possible to take steps against businesses that are open on the Sabbath due to them "violating the sanctity of the Sabbath" and offending religious values. The Court clarified that the sanctions prescribed in the Law cannot be used other than for the purposes which the Law was meant to realize, and therefore, the Municipality should not be forced to take steps against the Respondents under the Business Licensing Law.

 

9. The Court also further rejected the Appellants' argument that the activity of Respondents' businesses on the Sabbath constitutes a nuisance. Firstly, it was determined that it is problematic that the Appellants, who are grocery stores owners, and whose first priority is their personal economic interest, present themselves as those who are also representing the interests of the city's residents. The Court further ruled that the Appellants adduced no evidence  that the opening of the Respondents' businesses constitutes a nuisance. As such, it ruled, the presumption of proper administration  applies to the Municipality.

 

10. As stated, the second question the Court dealt with was whether it is appropriate to force the Municipality to take steps against the Respondents by virtue of provisions of other laws. The Court stated that the only and direct sanction that is possible due to the violation of the By-Law is the imposition of a monetary fine, by virtue of Section 265 of the Municipalities Ordinance. As the Municipality clarified, it indeed exercises this sanction. The Court stated that notwithstanding that according to the Appellants, the fines do not deter and are "mocking the poor", the Municipality is not entitled to take other enforcement actions when the monetary fine was prescribed as the means of enforcement in the case of violation of the By-Law. As such "There is no relevance to the question whether or not the sanction that was taken in the framework of the law is effective" (paragraph 27 of the judgment).

 

11. The other source of authority which the Court discussed is Section 264A of the Municipalities Ordinance. This Section grants the Municipality authority to request that the Municipal Court order owners, managers or operators of a business operating on the Sabbath to refrain from opening it contrary to the By-Law. The Court emphasized that when considering which means of enforcement to apply, the Municipality must strike a balance between the conflicting interests, including: freedom from religion, freedom of conscience, freedom of occupation and the public's needs, on the one hand, and on the other hand the desire to preserve the values of tradition and avoid offending religious feelings. The Court addressed the fact that the Municipality did not file motions to close the Respondents' businesses pursuant to Section 264A, but ruled that even if the authority refrains from using all of the means it has at its disposal for enforcement purposes, this does not suggest that there was a flaw that justifies the Court's intervention, since "as long as the Court is under the impression that the authority is not completely refraining from enforcing the law, and that it is not applying selective enforcement, as a rule, there is no place for judicial intervention" (paragraph 35 of the judgment). The Court ruled that it must take caution not to replace the authority's discretion with its own discretion, also since at hand are matters that are at the heart of public and political controversy. According to the Court, to the extent that the Appellants wish to convince that the balance struck by the Municipality between the State's Jewish character and the fundamental values that anchor individual liberties, should be altered, they should act in the public arena, and convince that their position is superior using democratic means.

 

12. In summary, the Court ruled that it must apply great judicial restraint  when it comes to an enforcement policy in a matter which is at the heart of political and public controversy. The Court determined that the Appellants did not meet the burden lies with  them to demonstrate that the Municipality's policy in enforcing the By-Law is so extremely unreasonable that it justifies judicial intervention. The Court ruled that "in these circumstances, it is presumed that the authority acted lawfully, in light of all of the facts, and its decision not to exercise the authority to file motions to close the businesses – is reasonable and proportional" (paragraph 39 of the judgment; emphasis added – M.N.). Therefore, the Court rejected the Appellants' petition and obligated them to pay the Municipality's expenses in the amount of NIS 75,000.

 

Hence the Appeal before us.

 

The Appellants' Arguments

 

13. The Appellants are claiming against the judgment of the Administrative Affairs Court. According to the Appellants, the Court erred in ruling that it is inappropriate to intervene in the By-Law enforcement policy which the Municipality is applying. They argue that as long as the By-Law remains in effect, the principle of the rule of law precludes the possibility of accepting a situation in which the Municipality does not enforce the closure of businesses that knowingly and publicly violate the By-Law. The Appellants argue that the Municipality, by contenting itself with imposing fines of only NIS 660 (the amount of the fine was raised after the petition was filed and is currently NIS 730) each and every Sabbath, and particularly when it comes to only one fine each Sabbath for each business, is making a mockery of the Law and encouraging its violation. They further argue that the Municipality's enforcement failures cause them heavy financial damage; compromise the fundamental principle of the rule of law and the principle of equality in enforcement; and prejudice constitutional basic rights, including the right to property, the freedom of occupation and equality. Since large businesses, whose daily profits exceed the amount of the fine, can allow themselves to open their doors on the day of rest despite the fine and in doing so, increase their profits, while small businesses, such as the Respondents (sic.), cannot do so, and therefore are injured.

 

14. According to the Appellants, the lower court erred when it primarily dealt with the Business Licensing Law, since, according to them, the main issue is the Municipality's duty to exercise all of the legal means at its disposal. Additionally, according to them, the Court also erred when it ruled that the Business Licensing Law does not authorize the Municipality to take action in the case at hand. The Appellants believe that in the business licenses that were issued to the Respondents by virtue of the Business Licensing Law (hereinafter: the "Business Licenses"), it is explicitly prescribed that they are not valid during the Sabbath and Israel holidays. Therefore, they argue, the activity of the Respondents' businesses is carried out on the Sabbaths without them possessing a valid business license, and therefore the sanctions prescribed in the Business Licensing Law regarding unlicensed businesses should be imposed thereupon. The Appellants further argue against the Court's ruling that the Municipality is not authorized to enforce the observance of the day of rest by means of the Business Licensing Law since such enforcement is not part of the Law's purposes. According to them, in this matter, it is necessary to distinguish between refusal to issue a license by virtue of the Business Licensing Law and enforcing such Law. While the first can be done only on grounds related to the purposes of the Law, the principle of the rule of law warrants that there be no similar distinction with respect to the enforcement of the Law – any violation of the Law, regardless of the purpose of the violation or the motivations of those requesting to enforce, must be enforced.

 

15. The Appellants also claim against the lower court's  ruling that their freedom of occupation was not infringed. According to them, the meaning of the Court's ruling that "[the Appellants] and the Respondents are subject to the same Municipality policy and therefore [the Appellants] are not discriminated against, and their freedom of occupation is not infringed" (paragraph 17 of the judgment), is that the Appellants are not discriminated against and that their freedom of occupation was not infringed because they, too, could choose to violate the Law and be fined. According to them, the harm caused to the business owners who obey the rest laws due to the violation thereof by the Respondents, is in and of itself the infringement of their freedom of occupation. The Appellants further argue that as a result of the enforcement actions – i.e. imposition of fines – which the Municipality initiated, there is discrimination between the strong and the weak. The Appellants also argue against the Court's ruling that the Business Licensing Law should not be exercised because "preservation of the sanctity of the Sabbath" is an unambiguous religious purpose, and emphasize that they did not argue a religious purpose at all.

 

16. According to the Appellants, the essence of the judgment  lies in the lower court's  ruling that it is inappropriate to intervene in matters which are at the heart of public and political controversy. However, according to them, the controversy itself is not at all relevant to the determination in the matter at hand. The Appellants argue that the principle of obeying the law is not a matter of public controversy. The Municipality cannot absolve itself from enforcing a law only because the matter the law governs is a matter of public controversy. To the extent that the Municipality is not interested in enforcing the By-Law, so the Appellants say, it must act to change it. The Appellants address the great importance of the day of rest, as is expressed also in the rulings of this Court, not only in accordance with the values of the State of Israel as a Jewish state, but also in light of universal and social values.

 

17. In light of that stated, the Respondents (sic.) argue that the lower court  erred in its decision not to intervene in the Municipality's conduct. They emphasize that there is no dispute that the Respondents' activity constitutes a violation of law. As such, according to them, the Court's ruling that it is inappropriate to intervene in the Municipality's conduct as long as it doesn't completely refrain from enforcing the law, without considering whether the enforcement actions indeed achieve the purpose for which they were intended, is unreasonable and – so they argue – contradicts case law which provides that the Court must examine the enforcement actions.

 

18. Finally, the Appellants are claiming against the NIS 75,000 expenses the Court imposed upon them. They argue that these are exceptionally high expenses which have no justification when the Appellants pointed to an undisputed violation of a law, which is related to important public matters. The Appellants further argue that the Court ignored the fact that the Appellants are people with limited means, and that they waited more than 4 years for a judgment in their petition.

 

The Respondents' Arguments

 

19. The Municipality agrees with the lower court's  judgment. It argues that the dispute lies in the question what law should be enforced and consequently, what are the means of enforcement the Municipality can apply. It argues that the law which is to be enforced is the By-Law, and according to it, it indeed enforces this law. In this context, the Municipality argues that "there is no dispute that the [Appellants'] petition was meant to lead to a change in the balance the Respondent strikes, by means of the By-Law and the enforcement thereof, between all the relevant interests to permit the opening of stores on days of rest, the social aspects of a uniform weekly day of rest, as well as those that reflect the Jewish and democratic nature of the State, and as well as those that reflect the right of an individual to freedom of occupation" (paragraph 12A of the Municipality's summations).

 

The Municipality is further of the opinion that contrary to the Appellants' claim, the Court did not determine that it is prevented from applying judicial review, but rather examined the Municipality's actions in accordance with the criteria of administrative law, and found it to be inappropriate to intervene in the enforcement policy the Municipality applies. With respect to the Business Licensing Law, the Municipality argues that there is no basis to the Appellants' argument that the Respondents' business licenses are invalid on the day of rest, and therefore, the Court justly ruled that it is inappropriate to apply the means of enforcement prescribed in that law. The Municipality emphasizes that it is not possible to apply the means of enforcement prescribed in one law due to the violation of another statute, which does not grant the authority to apply such means of enforcement. As for the expenses imposed upon the Appellants, the Municipality argues that the expenses amount was ruled following an extended  proceeding and that the Appellants did not point to a public interest which justifies exempting them from their obligation to pay expenses.

 

20. Respondent 2 adds that the Appellants are ignoring the nature of the city of Tel Aviv-Jaffa and its residents' needs. It argues that the proper nature of the day of rest is a matter of controversy and there is no justification for accepting the Appellants' position rather than the position that there should be businesses open on the Sabbath. This is particularly so in the city of Tel Aviv-Jaffa, on whose diverse nature, Respondent 2 had discussed at length. According to Respondent 2, "the burden of 'shutting down' the city of Tel Aviv on week-ends is a very heavy burden, which should certainly not be made compulsory for unfounded commercial reasons which have not at all been proven" (paragraph 10 of Respondent 2's summations). Respondent 2 also argues that the Appellants wish to compromise the basic right of each and every resident in the city to shape the content of his or her day of rest in accordance with his or her desire and taste. The Respondent argues that the legislator wished to grant the local authorities complete authorities and full discretion to determine the nature of the day of rest. Therefore, according to Respondent 2, "intervening in the broad discretion given to the Municipality and the public considerations which the Municipality considers when striking such a balance, is not within the scope of the judicial review of the 'administrative action', a fortiori when at hand […] is a matter which was defined by the initiators of the law as 'the serious problem of the dispute between secular and religious" (paragraph 17 of Respondent 2's summations).

 

21. Respondents 3-6 argue that it is inappropriate to grant, as a relief, a general declaration pursuant to which the Municipality must enforce the law. To the point of the matter, in addition to the arguments that the other Respondents claimed, Respondents 3-6 emphasize that the Municipality's enforcement policy is to exercise administrative authority, and that there is no justification to intervene in the discretion exercised as long as the Municipality did not completely absolve itself from the responsibility of the enforcement of the law. In this context, Respondents 3-6 argue that the uniqueness of the local authority – as an entity that is closely familiar with the residents' needs and preferences and as a representative democratic entity which is meant to reflect the desires of the city's residents – justifies the broad discretion vested in the local authorities. Respondents 3-6 also claim against the Municipality's policy to impose fines on businesses that are open on the Sabbath, which they argue causes them financial damage, and they argue that "the Municipality should be more attentive to various needs and preferences in the city in which a population that wishes to shop on the Sabbath resides" (paragraph 13 of Respondents 3-6's summations).

 

According to Respondents 3-6, the Municipality is not authorized to ask the Municipal Court for an order to close a business by virtue of Section 264A of the Municipalities Ordinance, since this section authorizes the Municipality to request a closing order when at hand is a business that violates a by-law that was promulgated pursuant to Section 249(21) of the Ordinance – which provides that the Municipality is permitted to consider "religious tradition reasons". According to the Respondents, it does not appear that the Municipality promulgated the By-Law pursuant to this section, but rather due to the social reasons prescribed in Section 249(20) of the Ordinance. This conclusion is reinforced, so they argue, by the fact that the By-Law was legislated many years before Section 249(21) was added to the Municipalities Ordinance. Respondents 3-6 also object to the Appellants' argument regarding the Business Licensing Law, pursuant to which the purposes of the Law relate only to the issuing of licenses and not to means of enforcement, and also argue that the By-Law was not intended to protect fair competition but rather to realize a social and religious purpose.

 

22. The Attorney General also did not appear at the hearing in the Appeal before this Court and resubmitted his position in writing, as was submitted to the lower court, and as specified above.

 

The Normative Framework

 

23. The main question which needs to be ruled upon in the Appeal before us, is whether the Municipality is to be forced to exercise means of enforcement which it has the authority to exercise, and which until now it refrained from exercising. Before I turn to address this question, I shall briefly explain the various statutory provisions which were raised in the framework of this proceeding and the enforcement authorities which the Municipality possesses to enforce them.

 

(a)Business Licensing Law

 

24. The first source of authority upon which the Appellants wish to rely, is, as mentioned, the Business Licensing Law. The purposes of this Law are prescribed in Section 1 of the Law, which reads:

 

1. (a) The Minister of Interior may, by orders, prescribe and define businesses that require licensing, in order to ensure all or some of the following purposes therein:

 

(1)     Proper environmental quality and prevention of hazards and nuisances;

 

(2)     Prevention of danger to public safety and protection against robbery and breaking in;

 

(3)     Safety of persons at or in the vicinity of the place of business;

 

(4)     Prevention of danger of livestock diseases and prevention of pollution of water sources with pesticides, fertilizers or pharmaceuticals;

 

(5)     Public health, including proper sanitary conditions;

 

(6)     Upholding the enactments related to planning and building;

 

(7)     Upholding the enactments related to firefighting."

 

25. Section 14 of the Business Licensing Law deals with businesses that are operated not in accordance with a license and it prescribes the penalties for such actions. Section 20 of the Law authorizes position holders to order a temporary break of business due to infractions of Section 14.

 

(b)The Municipalities Ordinance and the By-Law

 

26. Section 249 of the Municipalities Ordinance deals with a municipality's authorities. Sub-Section (20) therein provides:

 

"249. A municipality's authorities are:

 

[…]

      

(20) To arrange the opening and closing of stores and workshops, restaurants, coffee shops, teashops, beverage shops, cafeterias, canteens and other such institutions […] and to supervise the opening and closing thereof, and to determine – without derogating from the generality of the authority – opening and closing hours on a certain day; provided that the validity of this paragraph shall be subject to any exemption instructed in an order by the Minister (emphases added – M.N.)

 

27. Section 265 of the Ordinance provides:

 

"265. (a) The Minister, with the Minister of Justice's consent, may, by an order published in the official gazette (Reshumot), notify that an offence of a certain provision of a municipal by-law is an offence punishable by a fine, in general, or at prescribed terms or restrictions.

 

2. The Minister shall prescribe in an order published in the official gazette (Reshumot) –

 

1. The rate of the fine for each offence punishable by a fine, provided it shall not exceed NIS 730, and he may prescribe different rates for the offence, considering the circumstances in which it was committed.

 

[…]" (emphases added – M.N.).

 

28. In 1990, following a doubt that was raised regarding the authority of local authorities to promulgate provisions in by-laws regarding prohibiting opening businesses on the Sabbath and on Israel holidays, the Amendment of the Municipalities Ordinance (Number 40) Law, 5751-1990 (hereinafter: the "Authorization Law") was legislated. This law was meant to vest the local authorities with the said authority and to ensure the validity of the existing by-laws (see: Explanatory Notes to the Municipalities(Prohibition to Open Businesses and the Closure thereof on Days of Rest) Bill, 5748-1988, Bills 134 (hereinafter: the "Explanatory Notes to the Authorization Bill") (this is the original name of the Authorization Bill, see Divrei Haknesset (Knesset Proceedings) 12(3), 1191 (5751));  HCJ 5073/91 Israeli Theatres Ltd. v. The Netanya Municipality, IsrSC 47(3) 193, 197-199 (1993) (hereinafter: the "Israel Theatres Case")). To this end, the Authorization Law added sub-section (21) to Section 249 of the Municipalities Ordinance:

 

"(21) A municipality may exercise its authority pursuant to paragraph (20) in the area of its jurisdiction or in any part thereof with respect to the Day of Rest, considering religious tradition reasons, and with respect to the 9^th of Av; "Days of Rest" – as specified in Section 18A of the Law and Administration Ordinance, 5708-1948. For this purpose, the Sabbath and Israel holidays – from the entrance of the Sabbath or the holiday until the end thereof; the "9^th of Av" – as defined in the Prohibition to Open Entertainment Places on the 9^th of Av (Special Authorization) Law, 5758-1997" (emphases added – M.N.)

 

29. The Authorization Law also added to the Municipalities Ordinance Section 264A, which prescribes that the Municipality may approach the Municipal Court in order to enforce a by-law that was promulgated pursuant to Section 249(21) (see also: the Israel Theatres Case, on pages 199-200):

 

"264A. (a) If a municipality promulgated a by-law pursuant to Section 249(21) and a business opened contrary to the provisions of the by-law, the court which is authorized to address the offence under such by-law may order the owners, managers or operators of the said business, to refrain from opening the business on the days of rest contrary to the provisions of the by-law (hereinafter: a Prohibition to Open Order), if it was convinced that the business opened contrary to the provisions of the by-law; a motion to grant such an order shall be filed by whomever is authorized to file claims due to an offence under the said by-law, along with an affidavit to verify the facts upon which the motion is based, and the Court may issue the order ex parte, with only the petitioner, if it found that there is justification to do so in the circumstances at hand.

 

2. […]" (emphases added – M.N.)

 

30. The Tel Aviv-Jaffa municipality promulgated the By-Law regarding the opening and closing of stores, pursuant to its authorities under the Municipalities Ordinance, in as far back as 1980. Section 2 of the By-Law provides that businesses shall not be opened on the day of rest:

 

"2. (a) Subject to that stated in sub-Sections (c), (d) and (e), the owner of a store or coffee shop shall not open his business and shall not keep it open on the Sabbath and Israel holidays, except with a special council permit as stated in sub-section (b).

 

2. The council may grant a special permit, if the owner proved that he is not Jewish and that he closes his business on all weekly days of rest of his confessional group; such a permit can be given at such terms as the council shall deem fit.

 

3. (1) The owner of a coffee shop, other than a bar and a business that sells ice cream, may open it on the Sabbath and Israel holidays, except for the Day of Atonement (Yom Kippur) and serve meals to his customers, within the building in which the business is located, during the following hours:

 

1. On the eves of Sabbaths and Israel holidays - until 10:00 pm.

 

2. On the Sabbath and Israel holidays – between 10:00 am and 3:00 pm and from April 1 until October 31 also from 6:00 pm until sunset.

 

2. A pharmacy shall be open to sell medication on the Sabbath and Israel holidays but only in accordance with a roster which shall be duly prescribed.

 

4. On the Sabbath and Israel holidays, except the Day of Atonement (Yom Kippur), a person shall not open and shall not allow anyone acting on its behalf to open a place of public entertainment, other than for cultural and educational activities.

 

5.  On the Day of Atonement (Yom Kippur) a person shall not open, and shall not allow anyone on its behalf to open, a store or a coffee shop" (emphases added - M.N.)

 

31. Additionally, pursuant to that stated in Section 265 of the Municipalities Ordinance, the Municipalities (Offences Punishable by a Fine) Order, 5731-1971 (hereinafter: the "Municipalities Order") had been issued in the past, from which it emerges that opening a business on the Sabbath in the city of Tel Aviv-Jaffa, is an offence punishable by a fine:

 

"1. Any infraction of a provision in any of the sections specified in Column B of the by-laws specified in Column A of the First Schedule is an offence punishable by a fine.

 

2. (a) The rate of the fine for each offence as stated in Section 1 shall be as per the level of the fine that was prescribed alongside it in the First Schedule in Column C.

 

(b) In this Order -

 

 

Level of Fine	In New Israeli Shekels
A	730
B	475
C	320
D	245
E	165
F	105
G	85

           

[…]

First Schedule

[…]

Part B – Tel Aviv – Jaffa

 

Column A By-Laws		Column B Sections	Column C Level of Fine
[…]
10. Tel Aviv–Jaffa (Opening and Closing of Stores) By-Law, 5740-1980		2(a), (d), (e), 7(a)-(c)	A
		3	B
		7(d)	C

 

An offence under Section 2(a) of the By-Law, which prohibits opening businesses on the Sabbath, is ranked as a Level A offence punishable by a fine, the rate of which is currently NIS 730. This rate was prescribed in the Municipalities (Offences Punishable by Fine) (Amendment no. 6) Order, 5771-2011. The rate of the fine at this level, as was before this amendment and at the time of the filing of the petition which is the subject of this Appeal, was NIS 660, in accordance with what was prescribed in the Municipalities (Offences Punishable by Fine) (Amendment no. 2) Order, 5764-2004.

 

Discussion and Ruling

 

A.The Business Licensing Law

 

32. In the Administrative Affairs Court the Municipality was not requested to file a Statement of Response and the petition was denied. During the hearing we held in the Appeal, on March 4, 2013, the Municipality's attorney agreed to view the proceeding as though a statement of response had been filed in the first instance court. I will explain the importance of this matter further on.

 

33. With regard to the Business Licensing Law, my opinion is as the opinion of the lower court and the Attorney General, that it is inappropriate, in this matter, to discuss the exercise of authorities by virtue of this Law, even without addressing the question of which values the Business Licensing Law protects and without discussing the question of the required linkage – if any – between the purposes of the Law and the motivations of those demanding that the Law be enforced. The Appellants' position that the Respondents are violating the Business Licensing Law relies on their argument that "in all of the business licenses that the Municipality grants, it is explicitly and clearly written" that the license is not valid on days of rest. However, the Appellants have not proven this argument of theirs. The "business license" which the Appellants attached (as Annex IX of the petition which they filed to the Administrative Affairs Court) in support of their said argument, is not – as they imply – a license by virtue of the Business License Law, but rather a "permit to open a business" which was issued under the By-Law. The Appellants did not attach any business license of Respondents 2-6 by virtue of the Business Licensing Law and did not request that such license be furnished.

 

In the hearing held before us, the Appellants' attorney referred to the permit to open a business which the Appellants filed to the Court and argued that "The Municipality stipulated and obligated the permit-holder to act in accordance with the terms of the license. Meaning, this is very strong evidence that the stipulation also appears in the license. I shall mention that no one denied that. We are assuming that such stipulation exists". Additionally, when the Appellants' attorney was asked if there is a stipulation requiring the holder of the license to act in accordance with the By-Law in the Respondents' business licenses, he responded that "None of the Respondents denied this. None denied the fact that their business licenses are inherently subject to the By-Law, since otherwise this would also be an omission on the part of the Municipality […] if there is no such stipulation, the Respondents should present a business license and we shall check." However, when the Municipality's attorney was explicitly asked if there is a stipulation regarding compliance with the By-Laws in the business licenses under the Business Licensing Law, her unequivocal answer was that such a stipulation is not included in the license. Therefore, I accept the conclusion that the Appellants did not succeed in proving that the Business Licensing Law is related to the matter before us, and no infraction of the provisions of such law was proven. As such, I do not see any need to further address these matters.

 

B.The By-Law

 

34. At the outset, I request to clarify how and at what stage Section 264A of the Municipalities Ordinance was mentioned, which in my opinion is the crux of the discussion before us.

 

First I shall state that the section was not explicitly mentioned in the Appellants' early applications to the Municipality before filing the administrative petition. The section was also not explicitly mentioned in the administrative petition that the Appellants filed. However, following an oral motion raised by the attorney of one of the petitioners in the hearing before the lower court on October 21, 2009, to amend the petition by way of adding Section 264A of the Municipalities Ordinance, on October 28, 2009 – after the parties' summations regarding in limine arguments were filed, but before the petition was discussed on its merits – the Appellants filed a "Motion to Amend and/or Clarify an Administrative Petition". In the motion, the Appellants requested to add to the petition that the Respondents' activity is illegal also "under the Municipalities Ordinance, including Sections 249(20), (21); 264, 265", and, to list, among the means which the legislator granted the enforcement officials: "a motion to the court pursuant to Section 264A of the Municipalities Ordinance and in accordance with the Tel Aviv-Jaffa (Opening and Closing of Stores) By-Law, 5740-1980, to exercise the authorities granted thereto". The Appellants emphasized that "such a motion is filed solely for the sake of caution and is intended to clarify the legal sources upon which the petitions are based, particularly in light of the Court's remark during the hearing regarding referencing the relevant legislation."

 

35. In its response to the Appellants' motion to amend, the Municipality's attorney notified that she objects to the amendment of the petition if and to the extent that the purpose of the amendment is to respond to her argument regarding the purposes of the Business Licensing Law and the objectives thereof. Having said that, the Municipality's attorney added:

 

"If and to the extent that the requested amendment does not intend to materially change the petition, but only to specify additional means of enforcement which the Respondent is required by [the Appellants] to apply, within its authorities to determine the arrangements for the opening and closing of businesses on the Sabbath and holidays and to enforce them, then it is unnecessary, also according to [the Appellants], since the [Appellants'] allegations regarding how the Respondent exercises its enforcement authority and their attempt to take the Respondent's given discretion in exercising its enforcement authority away, received a response in Sections 21-22 of the Respondent's response to the petition, and in this matter, it makes no difference which means of enforcement [the Appellants] demand that the Respondent apply" (original emphases – M.N.)

 

36. The other Respondents also objected to the motion to amend. Respondent 3 (which is Respondent 2 in the case at hand) argued that at hand was an addition of a cause of action, since the petition in its existing format requested a remedy of exercising specific enforcement authorities, while respondents 4-5 (which are Respondents 3-4 in the case at hand) argued, similarly to the Municipality, that in any event the amendment shall not make any real difference since the sections of the Law that are mentioned in the petition are presented by way of illustration.

 

37. The Appellants' attorney notified during the hearing that was held on September 21, 2010, that "in light of the responses filed to the motion to amend the petition, from which it emerges that there is no need therefor, I withdraw the motion." Meaning, there was no decision not to relate to Section 264A of the Municipalities Ordinance in the framework of the proceeding before the lower court. Furthermore, all of the parties in fact related to Section 264A in the summations they filed, and thus, the lower court related to this section in its judgment.

 

38. From the material before us, it does not emerge that any discussion whatsoever had been held in the Municipality, until the examination of the petition, regarding the question whether exercising the authority pursuant to Section 264A of the Municipalities Ordinance should be considered. As stated, the Municipality agreed that the hearing shall be deemed as through a statement of response had been submitted in the first instance court, and it did not request a possibility to present additional material to us (or to the first instance court). Therefore, my assumption is that we possess all of the facts necessary to rule.

 

(1)The Enforcement Authorities in the Municipality's Possession

 

39. It is clear that the means of enforcement which are at the Municipality's disposal change according to the law, the upholding of which, it must protect. According to the Respondents, the provision violated is Section 2 of the By-Law and the Municipality is exercising the legal measure of imposing  fines in accordance with its authority by virtue of Section 265 of the Municipalities Ordinance, together with the Municipalities Order, in order to enforce the violations of the By-Law. The lower court  ruled in the matter that "with respect to the By-Law - there is no dispute the only and direct sanction for the violation thereof, is the imposition of a monetary fine" (paragraph 27 of the judgment; emphasis added – M.N.). However, as was explained above, imposing fines under Section 265 of the Municipalities Ordinance is not the only sanction in the Municipality's tool box for handling the violation of Section 2 of the By-Law. As stated, Section 264A of the Municipalities Ordinance prescribes that the Municipality is authorized to file a motion to the Municipal Court to grant a Prohibition to Open Order for a business that is violating a provision of a by-law that was promulgated by virtue of Section 249(21) of the Municipalities Ordinance.

 

40. In this context I shall state that Respondents 3-6's argument, that the Municipality was not permitted to exercise its authority by virtue of Section 264A of the Ordinance, is to be rejected. As stated, their argument is that Section 2 of the By-Law was not promulgated pursuant to Section 249(21) of the Municipalities Ordinance which authorizes the authority to consider considerations of religious tradition, but actually rather pursuant to Section 249(20) of the Ordinance. However, this argument cannot be accepted. The fact that Section 249(21) was legislated later does not lead to the conclusion that Section 2 of the By-Law does not rely thereupon. Section 4 of the Authorization Law – the law which added Sections 249(21) and 264A of the Ordinance – explicitly ratified old by-laws, while determining:

 

"4. A by-law regarding the opening and closing of businesses, which a municipality or municipal council promulgated before the commencement of this law, and which would have been duly effected had this law been in effect at such time, shall be deemed from the commencement of this law, as though it had been promulgated thereunder" (emphases added – M.N.)"

           

Two objectives underlie the day of rest: a social objective and a religious-national objective (see and compare: the Israeli Theatres Case, paragraphs 3 and 14 of President Shamgar's judgment; HCJ 5026/04 Design 22 – Shark Deluxe Furniture Ltd. v. Rosenzweig Zvika, Director of Sabbath Work Permits Department – Inspection Division, Ministry of Labor and Social Affairs, IsrSC 70(1) 38, paragraphs 16-18 and 20 of President Barak's judgment, and paragraph 2 of my statements there (2005); Yitzhak Zamir The Administrative Authority Volume A 62-63, 68 (Second Edition, 2010) (hereinafter: The Administrative Authority A)). As mentioned, the Authorization Law was intended to remove the doubt regarding the authority of local authorities to arrange the prohibition to open businesses on the day of rest and permitted the authorities to consider considerations of religious tradition in this matter (see: the Explanatory Notes to the Authorization Bill). Section 2 of the By-Law embodies both social values and Jewish-religious values and Section 4 of the Authorization Law determines that the By-Law should be deemed as though it had been legislated pursuant thereto and in accordance with the authority vested in the Municipality by virtue of Section 249(21) of the Ordinance (and see: the Israeli Theatres Case, paragraph 3 of President Shamgar's judgment).

 

41. An additional means of enforcement which may be available to the Municipality is Section 254 of the Municipalities Ordinance. This section, which was mentioned by the Attorney General, prescribes a fine in the amount of NIS 3,600 to anyone who transgresses a provision of a by-law and an additional fine of NIS 160 for each day the offence continues. However, Section 254 was not mentioned by the Appellants or the Respondents, and therefore I am not addressing the possibility of exercising this means of enforcement. In any event, the Municipality's conduct is to be examined in light of this legal situation, pursuant to which the Municipality has additional sanctions available, beyond the imposition of fines. As such, the question in which the parties are disputed is – given that the Municipality has additional enforcement authorities in order to enforce the By-Law – was the Municipality obligated to exercise them?

 

(2)The Discretion vested in an Administrative Authority in Determining an Enforcement Policy

 

42. Is it appropriate to intervene in the Municipality's "decision" to enforce the By-Law by imposing fines without exercising another sanction? In fact, and as I shall clarify, at hand is not really a "decision". There is no evidence that the question whether to exercise an additional sanction was even considered. It should be noted that the petition before us does not address considerations which the Municipality must consider when promulgating a by-law. This distinguishes the case before us from the matter addressed by this Court in HCJ 953/01 Solodkin v. The Beit Shemesh Municipality IsrSC 58(5) 595 (2004) (hereinafter: the Solodkin Case), which addressed the scope of the local authority's discretion when promulgating the by-law itself. Our matter is not the content of the by-law but rather the manner of the enforcement (or lack of enforcement) thereof.

 

43. The lower court explained that the local authority has broad discretion, specifically in all that relates to determining enforcement policy (see: HCJ 551/99 Shekem Ltd. v.  Director of Customs and VAT), IsrSC 54(1) 112, 125-165 (2000) (hereinafter: the "Shekem Case"), while stressing that it is important the Court not replace the authority's discretion with its own (ibid, paragraph 9 of Justice Zamir's judgment).

 

44. Regarding the matter of the judicial review of an administrative authority's enforcement policy, it was ruled that "indeed, in order for the Court to intervene in the level of enforcement of one law or another, the competent authorities must completely absolve themselves from their duty to enforce the law […] or refrain from fulfilling their duty in an unreasonable manner" (HCJ 6579/99 Filber v. The Government of Israel (November 1, 1999); and see also: the Shekem Case, paragraph 8; HCJ 10202/01 The Organization of Agents and Gas Station Owners in Israel v. The Attorney General IsrSC 57(5) 713, 718 (2003); The Administrative Authority A, on page 275, footnote 114). However, also when dealing with enforcement policy, the authority's discretion exists in light of the law and in light of the need to enforce it (see: HCJ 1027/04 The Independent Cities Forum v. Israel Land Council, paragraph 51 of Judge Arbel's judgment (June 9, 2011) (hereinafter: the Independent Cities Forum Case)). The authority has a duty to uphold the law and insist on its being upheld by others. As Judge Zamir said in the Shekem Case (on page 125): "Indeed, the enforcement of the law, any law, is a fundamental basis of the rule of law […] obviously that this duty [to enforce the law – M.N.] is imposed upon the competent authority. (See also: The Administrative Authority A, on pages 76, 83-84). To the extent that the administrative authority's position is that it is no longer appropriate to enforce the law for which it is responsible, it cannot absolve itself from the duty to enforce, but it rather has the option to act to change the law – and a fortiori when, as in the case before us, at hand is a by-law. However, as long as the law has not been changed, the authority must act in accordance with the legal situation actually in effect (see: the Independent Cities Forum Case, paragraph 51 of Judge Arbel's judgment; Daphne Barak-Erez Administrative Law, Volume A, Section 4.5 and the references there (2010) (hereinafter: Administrative Law A))

 

There are possible exceptions to the authority's duty to enforce the law, such as cases in which the law is anachronistic and does not accord with the existing social positions (The Attorney General's guideline not to enforce the prohibition (before it was cancelled) of homosexual intercourse between consenting adults and the prohibitions against abortions and attempted suicide, can, for example, be mentioned (and see: CrimA596/73 Machaid v. The State of Israel, IsrSC 28(1) 774, 774-775 (1974); Michal Tamir Selective Enforcement 31-32 (2008) (hereinafter: Selective Enforcement); Ruth Gavison Administrative Discretion in Enforcing the Law 61-62 (1991); Dalia Even-Lahav "The Executive Authority's Custom not to Enforce Law" Mishpat U’Mimshal (Law and Government) B 477, 486-493 and particularly footnote 50 (5755))). Such an exception does not exist in the case before us. The Municipality is not arguing that it is inappropriate to enforce the By-Law due to the nature of the city of Tel Aviv-Jaffa. It argues that it is doing so, and is imposing fines upon anyone who opens businesses contrary to the By-Law. The Respondents are the ones arguing that due to the nature of the city, the Municipality should not be forced to enforce.

 

45. From the authority's duty to ensure the upholding of the law it follows that the authority's range of reasonable discretion at the enforcement stage – as broad as it may be – is more limited that the range of discretion it had when promulgating the By-Law. After promulgating the By-Law, the authority must exercise its discretion in light of the By-Law and the objectives thereof (see: the Solodkin Case, paragraph 23; The Administrative Authority A, on pages 133 and 136). As a rule, the administrative authority must enforce the By-Law it promulgated and it no longer has broad discretion regarding the question whether to enforce it.

 

46. The purpose of exercising an enforcement policy is, naturally, to bring about the actual enforcement of the law. Exercising means of enforcement which are not effective does not realize this objective. Lack of effective enforcement of the law means a severe blow to the rule of law (see: HCJ 5377/09 Regavim v. The Minister of Defense, paragraph 7 (August 10, 2011) (hereinafter: the Regavim 1 Case); HCJ 8806/10 Regavim v. The Prime Minister, paragraph 7 (September 4, 2011) (hereinafter: the Regavim 2 Case)). It being noted that it is hard to reach a level of total enforcement. It is not always possible to reach total enforcement of the law. There is also a question of resources (see HCJ 6396/96 Zakin v. The Mayor of Beer Sheva, IsrSC 53(3) 289, 304-305 (1999); the Shekem Case, paragraph 8; HCJ 6243/08 The Preservation of the National Lands Movement v. The Minister of Defense, paragraph 23 (December 2, 2010)), and it is even doubtful whether full enforcement is always desirable (see: Selective Enforcement, on pages 42, 48-49). This is one of the reasons for the caution the Court applies when exercising judicial review on the administrative authority's priorities in enforcing a law (see: the Shekem Case, paragraph 8). When determining an enforcement policy, the authority must strike a balance between the various legitimate interests related to the matter and it is certainly possible that in light of these considerations it will not be possible or proper to apply an enforcement policy which shall reach total or almost total enforcement. However, as stated, when applying an enforcement policy, the authority must strive to promote the law's objectives and to enforce it: "Determining priorities does not exempt the authority from enforcing the law and from applying ongoing self-examination" (emphases added- M.N.) (The Regavim 2 Case, paragraph 7; and see also: The Regavim 1 Case, paragraph 9: The Administrative Authority A, on page 136).

 

47. Other than the duty to enforce, administrative law has prescribed an additional review mechanism to make sure that the principles outlined in the law and the authorities vested in the administrative authority shall not become a dead letter - the recognition of the existence of the authority's duty to exercise its discretion (see: the Regavim 2 Case, paragraph 7; Administrative Law A, in Section 6.1; Yitzhak Zamir The Administrative Authority Volume B 1079-1080, 1087-1088 (Second Edition, 2010) (hereinafter: The Administrative Authority B)). "An authority which possesses authority to consider and decide, has been handed not only a right to exercise the authority but also the duty to consider the exercise thereof and to exercise it when that is justified" (HCJ 3872/93 Mitrael Ltd. v. The Prime Minister and The Minister of Religions, IsrSC 47(5) 485, 496 (1993); and see also: The Administrative Authority B, on page 1079). Case law also provides that the granting of administrative authority to an authority is accompanied with an ongoing duty to examine the need to exercise it, also when at hand is discretionary authority:

 

"[…] Even when we say that the term "may" means granting discretion – and this is indeed what is said – the holder of the discretion is still not allowed, according to case law and law, to not consider at all if a certain person in a certain case should be granted his wish. Discretion – as a rule – is accompanied by a duty, and that duty is that the entity possessing the authority must address the matter before it and consider it. Against such duty, exists the right of the individual that the entity that possesses authority actually consider the matter. See, for example: HCJ 297/82 Berger v. The Minister of Interior [12], on page 35 (Justice Barak), and on pages 45, 46-48 (President Shamgar); Y. Zamir The Administrative Authority (Volume B) [23], on pages 700-702. After all, we are also dealing with the relationship between rights and obligations that applies in a system entailing discretion in financial outlays.

 

[…]

 

As for the actual application of the authority, we knew that in certain circumstances and given certain conditions, the entity that possesses authority must apply its authority, otherwise this would frustrate the purpose of the law. This is the case wherever the law grants discretionary authority" (HCJ 2344/98 Maccabi Health Services v. The Minister of Finance, IsrSC 54(5) 729, 758 (2000)).

 

And as my colleague Justice Rubenstein has ruled regarding exercising authority:

 

"Case law prescribes that the granting of administrative authority is accompanied with the ongoing duty to examine the need to exercise it, even when at hand is discretionary authority (HCJ 297/82 Berger v. The Minister of Interior, IsrSC 37(3) 29, according to which, once authority has been granted to an authority, it is not be left unused (Deputy President - as his title was at the time - Shamgar, on page 46); HCJ 2344/98 Maccabi Health Services v. The Minister of Finance, IsrSC 54(5) 729, 758))." HCJ 10440/08 Besserglick v. The Consumer Protection Appointee at the Ministry of Trade and Industry, paragraph 14 of Justice Rubenstein's judgment (February 15, 2009) (hereinafter: the Besserglick Case); and see also Administrative Law A, Section 6.6.

 

48. When the means applied by the administrative authority do not bear fruit, refraining from applying additional means could, in certain circumstances, lead to the conclusion that in fact the authority is refraining from fulfilling its duty to exercise discretion or that the discretion it exercised is unreasonable. In any event, when the existing enforcement policy does not lead to the desired result, the administrative authority must, at the very least, consider the exercise of additional means of enforcement that are in its authority. Refraining from considering additional means of enforcement in such circumstances could amount to a flaw in the authority's conduct which justifies the Court's intervention.

 

From the General to the Specific

 

49. Section 2(a) of the By-Law provides a categorical determination. The language of the section is that "Subject to that stated in sub-Sections (c), (d) and (e) the owner of a store or a coffee shop shall not open its business nor keep it open on the Sabbath and Israel holidays other than with a special permit of the council, as stated in sub-Section (b)" (emphases added M.N.). In the case at hand, there is no doubt that the Respondents are violating the By-Law. As such, in principle, the Municipality must act so that these businesses shall be closed on the day of rest. This matter does not stem from a "religious" or "secular" perspective. It stems from the perspective that the law, including the By-Law, must be upheld.

 

50. The Municipality indeed applies means of enforcement and the Respondents are fined each and every week. However, it appears that it is evident that in fact, the Municipality is not, to the proper extent, realizing - through the means of enforcement it chose – the objective of the law. As achieving the objective of the By-Law, in light of the social and religious values of the day of rest, would mean that the businesses would indeed be closed on the day of rest and not that businesses that wish to open their doors on the Sabbath can do so provided they are willing to pay the fine involved. While in fact, despite the fines the Municipality is imposing, the doors of the Respondents' businesses remain open each Sabbath. Therefore, in the case before us, the Municipality is not, by means of the existing manner of enforcement, realizing the law. Owners of small businesses, such as the Appellants and their like, indeed do not open their businesses on the day of rest, but the objective of the law is not at all achieved vis-à-vis the businesses that are part of large retails chains, for whom, in light of their economic resilience and their daily profits each Sabbath, it is worth their while to consistently open their doors on the day of rest, notwithstanding the fine they have to pay therefor. It emerges that these businesses, with their many branches spread all across the city, together with additional grocery stores and supermarkets which are open on the day of rest which do not belong to a given chain store, constitute a significant share of the retail activity in the city of Tel Aviv-Jaffa.

 

51. By enforcing only by means of the impositions of fines, the Municipality in fact enables, or at least turns a blind eye from, the continuous violation of the By-Law by such group. The situation which results from this enforcement activity is that the Respondents gain profits from an additional business day on the weekend, the Municipality's treasury benefits from significant amounts due to the fines it imposes upon the Respondents each week (the fine is paid to the local authority's treasury pursuant to Section 229A of the Criminal Procedure Law [Consolidated Version], 5742-1982), but the rule of law – which requires obeying the provisions of the law – is compromised. As specified above, an enforcement policy which in effect does not achieve the objective of the law is problematic (see: The Administrative Authority A, on page 136). As acting President Zilberg stated in HCJ 295/65 Oppenheimer v. The Minister of Interior and Health, IsrSC 20(1) 309 (1966) (in paragraph 9 of his judgment): "Refraining from exercising and realizing an existing and binding law, is not a policy and cannot be a policy, in any respect whatsoever; it only results in demoralization in the relationship between government and citizen, and is followed by insubordination towards all of the laws of the state" (original emphasis – M.N.). The difficulty is enhanced when it is impossible to ignore the concern that it is convenient for the Municipality – in light of the economic profits it gains from imposing the fines – not to insist upon the observance of the By-Law (see and compare to the words of Justice Cheshin in HCJ 4140/95 Superpharm (Israel) Ltd. v. Director of Customs and VAT, IsrSC 54(1) 49, 103-105 (1999); Administrative Law A, in Section 1.14).

 

52. If the nature of the city of Tel Aviv-Jaffa requires, in the opinion of its leaders who represent the population, not to close businesses such as those of the Respondents, on the Sabbath, the By-Law can be changed through the manner prescribed in the law. However, as long as the By-Law has not been changed, the point of departure is that it is to be upheld. The Attorney General stated that the Municipality is authorized to strike a balance "between the interest of preserving the nature of the Sabbath as a day of rest […] and making certain economic activity possible". However, in my opinion, the appropriate place for striking such a balance is in a Municipality decision whether to promulgate a by-law regarding the activity of businesses on the Sabbath and formulating the arrangements prescribed therein. This is what the Municipality did when it promulgated the By-Law, which includes a prohibition to open on the Sabbath, as well as exceptions to the prohibition. The Municipality chose not to include businesses such as the Respondents' businesses as exceptions to the prohibition.

 

Additionally, prima facie, if the Municipality's position is that there is no longer justification for the By-Law as it currently exists, then the use of fines as the means of enforcement is not the proper response. If the Municipality is of the opinion that, in light of the unique character of the city of Tel Aviv-Jaffa, opening stores on the day of rest should be allowed – there is no justification to obligate the owners of the stores to pay fines to operate businesses on the Sabbath. If, in the Municipality's opinion, there is nothing wrong with the Respondents' actions, what is the justification for them having to pay a fine? If, on the other hand, there is a justification for closing the stores on the day of rest, it is necessary to consider using additional means of enforcement, and first of all, the above mentioned Section 264A, since enforcement only by means of imposing fines is not achieving the purpose of the By-Law.

 

53. I accept the lower court's approach that the Municipality's authority to request a Prohibition to Open Order, under Section 264A of the Municipalities Ordinance, is a discretionary authority. The Municipality is not required to exercise this authority in each and every case of violation of a by-law, however it must consider if and how to exercise the variety of means of enforcement it has in its "toolbox" (see for example: the Shekem Case, paragraph 8; The Administrative Authority B, pages 1087-1088). The lower court ruled that "In order for the Court to intervene in the level of enforcement of one law or another, the competent authorities must completely absolve themselves from their duty to enforce the law, or when the enforcement is selective and deriving from irrelevant considerations" (paragraph 34 of the judgment), and reached the conclusion that in the case before us there is no justification to intervene in the manner in which the Municipality is enforcing the law.

 

54. I cannot agree with the lower court's conclusion. Even if the Court must take caution not to interfere in the balance of considerations struck by the authority, the principle of respecting the authorities and the limited judicial review which the Court exercises cannot exempt the Municipality from the mere duty to exercise its discretion (see: the Regavim 2 Case, in paragraph 7; Administrative Law A, Section 6.1; The Administrative Authority B, pages 1079-1080, 1087-1089). When the Municipality possesses authority to request a Prohibition to Open Order, pursuant to Section 264A of the Municipalities Ordinance, it has the duty to examine from time to time if it is necessary to exercise such authority, as well as additional authorities, to the extent such are in its possession. The continuous nature of this duty has utmost significant when the means of enforcement the Municipality chose to take, do not bear fruit (see: the Besserglick Case, paragraph 14 of Justice Rubenstein's judgment).

 

55. As I mentioned at the outset, the Municipality's attorney agreed to view the proceeding as though a statement of response had been filed. Therefore, the burden to demonstrate that the Municipality considered all of the possible means of enforcement to enforce the By-Law and that it fulfilled its duty to exercise discretion in doing so, imposed on the Municipality. However, the Municipality did not do so. The Municipality did not at all demonstrate that it examined and considered – with an open heart and willful soul - the merits of the need and the possibility of filing a motion for a Prohibition to Open Order or that there was any decision and exercise of discretion in this matter. The Municipality did not even argue that there is a general policy, which derives from actual exercise of discretion, pursuant to which the sanction prescribed in Section 264A of the Ordinance, should not be exercised. As I have clarified, there is no knowledge at all of the adoption of any "decision" not to exercise the authority prescribed in Section 264A. The Municipality did not demonstrate that this matter was considered and what the considerations were. Thus, I did not find in the Municipalities' arguments any basis to the lower court's determination that "[…] the exercise of the authority [to request that the Court grant a Prohibition to Open Order – M.N.] is subject to discretion, which it was decided would not be exercised, in accordance with the general policy which derives from the population's needs and desires" (paragraph 6 of the judgment). From the material before us it emerges that the Municipality chose to impose fines on Respondents 2-6, but it does not emerge that it even considered the possibility of approaching the Municipal Court in their matter and requesting a Prohibition to Open Order. Not considering the possibility of filing a motion for a Prohibition to Open Order nor examining any other option so as to achieve – to a reasonable and proportional degree considering all of the considerations - the proper enforcement of the By-Law, constitute a violation of the Municipality's duty to take action and exercise discretion. In these circumstances, the Municipality violated its duty to exercise discretion from time to time, and in doing so, its conduct was flawed in a manner justifying our intervention, in the sense that we shall obligate the Municipality to consider what it did not consider.

 

Epilogue

 

56. If my opinion shall be heard, the Appeal shall be accepted. The judgment of the first instance shall be cancelled and the matter shall be returned to the Municipality so that it shall exercise its discretion and adopt a decision on the merits of the manner of exercising the authorities vested therein by Section 264A of the Municipalities Ordinance or any authority in addition to its authority to impose fines. The Municipality shall examine its position regarding the enforcement of the By-Law within 60 days from the date the judgment is granted. The decision to be adopted in this matter shall be delivered to the Appellants' attorney and, of course, is subject to additional judicial review.

 

The expenses imposed upon the Appellants in the first instance shall be cancelled. There shall be no order for expenses in our instance.

 

 

President A. Grunis:

 

I Agree.

 

 

Justice E. Rubinstein:

 

1. I join the orderly, methodically arranged judgment of my colleague Deputy President Naor, on each and every element thereof. I wish to add two matters, which I shall list in their reverse order of importance: the conduct of the Municipality as a public entity, and the insult to the Sabbath as a national and religious day of rest for the Jewish people. The combination of the two in the case at hand has produced the contemptible and cheap picture portrayed before us. I shall attempt to view the matter in the context of the objective of the legislation and the nature of the State of Israel as a Jewish and democratic state, and the city of Tel Aviv, the first Hebrew city and the central urban metropolis in our country.

 

2. Before us is a municipal by-law, the Tel Aviv-Jaffa By-Law (Opening and Closing of Stores) 5740-1980, pursuant to which the opening and closing of stores on the days of rest is prohibited. As my colleague wrote (paragraph 50) "… the objective of the By-Law, in light of the social and religious values of the day of rest, in light of the social and religious values of the day of rest, would mean that the businesses would indeed be closed on the day of rest and not that businesses that wish to open their doors on the Sabbath can do so provided they are willing to pay the fine involved."

 

3. The Municipality interprets its duty to enforce the By-Law in a manner which cannot be described as other than completely emptying it of any content (unless we see a public value in NIS 2,640 per month – 660 multiplied by four – which are collected as fines from the supermarket chain stores), and dares to call this enforcement. Indeed, the matter is presented before us in the appeal of small merchants who cannot hire revolving staff as the supermarkets can and are entitled to a day of rest (it should be assumed that generally they work six days and they are not the ones who actually benefit from five working days) and they do as their fathers and forefathers did: they rest on the Sabbath. But at such time their secular customers, who wish to buy on the Sabbath, run to the open supermarket, from which the Municipality collects the "The Sabbath Tax" (heaven forbid) in the form of a weekly fine while the Municipality congratulates itself on the alleged maintenance of the By-Law. For the supermarkets this is a fraction of their income, like a light ripple on the surface of the water, almost a "bad debt" (one must assume and hope that they cannot deduct it as a tax expense to the tax authorities), and the supermarket is relieved, and the Municipality is appeased, and all the while the grocery store's door shall be sealed, and primarily - the Sabbath shall be tainted.

 

4. For the Municipality, a public entity of the highest degree, which is meant to serve all of the residents according to the law, this is a solution which – as is customary at times among us – is a Torah sanctioned "Israbluff", a "pretense" as though all of the spectators were fools. What is the Municipality's opinion regarding the significance of an offence which has infinite recidivism? Should the enforcing authority suffice with a fine and marking a "check" and just continue doing this, or must it seek another way?

 

5. It is clear – as emerges from my colleague's opinion – that in the current situation, the objective of the By-Law is not at achieved in the public arena of Tel Aviv.

 

6. Although I wonder whether it is necessary to elaborate regarding the Sabbath, I will say the following. The Sabbath has two contents, religious and national on the one hand and social on the other (see HCJ 5026/09 Design 22 v. Rosenzweig (2005), in paragraphs 16-17 and 20-21 of President Barak's judgment, and in paragraphs 2-3 of Justice Procaccia's opinion, and in the opinion of Justice (as her title was at the time) Naor). Religiously speaking, it is the fourth commandment of the Ten Commandments, the essence of the universal Jewish constitution, no less, in both of their versions: "Remember the Sabbath day to keep it holy" (Exodus 20, 8) and "Keep the Sabbath day to sanctify it, as the Lord your God commanded you." (Deuteronomy 5, 12). The religious content of the Sabbath emerges from the wording of both of these openings of the fourth commandment, but the Ten Commandments also include the social aspect. As emerges conspicuously from the wording in Deuteronomy (5, 13-15): "Six days may you work, and perform all your labor; and the seventh day is a Sabbath to the Lord your God; you shall perform no labor, neither you, your son, your daughter, your manservant, your maidservant, your ox, your donkey, any of your livestock, nor the stranger who is within your cities, in order that your manservant and your maidservant may rest like you; And you shall remember that you were a slave in the land of Egypt, and that the Lord your God took you out from there with a strong hand and with an outstretched arm; therefore, the Lord, your God, commanded you to observe the Sabbath day." There really is no need to elaborate. The Torah has done so better that I. This is the social content of the Sabbath, rest to all.

 

7. The Sabbath as a day of rest to all is a contribution of the highest degree. Our Sages say about the verse "To know that I, the Lord, make you holy." (Exodus 31,13) that "The Lord told unto Moses: Moses, I have a great gift in my treasure house. It is called Shabbat, and I wish to give it to Israel" (Bavli Sabbath, 10, 2). And as philosopher Hermann Cohen (19^th and 20^th century) said (Sefer Hashabbat– which is filled with sources – edited by Dr. Y.L. Baruch (Tenth Printing, 5723, 151)) "From the change of the wording between the first and second commandments… (between Exodus and Deuteronomy) it is undoubtedly clear that the purpose of the Sabbath is to preserve equality among people, not to notice the difference between their social status" – meaning, the expansion of the Sabbath to the human race. On the Jewish level, the renowned Zionist philosopher, Ahad Ha'am (19^th and 20^th centuries) in his essay "The Sabbath and Zionism" wrote against how assimilators were indifferent to the possibility of the cancellation of the Sabbath. Words that became an idiom: "One can say, without exaggeration, that more than Israel kept the Sabbath, the Sabbath kept them", in that it renewed the spiritual life each week. On the universal human level, philosopher Abraham Joshua Heschel (twentieth century) viewed the Sabbath as "A palace in time, and in the kingdom of time each person shall find his own place" (his book "The Sabbath" E. Even Chen translation, 2003, presented in the Gavison – Medan Covenant website). The Chafetz Chaim, Rabbi Yisrael Meir of Radin, in his book, Shem Olam, speaks of the Sabbath as "the center, from which all of the days of the week suckle… like the heart, from which the vitality continues to all of the organs" (Sefer Hashabbat, edited by Y.L. Baruch, 139). See also Aviad Hacohen "Day of Rest in a Jewish and Democratic State" Parashat Hashavua (A. Hacohen and M. Wigoda Editors, and the references there) Exodus 313-320.

 

8. I will not refrain from saying that there is a legitimate question regarding the character of the Sabbath in Israel. Many ideas and proposals have been raised, inter alia – for example the Gavison – Medan Covenant from 2003, by Prof. Ruth Gavison of the Hebrew University of Jerusalem and Rabbi Yaacov Medan of the Har Etzion Yeshiva in Alon Shvut (see the Gavison – Medan Covenant, Main Points and Principles, by Yoav Artsieli). Regarding the Sabbath, the covenant suggested (third chapter) – inter alia – that government offices, industrial factories, banks and trade institutions would be closed; however restaurants and entertainment places would not be prohibited from operating, keeping in line with certain frameworks. A limited number of small grocery stores (particularly them!), gas stations and pharmacies would not be prohibited from operating. And restaurants, museums and other entertainment places would be open on the Sabbath. Of course, this is not to be taken as gospel, but they wish to strike a balance, and there were and may be others like them. It is clear that between those who observe the Sabbath according to the religious requirements, who wish to see it observed with all of its religious details and specifications, and those who have a secular approach, there is a broad middle ground begging to be filled with content. But, until an agreed destination is reached, we must deal with the law and the By-Law.

 

1. As for the city of Tel Aviv, I am aware of its current image as a "Non-Stop City" with all of the expressions of contemporary culture, and I do not shut my eyes and ears to that. It is also presumed that the "enforcers" of the By-Law on behalf of the Municipality are tuned in to the messages of many of the leaders of the city, and it naturally follows, of a large population in the city, and attempt to reach out to them. However, with all due respect, Tel Aviv is not in another country and it also has communities that are interested in a significant character of the Sabbath and it is bound by the law of the state and by it being a Jewish and democratic state. The balance between both parts of the definition "Jewish" and "democratic" must also be sought in Tel Aviv, but it appears that currently the "democratic" angle is pushing the "Jewish" angle out. As a reminder from the past – without necessarily trying to draw a complete comparison – I shall bring from the words of Tel Aviv's first mayor, Meir Dizengoff, who was not considered "religious" in the sociological sense, at a rally in 1933 regarding public desecration of the Sabbath: "In my opinion, the meeting should not necessarily have been summoned by the Rabbinate, this is not only a question of religion, but a national and public matter. It is forbidden to publicly desecrate the Sabbath. Each and every nation has a tradition of perceptions, faiths, customs, which preserve it. This is the character of a nation, that grants it existence… the city needs a special Jewish signature." (presented in the Sabbath Book (From You To You), Y. Kaplun editor (2010), 410; and in another place Dizengoff reiterated the same words (ibid, from Tel Aviv, by A. Druyanov) "… There is an anticipated risk that our beloved city shall become a merchant and trading city as all of the cities in the east, and there shall be no remnant of the spirit of its founders, whose entire direction was to create a Jewish humanistic cultural center…". Of course, Tel Aviv today is not Tel Aviv of Dizengoff's days, and its world may be more diverse, although even then it was not a "religious" city. However, the State of Israel is a Jewish and democratic state, and the way the Sabbath day is expressed on the city streets, according to the By-Law which is the subject of our discussion, cannot be the imposition of ridiculous fines of NIS 660 per week. It is upsetting that according to the Municipality's position, it is accepted as a given that the realization of the By-Law suffices with "monetary ransom" - Where is the objective and where is the day of rest? As my colleague, the Deputy President, stated, the city council can reexamine the By-Law and if it shall deem fit – it can lawfully change it. In any event, we shall remember that for most people today, Friday is a day off. Would it be unreasonable to concentrate the shopping on Friday, and 'he who is prepared on the eve of the Sabbath shall eat on the Sabbath', and the By-Law will be observed.

 

10. The Municipalities (Prohibition to Open Businesses and the Closure thereof on Days of Rest) Bill, 5748-1988, Bills 5748, 134 – which is known as the Authorization Bill – is based on the doubt that was cast in the Court (in CrimC (Jerusalem) 3471/87 The State of Israel v. Kaplan, IsrDC, 5748 26) regarding the authority of local authorities to promulgate a by-law regarding opening businesses on the Sabbath and Israel holidays; as stated: "The purpose of the proposed law is to remove the said doubt and preserve the status quo in the matter being addressed". In presenting the law for a first reading, the Minister of Religious Affairs Z. Hamer (Divrei Haknesset (The Knesset proceedings) 11^th of Adar 5748 - February 29, 1988, page 2070), stated that the law validates the situation existing prior to the judgment which invalidated a by-law prohibiting opening places of entertainment on the Sabbath due to lack of authority. It was noted that the religious consideration receives its validity within the proposed authorization, but it does not compromise justice and equality, since "This law grants central support, as the judicial authority demanded, to the public and communities anywhere to formulate their lives as per their understanding and belief". It was further said (page 2071), that "Anyone concerned about the Jewish character of the State, about bringing Jews together, and about the character of the Sabbath, should support the law". This was followed by an argument between different parties. Eventually, when the law was presented for second and third readings by MK Uriel Lin (chairperson of the Constitution, Law and Justice Committee, it was noted (Divrei Haknesset (the Knesset proceedings) 30^th of Kislev, 5751 December 17, 1990, page 1192) that the law is presented not as the "Authorization Law" but rather as Amendment no. 40 to the Municipalities Ordinance (applicable also to local councils); and it was said that opening and closing of businesses can also be determined based on reasons of religious tradition (page 1193). We can see that the law intended to make it possible – not obligate – to grant content that also has religious context. The result is the addition of Section 249(21) and Section 264(a) (sic.) to the Municipalities Ordinance, which were presented by my colleague, the Deputy President, in paragraphs 28 and 29, which address the permission to exercise the authority of closing businesses on the days of rest "taking religious tradition reasons into consideration" (Section 249(21)), and the possibility to enforce by order (Section 264(a) (sic.)).

 

11. Indeed, the amendment in and of itself is mainly grounded in the religious aspect; however the said By-Law from 5740-1980, even preceded Amendment no. 40, and the character of the day of rest may be formulated by consent. It is in any event evident that the legislature and the secondary legislature could not have intended a "pretense", meaning that the secondary legislature would legislate a by-law to be printed in the records – while the enforcer would (in essence) pretend to enforce. The By-Law must be viewed and interpreted in light of all of the backgrounds – the religious, national and social, while striking proper balances (see HCJ 5016/96 Chorev v. The Minister of Transportation, IsrSC 51(4) 1; the above mentioned HCJ 5026/04 Design 22 v. Rosenzweig; and HCJ 953/01 Solodkin v. The Beit Shemesh Municipality (2004) for discussion of the challenges of balancing). " Sabbath comes, rest comes" and not " Sabbath comes, mocking comes ".

 

12. In light of all of the above, there is no escaping the result my colleague reached. One should hope that the leaders of the city will succeed in finding an enforcement solution which shall honor the law and the Sabbath, and also be reasonably satisfactory to the fair and rest-supporting residents of Tel Aviv.

 

 

It was decided in accordance with the judgment of Deputy President M. Naor.

 

Given today, 17^th of Tamuz, 5773 (June 25, 2013).

 

 

 

 

                                                                                    AAA 3782/12

 

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

 

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

[24.3.2013]

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

 

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

 

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

 

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

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

 

Held:

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

 

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

 

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

 

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

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

 

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

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

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

 

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

 

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

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

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

 

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

 

Legislation Cited

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

Basic Law: Human Dignity and Liberty

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

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

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

Interpretation Act 5741-1981, s.17

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

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

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

Regulation of Sports: Gambling Act, 5727 – 1967

 

Supreme Court Decisions Cited

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

United States Decisions Cited

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

 

 

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

 

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

 

Judgment

 

Justice N. Sohlberg

 

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

Background

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

The Ruling of the District Court

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

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

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

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

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

Principal Arguments of the Parties

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

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

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

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

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

Discussion and Ruling

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

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

 (a)       Right of Standing

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

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

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

Freedom of Expression

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

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

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

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

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

(c)  Police Authority

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Final Word

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

Note

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

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

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

 

Justice U. Vogelman

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

General

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

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

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

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

Locus Standi of the Public Petitioner

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

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

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

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

The Question of Authority

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

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

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

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

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

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

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

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

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

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

Other Legal Systems

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

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

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

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

Afterword

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

Epilogue

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

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

 

                                                                                                Justice

 

President A. Grunis

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

 

                                                                                                            The President

 

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

 

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

 

 

In the Supreme Court

Sitting As a Court of Civil Appeals

CA 1697/11

 

Before:	His Honor, Justice S. Joubran His Honor, Justice U. Vogelman His Honor, Justice N. Sohlberg
The Appellants:	1.  A. Gottesman Architecture Ltd 2.  Asaf Gottesman
v.
The Respondent:	Arie Vardi

 

Appeal against the judgment of the District Court of Tel Aviv-Jaffa (Her Honor Judge A. Baron) of January 17, 2011 in CF 1222/09

 

On behalf of the Appellants:	Adv. Hillel Ish-Shalom, Adv. Roy Kubovsky, Adv. Guy Lotem
On behalf of the Respondent:	Adv. Eran Presenti

JUDGMENT

Justice U. Vogelman

 

            An architect designed a unique house for a client and asked to photograph it in order to show it on his firm's website. The client refused. The architect published computer simulations of the client's house on the website, without giving details identifying the owner of the house. Does this case give rise to an infringement of privacy? That is the question that faces us.

 

The Main Facts and Proceedings

 

1.         The Second Appellant (hereinafter referred to as "Gottesman") is an architect who heads a firm of architects. At the beginning of the year 2000 the Respondent (hereinafter referred to as "Vardi") commissioned Gottesman's services for the latter to design his residence for him. The parties do not dispute the fact that the project was one of a kind and a house was ultimately built that was exceptional as regards its size, the type of materials used in its construction and its unique design. Despite the extensive scale of the project, no written agreement was ever made between Vardi and Gottesman, either with regard to the commissioning of the architectural work or concerning the possibility of documenting and photographing the building for Gottesman's purposes.

 

2.         Even before the construction was completed, Gottesman asked Vardi to photograph his house, as was his firm's practice. Vardi, for his part, made the photographs conditional upon Gottesman and the intended photographer signing a letter of commitment in respect of the photographs' use. According to the wording proposed by Vardi, Gottesman and the photographer would be obliged to apply to him in writing whenever they wanted to make use of the pictures and obtain his express consent. The two were also required to undertake to pay Vardi agreed damages without proof of loss for any breach of that undertaking: Gottesman - $500,000 and the photographer - $50,000 (hereinafter referred to as "the letter of commitment"). Gottesman asserted that the letter of commitment that Vardi proposed was a new requirement that was contrary to a previous understanding between the parties in respect of photographing the house. Vardi, on the other hand, expressed anger at the fact that Gottesman categorically denied the importance of protecting his privacy. No agreement was ultimately made between the parties and in the absence of any understanding, professional photographs of Vardi's house were not taken.

 

To complete the picture, it should be noted that at the relevant time photographs of Vardi's house were published in two places: firstly, pictures of the house exterior were published in a book that was printed in hundreds of copies, published by Apex Ltd (hereinafter referred to as "Apex"), which had installed windows and shutters in Vardi's house; secondly, pictures were published on the website of the carpenter who had done carpentry work in Vardi's house. Both Apex and the carpenter had signed a letter of commitment in favour of Vardi with regard to using pictures of his house in terms similar to those that Gottesman had been asked to sign.

 

3.         Since Gottesman had not been permitted to photograph Vardi's house he commissioned the services of a studio that specialised in the creation of computer simulations in order to create an artificial simulation of the architectural work in Vardi's house. Those simulations, which look very similar to actual photographs, were published on the website of Gottesman's firm (hereinafter referred to as "the website"). There were no details identifying the owner of the house or its address alongside the pictures. After Vardi discovered that the computer simulations had found their way onto the website, he filed a lawsuit in the Tel Aviv Magistrates Court against Gottesman and his firm, in which he applied for a permanent injunction restraining them from making any use of photographs or simulations showing his house. At the same time as bringing the action, a motion was also filed for the provisional relief of removing the simulations from the website. An order prohibiting publication of the existence of the legal proceedings, including any identifying detail in respect of any of the parties to the action, was also sought. On November 11, 2008, during a Magistrates Court hearing of the motion for provisional relief, the parties reached an understanding with regard to publicising Vardi's house on the website until the motion for provisional relief is heard on its merit. In that understanding it was provided that the simulations would be removed from the website and other pictures of the house, which had already been published in the Apex book with Vardi's consent, would be published instead (hereinafter referred to as "the procedural arrangement"). On September 24, 2008 the Court (Her Honour Judge Z. Agi) allowed the application for the award of an interim gag order. Nevertheless, the Court ordered the trial to be remitted to the Tel Aviv District Court because it was found that the relief sought in the action was within its residual jurisdiction since it was an application for a permanent mandatory order incapable of financial quantification. Both the procedural arrangement and the gag order remained in force during the trial of the action.

 

The Judgement of the Lower Court

 

4.         The District Court (Her Honour Judge A. Baron), to which the trial was remitted, allowed Vardi's claim and held that his privacy had been infringed as a result of the exposure of his home on the Internet. It was held that although the simulations did not include personal belongings or intimate items, they did make it possible to obtain an impression of the lifestyle in the house, the habits of its occupants and their financial position. On the other hand, the Court dismissed the plea that removing the simulations would infringe the freedom of occupation and intellectual property rights of Gottesman and his firm. Consequently, against the infringement of Vardi's privacy, the Court weighed the harm to the economic interest that Gottesman and his firm would sustain, if they could not use the simulations in order to attract potential clients. In balancing them, the Court held that Vardi's right of privacy outweighed Gottesman's economic interest. Alongside that, the Court held that Vardi had not expressly or impliedly agreed to publication of the pictures or simulations. It was found that even if there had been talk between the parties about publishing pictures of the house in some or other framework, no express agreement had been reached to take and publish photographs. It was also held that there was no implied agreement to publishing the pictures. Amongst other things, the Court declined to treat the working relationship between Gottesman and Vardi or the fact that Gottesman had designed and planned the house as implied consent to the use of the simulations. It was further held that Vardi's agreeing to allow Apex and the carpenter to make certain use of photographs did not constitute implied agreement to similar use by Gottesman. Finally, the Court stated that even had Vardi's agreement been obtained, the agreement was unenforceable by virtue of section 3 of the Contracts (Remedies for Breach of Contract) Law, 5731-1970. A permanent injunction was therefore awarded restraining Gottesman and his firm from making any use of photographs or simulations showing Vardi's house, and the procedural arrangement that the parties had reached was annulled/rescinded. The sweeping gag order in the case was also removed and replaced by a mere prohibition of publishing the evidence.

 

The Parties' Arguments on Appeal

 

5.         In the appeal herein Gottesman and his firm reiterated their assertion that they should be permitted to publish the simulations on the website. At the outset, the Appellants dispute the lower court's finding that showing the computer simulations infringes "the privacy of a person's intimate life", within the meaning of the definition in section 2(11) of the Protection of Privacy Law, 5741-1981 (hereinafter referred to as "the Protection of Privacy Law" or "the Law"). Firstly, it was pleaded that showing the computer simulations of a house without specifying details identifying the owner cannot be construed as an infringement of privacy as defined in the Protection of Privacy Law. According to the Appellants, in order to prove an infringement of privacy as a result of the information published, it has to be shown that a link can be made between the information and a specific "person". In the instant case, it was argued, the computer simulations were shown in a "sterile" state, based on the planning position before the occupants entered the house and while making certain modifications. Alongside that, it was asserted that in any event there was no infringement of "the privacy of a person's intimate life" because the section relates to highly intimate information, such as a person's sexual proclivity or state of health. The same goes all the more so, according to the Appellants, in respect of the simulations that show the outside of the house and the spaces designated for hospitality. In the alternative, the Appellants plead that even if an infringement of privacy was caused, it did not give rise to a cause of action since it is a minor infringement "of no real significance", as defined in section 6 of the Protection of Privacy Law, because the simulations were published anonymously, without specifying personal details.

 

6.         Even if there was an infringement of Vardi's privacy, the Appellants plead that the defence of good faith applies in the circumstances prescribed in the Protection of Privacy Law. In particular, it was pleaded that the Appellants did not imagine that the publication would infringe Vardi's privacy and they are therefore entitled to the defence prescribed in section 18(2)(a) of the Law ("he did not know and need not have known that an infringement of privacy might occur"). It was further pleaded that the publication was intended to serve Gottesman's moral right to obtain fitting credit for his work, which he has by virtue of an architect's copyright in his work (section 4 of the Copyright Law, 5768-2007 (hereinafter referred to as "the Copyright Law")). According to the Appellants, this entitles them to the defence under section 18(2)(c) of the Protection of Privacy Law ("the infringement was committed in defence of a legitimate personal interest of the infringer") because, according to them, the moral right should enable the architect to publish computer simulations of his work.

 

7.         The Appellants further argue that it was inappropriate for the lower court to find that the element of "absence of consent" necessary to establish an infringement of privacy had been fulfilled. The Appellants first protest the finding that Vardi's consent was necessary in this context. Such consent, according to them, would only be necessary if Gottesman had sought to enter Vardi's house and photograph it in the private domain. However, they assert, it is unnecessary to obtain consent when involved is the use of the architectural plans and simulations created on the basis of them. Secondly, they argue, Vardi had originally agreed to the house being photographed and in any event his implied agreement to publishing the simulations could be inferred from the agreement that he had given to publish pictures of the house in the Apex book and on the carpenter's website, and also from the principle agreement to the procedural arrangement. Therefore, the Appellants maintained, Vardi's attempts to procure Gottesman's signature to the letter of commitment should be construed as an attempt contrary to a previous understanding between the parties. Such being the case, it should be held that Gottesman's refusal to sign the said document is irrelevant. Finally, the Appellants argue that it should be presumed that had Vardi wished to limit the use of the work, he would have done so from the outset in an express agreement.

 

8.         Vardi, for his part, endorses the lower court's ruling. According to him, publishing the simulations on the website constitutes an infringement of his and his family's privacy. According to Vardi, the fact that simulations, rather than actual pictures, were published on the website was aimed at circumventing the Protection of Privacy Law because the simulations show the house almost exactly as it really is and it is easy to link them with it. In view of that, Vardi seeks to adopt the District Court's finding that publishing the simulations on the website should be treated as publication of a matter relating to a person's "intimate life", as provided in section 2(11) of the Protection of Privacy Law and it therefore involves an infringement of privacy. According to Vardi, the Appellants cannot benefit from the defences prescribed in the Law: as regards the defence under section 18(2)(a) of the Law, which deals with the absence of knowledge of an infringement of privacy, it is asserted that Vardi emphasised to Gottesman that he jealously guards his privacy, and his attorney also demanded that the Appellants remove the pictures from the website immediately; as regards the defence under section 18(2)(c) of the Law, it was pleaded that the Appellants were not protecting a "legitimate personal interest" by publishing the simulations but merely sought to produce an economic gain. In any event, Vardi argued, the essential requirement of good faith to establish the said defences was not fulfilled in the present case because the Appellants had failed to remove the pictures at his request.

 

9.         Furthermore, according to Vardi, the case herein does not give rise to a clash between copyright law and protection of privacy law. An architect, according to Vardi, has no copyright in a house that was built but at most in the two-dimensional plans of the house and even those, it is argued, cannot be published by the architect without the client's consent. Consequently photographing the house and circulating the photographs, including by way of simulations, is not an inherent right of the architect. Even were copyright involved, Vardi asserts, it is an economic right which does not supersede the right to privacy. In this context, Vardi emphasizes that the lower court was not moved to award relief that would preclude the Appellants from showing the project to customers and in professional circles; instead an injunction restraining publication at large, on the Internet, or in a book or magazine, was sought. Such being the case, according to Vardi, the Appellants' freedom of occupation or copyright was not infringed. Finally, Vardi maintains that the plea of copyright infringement was merely made by Gottesman incidentally and in an unspecified manner at the trial in the lower court and it is therefore a prohibited "amendment of pleadings" on appeal.

 

10.       The parties also took issue with regard to the formation of consent to publish the simulations. Vardi asserts that his agreement to the publication of the simulations was not obtained. According to him, during the years of the relationship between the parties, his confidence in Gottesman had lessened and he had therefore chosen to ask for any understanding in respect of photographing his house and using the pictures to be put in writing. A written undertaking along those lines did not come about and, such being the case, according to Vardi, no agreement was consummated between the parties in respect of publication. In that connection Vardi rejects the Appellants' argument that agreement to publication could be inferred from the procedural arrangement that the parties reached or from the agreement that was given to the carpenter and Apex for publication. According to him, a person is entitled to control his privacy so that consent to waive privacy should be made knowingly and expressly.

 

The Procedural Progression

 

11.       On April 2, 2012 we had an appeal hearing in the presence of the parties before a bench headed by the (now retired) Deputy President, Justice E. Rivlin. At the hearing we believed that it would be best for the dispute between the parties to be resolved in mediation. The parties accepted our proposal and agreed to go to mediation. Unfortunately, the mediation did not prove successful and the parties notified us on July 27, 2012 that they had not reached an overall understanding. Prior thereto, in May 2012, the Deputy President retired and he was replaced by my colleague, Justice N. Solberg (as decided by the President, A. Grunis on August 13, 2012). In view of the change to the bench since the hearing, the parties were permitted to supplement summations in writing. The time for a ruling has now been reached.

 

Discussion and Ruling

 

The Right to Privacy

 

12.       The right to privacy is one of the most important human rights in Israel. It is one of the freedoms that mould the character of the regime in Israel as a democratic one (HCJ 6650/04 Jane Doe v. The Netanya Regional Rabbinical Court, para 8 (May 14, 2006) (hereinafter referred to as "Jane Doe")). Since the Basic Law: Human Dignity and Liberty was passed, it is even vested with constitutional status (section 7 of the Basic Law). Privacy enables a person to develop his selfhood and to determine the degree of society's involvement in his personal behaviour and acts. It is his "proprietary, personal and psychological castle" (Crim. App. 5026/97 Gilam v. State of Israel, para 9 (June 13, 1999) (hereinafter referred to as "Gilam")). The right to privacy therefore extends the line between the private and the public, between self and society. It draws a domain in which the individual is left to himself, to develop his "self", without the involvement of others (HCJ 2481/93 Dayan v. The Jerusalem District Commander, PD 45(2) 456, 471 (1994) (hereinafter referred to as "Dayan"). It "embodies the individual's interest not to be bothered by others in his intimate life" (CA 8825/03 Clalit Health Services v. The Ministry of Defence, para 21 (April 11, 2007)).

 

Infringement of Privacy – Section 2(11) of the Protection of Privacy Law

 

13.       The prohibition of infringing privacy is currently embodied in the Protection of Privacy Law. Section 1 of the Law provides that "no person shall infringe the privacy of another without his consent". As has already been held, the definition of "privacy" is not simple (HCJ 6824/07 Manna v. The Tax Authority, para 34 (December 20, 2010); CA 4963/07 Yediot Aharonot Ltd v. John Doe, para 9 (February 27, 2008) (hereinafter referred to as "Yediot Aharonot")). Section 2 of the Protection of Privacy Law prescribes what an infringement of privacy is. In his claim, Vardi referred to section 2(11) of the Law, which concerns "publishing any matter relating to a person's intimate life, including his sexual history, state of health or conduct in the private domain". Of the three alternatives mentioned in the section, the most relevant herein is "publishing any matter relating to a person's intimate life" and also, to some extent, "publishing any matter relating to [a person's] conduct in the private domain". In order to delineate the expression "any matter relating to a person's intimate life", two matters should be clarified: firstly, what is a matter relating to a person's "intimate life"; and secondly, whether the information published indeed makes it possible to identify a "person".

 

(a)       A Person's Intimate Life

 

14.       Firstly, as regards the expression "a person's intimate life": what can fall within that definition? "Intimate life" is also a vague expression, the boundaries of which are unclear (Eli Halm, Protection of Privacy Law, 148 (2003) (hereinafter referred to as "Halm")). It is therefore clear that the answer to the question as to what will be regarded as a matter relating to "a person's intimate life" is not plain and simple and that "like many expressions that we encounter in the law books and ordinary life, their interpretation depends on the context and the purpose for which the interpretation is needed (see and compare the opinion of Justice T. Strasburg-Cohen in CA 439/88, The Registrar of Databases v. Ventura, PD 48(3) 808, 835 (1994) (hereinafter referred to as "Ventura"); also compare the opinion of Justice G. Bach in the same case, p 821). In this respect I would mention that I do not accept the interpretation that a high threshold of intimacy needs to be crossed – for example matters relating to a person's sexual history – in order to establish infringement of "a person's intimate life". That interpretation, which Gottesman propounded, relies on the fact that section 2(11) provides that infringement of privacy is "publishing any matter relating to a person's intimate life, including his sexual history" (emphasis added – UV). However, studying the legislative history of the Protection of Privacy Law indicates that the ending, after the word "including", was added to the section merely to clarify that "a person's sexual history" is also a matter relating to his "intimate life" (see the Explanatory Notes on the Draft Protection of Privacy (Amendment No. 8) (Prohibition of Publishing a Matter of Sexual History) Law, 5766-2005). In that sense the addendum is merely to clarify and elucidate (see ALA 2985/96 Medalsi v. Goni PD 50(2) 81, 86 (1996). See also: Aharon  Barak, Legal Interpretation, Volume II, Legislative Interpretation 137-138 (1993)).

 

15.       Having said all that, the first issue to clarify is whether the phrase "a person's intimate life" also embraces publications concerning a person's home. A person's home is not one of those concrete matters that are mentioned in section 2(11) of the Protection of Privacy Law – "a person's state of health" and "his conduct in the private domain". Nevertheless, information relating to a person's home might certainly fall within the scope of "a person's intimate life". Indeed, a person's home gains a place of honour in the case law relating to privacy. Thus, for example, in Dayan, His Honour the Deputy President (as he then was) A. Barak held that:

 

            "The constitutional right to privacy extends, inter alia […] to a person's right to conduct the lifestyle that he wants in his own home, without interference from outside […] The right to privacy is therefore intended to ensure that a person will not be a prisoner in his own home and will not be forced to expose himself in his own home to interference that he does not want" (ibid, p 470; see also Jane Doe, para 10; Gilam, para 9).

 

Nevertheless, as I see it, these statements are not to be understood literally as relating merely to the physical aspect of the home. As President A. Grunis noted in respect of the statement cited above from Dayan, "it should be understood more broadly, metaphorically, along the lines of the expression coined by Warren & Brandeis, 'the right to be let alone'" (HCJ 8070/98 The Association for Civil Rights in Israel v. Ministry of the Interior PD 58(4) 842, 856 (2004); see also Yediot Aharonot, para 9). It should therefore be said that information relating to a person's home will not necessarily always be included in the scope of the matters concerning a "person's intimate life". For the publication of information relating to a person's home to be construed as an infringement of privacy, as defined in the Law, it is necessary to see whether it is such as to cross that threshold of intimacy, beyond which it may be said that "a person's intimate life" was infringed. In the instant case, reviewing all the circumstances leads to the conclusion that publishing the simulations of Vardi's house interior does indeed involve infringement of "a person's intimate life". The interior of a person's home is his castle and he is entitled to be let alone in it. Inside a person's home he exercises his right to privacy in the clearest form. A person therefore has a reasonable expectation that pictures of the interior of his home will not be published at large without his consent. In the instant case, studying the simulations of Vardi's home as published on the website shows that, despite the fact that they are computer simulations, the impression gained from them is very tangible. In this respect I accept the findings of the trial instance that "since the simulations show Vardi's house as it really is, it matters not whether they are the result of computer work or a camera" (p 13 of the lower court's judgement). And note, although the simulations do show the house in a "sterile" condition, namely without Vardi's personal belongings appearing in them, the items of furniture in them are very similar indeed to the existing furniture; they expose "personal" spaces in the house, like the bedroom and bathroom; and they are such as to attest to Vardi's lifestyle and also demonstrate, in the words of the section, "his conduct in the private domain".

 

16.       The simulations of the house exterior should be treated differently. Ordinarily, the front of a house is exposed to passers-by. It is in the "public eye". Consequently, insofar as the front of a house is visible from the street, it is clear that showing its picture or simulation will not give rise to any infringement of privacy (see also CF (J'lem District) 7236/05 Levin v. Ravid Stones, para 14 (May 15, 2006)). The right of privacy does not extend to information that is already in the possession of the public. Therefore, when certain information is in any event in the public domain, the view that the right of privacy is not howsoever infringed is appropriate. (For similar statements in American law, see Jackson v. Playboy Enterprises, Inc., 547 F. Supp. 10, 13 (S.D. Ohio 1983); Fry v. Ionia Sentinel-Standard, 101 Mich. App. 725, 731 300 N.W. 2d 687 (Mich. Ct. App. 1980); Reece v. Grissom, 154 Ga. App. 194, 196, 267 S.E.2d 839 (Ga. Ct. App. 1980).  See also David A. Elder, Privacy Torts 3-45, 3-44 (2002) (hereinafter referred to as "Elder"); James A. Henderson, Richard N. Pearson and John A. Siliciano, The Torts Process 930-31 (4th ed. 1994).)

 

17.       According to Vardi, a distinction should be made between the situation described above, in which the front of the house as visible from the street is shown, and the simulations published by Gottesman on the website. Vardi asserts that the simulations of the house exterior that Gottesman posted on the website of his firm show the house from an angle that necessitates access to the grounds of the house, from which passers-by cannot obtain an impression of it. In that sense, Vardi pleads, a photograph from "the public domain" is not involved. Even if Vardi is right in that plea, there is no question that portraying the front of a person's house in public does not give rise to an infringement similar in extent to that caused by displaying the interior of his house. Whilst the interior of a person's house is visible only to his invited guests, the front of his house is less "private". The front of a person's house does not have the same "intimacy" that is characteristic of the intimate rooms of his home. In that sense, the simulations of the house exterior are not "information" that is sufficiently close to the nucleus of the interest protected by section 2(11) of the Law. Hence, whilst the simulations that portray the internal spaces of the house might infringe "a person's intimate life", publishing simulations of the house exterior does not give rise to such an infringement.

 

(b)       "A Person's" – the Requirement of Identification

 

18.       The wording of section 2(11) of the Protection of Privacy Law shows us that in order for the publication of a matter to constitute an infringement of privacy, it has to be established that the information published makes it possible to identify a person. When can it be said that information published does indeed make it possible to identify a person so that an infringement of privacy does arise?  Essentially, it appears that the answer is that an infringement of privacy will not arise where the requirement of "identification" is not fulfilled, namely insofar as a reasonable person would be unable to connect the information published with a specific person. On this point I would immediately clarify, ex abundanti cautela, that we might in future come across cases in which it will be possible to consider making that requirement more flexible. Those will be the exceptions in which particularly sensitive information is published to the point that even if it cannot be connected with someone, the very publication will create in the one to whom the information relates a serious sense of his privacy's violation, so that its protection will be justified. We shall leave discussion of such matters for when they arise since that is not the case herein.

 

19.       In order to comprehend the nature of the identification requirement, recourse may be had, by way of analogy, to defamation law that we can use as an aid to interpretation and source of inspiration (see CA 723/74 Haaretz Newspaper Ltd v. The Israel Electric Corporation Ltd, PD 31(2) 281, 293 (1977); Dan Hay, The Protection of Privacy in Israel, 91-97 (2006) (hereinafter referred to as "Hay") and the references there). This is because in many senses an infringement of privacy is similar to the damage caused to reputation as a result of publishing defamatory information. Even before the enactment of the Defamation Law, 5725-1965 (hereinafter referred to as "The Defamation Law"), this Court insisted that in a claim on a cause of defamation it has to be established that the focus of the publication is a specific person. It was therefore held that the plaintiff on such a cause will be obstructed by the fact that he cannot be identified in the picture that was published (CA 68/56 Rabinowitz v. Mirlin PD 11 1224, 1226 (1957)). This requirement was intensified after the Defamation Law was enacted. Indeed, a question similar to that facing us was considered at length in the context of defamation law in CA 8345/08. Ben Nathan v Bachri (July 27, 2011) (hereinafter referred to as "Jenin Jenin "). In that case the Court considered the criteria whereby it could be held that defamation addressed at a group defames its members (ibid, para 18). The Court held in that case that "[…] For cause to arise to take proceedings in respect of the publication of defamation it has to be shown that it relates to an individual or certain individuals and when the proceedings are taken by the injured party, he must show that the statement relates to him" (ibid, para 32. Emphasis added – UV). What is important with respect to the instant case is that the inference was drawn, inter alia, from the fact that the section of the relevant statute (section 1 the Defamation Law) provides – as in the case herein – that the subject of the statement must be a "person" (ibid).

 

20.       By way of comparison, in American law a similar criterion is also accepted in respect of the infringement of privacy. According to the case law there, the requirement of identification has been recognised as an essential one that confronts anyone seeking to assert the infringement of his privacy. Such being the case, where the plaintiff's image or name was not used, the courts in the USA have held that in practice no infringement of privacy arises (see: Branson v Fawcett Publications, 124 F. Supp. 429, 431-32 (E.D. III 1954); Rawls v. Conde Nast Publications, Inc. 446 F. 2d 313, 318 (5th Cir. 1971) (hereinafter referred to as "Rawls"). See also: Elder, pp 3-40). Consequently, as regards publications such as a photo of a person's house, car, dog or more, that are made without mention of some or other person's name, it has been held that they do not constitute an infringement of privacy, even if subjectively a person feels that his privacy has been infringed (Rawls, ibid; Samuel H. Hofstadter and George Horowitz, The Right of Privacy, 44 (1964)).

 

21.       From the aforegoing it prima facie appears that it suffices for the information published to be shown anonymously in order to avoid the possibility of infringing privacy. However, in this respect it should be taken into account that even information that is shown anonymously might establish a connection with a specific person. In other words, even if the name of the person is not expressly mentioned alongside the information, it has to be ensured that he cannot be identified by other means, for example: if in the publication numerous identifying details are given from which it might be possible to deduce with whom the publication is dealing (see: Hay, p 115). If we treat the prohibition as merely the specification of a person's name, "it would make a mockery of the Law because it is enough to mention numerous identifying details in order to make it clear in many cases who is involved" (Zeev Segal, The Right of Privacy against the Right to Know, Iyunei Mishpat  IX 175, 190 (1983) (hereinafter referred to as "Segal)). As held in Jenin Jenin, "the requirement of identification is substantive, rather than technical. The question is not whether the name of a person is expressly mentioned in the statement published […] The requirement of identification will be fulfilled in those cases where what is published is attributable to the individual who asserts damage implied from the publication or as a result of extrinsic circumstances or a combination of the publication and the extrinsic circumstances" (ibid, para 34).

 

22.       In order to analyse whether it is possible to connect a person with particular information, a criterion of "de-anonymising" has been proposed in the literature. According to the criterion, if anyone has a key that will make reverse engineering possible, namely to attribute the information published to a particular person, then it can be said from the outset that the information is identifying (Michael Birnhack, Private Space – Privacy, Law & Technology, 191-193 (2010)). As aforesaid, it is therefore not necessary for a person's name or picture to appear alongside the publication; it suffices for it to be possible by some means to connect the information with a specific person by "reverse engineering". Clearly, such "reverse engineering" is mainly likely to occur when the information published includes clear and unique characteristics (cf: Motschenbacher v RJ Reynolds Tobacco Co., 498 F.2d 821, 827 (9th Cir. 1974)).

 

23.       In the instant case, is the requirement that the publication deal with a "person" fulfilled? To that end it is necessary to substantiate the conclusion that despite the anonymous publication of the simulations on the Gottesman website, they can be linked with Vardi. In the case herein we have reached the conclusion that although Vardi's name is not mentioned in the publication, the simulations' publication is likely to make it possible to identify him by other means in view of those unique characteristics relating to Vardi's house. As the lower court held, Vardi's house is a "project of a unique type". In this connection the lower court described Vardi's house as "spectacular and extraordinary as regards its size, the type of materials used in its construction, its unique design and also as regards the investment in each one of the architectural details that make it up". Gottesman himself attested to the project as a "one-off project" and in his appeal he described the house as "a spectacular, extravagant and extraordinary residence […] one of the largest houses in Israel and the largest designed by the Appellants". On the Gottesman website the unique design of the house is described as including the use of special materials like blue glass, unique metal, illuminated gardens and more. All these constitute distinctive construction characteristics that distinguish Vardi's house from others. These indicate that Vardi's house is unlike any other; it is an extraordinary, unique work of architecture. In view of that, it appears that recourse may be had to the simulations published on the Gottesman website for the purpose of that "reverse engineering" that will make it possible to deduce that the simulations shown on the website in fact simulate Vardi's house.

 

Section 6 of the Protection of Privacy Law –Infringement of No Real Significance

 

24.       Even if the information published does indeed relate to "a person's intimate life", the Protection of Privacy Law requires it to be established that the infringement was not of "no real significance" (section 6 of the Protection of Privacy Law). In this connection, it has to be shown that the infringement of privacy was not done as a "trivial act" because such an infringement vests no right to relief (The Association for Civil Rights, p 863). The intention of the section is to do away with vexatious lawsuits, in respect of which no reasonable person would take the trouble of going to court (cf section 4 of the Civil Wrongs Ordnance [New Version]; see also CF (TA Magistrates) 199509/02 Tzadik v. Haaretz Newspaper Publishing Ltd, para 10 (January 22, 2014); Hay, p 124).

 

25. In the instant case, the publication of the simulations is not "a trivial act". The simulations that appeared on the Gottesman website tangibly show the interior of Vardi's home and in that way enable the public at large to gain an impression of the home owner's lifestyle and manners. There is no doubt that when any clear image of a person's home is made visible, and especially his intimate rooms – the bedroom, bathroom etc. – the publication is likely to give him an intense feeling of discomfort. The nature of those rooms is that they are concealed from the eye, and usually from the eyes of invited guests as well. That is where a person expects more than anything that he will be secluded from the public eye. Such being the case, bringing the lawsuit herein seems to be in good faith on the face of it and it is certainly not a frivolous or vexatious claim. It is such as to express the deep sense of discomfort caused to Vardi by the publication – which to my mind also has objective foundation in the circumstances. However, that is not the case with regard to the publication of the simulations of the front of the house. As I mentioned above, in that connection I tend to believe that even if publication of the simulations of the house exterior might cause some infringement, it is minor and trivial, in respect of which there is no cause for the grant of relief.

 

Defences to a Plea of Privacy Infringement (Section 18 of the Law)

 

26.       Another element necessary for the award of relief on a cause of infringement of privacy is negation of the existence of the circumstances of one of the defences prescribed in section 18 of the Law. Those defences demonstrate that the Protection of Privacy Law does not make the right of privacy an "absolute" one (CA 1928/93 The Securities Authority v. Gibor Sabrina Textile Enterprises Ltd, PD 49(3) 177, 193 (1995)). The defences prescribed in the Law might therefore bar a civil claim or criminal proceedings in respect of the infringement of privacy. Nevertheless, a party seeking to shelter behind those defences must show that he acted in good faith. Good faith is "like a gate and only if it is traversed will the circumstances in which the specific infringement of privacy was committed be examined" (Gilam, para 8). It should be noted that the case law has interpreted this as a requirement of subjective good faith. It is therefore necessary to prove that the person committing the infringement acted in the belief that the infringement was in the scope of the defences prescribed by the Law (Jane Doe, para 24). In order to prove good faith, the defendant or accused can have recourse to the presumption mentioned in section 20(a) of the Protection of Privacy Law, according to which:

 

            "20.     (a)       Where the accused or defendant proves that he committed the infringement of privacy under any of the circumstances referred to in section 18(2) and that it did not exceed the limits reasonable under those circumstances, he shall be presumed to have committed it in good faith."

 

In this connection the court will review "the form, substance and extent of the publication in order to see whether the publisher has fulfilled his duty, for which the defence extends to him, or went beyond that and exceeded the 'limits reasonable' in connection with which the legislative norm was framed" (Segal, p 199).

 

Against that presumption that is available to the defendant or accused, the plaintiff or prosecutor can have recourse to the presumption mentioned in section 20(b) of the Law:

 

            "20.     (b)       The accused or defendant shall be presumed not to have committed the infringement of privacy in good faith if in committing it he knowingly went further than was reasonably necessary for the purposes of the matters protected by the section."

 

In this respect, proving that the publisher knew that he had exceeded the reasonable is equivalent to establishing the absence of the publisher's subjective good faith because it will demonstrate "his indifference to the consequence involving infringement more than  necessary to protect the value recognised by the Law" (Segal, ibid).

 

27.       In his appeal Gottesman relied on two defences – those prescribed in sections 18(2)(a) and (c), which provide as follows:

 

 

            "18.     In any criminal or civil proceedings for infringement of privacy, it shall be a good defence if one of the following is the case:

 

                        […]

 

                        (2)       the defendant or accused committed the infringement in good faith in any of the following circumstances:

 

                                    (a)       he did not know and need not have known that an infringement of privacy might occur;

 

                                    […]

 

                                    (c)       the infringement was committed in defence of a legitimate personal interest of the infringer;

 

                                    […]"

 

28.       We shall therefore review whether the infringing act was committed in one of the circumstances mentioned in section 18(2) – and in our case, the circumstances prescribed in section 18(2)(a) or 18(2)(c)            of the Law. As regards the defence prescribed in section 18(2)(a) of the Law, as the lower court held, before publication Vardi repeatedly emphasised to Gottesman that he jealously guarded his privacy and he was resolute in his refusal to publicise the house or parts of it. Consequently, from such time as Vardi made it perfectly clear to Gottesman that he strongly objected to publication without the latter signing the letter of commitment, it is difficult to conceive that the infringement was committed without Gottesman "knowing […] that an infringement of privacy might occur", as the section requires. Clearly, therefore, the plea with regard to the defence under that section cannot be upheld.

 

29.       We should now examine whether Gottesman has available the defence under section 18(2)(b), which concerns an infringement committed in order to protect a "legitimate personal interest" of the infringer. The section necessitates a balance to be made between the right of privacy and other conflicting values, and the expression "legitimate personal interest" should be construed "by making a balance between the desire to protect the interest of the injured party and safeguard his privacy, on the one hand and the contrary interests of the infringer, on the other hand" (Crim App 1132/96 Hatuha v. State of Israel, para 8 (January 20, 1998)). In the instant case, Gottesman and his firm have a twofold interest in publishing the simulations: both a creative interest and a business interest. It cannot be disputed that Gottesman has the moral right in his architectural work. Such being the case, he is entitled to the work being credited to him, namely to his work being identified with his name. This expresses recognition of the author's personality and the attempt to respect the personal connection between the author and his work (sections 45 and 46 of the Copyright Law; see also: Tony Greenman, The Moral Right – From Droit Moral to Moral Rights, Authoring Rights – Readings on the Copyright Law 439, 439-440 (Michael Birnhack & Guy Pesach, Editors, 2009)). The desire to safeguard the freedom of creative expression means that the transfer of an architect's economic rights in his work will not preclude his expressing himself in the same artistic style and motifs in other works (cf Sara Presenti, Copyright Law, vol. II (3rd edition, 2008)), and in the instant case, that the work can be exposed to other circles. Consequently, on the artistic-creative level, one can understand Gottesman's desire to expose to the public Vardi's house, a work that is unquestionably of unique quality and size. In addition, there is nothing wrong in Gottesman's desire to publicise his work for economic reasons as well because displaying the work might certainly enable its author to establish a reputation and attract clients. Nevertheless, as we have mentioned, in the scope of the defence under section 18(2)(c) a balance needs to be made between the infringement of Vardi's privacy and the legitimate personal interest of Gottesman. As mentioned above, as I see it, showing the interior of Vardi's home gives rise to a considerable infringement of his privacy. On the other hand, the harm to Gottesman's legitimate personal interest is limited. This is because Vardi's request was limited to precluding publication of the simulations on the website and, such being the case, there is nothing to stop Gottesman from making use of simulations for his business purposes, exposing them on a more limited scale, for example by showing them to clients in his office or to professional circles, a matter to which Vardi has himself agreed in writing (paragraph 23 of his summations). In this connection, certain weight should also be given to the fact that Gottesman could have given full expression to his interest in publishing the simulations by making an express agreement in such respect with Vardi in real time. To this should be added the fact – as explained above – that Gottesman can also show the simulations of the house exterior on the website. In the overall balance between the competing rights and interests, the outcome is therefore that it is inappropriate to apply the defence of section 18(2)(c) to publishing simulations of the interior of Vardi's house. Having found that publication of the simulations does not fall within one of the circumstances mentioned in section 18(2) of the Law, we have no need to consider the question of good faith or the application of the presumptions prescribed in section 20 of the Law.

 

Absence of Consent to Infringement of Privacy

 

30.       Having reached the conclusion that that there is an infringement, of real significance, of Vardi's privacy, in respect of which it cannot be said that it is covered by one of the defences prescribed in the Law, we must rule whether Vardi's consent was given to the publication discussed herein. The Protection of Privacy Law provides that an infringement of privacy will not occur where there is consent to the infringement (section 1). Such consent can be expressed or implied (section 3 of the Protection of Privacy Law; Jane Doe, para 20). The reason for that requirement is that "the right of privacy is to protect the individual, and as a rule society cannot protect an adult against his will" (Crim App 4463/93 Birav v. State of Israel, PD 49(5) 447, 458 (1996)). And note, consent is not cause to justify an infringement of the rights of privacy. Consent itself is an inherent part of the right so that if it is given, a right of action does not arise (Halm, p 41). Although consent for the purpose of infringement of privacy can be inferred from a series of cases and modes of behaviour (Hay, p 122), it is best to exercise extreme care in determining that consent to publication has been obtained. "Care should be taken not to apply the justifying force of consent to cases in which it is clear that there is no real consent and the use of the consent is therefore constructive and fictitious" (Ruth Gavison, Prohibiting Publication That Infringes Privacy, Human Rights in Israel – Collection of Articles in Honour of Haim H. Cohn, 177, 199 (1982)). It has been held along these lines that from the fact that an individual agreed to disclose certain particulars to one person or several persons, it cannot be inferred that he is precluded from objecting to the publication of those particulars to the public at large (Ventura, p 822); and that even the existence of a close relationship such as marriage does not per se indicate implied consent to one partner's infringement of the other's privacy (Jane Doe, para 20).

 

31.       From the general to the particular – in the instant case it appears that such consent was not obtained. I would mention at the outset that I do not accept Gottesman's claim that Vardi's consent to the publication was not necessary because all that was published were the simulations based on the architectural plans. Insofar as that publication causes an infringement of privacy, then it is subject to the principle that "no person shall infringe the privacy of another without his consent" (section 1 of the Protection of Privacy Law). In the instant case, it would appear that such consent was not consummated. As the lower court held, the relationship between Vardi and Gottesman was conducted on the basis of oral understandings, without the issue of consent to publication reaching exhaustive discussion between the parties. Vardi's requirement that photographs of his home could only be taken subject to signing the letter of commitment that he proposed therefore did not constitute a departure from a previous understanding between the parties but an unsuccessful attempt to reach an understanding. Since that agreement was not signed, express consent to publication was not obtained. Indeed, as aforesaid, the existence of consent can also be inferred. However, we have not found substance to the plea that Vardi's agreeing to the publication of other pictures of the house infers that implied consent was also given to Gottesman. Actually, the fact that other publications were specifically made subject to signing the said letter of commitment is such as to demonstrate the absence of consent in the instant case. Our conclusion is therefore that consent to the infringement of privacy was not obtained.

 

Conclusion

 

32.       In conclusion, we have found that publishing the simulations showing the front of Vardi's house does not give rise to an infringement of privacy and in any event not an infringement of real significance, as defined in section 6 of the Law. On the other hand, we have reached the conclusion that the simulations showing the interior of Vardi's house do infringe "his intimate life" and that despite their anonymous publication, it is possible to connect them with Vardi. It has also been found that it is not an infringement "of no real significance" and that the defences prescribed in section 18(2) of the Protection of Privacy Law are inapplicable. Because the infringement of Vardi's privacy was made without his consent to the publication, there is no alternative but to find that publication of the simulations of the interior of his home on the website cannot be permitted.

 

I therefore suggest to my colleagues to allow the appeal in part to the effect that the injunction remains in force in respect of publishing the simulations of the house interior on the website. The meaning of this is that there is no bar to simulations of the house exterior being published on the site. In view of that result, I suggest to my colleagues to set aside the liability for costs at first instance and make no order for costs in the current instance.

 

 

 

Justice S. Joubran

 

I concur.

 

 

 

Justice N. Sohlberg

 

I concur with the judgement of my colleague Justice U. Vogelman. The distinction that he made between the front of the house and the house interior, has deep roots in Jewish law. The Torah forbids a creditor to enter his fellow's home in order to collect his debt: "When you make a loan of any kind to your neighbor, do not go into his house to get what he is offering as a pledge.  Stay outside and let the man to whom you are making the loan bring the pledge out to you" (Deuteronomy 24:10-11). Although a lender and borrower, rather than strangers, are involved, the respect of privacy requires that the house not be entered; the homeowner brings the pledge outside. Despite the fact that the borrower has a debt to the lender and the lender's prima facie moral right to enter the borrower's house in order to take steps to secure repayment of the debt, the Torah prohibits entry to the borrower's house. The Torah did not make do with a moral provision but prescribed a legal right for the protection of privacy (see: N. Rakover, The Protection of Privacy (5766-2006) 265).

 

Jewish law protects a person's privacy not only by precluding admittance to the private domain but also by precluding "damage by sight" [hezek reiyah] from outside. As we know, Bilam sought to curse the Children of Israel when he saw them dwelling in the desert according to their tribes but he found himself blessing, instead of cursing, them and he said "How goodly are your tents, O Jacob, your dwelling places, O Israel" (Deuteronomy 24:5). This is interpreted by the Talmud as follows: "What did Bilam see? He saw that the openings of their tents did not exactly face each other, whereupon he exclaimed, worthy are these that the divine presence should rest upon them". That is to say that when Bilam saw that the tents of the Israelites were positioned so that their openings did not face each other and were directed in such a way as to ensure the privacy of everyone, he was filled with admiration and said: "How goodly are your tents, O Jacob, your dwelling places, O Israel!" (N. Rakover, ibid, pp 269-272). The Code of Jewish Law [The Shulchan Aruch] (Choshen Mishpat, 154:3) lays down the rule: "A person shall not open a window onto his neighbour's courtyard. And even one of the people who share the courtyard and has sought to open a window in his house onto the courtyard shall be restrained by his partner because he can see him from it. And if he has opened one, it shall be blocked. And if the people who share the courtyard with him have given him permission to open a window or door, he may, but he shall not open a door opposite a door or a window opposite a window and shall distance them from each other. And if it is to another courtyard, onto which he has been given permission to open a door or window, he should distance it from his neighbour's door or window until he cannot see in it at all". This is not the place for details of the Jewish law (see at length, Rakover, ibid) but merely for the principle of respecting a person's privacy. That is how God [HaKadosh Baruch Hu] acted when he called to Adam from the entrance to the Garden of Eden, from which we shall learn: "A person should never suddenly enter his neighbour's house. And every person shall learn the appropriate mode of behaviour [derech eretz] from God, who stood at the entrance to the Garden of Eden and called upon Adam, as it is said: "But the Lord God called to the man and said 'where are you'?" (Genesis 3:9; Derech Eretz Raba, Chapter 5).

 

We can therefore see the distinction between the interior and exterior back from ancient times. A few years ago I heard the lawsuit of a man and his wife who had built a rounded wall of unique design, made of basalt manufactured by Ravid Stones Ltd, at the front of their house. In order to promote its sales, the company published a photograph of the front of the house in the press, on the Internet and in a catalogue. The plaintiffs asserted infringement of their privacy, amongst other things. I stated there that the list of acts in section 2 of the Protection of Privacy Law, 5741-1981, that involve an infringement of privacy, does not contain "a prohibition against publishing the front of a person's home; and not without reason. A person's home – on the inside – is his castle. The front of it that faces outward is naturally exposed to the whole world. Any person passing by may savour the outer beauty of the house. A photograph of the front of the house from the public domain does not involve an infringement of privacy" (CF (J'lem) 7263/05 Levin v. Ravid Stones, para 14 (May 15, 2006)).

 

I therefore concur with my colleague's judgement, on the basis of its reasoning.

 

 

 

Held as stated in the opinion of Justice U. Vogelman.

 

January 23, 2013

 

 

 

 

Crim. A. 112/50

 

           

GAD BEN-IZHAK YOSIFOF

v.

THE ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal.

[March 29, 1951]

Before: Smoira P., Silberg J., and Landau J.

 

           

Criminal Law - Bigamy committed by Jews contrary to s. 181 of Criminal Code Ordinance, 1936 - Whether section ultra vires on grounds of discrimination - Jewish Law - Freedom of religion and conscience - Prohibition of polygamy not contrary to Jewish Law.

           

                The appellant, an Israel Jew belonging to the Caucasian community, married in the year 1936. He married a second time in the year 1950 while the first marriage still subsisted. He was convicted of bigamy under s. 181 of the Criminal Code Ordinance, 1936 1) and sentenced to imprisonment for one year. On appeal it was argued that s. 181 was ultra vires the powers of the High Commissioner by reason of Article 17(1)(a) 2)2) of the Palestine Order in Council 1922 (as amended) in that the section introduced discrimination between the inhabitants of Palestine, namely, between Moslems and Jews, and in that it restricted freedom of conscience and worship.

               

                Held:      Dismissing the appeal,

          (1) that as the section did not discriminate against men and women of the same community regarded as one unit there was no discrimination within the meaning of Article 17(1)(a) of the Order in Council.

          (2) The question of freedom of worship did not arise in this case.

          (3) As regards freedom of conscience, religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. The Jewish religion does not compel polygamy, and accordingly no ground exists for the suggestion that there was any infringement of the right to freedom of conscience.

 

          Per Silberg J. Bigamy was never an institution rooted or permanent or favoured in the life of the Jewish people.

 

Palestine cases referred to :

(1)   Cr. A. 85/38 - The Attorney-General v. Ya'acov Ben Yehiel Melnik (Kimhi) : (1939) 6 P.L.R. 34.

(2)   C.A. 119/39 - Pessia Nuchim Leibovna Shwalboim v. Hirsh (Zvi) Shwalboim : (1940) 7 P.L.R. 20.

(3)   M.A. 18/28 - The Attorney-General v. Abraham Alt shuler: (1920-1933) 1 P.L.R. 283.

(4)   M.A. 9/36 - Sharif Esh-Shanti v. The Attorney-General: (1937) 1 S.C.J. 31.

(5)   H.C. 109/42 - Vaad Adat Ashkenazim, Beit Din Hassidim v. District Commissioner, Jerusalem and others : (1942) 9 P.L.R. 715.

 

Israel cases referred to :

(6)   H.C. 10/48 - Zvi Zeev v. Gubernik, the District Commissioner, Urban District of Tel Aviv and others : (1948) 1 P.D. 85.

(7)   C.A. 376/46 - Aharon Rosenbaum v. Sheine Miriam Rosenbaum : (1949) 2 P.D. 235.

(8)   H.C. 8/48 - Shlomo Gliksberg v. Chief Execution Officer, Tel Aviv and others : (1949) 2 P.D. 168.

 

American cases referred to:

(9)        Quaker City Cab Co. v. Commonwealth of Pennsylvania : 48 S.C.R. 553.

(10)      Lindsley v. National Carbonic Gas Co. : (1911) 31 S.C.R. 338.

 

Wiener for the petitioner.

E. Shimron, State Attorney and E. Hadaya, District Attorney of Jerusalem, for the respondent.

 

            LANDAU J.  The appellant, Gad Ben-Izhak Yosifof, was convicted by the District Court of Jerusalem (Halevy P.) of the felony of bigamy, in contravention of section 181 of the Criminal Code Ordinance, 1936, as amended in 1947, and was sentenced to imprisonment for one year. His appeal in directed both against the conviction and the sentence. Upon the suggestion of Dr. Wiener, counsel for the appellant, and with the consent of the State Attorney, we decided to hear the appeal in two stages - the first stage relating to the conviction, and the second stage (should we reject submission of counsel in regard to the conviction), relating to the sentence.

           

2. The facts are set out in detail and with great clarity in the judgment of the learned President of the District Court, and since they are almost undisputed, there in no need for me to repeat them at any length. The appellant, an Israel Jew belonging to the Caucasian community, married ~ woman in the year 1936, and she has born him five children. His marriage with her in still subsisting. In the year 1950 the appellant married a second wife by religious rites with the consent of the office of the Rabbinate in Jerusalem. He obtained this consent by a false declaration which was supported by two witnesses, in which he concealed the fact of his existing marriage.

 

3. Dr. Wiener's submissions in regard to the conviction were directed solely to the legal basis of the judgment of the District Court. Dr. Wiener in fact denies the validity of section 181 of tile Criminal Code Ordinance, as amended. His arguments are these : that in enacting the section referred to the legislature in the days of the Mandate exceeded the powers conferred upon it by Article 17(1)(a) of the Palestine Order in Council, 1922, as amended in 1923, in that :

 

        (a)    Section 181 of the Criminal Code Ordinance discriminates           between the inhabitants of Palestine;

 

            (b)        the section restricts freedom of conscience and         worship.

           

4. In order to understand these submissions it in necessary for me to deal shortly with the history of these sections. Section 181 of the Criminal Code, in its original form, provides :

 

            "Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for five years. Such felony is termed bigamy;"

 

            The section then proceeds to provide for three situations which, if established by the accused, will afford him a good defence. These are:

           

"(a) that the former marriage has been declared void by a court of competent jurisdiction or by a competent ecclesiastical authority; or

 

(b) the continuous absence of the former husband or wife, as the case may be, at the time of the subsequent marriage, for the space of seven years then last passed without knowledge or information that such former husband or wife was alive within that period; or

 

(c) that the law governing the personal status of the husband both at the date of the first and at the date of the subsequent marriage allowed him to have more than one wife."

 

            Special attention should be directed to the opening words of the section which require as one of the elements of the offence that the new marriage shall be void by reason of its having taken place during the lifetime of the husband or the wife of the previous marriage. This is an exceptional requirement, the basis of which was the desire of the legislature to adapt this provision of the Criminal Law to the conceptions of the Moslem religion which permits more than one wife. The second marriage of a Moslem is not void, and the prohibition imposed by section 181, therefore, does not affect him. It was also the purpose of the third defence mentioned in the section referred to, to protect a person whose personal law permits him to have more than one wife.

           

5. The Jewish law of marriage, however, was overlooked by the mandatory legislature from the outset, and the language of the section was not made appropriate for the special position created in Jewish law when a man marries two wives. According to that law, as is well-known, the second marriage remains valid throughout, and may be terminated only by divorce. It follows that the language of the section in its original form imposed no obstacle to polygamy among Jews, as appears from the judgment of the Supreme Court in Attorney-General v. Melnik (1), in which a Jew was acquitted of the offence of bigamy because of the defective drafting of the law.

 

6. Some years passed until the publication in 1947 of the amended section 181, which was drafted with the intention of bringing the provisions of the criminal law in regard to bigamy into conformity with Jewish law. And this is the solution which the legislature found to this problem:

 

(1)       The requirement at the beginning of the section that the new marriage should be void was deleted, and it was provided as to the future that the offence is committed whether the subsequent marriage is valid, or void or voidable. In this way the section was also made applicable to the second marriage of a Jew which is not void. It would appear that as far as Moslems are concerned, it was decided by the legislature that the original language employed at the beginning of the section was not necessary to exclude them from its operation, since they are in any case excluded by "the third defence" provided in the law governing personal status which permits polygamy.

 

(2)       The second and third defences provided for in the original section were restricted. Cases in which the law as to marriage applicable to the wife or husband at the date of the subsequent marriage was Jewish law, were excluded from the second defence, and cases in which the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law, were excluded from the third defence.

 

            In place of these defences which were excluded a new fourth defence was laid down for Jews, namely, the case in which "the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage, was Jewish law and that a final decree of a rabbinical court of the Jewish community ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage. ''

           

7. Dr. Wiener's whole argument, as 1 have said, was directed to the point that section 181 is inconsistent with Article 17(1)(a) of the Palestine Order in Council. The provisions of that Article, in so far as they affect the problem before us, are as follows : -

 

            "The High Commissioner shall have full power and authority..... to promulgate such Ordinances as may be necessary for the peace, order, and good government of Palestine, provided that no Ordinance shall be promulgated which shall restrict complete freedom of conscience and the free exercise of all forms of worship, save in so far as is required for the maintenance of public order and morals; or which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion, or language."

           

            Article 83 of the Order in Council again emphasises that "All persons in Palestine shall enjoy full liberty of worship subject only to the maintenance of public order and morals..." This section is in the general chapter of the Order in Council, and it adds nothing to the provisions of the amended Article 17(1) (a) which deals particularly with matters of legislation. The source of Article 17(1)(a) is Article 15 of the Mandate for Palestine from which it has been copied almost word for word. These conceptions, which were embodied in Article 15 of the Mandate, were not new, but had already found their place in the world of political thought in the French Declaration of the Rights of Man and the Citizen, of the year 1789, and in the days of the first ten amendments of the American Bill of Rights of the year 1791. The principle of non-discrimination reflects the aspiration of the equality of all citizens before the law. Freedom of conscience and worship is one of the liberties of the subject which is guaranteed to him under every enlightened democratic regime. In the declaration of the establishment of the State of Israel it is said:

           

            "The State of Israel... will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex. It will guarantee freedom of religion, conscience, language, education, and culture..."

           

            Dr. Wiener mentioned these words in His argument, but he drew no legal conclusions from them. In this he was correct, for the court has already held in Zeev v. Gubernik (6), that that declaration "contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal". Dr. Wiener agreed, therefore, that if the Knesset of the State of Israel were to enact a section such as section 181, he would not have been able to challenge its validity. His submission, therefore, is limited in scope and touches only upon the situation which existed during the time of the Mandate. I am in agreement with him and with the learned President of the District Court that if it should indeed emerge that there existed an inconsistency between section 181 of the Criminal Code Ordinance and Article 17(1)(a) of the Order in Council and that section 181 was void ab initio, then it was not a part of "the existing law" in accordance with section 11 of the Law and Administration Ordinance, 1948, and would therefore be invalid in the State of Israel as well.

 

8. The learned President of the District Court in his judgment rejected the general submission of Dr. Wiener both in regard to discrimination and also in regard to freedom of conscience and worship. He summarised his opinion in paragraphs 21-28 of his judgment, which read as follows :-

 

            "21. The institution of monogamous marriage is regarded among all peoples, in all faiths and in all communities in which it exists as one of the most valuable conceptions of human culture. The establishment of the family and the peace of the community depend upon it. The institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists. In Palestine, where it exists in proximity to the institution of polygamous marriage, it requires stringent protection."

 

            "22. It cannot be conceived for one moment that the Palestine Order in Council wished to prevent the Mandatory legislature from affording monogamous marriage in Palestine effective protection by means of the criminal law. All that was demanded by the Order in Council in this connection was that the law of bigamy should not prejudice that section of the population whose law of personal status recognised polygamy."

 

            "23. Section 181 was designed to protect the institution of monogamous marriage which existed in a certain section of the population of the country and in no sense prejudices the institution of polygamous marriage which exists among another section of the community. In other words, the object of section 181 is to protect those men and women (and their children) whose marriages, in accordance with their law of personal status, are monogamous marriages. Section 181 takes care not to prejudice the law of personal status (religious or national) of any inhabitant. It does not prejudice liberty of religion (which is included in the guarantee "of freedom of conscience and worship") but, on the contrary, it respects that liberty in all its provisions. Were it necessary for me to base my judgment upon this ground, I also would not hesitate to decide that the criminal law defending monogamous marriage is required "for the preservation of public order and morals". As far as discrimination in favour of the Moslems is concerned, it is not section 181 which created the distinction between the law of monogamous and polygamous marriage in Palestine; this distinction exists and is rooted in fact and confirmed by the Order in Council upon which counsel for the accused relies. It is for these reasons that I decide to reject the general submissions of counsel for the accused to the extent that they do not touch upon the special provisions of section 181 in regard to Jews."

 

            In so far as the special provisions of section 181 relating to Jews are concerned, it was held by the President - after a comprehensive survey of the development of Jewish law in this field - that "Jewish law does not permit a person to take a second wife in Palestine, unless he first obtains permission so to do according to law". In support of this opinion the President cited in his judgment a number of authorities on Jewish law which he culled from Rabbinical literary sources. He therefore rejected the idea that there exist in Palestine Jews of the Eastern communities who are permitted by Jewish law to take more than one wife without special permission so to do, and held that section 181 is in full conformity with Jewish law.

           

9. Dr. Wiener strongly attacked the general theories of the learned President. In his opinion there is no room for these propositions in the judgment of a judge whose duty it is to interpret the law and not express opinions on social problems such as the preference of monogamy over polygamy.

 

            I see no substance in these criticisms of Dr. Wiener. The learned President did not just express opinions. He refrained, for example, from expressing generally any preference for the system of monogamy over that of polygamy, but particularised and said (in paragraph 21 of his judgment) that "the institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists." We find nothing wrong in this expression of opinion. It is not the function of a judge simply to interpret the law mechanically. A judge is sometimes required to interpret abstract conceptions such as, in the case before us, "discrimination" and "freedom of conscience". It is of no avail in such circumstances to attempt to confine oneself within the four corners of legal theory. The judge must make a thorough investigation, must weigh the benefit of the community and that of the individual, the degree of justice and equity, and other considerations such as these in order to reach a correct assessment of the intention of the legislature.

 

10. Dr. Wiener argued his submissions in regard to the merits of the case under two headings - the one dealing with discrimination, and the other with freedom of religion and worship. I shall deal with the submissions in that order. Dr. Wiener confined his argument with regard to discrimination to the following points:

 

            (a) The idea that there exists a distinction in principle between monogamy and polygamy has no basis in the law of Palestine. According to the intention of the legislator who drafted the Order in Council marriage is an institution common to all communities, and the Mandatory legislature could not therefore lay down in subsequent legislation on marriage different principles for different communities. The criminal law relating to bigamy falls within this rule.

           

            (b) An argument that the legislature adjusted the section in question to the religious needs of the different communities cannot be justified, since section 181 is not so drafted, and in any event there was no necessity for a High Commissioner to set himself up as a "policeman" for the religious communities.

 

            (c) The test of discrimination is an objective test and we must not, therefore, enquire into the intentions of the legislator. The prohibition against discriminatory laws is absolute without its being reserved to matters of the maintenance of public order and morals, for these are only mentioned in connection with freedom of conscience and worship.

 

11. Mr. Shimron, the State Attorney, argued against this submission upon the question of discrimination. In his submission the prohibition against discrimination does not mean that the legislature must introduce a mathematical equality between all citizens. Discrimination must not be confused with distinction. The prohibition extends only to discrimination to the disadvantage of a particular group of people. The Palestine legislature, however, did not discriminate in favour of one community or against another community. It found itself faced with a varied social and legal state of affairs in the different communities, with each community having its own way of life. It therefore tried to find a legislative solution which would be in conformity - as far as possible - with this existing situation. The solution which it found is a reasonable and not a capricious one. Mr. Shimron, in his submissions, relied upon judgments of the Supreme Court of the United States which, in interpreting the Fourteenth Amendment of the Constitution of the United States in connection with the equal protection of the laws, decided that this amendment does not prevent classification of different groups within the community by the legislature.

 

12. It must be pointed out at the outset that Article 17(1)(a) of the Order in Council does not provide in general terms that all discrimination is forbidden. The article lays down, however, in a consolidated form, three aspects according to which discrimination between inhabitants of the country is forbidden, and these are on the grounds of race, religion, and language. Does section 181 mention religion as a reason for differentiating between the communities? Counsel for the parties did not deal specifically with this question. It seems to me that the matter is open to doubt. In the time of the Mandate the court recognised Jewish law as "the national law" of the Jews of Palestine (see Shwalboim v. Shwalboim (2)). I do not think that, in speaking in section 181 of the person whose law relating to marriage is Jewish law, the mandatory legislature intended to restrict this conception to Jews who were members of the Jewish community as a religious community. It designedly created a special class of people who are distinguished by their law of personal status. This has little effect, however, as far as Article 17(1)(a) of the Order in Council is concerned, for if the dividing line under section 181 is not religion we shall be compelled against our will to reach the conclusion that the differentiation is based on race, or on a conception of religion and race combined.

 

13. It seems to me that the articles of the Order in Council itself destroy the contentions of Dr. Wiener that marriage under the Mandatory law was considered the same institution for all the communities. The legislature allocated jurisdiction in matters of marriage between the different religious communities, and in so doing it was undoubtedly aware of the wide distinction between the various laws of marriage of the main communities in the country. See in this regard the judgment of this court in Rosenbaum v. Rosenbaum (7). It was only in 1989 that the first step was taken to introduce a unified law of marriage for persons who were not members of the recognised religious communities (see Article 65A of the Order in Council). This provision, however, merely provided the additional legislative framework, but this frame was never filled with content. It is clear to me that the law of marriage which existed in the time of the Mandate and which exists in this country today is not a single one, but is varied according to the different systems of personal law.

 

14. What is the correct meaning of the expression "discrimination", which appears in Article 17(1)(a)?  It is true that according to its etymological source this English word means no more than "distinction" and not necessarily a distinction for good or bad. In the social sciences, however, the word has acquired a more restricted connotation.

 

            I quote from the Encyclopaedia of the Social Sciences, New York, 1948, vol. 14 at p. 131 where it is said: -

           

"The term social discrimination may be tentatively defined as unequal treatment of equals, either by the bestowal of favors or the imposition of burdens."

 

and further on the same page :-

 

"Discrimination should not be identified or confused with differentiation or distinction."

 

and on page 182 :-

"Discrimination carries with it the idea of unfairness."

 

            I have already explained that the expressions which I am considering here are not merely legal terms. They are the common heritage of people with a democratic tradition and we do not hesitate therefore to seek assistance from American non-legal sources. The distinguishing feature implicit in the expression "discrimination" is an attitude which is unequal and unfair - for different classes of people. This is also the opinion of the English judges in the time of the Mandate. In the well-known case of Attorney-General v. Altshuler (3), for example, the court asked in its judgment at p. 286 :

           

"Can it be said because the bye-law in question makes a distinction in favour of the minority ...that there is, therefore, not a discrimination against the majority."

 

and it replies :

 

''.. .it is just as much discrimination when the majority suffers as it is when a minority is discriminated against.''

 

            I quote these passages only for the sake of the linguistic interest which they possess, without expressing any opinion as to the correctness of the view of the majority of the judges on the merits. The same expression, as used in the book of Exodus, (8, 18; 11, 7) 1) is used to connote a distinction for good or for evil.

           

15. I have considered the American judgments cited to me by Mr. Shimron, and particularly the judgment of Mr. Justice Brandeis in Quaker City Cab Co. v. Pennsylvania (9), which interprets the "Equal Defence Clause" in the American Constitution (the Fourteenth Amendment). However I cannot derive any assistance from this judgment for the problem before us, for the amendment referred to does not mention the expression "discrimination" and the American court, in interpreting the amendment, proceeded on the assumption that discrimination (that is to say, actual discrimination either in favour or against a particular class of persons) is permitted subject to the condition that it expresses itself in the form of classification on a reasonable basis (ibid., p. 556), while in our case discrimination is forbidden in all circumstances and is not limited by considerations of public order, and other considerations of a like nature.

 

16. Nevertheless, I am of the opinion that in substance Mr. Shimron's submission is correct. I have said that discrimination means a distinction for good or for bad. Article 17(1)(a) does not forbid a different legislative arrangement in respect of different classes of persons, provided that the arrangement involves no discrimination for good or bad. For example, the Language of Courts Rules provide in rule 4 that every summons, every official copy of a judgment and every official document shall be issued in the language of the person to whom it is addressed. This provision involved a distinction between different classes of people by reason of language. Would it ever occur to us to say that this is discrimination because from an objective point of view one law has not been laid down for all? On the contrary, it would appear that here we have a desire to confer equal status upon all the official languages. And so it is in the case of marriage. The Mandatory legislator decided that the time had come to prohibit bigamy by a prohibition in the Criminal Code. Two roads were open to it. It could have imposed a general prohibition upon the members of all communities or find a compromise between the desire to prohibit bigamy, and the social realities of the country. Dr. Wiener admits that a general prohibition would not have been beyond the competence of the Mandatory legislator, but he denies its power to lay down different laws for different communities. I cannot accept this opinion. A legislature does not operate in a vacuum, but is faced with an actually existing social state of affairs with its various manifestations, and must formulate legal forms to meet that situation, and also direct its development in the future. As far as the institution of marriage is concerned, the legislator found himself confronted, as raw material, with a reality consisting of varied outlooks which were fundamentally different. It found that the population of the country was not homogeneous, but that it consisted of different peoples and communities, each with its own laws and customs. Can we say that the Mandatory legislature committed a breach of the principle of non-discrimination because it did not impose its will on the existing situation but to some extent yielded to reality? There is an even more important factor. I am not dealing here only with a difference between actually existing situations, but a difference which was already established in the written law which applied before the Mandatory legislator began to act. Legislatory recognition of the differences between the outlooks of the peoples and communities in the country was already introduced into the Order in Council itself, which did not introduce one law for all people in the country but in matters of personal status handed over such matters - at least in part " to the jurisdiction of the courts of the communities. The draftsman of the Order in Council also added little that was new, and only recognized a legal situation which already existed previously in the time of the Turks. The Mandatory legislature, therefore, was consistent, and in drafting section 181 not in a single form but in a varied form, continued to build upon legal foundations which had already been laid down for some time.

 

            Counsel for the appellant is correct, however, in submitting that in the ultimate result the test must remain objective. It is possible that the intention of the legislature was desirable, but that it failed in its efforts, and that its solution in fact prejudices a particular class of persons, and discriminates against them in favour of others. We are not, therefore, relieved from the task of examining the details of the legislative arrangement which was made in the matter before us. I shall not be influenced by the dotting of i's and the crossing of t's, and should it appear that in essentials no discrimination has been introduced by the legislature, the court will ratify its actions and not invalidate them.

           

17. The object of respecting the provisions of the law of personal status of each person in Palestine is abundantly clear from section 181. We know from the explanatory notes to the proposed amendment that it was drafted after consultation with the Chief Rabbinate and was intended to satisfy its requirements. Rabbi Ya'acov Baruch, the Principal Secretary of the Office of the Rabbinate in Jerusalem, who gave evidence in this case, also confirmed that the Chief Rabbinate had approved this amendment (see also the article of P. Dikstein, "Ha-Praklit" January, 1946, p. 18). There is therefore no doubt as to the good intentions of the legislature towards the Jews. From an objective point of view as well, however, although there is here a difference in the legislative arrangement, there is no discrimination against anyone. Wherein lies the discrimination upon grounds of race or religion in handing the final decision in regard to permission to marry more than one wife - and thereby the exclusion of a person from the general provisions of section 181 - to the competent Rabbis of the Jewish community? I shall deal later with the question to what extent the contents of this section are consistent which Jewish law and I shall assume for the moment that there is no absolute consistency between them - but that does not mean that the provisions of the section are ultra vires, for in my opinion the legislature was entitled to introduce an innovation in the secular law (and a prohibition of bigamy is a matter belonging to the secular law) by transferring an additional duty to the religious courts of the Jewish community whose power to issue binding decisions is itself derived from the secular law. In so doing the Mandatory legislature did not constitute itself as a "policeman" in matters of religion. It remained within the ambit of its powers, and merely used the existing machinery of the religious courts in order to achieve its purpose after giving full consideration to the feelings of the Jewish community.

 

18. And that is not all. Without expressing an opinion as to the social and moral values of monogamy and polygamy it may in any event be laid down with certainty that that outlook which sees an advantage in a number of wives is basically a "masculine" outlook, for a prohibition against a number of wives restricts, as it were, the liberty of the male. The prohibition of bigamy, however, has the important social purpose of protecting the first wife. To release the man from the prohibition against bigamy contained in the criminal law would be to lower the status of the wife. It is for us to decide whether there exists here discrimination against the members of a particular race or religion, and we may not take a one-sided view of the problem. We must ask ourselves whether the men and women of the same community regarded as one unit are discriminated against. The answer to this question cannot be otherwise than in the negative.

 

19. For these reasons I reject these submissions of Dr. Wiener, and in my view section 181 of the Criminal Code Ordinance, 1936, is not repugnant to the provision against discrimination in Article 17(1)(a) of the Order in Council.

 

20.  I shall now pass to consider the second submission relating to freedom of conscience and worship. In my opinion the question of freedom of worship does not arise here at all. The intention of the legislature was directed to forms of worship among the different religions - in regard to matters between man and his God, and not in regard to matters between man and man.

 

            I shall therefore confine the enquiry to freedom of conscience. This is an ethical conception dealing with knowledge of good and evil. A man may derive his opinions on good and evil from a source which is not religious. A religious man, however, is guided in matters of conscience by the commandments of his religion, and we therefore accept the assumption that the complete application of the principle of freedom of conscience also demands freedom of religion.

 

            Dr. Wiener's main submission was that the Mandatory legislature, in laying down rules relating to marriage, trespassed upon the area of religion since, according to the Order in Council. marriage is a religious institution. Freedom of conscience means freedom to live according to the dictates of religion. Jewish law permits polygamy at least among those communities which have not accepted the Ban of Rabbenu Gershom.1) In certain cases polygamy is even almost a religious duty. The test is objective, and it makes no difference if the appellant belongs to one of those communities. And if section 181 is repugnant to the religious customs of any community, then it must be invalidated completely. The section is prejudicial in particular to those Jews who are not members of the Jewish community, for it compels them to approach the courts and the Chief Rabbis whose authority they do not recognise - in order to secure permission to marry. In explaining these submissions, Dr. Wiener readily conceded, as I have said, that had the legislature introduced the prohibition on bigamy generally by imposing a criminal prohibition, it would not thereby have exceeded its powers, for a prohibition such as this would evidence a desire to regulate the question of bigamy purely from the secular angle.

 

            Mr. Shimron's submission on this aspect of the matter was as follows. The question of marriage is secular and not religious, and legislation regulating this matter has no effect upon religious sentiment. Freedom of conscience and freedom of action are not the same thing, for freedom of conscience is confined to the realm of thought alone. Mr. Shimron supported the conclusions of the learned President in the court below that there is no inconsistency between section 181 and Jewish law, and submitted that the fact that a minority do not recognise the rabbinical courts can have no decisive effect on the matter.

           

2l.  I do not think that freedom of conscience is limited to freedom of thought alone. A man who enjoys freedom of conscience must not be deprived of the right to obey the dictates of his conscience by action. The proviso to Article 17(1)(a) in regard to public order and morals is sufficient to prevent harmful acts which some may seek to justify on the ground of freedom of conscience. Even Esh-Shanti v. Attorney-General (4), upon which Mr. Shimron relied, does not go so far as to hold that freedom of conscience is limited to matters in the realm of thought alone.

 

22.  I reject the remaining arguments of Dr. Wiener in regard to freedom of conscience. I think that Dr. Wiener destroyed his own argument by conceding that there may also be a secular approach to the subject of marriage. If, in principle, the secular law relating to marriage may be imposed upon all the inhabitants of the country, why should legislation which seeks to respect the demands of various religions, according to the grasp of the secular authorities after they have consulted the Jewish religious authorities before enacting the law, be forbidden? This is not trespassing upon the field of religion. On the contrary, as T have said, there was a clear desire to follow the golden mean between the religious sphere - as defined by the religious institutions themselves - and the secular sphere.

 

23. I would add here that it is by no means clear that according to Jewish law, the law of marriage belongs to the field of religion It is true that the Order in Council speaks of religious courts, and the draftsman undoubtedly assumed as a matter which was self-evident that religious courts deal with matters before them in accordance with laws of a religious character. But the draftsman had no power to change the essential nature of Jewish law. It is true that that law is based entirely upon a religious foundation since its source is the Law of Moses. There is, for example, no essential distinction between the law of persons and the law of property from the point of view that one is religious and the other secular, for they are all bound up together in one legal system. It would not be right, therefore, to attribute an essentially religious character just to the law of persons, thus distinguishing it from other branches of Jewish law. In other words, from the point of view of Jewish law (and it is with this law that we are dealing at present and not with the point of view of the secular legislature which drafted the Order in Council), the Law of Moses regulates all branches of civil and criminal law, and there is no difference between the intervention of the secular legislature in the field of the law of persons and its intervention in any other field of the law as a whole. No one will contend, for example, that in laying down the secular law of property the legislature was guilty of trespassing upon the field of religion, and the same applies to the intervention of the legislature in the law of marriage.

 

24. This is not all. Religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. There can be no question of such compulsion in regard to acts which religion merely permits, without any absolute imposition or prohibition. Dr. Wiener must show, therefore, that there exists an inconsistency between an order of the secular legislature and some absolute directive in Jewish law which compelled polygamy. Dr. Wiener did point, indeed, to a number of instances in which such an inconsistency, as it were, would exist were polygamy obligatory under Jewish law. The President of the District Court, however, has shown convincingly that the legislative regulation of marriage introduced by section 181 is in complete accord with the principles of Jewish law as they have developed throughout the ages, and that custom in Palestine, binding all the communities, generally forbids polygamy. A man is not permitted - and certainly is not obliged - to marry more than one wife, on the strength of his own decision alone. He is required for this purpose to procure a special permit which will only be issued on certain conditions now laid down, inter alia, in the Rules of Procedure of the Chief Rabbinate of Palestine of the year 1943. This ground in itself is sufficient to answer any argument about the infringement on the freedom of religion, though this does not diminish the force of the other considerations which we have already mentioned to contradict this argument.

 

25. In conclusion, the submission relating to that minority which did not recognise the Jewish community also cannot stand the test of analysis. Knesset Yisrael was regarded by the Mandatory authorities as the organisation of the Jewish community, and all efforts to secure legal recognition for other bodies failed (see for example the case of Vaad Adat Ashkenazitm v. District Commissioner (5)). The Mandatory legislature was consistent, therefore, in leaving the final decision relating to the issue of a permit in the hands of the Chief Rabbis of Knesset Israel. I have already rejected the submission relating to an infringement of liberty of conscience in its material aspect. Can the undisputed fact that it is necessary to approach the religious courts of Knesset Israel and the Chief Rabbis in order to secure the necessary permit be regarded as infringing freedom of religion?  This contention cannot be accepted any more than the argument of a person that he cannot recognise the authority of the courts of the State at all because of considerations of conscience. The provision relating to freedom of conscience is subject to the condition relating to the maintenance of public order which demands of every citizen that he accept the authority of the courts established by law. A Jew was not obliged to be a member of Knesset Israel, but it cannot be deduced from this that the legislature was unable to confer jurisdiction upon the courts of the Rabbinate over persons who were not members of Knesset Yisrael. Section 181(d) of the Criminal Code Ordinance, 1936, indicates the existence of such a jurisdiction, for this section gives official recognition to a permit of the rabbinical courts in respect of any person whose personal law is Jewish law, that is to say, also in respect of Palestinian Jews who are not members of Knesset Yisrael. It is difficult to see how the legislature could have provided otherwise since the recognition of the State was accorded only to these courts as the religious courts of the Jewish community.

 

26. For the reasons stated above I am of the opinion that the appeal against the conviction should be dismissed.

 

            SILBERG. J.  I am also of the opinion that the appeal should be dismissed.

           

2. In the submission of counsel for the appellant, section 181 of the Criminal Code Ordinance is invalid for two reasons :

 

            (a) It restricts freedom of conscience.

            (b) It discriminates between one person and another on grounds of religion.

           

            The remaining arguments and contentions of counsel for the appellant are merely branches of his two main submissions as set forth below.

           

3. As far as counsel's first submission is concerned, I should say at once that I entirely disagree with the opinion of the State Attorney that the guarantee of freedom of conscience extends only to the protection of freedom of thought. Thoughts are not punishable nor are they subject to other sanctions, and there is therefore no need to protect them. It follows that the freedom of conscience which enjoys the protection of the legislature must necessarily include a man's acts and deeds, the fruit of the exercise of his conscience, provided always that they do not exceed the bolunds of his purely personal affairs. When they do exceed these limits, they again become subject, like all other activity - to the surveillance of the law.

 

4. The question, therefore, is whether section 181 really restricts a person's freedom of conscience. I could, in fact, limit the question and define it in this way: whether the section referred to restricts the individual freedom of conscience of the appellant in this case, in the particular circumstances of this case. I do not wish, however, to divide the problem in this way, since I have in the result reached a negative conclusion in regard to this question even in its full connotation.

 

5. How is there likely to be a restriction on freedom of conscience in the circumstances of the present case?

 

            There is no doubt that freedom of conscience also includes freedom of religion. In order to show, however, that some prohibitory provision of the law restricts freedom of religion, it is not sufficient to establish that religion does not forbid the act in question. It is necessary to go further and prove that the doing of that act is demanded by religion - that religion commands and obliges the performance of that act. Not everything that is permitted by religion need necessarily be permitted by law. These two areas, therefore, are not identical. The one deals with matters between man and God, and matters between man and man, while the other also deals with matters between man and the State.

 

            In making these observations we need scarcely consider the validity in Palestine of the Ban of Rabbenu Gershom, and whether a Sephardi or Caucasian Jew here in Israel is permitted by law to marry more than one wife. Even if we assume - and I do not imagine that that is so - that the Ban of Rabbenu Gershom has no application to a Jew who comes here from tile regions of the Caucasus, the constitutional validity of section 151 will remain completely unaffected. It is not necessary, therefore, for me to enter into an examination of the interesting theoretical problems in which counsel for the appellant involved himself, namely, whether the Ban of Rabbenu Gershom (or its voluntary continuation after the year 5000 A.M.), is to be determined by the place in which a person is situated - in accordance with the opinion of some commentators - and whether it applies, therefore, to all the inhabitants of that place - even to new immigrants from countries in which the Ban is not acted upon, or whether it is only a personal obligation - in accordance with the opinion of other commentators - and has no application to a person who comes to a place where the Ban is accepted from a place where it is not accepted. (See Shulhan Aruh - Even Ha-ezer - I,9, and commentators ad loci Knesset Hagedola - Even Ha-ezer, Annotations Bet-Yosef, 1,22 (in the name of Rabbi Itzhak Hen); compare, however, Responsa of Nissim, 48; Kol Eliyahu, 2, Responsa on Even Ha-ezer, 12, and Knesset Hagedola, 20, q.v.)

 

6. The correct definition of the question, therefore, to put it shortly and yet accurately, is as follows : whether a man from Israel is obliged, by law, to take more than one wife or not. Counsel for the appellant advanced a novel submission in regard to this question, namely, that since the commandment to be fruitful and multiply is the first commandment in the Bible - first in order and in importance - any provision in the law which restricts the number of wives a man may marry is likely to lead to that commandment's being disobeyed. In support of his argument, counsel relied upon "She-elat Ya'avetz" of Rabbenu Ya'acov Gershom as being calculated to prevent a man fulfilling the commandment to be fruitful and multiply, and as preventing the increase of the seed of Israel. It is possible to go further in the spirit of counsel's submission, and to argue that the prohibition against bigamy is also likely to prevent the fulfilment of the commandment requiring a man to marry the childless wife of his deceased brother - in so far as that commandment is still observed in this country. I mean to refer to those Eastern communities who follow the opinion of Rabbi Izhak Alfasi and Maimonides that it preferable for a man to marry his deceased brother's widow than to give her her release, as is done by the Ashkenazi community in accordance with the opinion of Rabbi Moshe Isserlis. (See the dispute between Abba Shaul and the Rabbis, Yevamoth, 39b; Bechoroth, 13a; Rabbi Itzhak Alfasi, Yevamoth, Chapter "Ha-Holets" (Chapter 4); Maimonides "Yibum Vehalitsa" - 1,2; Annotations Rabbi Moshe Iserlis, Shulhan Aruh, even Ha-ezer - 165,1). I refer to those who are of the opinion that the commandment referred to should be observed even by those who are already married (Pit'hei-Tshuva, Shulhan Aruh - even Ha-ezer, 165, subs. (c), which is opposed to the responsum of Rabbi Itzhak Bar-Sheshet, Title 302 quoted in Bet Yosef and in the interpretation Even Ha-ezer at the beginning of chapter 165).

 

            This submission, however, has no substance whatsoever. Without entering into the question of the meaning of Article 17 of the Order in Council - whether it prohibits legislation which is intended from the outset to prejudice the dictates of religion, or whether it also invalidates any law which is likely, in particular circumstances, to prevent the observance of one of the religious duties - without embarking at all upon an investigation of this problem, there is a very simple answer to the submission of counsel for the appellant in this case. That answer is that this section 181 has already concerned itself from the outset with preventing any possible conflict between the law and religion, and has provided a special method for the resolution of any conflict between them. I refer to the "permission" set out in subsection (d) of the section. It is provided in that sub-section that a person who has more than one wife will be free from guilt ("it is a good defence to a charge under this section") if he proves that the law as to his marriage (both his first and subsequent marriage) is Jewish law, and that "a final decree of o rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine, and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage". And since the rabbinical court and also the two Chief Rabbis will certainly, no less than any other person, give proper consideration to the observance of religious duties and, if it appears to them correct to do so both from the legal point of view and the facts of the case, will grant the permission requested, there is a sufficient guarantee of "freedom of religion". Where have we grounds for complaint against the Palestine legislature? Was the Mandatory legislature obliged to constitute itself the guardian of matters of religion, and to impose or permit the fulfilment of a commandment which even the religious court is not prepared to permit? I would be very surprised indeed if that were so!

           

7. But counsel for the appellant continued to urge that it was just this very subsection - subsection (d) of section 181 - which constitutes a serious inroad into the freedom of conscience and religion. He submitted that the jurisdiction of both "the rabbinical court of the Jewish community" (which is the court of "Knesset Yisrael"), and that of the two Chief Rabbis, extends to members of "Knesset Yisrael" alone1) (see Gliksberg v. Chief Execution Officer (8), and judgments there cited), and a man who is not a member of Knesset Yisrael can derive no benefit from a "permission to marry" given by a court such as this. It follows that a man who is about to take a second wife will be compelled, against his will, to join the Knesset Yisrael in order to secure the legal validity of the permission referred to. Can there be any greater religious compulsion than this?

 

            There are two replies to this submission which, in my opinion, is without substance.

 

(a) First, I have grave doubts whether the jurisdiction of the rabbinical court is limited here too, in regard to the defence provided for in section 181(d),to members of Knesset Yisrael only. Without expressing any final opinion I am inclined to think - as was said by the learned President of the District Court in paragraph 48 of his judgment - that by virtue of the provisions of rule 6(1) of the Jewish Community Rules, 2)read together with the provisions of Article 9(2) of the Palestine Order in Council (Amendment), 1939,3) section 181 confers a special jurisdiction upon the court of Knesset Yisrael and upon the Chief Rabbis to grant permission to marry also to a person who is not a member of Knesset Yisrael ;

           

b) Secondly, even if we assume that this is not so, and that a man who is very anxious to marry a second wife is compelled, whether he likes it or not, to become a member of Knesset Yisrael - is this something so very shocking? Is this to be treated as "interference with the freedom of religion"? Is the religion of a member of Knesset Yisrael any different from the religion of a person who is not a member of the Knesset ? Religious "compulsion" such as this  means nothing, and it is difficult to submit with any seriousness that the whole legal force of section 181 is to be destroyed because of this feature.

           

8. Before leaving this subject I wish to touch shortly upon another point which also provides a simple and complete solution, in quite another way, to the problem of the freedom of conscience and religion. It is well known that Article 17 of the Order in Council lays down one proviso in respect of the prohibition on the restriction of freedom of conscience, and that is in so far as is required "for the maintenance of public order and morals" (do not read: "and morals" but "or morals"). Dr. Wiener, for his part, has introduced a proviso to the proviso and contends that the word "public" in this context means the whole public and not only a part of the public. I do not know from where this doctrine is derived, nor whether there was any place for it in the conditions of life which prevailed in Mandatory Palestine. It seems to me that in a heterogeneous society, with its many variations and different cultural groups, we can very well imagine that a particular law was necessary for "the maintenance of order" in only one of the different sectors of the population of the country. It can hardly be imagined that the position was otherwise. And the word "order" does not mean only the prevention of disorder. It includes also the maintenance and regulation of particular forms of living and cultural values in which that particular section of the community is interested, and which it holds dear. And if this is so, the amendment to section 181 - which was introduced under pressure from the Jewish community as a whole - is absolutely valid and completely unexceptionable even if the fullest effect be given to the proviso in Article 17.

 

            It would in fact have been possible to solve the whole problem by the process of reasoning set forth above alone. Since in my opinion, however, there was no restriction whatsoever on the freedom of conscience and religion in the circumstances of this case I found it necessary in the preceding portions of my judgment to deal with other aspects of the problem.

 

9. 1 pass now to the second and more serious submission of counsel for the appellant, namely, that of discrimination. This is an argument of substance which demands careful consideration. The conception discussed in the preceding paragraph can in any event have no place in regard to this portion of the enquiry, for the provisions of Article 17 prohibit discrimination in all circumstances - even if it be necessary for the maintenance of public order, since the proviso has been omitted from the concluding portion of the Article.

 

            Article 17, as enacted in Article 3 of the Palestine (Amendment) Order in Council, 1923, provides as follows :

           

".....no Ordinance shall be promulgated.....which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion or language."

           

            It is Dr. Wiener's submission, stated shortly, that since, in terms of the real and practical application of section 181, bigamy - that is to say, having more than one wife - is permitted for Moslems, but is forbidden to Jews and Christians, the law discriminates between one man and another on grounds of religion.

           

            For the sake of accuracy it must be added that Dr. Wiener does not complain - nor can he complain - that bigamy is permitted for Moslems, and that, as it were, there is discrimination in their favour. It was not this legislative act which permitted them to indulge in bigamy, for they were permitted to take more than one wife before this Act was promulgated. His main argument is that section 181 prohibits bigamy for Jews to a greater extent than for members of any other community, for, differing in this respect from other communities, they are forbidden to contract bigamous marriages even where their religious law permits them to do so (see the language of subsection (c)). It follows that the law has discriminated here, and has discriminated against the members of the Jewish community.

           

10. It is still not clear whether counsel for the appellant complains of discrimination on the grounds of race or on the grounds of religion. It would appear, however, that Dr. Wiener complains of religious discrimination, for he has emphasised before us again and again that section 181 makes the discrimination dependent upon the nature of the law which applies to the marriage of the offender; whether that law is Jewish law, or "some law which is not Jewish law".

 

11. It seems to me that it is just there - in those words and in that definition - that the weakness in counsel's argument appears. The language of the section is as follows : -

 

". . . . . provided that it is a good defence to a charge under this section to prove : -

........................................................................

 

(c) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was a law other than Jewish law and allowed him to have more than one wife, or

 

(d) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law and that a final decree of a rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage.''

 

This language leads to two conclusions:

 

(a) That section 181 makes the conviction and sentence dependent - not on the racial or religious affiliation of the wrongdoer, but upon a third test which is different from both of these, namely, what is the law which is applicable to the marriage of the offender;

 

(b) that the whole difference between the two classes of cases expresses itself, as a matter of fact, in one point alone, and that is that while it is sufficient for a man whose law is not Jewish law to prove, even at the trial itself, that his personal law - that is to say, that law applicable to his marriage - permits him to marry more than one wife, a man who is subject to Jewish law is obliged to prove that before his second marriage was celebrated he had produced a certain certificate laying down that he was permitted, individually, to marry a second wife. In other words, in regard to a man such as this - who falls into the second class - a criminal court will not be satisfied with the evidence of an expert with an abstract legal opinion, but will demand the production of an actual personal certificate issued to him, before he is married to the second wife.

           

12. As I have already indicated, the submission of discrimination as advanced by counsel for the appellant is completely destroyed by these considerations. In order to explain the principle we must deal shortly with the question of the special legal situation of "matters of personal status" and the place which they occupy within the framework of the general civil law of the State.

 

13. As everyone knows, the Palestine legislature divested itself of the power to lay down its own new principles in matters of personal status, and for reasons which are understandable and well-known it generally transferred the regulation of such matters - both from the point of view of procedure and from the point of view of substantive law, to the different religious codes of the various communities. Matters affecting the marriage and divorce of a Palestine citizen, who is a member of one of the recognised communities, are dealt with, even in the civil courts (when the question, for example, arises before them incidentally) in accordance with the religious law of the community in question. That also applies in regard to the duty of maintenance by a Palestinian husband in a claim brought against him in a civil court, and also to other similar types of claim.

 

            The matters which I have so far mentioned are simple, plain and well-known, and there is no reason to discuss them at any length. There arises, however, an interesting question which is not so simple, and that is the explanation of the rule which I have stated. Did the Palestine legislature, from the legislative point of view, leave a vacuum, and in respect of these matters employ foreign legal norms which have no place in its own system of law? Or did the Palestine legislature take over these legal norms, and make them an integral part of its own general system of civil law? This question is not, as we shall see, a merely theoretical one.

           

14. Even if there could have been some hesitation on this question up to the year 1945, the problem was completely settled with the promulgation of the Interpretation Ordinance 1945, and the matter is no longer open to any doubt. Section 2 of that Ordinance provides distinctly that the expression "law" also includes "the religious law (both in writing and verbal). . . . . which is in force, or which will be in force in future in Palestine." These words are crystal clear, and any interpretation of them would he superfluous. The legislature has in this section expressed its opinion in unmistakable language that the religious law, to the extent that it is in force in Palestine, itself constitutes an integral part of the law of the State. That is to say, that if a district court deals, for example, with the obligation of a Jewish husband who is a citizen of Palestine to pay maintenance, and it applies - as it is obliged to do - Jewish law, that part of Jewish law which deals with the question is regarded as if it had been enacted as one of the laws of the State. This, moreover, is the only reasonable and the only possible approach to the matter. Religious law is not "a foreign branch" which is grafted onto the trunk of the tree from without, but, to the extent that it was recognised, is itself inextricably interwoven with the boughs of the tree and forms a portion of its boughs and its branches.

 

15. Let us return to our problem, and examine the influence of this approach on the question before us. The effect is patent and clear : the basic idea which lies at the foundation of section 181 - at the foundation of all the provisions of that section - is to prevent an intrinsic and unreasonable conflict between different portions of the law of the State. For since, in the field of the civil law, there is no single arrangement common to all of the laws of marriage and divorce for all the inhabitants of the country, each community having its own laws, and ifs own forms, so it would be inappropriate to lay down one equal law for all sections of the inhabitants in the field of criminal law. It would be insufferable if there were a contradiction between the civil "permission" to commit bigamy, and the criminal prohibition of bigamy, and if these two conceptions did not coincide. The legislature therefore laid down as a general rule that if the civil law - that is to say, the "religious law" in accordance with which civil questions relating to the marriage of the offender are to be determined - permit him to marry more than one wife, it - the legislature - does not wish to prohibit him from so doing from the point of view of the criminal law. Here, however, the legislature was confronted with a difficulty in respect of members of the Jewish community, or to use the language of the legislature, persons the law of marriage applicable to whom was Jewish law. The difficulty was that Jewish religious law in fact recognises the validity of bigamous marriages - that is to say, having more than one wife - but it does not "permit" such marriages in a general and absolutely unrestricted form. On the contrary its general attitude to them is negative, and it only permits them subject to many reservations and conditions. Hence the legislature found itself confronted with a very complicated situation - a situation complicated from the legal point of view. It could not understand the situation in question nor did it believe that it could itself solve the problem. Who would investigate and who would decide if the particular person who married more than one wife was in fact permitted by Jewish law to marry a second wife? Could such an important and complicated question be decided on the basis of experts who would be heard by the court after the event? What, therefore, did the legislature do? It established special machinery, namely, the rabbinical courts of the Jewish community, together with the two Chief Rabbis of Palestine, and it transferred to them - and to them alone - the power of deciding the question whether a second marriage on the part of the husband could be permitted - resulting naturally in his exemption from punishment - or not.

 

            In short, the legislature did not act here with discrimination and did not discriminate in any way on the basis of religion or race. Also in regard to Jews, the legislator did not depart from the basic principle that no distinction should be introduced between the civil and criminal aspects of bigamy, but it refrained from deciding itself upon the civil aspects of the matter - being mindful of its failure in 1988 - and it transferred the matter to more competent hands, namely, to the religious courts and the Chief Rabbis, who were to decide the matter before the commission of the act. This is not a case, therefore, of racial or religious discrimination, or of discrimination at all. It is a necessary consequence of the legal differences between those portions of the law by which the legislature regulated matters of personal status of the citizen. In the field of the civil law of personal status, however, the legislature was compelled to lay down different legal norms for each community by means of the religious laws. No one has ever questioned the correctness of this course. All that the legislature proceeded to do, in the field of criminal law, was to draw the practical and logical conclusions from this distinction in the civil law.

           

16. And now one word on tile question so ably dealt with by the State Attorney relying on judgments given by the American courts, and in particular on the theory expressed in one case, Lindsley v. National Carbonic Gas Co. (10), by Mr. Justice Deventer of the United States Supreme Court. Not all discrimination is discrimination in the full sense, for in some cases it is nothing more than drawing a distinction. Drawing a distinction in which way? - when there exists a real difference between the two persons between whom discrimination is alleged on any reasonable basis, and the discrimination is not capricious (see p. 340, column g, ibid.). The conception lying behind the prohibition against discrimination is that a man shall not be prejudiced only because of his belonging to a particular race or religion, and there is no discrimination when it is not only on the basis of race or religion that the distinction exists, and where there is no prejudice. The discrimination in section 181 is only in the nature of a distinction. A Jew is not punished for polygamy because he is a Jew; but he is restrained by the threat of punishment from taking more than one wife seeing that the society to which he belongs - the Jewish community - has itself laid down that taking more than one wife is inconsistent with its moral and cultural conceptions - that it can no longer permit that practice. It therefore requested the legislature to prohibit the taking of more than one wife in its own interest, and the legislature acceded to this request. What we have here, therefore, is not a discrimination which is prohibited, but a distinction which is permitted, in no way offending the provisions of Article 17. This conception is in fact similar to that expressed above in paragraphs 14 and 15, expressing indeed two sides of the same coin.

 

17. In conclusion I wish to point out that ~ unreservedly associate myself with the conclusions of the learned President of the District Court in regard to the validity of the Ban of Rabbenu Gershom and the extent of its application in this country. It is a widely-accepted principle that that Ban - or the custom which has remained after the year 5000 A.M. (see Responsa of Hatam Sefer - Even Ha-ezer - s. (d)) - is valid in Israel, and binds everyone who enters this country. The authorities for this proposition were cited fully in the judgment of the learned President. I only wish to add that already in tile period of the Amoraim - some 700 years and more before the Ban of Rabbenu Gershom - there expressed itself - here and there - an inclination against polygamy, from the spiritual point of view. If the Amora Rabbi Ami, who lived in the 4th Century, said, "that I say : everyone who marries a second wife shall divorce his first wife (if she so desires) and pay her the sum of her ketuba" (Yebamot, 65a). Pay particular attention to tile strong introduction "that I say !" - this shows there were even in that far off time, people who were in favour of this idea. And even Raba, who differed from the opinion of Rabbi Ami in connection with this principle, said "A man may marry more than one wife if he is able to support them", also expressed his opinion indirectly elsewhere, and took it for granted that it is in no sense a natural thing that a man should marry more than one wife, and that it is necessary - at least from the moral point of view - to procure the consent of the first wife to such an act (see the reply of Raba to Abayeh - Kiddushin - 7a : "So he said to her at the time of the marriage -  that if I wish to marry another woman, I shall do so"). Any one who knows how to read between the lines will find many such expressions of opinion widely spread throughout our ancient literature, but this is not the place to dwell upon this subject at any length.

 

            In short, bigamy was never an institution which was rooted, or permanent or favoured, in the life of the Jewish people. It was merely 'tolerated', if one may use this expression - and what was laid down by Rabbenu Gershom, the Light of the Exile, at the beginning of the 11th Century, was no more than to put the final touches upon a gradual and deep development throughout the generations.

            It is my opinion, therefore, that the appeal should be dismissed, and the conviction confirmed.

           

            SMOIRA J.  I have read the judgments of my colleagues Silberg J., and Landau J., and I have nothing to add. They have both reached the conclusion that the appeal should be dismissed, and I am in agreement with their opinion.

            We therefore dismiss the appeal against the conviction.

            After hearing counsel for the appellant, the appellant himself, and the District Attorney, we find no ground for imposing a lighter penalty. We also dismiss the appeal against the sentence. We confirm the judgment and sentence of the district court .

           

            The appellant will be imprisoned for a period of one year from today.

           

Appeal dismissed.

Judgment given on March 29, 1951.

H.C.J. 195/64

 

           

THE SOUTHERN COMPANY LTD. AND MARBEK SLAUGHTER HOUSE LTD.

v.

CHIEF RABBINICAL COUNCIL AND TEL AVIV-YAFFO RELIGIOUS COUNCIL

 

           

In the Supreme Court sitting as the High Court of Justice

[September 27, 1964]

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

 

 

           

Administrative law - grant of Kashrut licence with extraneous conditions - status of Chief Rabbinical Council - enforcement of religious law - Courts Law, 1957, sec. 7(a) and (b)(2).

 

 

                The kashrut of the petitioners' establishment was not disputed but the respondents imposed conditions on the grant of the license - in particular requiring the petitioners (l) not to market their kosher meat to butcher shops which did not hold a licence from the first respondent and (2) to market their non-kosher meat to non-Jewish butchers alone and on guarantee that the meat would not find its way into the Jewish market - which the petitioners claimed had nothing to do with the kashrut of their slaughterhouse and imposed a heavy financial burden on them, in addition to being discriminatory since the conditions were not imposed on other slaughterhouses. The licences of butcher shops selling the petitioners' meat were also withdrawn.

               

                The first respondent. the body responsible for kashrut licences did not appear but informally intimated that the High Court of Justice had no jurisdiction to interfere with its halachic decisions and considerations.

               

                Held       The attitude of the first respondent suggested a claim to immunity from judicial process rather than a claim of lack of jurisdiction of the part of the High Court of Justice. The rule, however, was that all are equal before the law, unless the legislature has otherwise expressly provided, as in the case of the President of the State and, with qualifications, members of the Knesset. Whilst the legislature had assigned to the first respondent powers in certain areas of religious activity of an administrative nature,  together with the necessary funds out of the State's Budget, it had not found fit to grant it immunity from the operation of the Courts Law. Nor could the High Court, acting as it does under that Law, grant immunity and thereby bar access to aggrieved citizens. The first respondent also was not a judicial tribunal to which the High Court's jurisdiction did not extend. Accordingly the statutory powers of judicial review, vested in the High Court were exercisable vis-a-vis the first respondent to the extent that it derived its authority from secular law and not withstanding that it is subject to the religious law appertaining to the matters with which it deals. The High Court will not prevent the first respondent from applying religious law, or issue kashrut licences in its place, or even intervene in disputes as to the interpretation of religious law.

 

These matters did not arise in the present case and the sole issue was whether the first respondent had been discriminatory and acted ultra vires in denying the petitioners a licence unless they undertook to abide by the conditions sought to be imposed on them. In the absence of any defence,. the allegations of the petitioners were prima facie sustainable.

 

The first respondent's powers of ensuring kashrut for the observant did not include powers to enforce it against the non-observant. The two conditions mentioned above seemed to dictate to whom the petitioners might sell their meat, and failing any explanation it was difficult to discern any connection between these conditions and the kashrut of the meat. which was not in dispute. The imposition of these conditions was therefore ultra vires.

 

Israel case referred to:

 

(1) H.C. 65/51 - Jabotinsky and Cook v. Weizmann (1951) 5 P.D.

            801; I S.J. 75.

           

G. Hausner, H. Goshen and A. Shmaltz for the petitioners.

Y. Pribus for the second respondent.

Attorney-General (M. Ben Zeev), Z. Terlo and M. Cheshin for the Attorney-General.

 

The first respondent did not appear.

 

OLSHAN P.   On 11 August 1964 we announced out decision as follows:

 

"This court has jurisdiction to deal with the case. We accede to the request of the Attorney-General and postpone the hearing of the application to 1 September 1964:"

 

These are the reasons, publication of which was postponed because of the vacation.

 

            On 14 July 1964 an order nisi was issued directed to the Chief Rabbinical Council, the first respondent, and the Religious Council of Tel Aviv-Jaffa, the second respondent, ordering them to show cause "why the first respondent should not give instructions for the supervision of Kashrut (ritual lawfulness) in the slaughterhouse of the petitioner in Kiryat Malachi, subject only to the conditions connected to matters of Kashrut in the same slaughterhouse"; and against the second respondent, "why it should not market meat slaughtered in the said slaughterhouse in the Tel Aviv-Jaffa area on instructions only given to it by the first respondent aforesaid, and why the second respondent should not be prevented from withdrawing the licences and approvals from the butcher shops in the Tel Aviv-Jaffa area which sell kasher meat slaughtered in the above slaughterhouse in accordance with the instructions given to it by the first respondent aforesaid".

 

            The order nisi was granted on the basis of the petitioners' complaints contained in their application to some of which we will refer.

           

            It is by virtue of the "Jewish Community Rules", even before the establishment of the State, and by virtue of legislation of the Knesset (Budget Laws), and the Jewish Religious Services Budgets Law, 1949, and the regulations made thereunder, that the respondent institutions exist, and the control of Kashrut and the granting of Kashrut certificates come within their authority.

           

            The petitioners applied to the respondents for a Kashrut licence to enable them to market meat slaughtered by them in the said slaughterhouse as meat recognised by the Rabbinate as Kasher meat.

           

            In the negotiations with the respondents the petitioners were not confronted with any argument that the slaughtering in their slaughtering house was defective from the point of view of Kashrut.

           

            The respondents, however, put different conditions as conditions precedent to the issue of a Kashrut certificate as requested.

           

            The petitioners argue that these conditions have no connection whatsoever with matters of Halachah, that putting these requirements as a condition to the granting of the requested Kashrut licence is ultra vires and that the respondents refuse their application for peripheral considerations which have no relevance to the question whether the meat marketed by the second petitioner is Kasher or not; that is to say, because of considerations relating to matters not within the respondents' authority such as economic and monetary matters and the like.

 

            The second petitioner has declared that it cannot agree to some of the above conditions but is prepared to abide by all the conditions imposed by the Rabbinate on other slaughterhouses in Israel, and that all discrimination directed against it in this respect is invalid.

           

            Among the conditions indicated by the petitioners we will mention two:

           

(a) that meat slaughtered in the petitioners' slaughterhouse should be marketed only to Kosher butcher shops, that is, butcher shops whose owners have Kashrut certificates from the Rabbinate, and that it is forbidden to market it to the owner of a butcher shop who does not hold a Kashrut certificate from the Rabbinate;

 

(b) that the petitioners may not market those parts of the meat remaining after slaughtering, which are presumed to be trefah (forbidden), without the consent of the local representative of the Rabbinate, and that the petitioners must undertake not to deliver or market in any form whatsoever this trefah meat, except to non-Jewish merchants (or non-Jewish butcher shops), and then only upon receipt of secure financial guarantees from the buyers, such as bank guarantees, to back their undertaking that parts of such meat will not find their way, directly or indirectly, into the Jewish market.

 

            These two conditions are cited only by way of example, because the application spreads over twelve pages, to which many documents are attached, in which the above conditions and other conditions are to be found which might impose upon the petitioners a very heavy financial burden, and also conditions, compliance with which might bring the petitioners into conflict with various secular laws - so the petitioners argue.

           

            Copies of the application with the documents attached were served on the respondents. The second respondent submitted an answer on the merits, indicating that it is not concerned with the issue of Kashrut certificates and that in this respect it is subordinate to the District Rabbinate of Tel Aviv; whilst the respected Chief Rabbinical Council submitted no answer but Rabbi A. Gottlieb, its secretary, sent a letter in which he notified the Court that the Chief Rabbinate had adopted three resolutions, of which the third is, "It is not within the competence of the High Court of Justice to interfere with halachic considerations or in halachic judgments issued by the Chief Rabbinate Council."

 

            The first resolution said that in all matters relating to halachic judgment "the considerations of the Chief Rabbinical Council are only halachic and in this respect subordinate to the laws of the Torah and other instructions as to what and how to decide cannot be accepted."

           

            The second resolution said, "The Chief Rabbinical Council rules according to halachic considerations when and how a Kashrut certificate will be granted on its instructions, and from these considerations it cannot budge".

           

            It should be made clear that in the mere failure by the first respondent to file an affidavit in answer to the application and in its non-appearance no contempt of court has occurred. In all cases of mandamus, the respondent is free to reply or not to reply to the application. At the conclusion of every order nisi it is expressly stated, "The respondents must submit their replies, if they so desire, within ... days ...". Furthermore, when the respondent does not reply and does not appear (as a party) the order nisi does not automatically become an order absolute. But a respondent who does not react does not, thereby, refute the factual and legal arguments of the petitioner. The respondent takes a very serious risk as to the facts proved by the petitioner without contradiction or refutation.

           

            Furthermore, it is the right of every respondent to raise preliminary objections to the jurisdiction of the High Court of Justice claiming that the subject matter of the petitioner's application is not within the competence of this Court, and he may raise the point that the High Court must refrain from exercising its authority. It can also happen that such a respondent, in raising this kind of plea, is doing a service to the Court and the judicial system.

           

            Just as this Court would fail in its duty to the State and its citizens, were it to refuse to exercise its jurisdiction, when the matter is according to law within its jurisdiction and justice demands its intervention, so the Court will not be eager and will fear assuming powers which the law has not granted it, since otherwise it would prejudice the principle of the rule of law. From this point of view, a respondent who raises a convincing argument that the Court actually has no jurisdiction in a given matter also fulfils a civic duty.

 

            As to the above mentioned letter of the secretary (even if we regard it as an answer), it should be noted that it does not deal with the petitioners' complaints that in this matter there was no refusal from the Chief Rabbinical Council as a result of halachic considerations, complaints, according to the petitioners, supported by evidence relating to certain conditions (amongst others) imposed on them. In the first and second resolutions, only "halachic judgments" of the Chief Rabbinical Council generally were mentioned relating to the manner in which it reaches these and nothing whatsoever was said about the petitioners' argument that in the present matter it diverged from this path and therefore acted outside its authority. In this argument of the petitioners we cannot find any denial of the jurisdiction of the first respondent to act according to the Halachah. The complaint, as we have said, is that it acted outside its jurisdiction.

           

            In other words, this letter means, at the most, that the first respondent always bases itself on the Halachah and that as far as concerns the petitioners' complaint is not even obliged to deny it nor are the petitioners entitled to require this court to go into the matter. It follows from the third resolution of the first respondent, therefore, that the High Court has no jurisdiction either to interfere in halachic rules or to deal with any petitioner who charges that it acted not in accordance with halachic considerations, and that it has no jurisdiction to ask the first respondent whether the charge is true and request explanations, because in its view it is enough that it, the first respondent, states publicly that it always directs its steps solely according to the halachic rules.

           

            All this means that the petitioners may not apply to this Court, despite section 7 of the Courts Law, since the first respondent is above that Law, and therefore is not obliged to reply either to the citizen or to the High Court before which the petitioners' complaint was brought and that the first respondent has the power to determine the scope of jurisdiction of the High Court in this respect.

           

            Such an argument is in effect not an argument of lack of jurisdiction but a quasi argument of immunity from the authority of the courts of this country.

           

            The rule in this country is that all are equal before the law, except where the legislator expressly provides otherwise.

           

            The only institution which is immune from the courts is the President of the State and this is regulated by law. (As to the immunity of Members of the Knesset, that is limited and is also regulated by law.)

           

            Before the said Law was enacted, including the provision as to the immunity of the President of the State, the question arose whether it is possible to issue an order nisi (of mandamus) against the President of the State. In Jabotinsky and Cook v Weizmann (1), this Court refused an order nisi after intervention by the Attorney-General who claimed lack of jurisdiction. The question was whether, in the light of section 11 of the Law and Administration Ordinance, the status of the President of the State is to be regarded like the status of the British Crown against which no orders issue. This Court did not accept the argument of the Attorney-General and held that as regards the immunity of the President of the State, the situation here is similar to that in the U.S.A. and not England.

           

            An order nisi was refused not because of the immunity of the President but because the object of the petitioners' complaint there was purely political, relating to the executive and parliamentary authorities. In any event there the matter was not connected with a citizen who complained that the respondent was violating his rights or denying them. The matter was, as I have said, political and in point of the principle, then prevailing and now found in section 7(a) of the Courts Law, the Court did not find that justice demanded its interference.

           

            It is true that the Rabbinical Council was given a certain area of activity by the State regarding religious services relating to Jews, and in this area it was granted certain powers. But the legislator did not think it right to grant immunity to this respected institution, exempting it from the applicability of the Courts Law, and certainly the High Court which is also subordinate to the Law cannot assume jurisdiction (which was never given to it) to grant it such immunity and bolt the doors of this Court to a citizen.

    

            In order to remove what was called by the learned Attorney-General a misunderstanding, one must pause to consider the terms "judgments" and "halachic judgments" mentioned in the letter of the first respondent's secretary.

           

            The source of the jurisdiction of the High Court is found in the various subsections of section 7 of the Courts Law, 1957. The jurisdiction of the High Court relating especially to religious tribunals springs from section 7(b)(4) which speaks of religious tribunals, recognised as such by the law, including the rabbinical courts, the decisions of which are called and are also regarded as "judgments". Institutions to which the Law has not granted a status of courts are not included in section 7(b)(4), for instance, the Chief Rabbinical Council, is not a tribunal in this sense, even if in dealing with the matters under its jurisdiction, it acts according to halachic principles and calls its decision "halachic judgments". From the point of view of the Courts Law the Chief Rabbinical Council is a body recognised by the law of the State "as exercising public functions by virtue of law" (section 7(b)(2) of the Courts Law).

           

            Just as a rabbinical court whose jurisdiction is determined by the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953 comes within section 7(b)(4), so also the Chief Rabbinical Council - an authority recognised by the State in that certain administrative powers relating to different religious services are vested in it - comes as such within section 7(b)(2) of the Courts Law. The fact that the matters are dealt with by the Chief Rabbinical Council on the basis of "halachic judgments" can be of great importance regarding the merits of a dispute brought before the High Court but it has no bearing at all on the jurisdiction of the High Court to hear and examine a citizen's complaint against a public authority on the ground that it discriminates between him and others without legal basis or that it has acted outside the scope of its jurisdiction and other like grounds.

           

            In such a case the High Court must open its doors to the citizen who complains, give ear to his complaint and grant him relief if he proves that his complaint is well-founded in law. It is that which the High Court has been ordered to do by the legislator in section 7(a) of the Courts Law:

           

"The Supreme Court sitting as a High Court of Justice shall deal with matters in which it deems it necessary to grant relief in the interests of justice and which are not within the jurisdiction of any other court or tribunal" (emphasis added).

 

And the beginning of section 7(b) reads as follows:

 

"Without prejudice to the generality of the provisions of subsection (a), the Supreme Court sitting as a High Court of Justice shall be competent...

 

(2) to order State authorities, local authorities and officials of State authorities or local authorities, and such other bodies and individuals as exercise any public functions by virtue of law, to do or refrain from doing any act in the lawful exercise of their functions...".

 

            By virtue of this provision the High Court has issued and continues to issue orders against every institution or person who exercises a function recognised by the law, such as Government Ministers, including the Prime Minister, various State institutions and even the Chief Rabbis.

           

            In order to avoid another misunderstanding it should be noted that the High Court reacts and demands explanations only from a body that acts as a body recognised by the (secular) law in using the powers or authority granted to it by law, from a body which in its actions relies on its recognition by the secular legislator for the purpose thereof. As has been said, the fact that such a body also generally relies on "halachic judgments" does not detract from the jurisdiction of the High Court.

           

            The supremacy of section 7(a) and section 7(b)(2) of the Courts Law governs every public officer or public authority or public body recognised by the State, and to the extent that they derive their powers or authority from the legislator (here called the secular legislator). To the extent that the Chief Rabbinical Council exercises such powers and authority - notwithstanding that it applies the halachic rules to the merits of the matters brought before it - the section rules so long as the secular legislator has not provided otherwise.

           

            This does not mean that this Court will conclude that the first respondent must not act according to the halachic rules in a matter within its jurisdiction, or that this Court wilI assume jurisdiction to issue Kashrut certificates in place of the respondents, or one of them - we were not requested to do that even by the petitioners.

 

            Furthermore, had the petitioners' application been based on the argument that there are serious differences of opinion between the parties as to the interpretation of a certain Halachah and had the petitioners wanted to impose their own interpretation on the respondents - it is doubtful if they would have even obtained an order nisi.

           

            But this is not the case here. The petitioners' complaint is that the respondents have exceeded their jurisdiction in using considerations which have no connection to the Halachah relating to the granting of Kashrut certificates for meat slaughtered in their slaughterhouse. (The petitioners have never denied the need that the slaughtering should be under rabbinical control.)

           

            Let it be clear that in dealing with the question of our jurisdiction we must look at the matter from the point of view of the secular legislator. We must deal with it on the presumption that under the Jewish Community Rules the first respondent has the power and authority to control Kashrut in order to issue Kashrut certificates as petitioners' counsel proved at least prima facie. At this stage we do not have to take any position on this subject, because it will have to be dealt with when the merits of the case are considered, if at all.

           

            Suppose that the Chief Rabbinate did not exist as a recognised institution, financing itself out of the budget of the State and receiving official State approval for its activity in a certain area of life - either by grant of jurisdiction or by recognition of its jurisdiction - but that the situation is that it exists as a result of internal organisation and that each Rabbi can issue Kashrut certificates for meat. Suppose that the petitioners are interested in receiving a certificate precisely from the Chief Rabbinate which refuses to grant it except on the two above conditions: not to sell Kasher meat to a Jew who does not eat Kasher or to an owner of a butcher shop who does not hold a Kashrut certificate, and not to sell the trefah parts even to a non-Jew, unless he gives a sure guarantee that they will not reach Jews, either directly or indirectly. In such a case even the Chief Rabbinate would have openly stated the reasons for its refusal, that it is interested that all Jews in the country without exception should eat Kasher meat and that it thinks that to avoid the possibility of Jewish owners of butcher shops, who do not hold Kashrut certificates, buying Kasher meat (when there is a shortage of meat) would exert pressure and be an efficient means for imposing the system of Kashrut on the entire Jewish public in the country. In such an event one would have thought that it would be permitted so to act, because the petitioners' application to the Chief Rabbinate would have been regarded as if made to an institution, under the status and moral and religious standard of which they sought protection. 1 think that the Chief Rabbinate would have then said to the petitioners, "if you wish, in order to market your Kasher meat to enjoy our protection and religious and moral influence, you must accept the above conditions in order to help us enforce Kashrut on the Jewish public". In such a hypothetical case it would not have been possible to complain about the non-official Chief Rabbinate, because in its intention to enforce a regime of Kashrut it uses pressure unrelated to the jurisdiction granted to it by the State. Certainly in such a case, it would not have been a matter for the High Court. But the situation here is different. Why was an order nisi issued? The petitioners pointed out that in pursuance of secular law they need a Kashrut certificate from the Chief Rabbinate and the local Religious Council, because jurisdiction in matters of Kashrut have been granted by the State to these and not to others. Because petitioners' counsel in his application referred to various enactments, one would have presumed that it was so unless the argument is refuted by the respondents when the matter is dealt with on the merits.

 

            When the petitioners complained in their application about the various conditions that the first respondent intended to force on them, among them the two conditions abovementioned, then at least prima facie - so long as the complaint has not been refuted - it seems that the petitioners' complaint is well-founded, at least to an extent which entitles the petitioners - and imposes on this Court the obligation - to ask for an explanation from the respondents and to test the petitioners' complaint by the legal principles and rules which the (secular) law requires, and of course in the light of the respondents' explanations, if submitted.

           

            What is prima facie the substance of the petitioners' complaint which obliged this court to hear the petitioners' application?

           

            The Rabbinate was given authority by the State to control Kashrut for Jews interested in Kashrut, so that those who observe Kashrut at home or in living generally will know that the meat sold to them at a butcher shop of which the owner holds a Kashrut certificate from the Rabbinate is really Kasher. But this authority is not aimed at enforcing a regime of Kashrut of Jews who are not interested in it.

 

            Prima facie, at least, the two abovementioned conditions seem to be necessary in order to dictate to the petitioners to whom they should sell their product and to whom they should not. And in the absence of any explanation it is difficult co see the connection between this and the question whether the petitioners' meat is Kasher.

           

            No argument was heard that the conditions, about which the petitioners complained, have any connection with the carrying out of Kasher slaughtering in the petitioners' slaughterhouse or to their marketing of Kasher meat; that is to say that if the petitioners will sell Kasher meat to non-Jews or to a Jew who wants to buy it because its quality is better and not because it is Kasher, then all the meat of the petitioners will be turned into Trefah meat.

           

            It seems therefore that at least prima facie, what emerges from the petitioners' complaint is that it is not because of any defect in the Kashrut of their meat that they are refused a Kashrut certificate, but in order to use the petitioners as a means to enforce Kashrut on Jews who do not observe Kashrut or so that all owners of Jewish butcher shops will be forced to have Kashrut certificates from the Rabbinate. So long as it was not argued and shown that according to the Halachah, without imposing the conditions, the petitioners' meat cannot be regarded as Kasher, there is no doubt that the petitioners' demand to test their complaint that the respondents acted beyond their powers, is based in law. Such an argument was not heard or even hinted at.

           

            It is clear from the foregoing that our decision as aforesaid takes up no position on the merits of the case; neither as to the respondents' jurisdiction nor as to excess of jurisdiction, as the petitioners argue.

           

            The foregoing reasons serve only to explain this Court's approach to a hearing of the petitioners' application on its merits.

           

            Judgment given on September 27, 1964.

 

 

 

 

 

 

 

 

 

 

 

Petitions denied.

30 Av 5764.

17 August 2004.

C.A. 191/51

       

LEIB SKORNIK

v.

MIRIAM SKORNIK

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[February 19, 1954]

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

 

 

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

 

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

           

            The husband appealed.

 

HELD: Per Olshan D.P.

 

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

 

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

 

Per Agranat J.

 

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

 

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

 

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

 

Per Witkon J.

 

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

 

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

 

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

 

Palestine cases referred to:

 

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

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

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

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

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

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

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

 

Israel cases referred to:

 

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

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

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

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

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

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

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

 

English cases referred to:

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Sheps for the appellant.

Marks for the respondent.

 

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

 

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

           

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

           

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

           

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

           

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

           

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

 

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

           

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

 

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

           

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

           

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

 

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

           

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

 

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

           

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

           

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

           

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

           

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

           

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

 

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

 

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

 

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

 

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

 

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

  

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

           

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

 

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

           

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

           

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

 

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

 

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

 

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

           

            On this question the judgment reads: -

           

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

 

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

           

            The learned judge continues :

 

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

           

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

           

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

           

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

           

            And this is what he says in his judgment: -

           

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

 

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

           

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

           

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

           

And further at p. 292 : -

 

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

           

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

 

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

 

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

 

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

           

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

           

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

 

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

           

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

 

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

 

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

 

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

           

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

           

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

           

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

 

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

 

This is what he said at p. 19: -

 

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

 

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

           

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

           

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

           

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

           

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

           

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

           

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

 

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

           

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

 

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

           

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

 

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

 

c)   The parties immigrated to Israel in 1950.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

           

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

           

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

           

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

           

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

           

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

           

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

 

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

           

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

 

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

 

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

           

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

           

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

           

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

           

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

 

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

           

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

           

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

           

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

 

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

 

            I am strengthened in my opinion by the following examples:

           

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

 

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

 

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

 

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

           

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

           

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

 

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

 

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

'I believe.' "1⁾

 

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

           

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

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

           

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

 

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

 

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

 

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

 

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

           

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

           

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

           

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

           

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

 

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

           

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

 

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

           

            Appeal dismissed.

            Judgment given on February 19, 1954.

 

 

 

Appeal allowed.

9 Tammuz 5766.

5 July 2006.