HCJ 781-15

 

 

Petitioners:	Etai Arad Pinkas Yoav Arad Pinkas Anon. Anon. Anon. Anon. The Association of Israeli Gay Fathers Tammuz International Surrogacy Agency Ltd.

v.

 

Respondents:	1.  Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996
	2. The Knesset

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President M. Naor, Deputy President (emeritus) E. Rubinstein, Deputy President S. Joubran, Justice E. Hayut, Justice H. Melcer.

 

Petition for an Order Nisi

(Aug. 3, 2017)

 

 

Israeli Supreme Court cases cited:

 [1]      HCJ 8665/14 Desta v. Knesset, (Aug. 11, 2015) https://versa.cardozo.yu.edu/opinions/desta-v-knesset

[2]       HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration, (Feb. 9, 2009) https://versa.cardozo.yu.edu/opinions/karsik-v-state-israel

[3]       CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel (Sept. 1, 2005).

[4]       HCJ 466/07 Galon v. Attorney General, (Jan. 11, 2012) https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary

[5]       HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996, (Sept. 18, 2014) https://versa.cardozo.yu.edu/opinions/moshe-v-board-approval-embryo-carrying-agreements-under-embryo-carrying-agreements-law

[6]       HCJ 3166/14 Gutman v. Attorney General, (March 12, 2015).

[7]       HCJ 2311/11 Sabah v. Knesset, (Sept. 17, 2014).

[8]       HCJ 1213/10 Nir v. Knesset Speaker, (Feb. 23, 2012).

[9]       HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements, IsrSC 57(1) 419 [2002].

[10]     HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health, (Dec. 3, 2014).

[11]     LFA 1118/14 Anon. v. Ministry of Welfare and Social Services, (April 1, 2015).

[12]     HCJ 4406/16 Association of Banks in Israel v. Knesset, (Sept. 29, 2016).

[13]     HCJ 3734/11 Davidian v. Knesset (Aug. 15, 2012).

[14]     HCJ 4885/03 Israel Poultry Farmers Association v. Government, IsrSC 59(2) 14 [2004] https://versa.cardozo.yu.edu/opinions/israel-poultry-farmers-association-v-government-israel

[15]     LCA 3145/99 Bank Leumi Ltd. v. Hazan, IsrSC 57(5) 385 [2003].

[16]     HCJ 6298/07 Ressler v. Israel Knesset, IsrSC 65(3) 1 [2012] https://versa.cardozo.yu.edu/opinions/ressler-v-knesset

[17]     HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior, IsrSC 61(2) 202 [2006] https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior

[18]     HCJFH 10007/09 Gluten v. National Labor Court, IsrSC 66(1) 518 [2013].

[19]     HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements (June 28, 2010).

[20]     HCJ 9134/12 Gavish v. Knesset, (April 21, 2016) https://versa.cardozo.yu.edu/opinions/gavish-v-knesset

[21]     HCJ 10662/04 Hassan v. National Insurance Institute,  (Feb. 28, 2012) https://versa.cardozo.yu.edu/opinions/hassan-v-national-insurance-institute

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

[23]     LFA 7141/15 A. v. B., (Dec. 22, 2016).

[24]     CFH 1892/11 Attorney General v. Anon., IsrSC 64(3) 356 [2011].

[25]     LFA 5082/05 Attorney General v. Anon., (Oct. 26, 2005).

[26]     CA 50/55 Hershkovitz v. Greenberger, IsrSC 9 791 [1955]. https://versa.cardozo.yu.edu/opinions/hershkovitz-v-greenberger

[27]     HCJ 11437/05 Kav LaOved v. Ministry of the Interior, IsrSC 634(3) 122 [2011].

[28]     HCJ 2245/06 Dobrin v. Israel Prisons Service, (June 13, 2016) https://versa.cardozo.yu.edu/opinions/dobrin-v-israel-prison-service

[29]     CFH 2401/95 Nahmani v. Nahmani, IsrSC 50(4) 661[1996] https://versa.cardozo.yu.edu/opinions/nahmani-v-nahmani-0

[30]     HCJ 4077/12 A. v. Ministry of Health, (Feb. 5, 2013) https://versa.cardozo.yu.edu/opinions/doe-v-ministry-health

[31]     A. & B., Prospective Adoptive Parents of a Minor v. Biological Parents, IsrSC 60(1) 124 [2005].

[32]     HCJ 3752/10 Amnon Rubinstein v. Knesset, (Sept. 17, 2014).

[33]     HCJ 5304/15 Israel Medical Association v. Knesset, (Sept. 11, 2016) https://versa.cardozo.yu.edu/opinions/israel-medical-association-v-knesset

[34]     HCJ 5239/11 Avneri v. Knesset, (April 15, 2015) https://versa.cardozo.yu.edu/opinions/avneri-v-knesset

[35]     LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co., (Dec. 20, 2010).

[36]     LCA 8233/08 Kovashi v. Adv. Eyal Schwartz, IsrSC 64(2) 207 [2010].

[37]     CA 3213/97 Nakar v. Local Planning and Development Council Herzliya, IsrSC 53(4) 625 [1999].

[38]     HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister, (Nov. 30, 2006).

[39]     HCJ 1756/10 Holon Municipality v. Minister of the Interior, (Jan. 2, 2013).

[40]     CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd., (Nov. 16, 2010).

[41]     HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs, (Aug. 11, 1998) https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-labor-social-affairs

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

[43]     CA 4239/15 Dor Alon Energy Israel 1998 Ltd. v. State of Israel, Tax Authority, (March 29, 2017).

[44]     HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister, IsrSC 58(3) 503 [2004].

[45]     CA 420/83 Ashur v. Migdal Insurance Co. Ltd., IsrSC 44(2) 627 [1990].

[46]     HCJ 5087/94 Zabaro v. Minister of Health, (July 17, 1995).

[47]     CFH 2121/12 Anon. v. Dayan Urbach, IsrSC 67(1) 667 [2014] https://versa.cardozo.yu.edu/opinions/anonymous-v-orbach

[48]     CA 9183/09 Football Association Premier League Ltd. v. Anon., (May 13, 2012).

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

[50]     AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa, (Feb. 2. 2012).

[51]     HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights v. Ministry of Social Affairs, (June 4, 2013) https://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-minority-rights-israel-v-ministry-social-affairs

[52]     HCJ 6698/95 Ka’adan v. Israel Land Administration, IsrSC 54(1) 258 [2000] https://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-administration

[53]     HCJ 142/89 Laor Movement v. Speaker of the Knesset, IsrSC 44(3) 529 [1990].

[54]     HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 [2009] https://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-minister-finance

[55]     HCJ 566/11 Mamet Megged v. Minister of the Interior, (Jan. 28, 2014).

[56]     HCJ 4769/95 Menahem v. Minister of Transport, IsrSC 57(1) 235 [2002].

[57]     HCJ 98/69 Bergman v. Minister of Finance,  IsrSC 23(1) 693 [1969] https://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance

[58]     AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64(2) 1 [2010] https://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality

[59]     HCJ 2078/96 Vitz v. Minister of Health, (Feb. 11, 1997).

[60]     LAA 919/15 A. v. B., (July 19, 2017).

[61]     LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd., (Nov. 16, 2011) https://versa.cardozo.yu.edu/opinions/prozansky-v-layla-tov-productions-ltd

[62]     FH 25/80 Katashvili v. State of Israel, IsrSC 35(2) 457 [1981].

[63]     HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health, (3.12.2014).

[64]     HCJ 8893/16 Cabel v. Minister of Communication, (8.1.2017).

[65]     HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services, (May 5, 2010 and Nov. 11, 2010).

[66]     HCJ 8300/02 Nasser v. Government of Israel, (22.5.2012).

[67]     HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying Agreements, (26.7.2011).

[68]     HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services, (Sept. 17, 2017).

[69]     CA 488/77 A. v. Attorney General, IsrSC 32(3) 421 [1978].

[70]     HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion, IsrSC 47(5) 485 [1993].

 

 

PARTIAL JUDGMENT AND DECISION

Deputy President S. Joubran:

1.         The petition before us seeks to extend access to the Israeli surrogacy arrangement  primarily regulated by the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996 (hereinafter: Agreements Law), such that it would also apply to same-sex couples and to single individuals, with or without a genetic link to the child.

2.         The petition was filed at the beginning of 2015, and two hearings were held before an expanded bench of this Court, and supplemental pleadings were submitted, such that the petition was ripe for decision. However, on July 17, 2017, Respondent 1 submitted a notice providing updated details concerning the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill). This Bill was introduced in the Knesset on  July 5, 2017, and passed its first reading on July 17, 2017. In its updating notice, Respondent 1 explained that the Bill deals, inter alia, with extending access to Israeli surrogacy agreements, and asked that we rule that, in light of the introduction of the Bill, the petition does not show cause for judicial intervention. In their response of July 21, 2017, the Petitioners contended that the petition should be addressed immediately, in accordance with the current legislative situation, and that in view of the ongoing plight of the Petitioners – some 21 years after enactment of the Law – there is no justification for delaying for an additional, lengthy period for legislative developments. They also emphasize that the Bill relates to the access of genetically-related single women to surrogacy agreements, but does not provide a response for the petitioners in this petition.

3.         As will be explained below, in view of the fact that the Bill recently passed its first reading, on the assumption that the legislative process will proceed at a suitable pace, and in light of the judicial restraint required in sensitive matters such as the matter at hand, we are satisfied that the legislature should be granted a certain amount of time in which to complete that legislative process prior to our deciding on the merits of the petition as a whole. However, since the principled arguments of the parties concerning the points of contention have already been heard, it is already possible, in our opinion, to decide on parts of the petition, and it particular, on the arguments of Petitioners 5-6 (hereinafter: the Petitioners) that it should be permissible to enter into a surrogacy agreement in the absence of any genetic link between the prospective parent or prospective parents and the newborn.  In my opinion, even though the Petitioners’ argument that the requirement for a genetic link violates the right to parenthood has merit, this violation meets the conditions of the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty, and as such, the arguments on this matter must be dismissed.

My opinion will be presented in two parts: the first part will address the decision to postpone deciding on the petition in the matter of extending access to surrogacy to family units that are not presently included; the second part will present a partial judgment that dismisses the arguments for striking down the requirement of a genetic link in surrogacy procedures, as will be explained below.

Postponement of the Decision on the Petition

4.         As I mentioned above, recently – on July 5, 2017 – a Government bill to amend the Agreements Law was introduced in the Knesset. This proposal passed its first reading in the Knesset plenum on July 17, 2017, and at the time of writing this opinion, it is before the Knesset Labor, Welfare and Health Committee, awaiting preparation for the second and third readings. This proposal – should it be enacted as presently formulated – is expected to bring about a significant change in the current surrogacy arrangements, including allowing, for the first time, single women who have a genetic link to the child to enter into surrogacy agreements. As opposed to this, the formulation of the proposal provides no succor for what is sought by the Petitioners, since it does not extend the Law to same-sex couples and to single men. It should be noted that the said proposal is partially based on the Memorandum for Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment – Definition of Prospective Parents and Conditions for Approval of the Agreement) Law, 2777-2016 (hereinafter: Memorandum of the Law), which was published on Oct. 30, 2016, and which similarly proposed expanding the definition of “prospective parents” in sec. 1 of the Agreements Law to include a single woman. Against the background of this development, I believe, as I wrote, that the legislature should be permitted to exhaust the legislative process before this Court decides on the full petition. Below I will briefly discuss my reasons for this.

5.         To begin, I will note that for this Court to accord status to a legislative initiative, and in particular, to postpone a hearing in proceedings that are affected by that initiative, is not a common phenomenon (for an in-depth analysis of the issue in modern legal literature, see Bell Yosef, A Mixed Blessing: The Normative Status of Legislative Initiatives 40 Tel Aviv L. Rev. 253 (2017) (Heb.) (hereinafter: Yosef). For a review of the judgments in which a legislative initiative has affected the course of the hearings in a petition before this Court sitting as the High Court of Justice, see ibid., at 262-66). In my view, this is not a bad thing, for it demonstrates a proper, healthy expression of the constitutional dialogue between the branches of government, in which each respects the sphere of activity of the other (see: HCJ 8665/14 Desta v. Knesset [1], para. 1, per Justice E. Hayut, paras. 1-7 per Justice H. Melcer (hereinafter: Desta); HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration [2], para. 6; CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel [3] para. 13; Aharon Barak, The Judge in a Democratic Society, 376-89 (2004) (Heb.) (hereinafter: Barak, Judge in a Democratic Society); David Zecharia, The Pure Sound of the Piccolo: The Supreme Court, Dialogue and the Fight Against Terrorism, 241-43 (2012) (Heb.); Yosef, at 292-308; Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue between Courts and Legislatures (or perhaps The Charter of Rights isn't such a Bad Thing after all), 35 Osgoode Hall L. J. 75 (1997)). The words of Justice (emer.) E.E. Levy in HCJ 466/07 Galon v. Attorney General [4] (hereinafter: Galon case) are apt here:

[The] concept of constitutional dialogue [reflects] an understanding that protection of the values embodied in the constitution is an endeavor that is common to the three branches of government. This understanding does not undermine the democratic fundamental principles of the separation of powers and checks and balances; rather, it is concerned with furthering the dialogue between the branches of government and the mutual sensitivity between them … This understanding provides a foundation for the approach whereby it is best that engagement with constitutional questions should be the outcome of an honest, constant and continuous dialogue between the branches. This will likely be beneficial for the conduct of government in general. It may well be good for human rights. It is able to dispel antagonism, which is frequently connected to the notion of a right and protection of this right. It has the ability to aid in the development of additional constitutional rights. It allows basic rights to share the spotlight with other values, the promotion of which is important to the public (para. 42 of his opinion).

6.         In the circumstances of the present petition, since the legislature has expressed its intention to introduce changes into the Agreements Law and to consider the scope of the definition of “prospective parents”, a decision concerning the constitutionality of the formulation of the existing Law is liable to constitute undue interference in the sphere of activity reserved for it as the “senior partner” in legislation (Barak, The Judge in a Democracy, 380). The “right of way” that ought to be given to the legislature when we are dealing with a constitutional defect was discussed by my colleague, Justice E. Rubinstein in HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements [5] (hereinafter: Moshe case), the backdrop to which was an earlier proposal to amend the Agreements Law. He wrote:

… the existence of current legislative proceedings to expand the existing circle of eligibility in the Embryo Carrying Law naturally and sensibly calls for judicial restraint by this Court, so that it will not snap at the heels of the legislature …. Of course, if ultimately there is no legislative process, constitutional judicial intervention must not be ruled out …. However, the appropriate port of call for such changes is first and foremost the legislature, and the existence of advanced legislative processes warrants such judicial restraint (para. 46 of his opinion; and see para. 17 of Justice Hayut’s opinion).

7.         Moreover, in my opinion, making a decision on this petition on the matter of expanding access to surrogacy at this time raises practical difficulties. This is because the normative framework on which this Court will base its decision is liable to change within a short time,  which would render our determinations, and any relief that may be given, purely theoretical. Moreover, a decision on the petition after the legislative process has been completed will ensure that the resources of this Court will be devoted to an issue that has practical application (cf: Yosef,  284-86).

8.         The Court must certainly exercise caution in postponing its decision on a pending petition due to a legislative initiative. There may be circumstances in which it is inappropriate to adopt such a course, whether because the postponement is liable to severely harm the petitioners or to allow a wrong requiring immediate remedy to persist, or whether because the chances of the legislative initiative maturing into a change in the normative framework are slim. In a certain sense, the major consideration in this matter appears to me to be similar to the criteria for examining a claim of ripeness in constitutional law. As I have pointed out on more than one occasion, a decision on this argument ought to be made by balancing the benefits of addressing the matter confronting this Court in another forum (in our case – the legislature) against the anticipated harm to the petitioners by allowing the existing normative situation to persist (cf. HCJ 3166/14 Gutman v. Attorney General [6], para. 5 of my opinion; HCJ 2311/11 Sabah v. Knesset [7], para. 7 of my opinion (hereinafter: Sabah case); HCJ 1213/10 Nir v. Knesset Speaker [8], para. 18 of my opinion (hereinafter: Nir case)). Therefore, I will now examine the different aspects of the legislative initiative before us, while addressing the primary criteria that have been proposed in the academic literature on this matter (see: Yosef , 301-18) and explaining why, in my view, the benefits outweigh the harm.

9.         I will first look at the legislative process concerning the matter before us. It is evident that this is not some trifling initiative that has been abandoned over the course of time. The Bill was introduced by the Government, and passed its first reading in the plenum with a majority of 12 to 1, with members of both the coalition and the opposition voting for it, even though the latter expressed reservations about the lack of a response to same-sex couples in the proposal (see: Minutes of Session no. 254 of the 20^th Knesset, 205-217 (July 17,.2017)). In the said circumstances, in my view, we  should consider the official status of the initiative and the possibility that it will indeed develop into a legislative amendment (cf: Yosef, 313-315). Moreover, the Bill has recently moved forward, and currently appears on the legislative agenda, thus increasing the concern about undermining a legislative process in its initial stages (cf: Yosef, 309-10).

10.       In their response to the updating notice of Respondent 1, the Petitioners note the concurrence between the progress in the legislative process and the course of the hearing on this petition. Indeed, it is evident that the legislative memorandum was published between the two dates for oral hearings on this petition, and that the Bill was submitted to the Knesset after the conclusion of the hearings and after the parties had submitted all their pleadings,  while this Court was deliberating the matter. According to the Petitioners: “It is difficult not to feel some discomfort in view of this conduct.” I am myself surprised that it was not possible to advance a legislative process like the one before us over the course of years, particularly in view of the explicit determination of Justice M. Cheshin in 2002 in HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements [9] (hereinafter: New Family case), according to which the distinction made by the Agreements Law between women who are in a relationship and single women is discriminatory (ibid., paras. 40-42). However, whatever mistakes were made in the past, my position looking forward is that there is nothing illegitimate in advancing a legislative initiative in response to or in connection with proceedings that are under way in this Court – as long as the motives are relevant and worthy. In this context, Prof. Barak’s words are apt:

In my view, legislation in the course of a pending judicial process does not harm the Court and the mutual respect to which the branches of government are committed. If the legislature concludes that a law is not constitutional, it is not required to wait for the Court to rule on the matter. This is also the case when the legislature concludes that the existing legislation is inappropriate, and should be changed. In such situations, there is no disrespect of the Court when the legislature seeks to have its say first, without waiting for a judicial decision and without harming the party whose matter is before the court. As opposed to this, the judiciary would be severely undermined if the Knesset were to make a decision intended to influence the discretion of the judges in a matter pending before the Court (Barak, Judge in a Democratic Society, 389; see also: Yosef, at 299).

However, the situation in the present petition is more complex, inasmuch as the legal defect that the legislature is correcting is more limited in scope than Petitioners’ objection, and therefore, even if the legislative process is completed, it will not necessarily obviate a decision on the petition. In these circumstances, Prof. Barak’s comment at the end of the above passage is doubly relevant, and indeed, one must avoid a scenario of repeated requests for postponements to allow for completion of the legislation, with the anticipated legislative amendment becoming a means at the service of the Respondent. For this reason, I would propose to my colleagues that we allocate a reasonable period of time after which the State will be required to provide an update concerning the legislative process. Obviously, a rate of progress that does not comport with the importance of the process, taking into account its complexity, will attest to a lesser degree of commitment to its advancement than that attributed to it at this stage, and will also lessen the justification for allowing extra time for its completion, despite the fundamental difficulties raised by this petition (cf: HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health [10], para. 27).

11.       I will now proceed to examine the nature of the matter under discussion, and its ramifications for the appropriate attitude to the legislative initiative and the benefit that may  derive from its completion. In particular, I will discuss the substantial complexity on two levels: the professional level and the level of values.

12.       On the professional level, it is patently clear that the Agreements Law reflects a complex legislative arrangement based on a system of balances and monitoring mechanisms. This system constitutes the product of lengthy, meticulous legislative processes based on the recommendations of the public commission headed by Judge (emer.) Shaul Aloni, which studied the subject of in vitro fertilization, including the matter of surrogacy, and published its recommendations in 1994. Some two decades later, another public commission – the Mor Yosef Committee –  studied the subject of fertility and reproduction in Israel, including the issue of surrogacy and those who are eligible to avail themselves of it. On the basis of what has been said above, it is evident that the heart of the dispute in the present petition involves questions of expertise – a fact that attests to its considerable complexity from the professional perspective.

13.       At the level of values, the range of medical reproductive techniques gives rise to various social, moral, ethical, religious and legal problems concerning the status of those who contribute gametes to the reproductive process, and of the surrogate mother, as well as broad social implications that may arise from the use of these means (see, in depth: Benzion Schereschewsky  & Michael Corinaldi, Family Law, vol. 2, 979-1006 (2016) (Heb.); Pinhas Shifman, Family Law in Israel vol. 2, 101-35 (1989) (Heb.); Janet L. Dolgin & Lois L. Shepherd, Bioethics and the Law 94-321 (3^rd ed., 2013) (hereinafter: Dolgin & Shepherd). Private surrogacy agreements in themselves are a subject of legal, academic, social and public discussion revolving around the physical, psychological and familial difficulties of the surrogate mothers (Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 480-85 (2013) (Heb.); Margaret Jane Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1928-32 (1987); Stephen Wilkinson, The Exploitation Argument against Commercial Surrogacy, 17 Bioethics 169 (2003); June Carbon & Judy Lynee Madeira, The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices, 90 Wash. L. Rev. Online 1, 13-19 (2015)), and on the compatibility of such agreements with public policy (see and cf.: LFA 1118/14 Anon. v. Ministry of Welfare and Social Services [11] para. 3 per Justice H. Melcer (April 1, 2015) (hereinafter: Anon. case); New Family case, para. 39 per Justice M. Cheshin; Dorit Shapira and Yosef Shapira, A Decade to the Embryo Carrying (Agreement Authorization & Status of the Newborn Child) Law, 5756-1996: The Reality and the Ideal, 36 Medicine and Law 19, 29-32 (2007) (Heb.); Ruth Zafran, The Family in the Genetic Era – Definition of Parenthood in Circumstances of Artificial Reproduction in a Test Case, 2 Din u-Devarim 223 (2006) (Heb.); Hila Keren, Contract Laws from a Feminist Perspective 273-75 (2004) (Heb.); Report of the Public Professional Committee for the Examination of the Subject of In Vitro Fertilization 48-49 (1994) (Heb.) (hereinafter: Aloni Commission); Deborah S. Mazer, Born Breach: The Challenge of Remedies in Surrogacy Contracts, 28 Yale J.L. & Feminism 211, 222-28, 231-38 (2016); the position of the Supreme Court of the State of Tennessee, United States, which allowed the enforcement of surrogacy agreements subject to various restrictions: In re Baby, 447 S.W.3d 807, 827-30, 832-33 (2014); the prohibition on the enforcement of surrogacy agreements except for allowing enforcement of the amount of compensation for the surrogate mother in New South Wales, Australia – Surrogacy Act 2010, §6; and section 541 of the Civil Code that prohibits the enforcement of surrogacy agreements: Droit de la famille -151172, 2015 QCCS 2308 (canlii, 5.20.2015), § 111).

14.       As we therefore see, the complexity presented by the Petitioners’ requested expansion is not inconsiderable in view of the range of professional and principled considerations it raises.  Justice M. Cheshin commented on this in the New Family case, stating:

… surrogacy is a new phenomenon, and the unknown exceeds the known in its ramifications for human life – in terms of health, emotion, society, religion and law. The process of surrogacy involves difficult human issues … with the passage of time and the amassing of knowledge and experience, it will be appropriate to revisit the subject (at 457-62).

Indeed, a great deal of time has passed since the advent of Israeli regulation of surrogacy and the judgment in the New Family case. Over the years, scientific knowledge on the subject has increased and essential experience has been accumulated by the professional bodies tasked with its realization. While the passage of time has indeed lessened the complexity discussed above, it cannot entirely eliminate it.

15.       In my opinion, this complexity reinforces the inappropriateness of deciding this petition at this time (cf: Yosef, 318). As we have often noted, developing policy, particularly policy in regard to sensitive issues at the heart of the public agenda and matters of professional expertise, is not the job of this Court, which lacks the resources of professional knowledge available to the legislature. This is evident, for example, in the restrained approach adopted by this Court in regard to legislation concerning socio-economic policy, which similarly involves professional considerations that are beyond the Court’s area of expertise (see, e.g.: HCJ 4406/16 Association of Banks in Israel v. Knesset [12], para. 39, per my colleague President M. Naor (hereinafter: Association of Banks case); HCJ 3734/11 Davidian v. Knesset [13], para. 39, per my colleague President M. Naor (15.8.2012); HCJ 4885/03 Israel Poultry Farmers Association v. Government [14], 60; CLA 3145/99 Bank Leumi Ltd. v. Hazan [15], 406-09), as well as in the willingness of this Court to defer deciding upon petitions that concern matters of broad public concern, such as the deferment of the military service of full-time yeshiva students (see: HCJ 6298/07 Ressler v. Israel Knesset [16], paras. 3-4, per President D. Beinisch, and the constitutionality of the Citizenship and Entry into Israel (Temporary Provisions) Law, 5763-2003 (see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior [17], para. 16, per President A. Barak (hereinafter: Adalah case)).

This does not, of course, detract from the authority of this Court to examine the constitutionality of legislation that is brought before it, and cure possible constitutional defects. This is not one of those cases in which the complexity of the issue justifies our total refusal to address it on the merits (cf: HCJFH 10007/09 Gluten v. National Labor Court [18], per President A. Grunis (hereinafter: Gluten case); for a discussion see: Yosef, 286-88). However, due to the separation of powers and the institutional differences that I discussed, I believe that it is better if the legislature first address surrogacy arrangements, and amend the law in light of its understanding and considerations. This adjournment will also allow the Petitioners, and their representatives in the legislative branch, to participate in the parliamentary and public conversation on amending the law, and try to influence its outcome. Through this process it may be possible to resolve, or at least moderate, the problems in the existing legal situation – which I will address at the end of my opinion – and yield a result in which I believe all the parties can profit. However, if these problems remain and the Petitioners insist on their arguments, we will decide upon the constitutionality of the new arrangement.

16.       As opposed to the weighty considerations that I enumerated stands the harm to the Petitioners. It should be stated from the outset that this petition is not a sporadic legal performance. Rather, it lies at the heart of a long, persistent, struggle for equality and for recognition on the part of the LGBT community in a range of areas of life, and in particular in all that concerns the right to become a parent (for a discussion of the various aspects of this issue see, e.g.: Ayelet Blecher-Prigat and Ruth Zafran, "Children are Joy": Same-Sex Parenthood and Artificial Reproductive Technologies, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 395 (Heb.) (hereinafter: Blecher-Prigat & Zafran); Zvi H. Triger and Mili Mass, The Child in her Family: A Necessary Turn Towards LGBT Adoption in Israel, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 437  (Heb.) (hereinafter: Triger & Mass)). There is therefore no denying that postponing the decision on the petition is very significant for the Petitioners, as well as for many others of the Israeli public, whether they are members of the community itself or other citizens who identify with their pain. This is due to the strong desire of men and women of the gay community to become parents, and the serious injury to their dignity as a result of the distinction drawn by the Law between them and heterosexual couples – a distinction of dubious relevance, as I will explain below. Moreover, the purpose of the postponement – giving the legislature time to complete the process of amending the Agreements Law – is not accompanied by good news for the Petitioners, for even in its proposed formulation, the Law will not provide relief for the distress of single-sex couples and of single men.

It is not superfluous to say that the disagreement around the accessibility of surrogacy to single-sex couples, as well as for single parents, is not new to us, and over the years it has brought various petitioners – including Petitioners 1-2 in the present case – to come knocking on the doors of this Court with a request for help.  Below I will briefly discuss the main milestones in this chronology in order to illustrate the many years of bitter experience suffered by the Petitioners and the community to which they belong with the subject before us, and the difficulty inherent in sending them away empty-handed – at least in the interim period until the legislative process is completed.

Already in the early years of this century, in the New Family case, this Court addressed the distinction drawn by the Law between single women and women in heterosexual relationships. Although the Court recognized the constitutional difficulties this distinction raises, it refrained from intervening in the Law in view of the need to acquire further experience from its implementation. About a decade later, Petitioners 1-2 in the present case petitioned this Court against the decision of Respondent 1 to deny them a surrogacy procedure because they did not, in its view, fall within the definition of “prospective parents” under the Agreements Law. That petition was dismissed with the consent of the parties, in view of the anticipated establishment of the Mor Yosef Committee (see: HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements [19]). The Moshe case, heard in this Court several years later, also raised questions involving the limited access to surrogacy, but the Court preferred to refrain from judicial intervention in the provisions of the Agreements Law due to the legislative proceedings that were underway at that time (see: ibid., para. 17 per Justice E. Hayut). Those proceedings, it is only fair to say, did not result in a legislative act.

17.       To summarize: we face a difficult choice, as it is said, “Woe unto me from my Creator [yotzri] and woe unto me from my inclination [yitzri]” (Babylonian Talmud, Berakhot 61a). On the one hand, there is considerable value in allowing the legislature time to complete the legislative process that it began,  which is now at an advanced stage and enjoys wide support in the Knesset. Allowing this time will allow for public debate of the sensitive issue in an institutional framework appropriate to its complexity, and will express an appropriate democratic constitutional approach in which the branches show a willingness to listen to one another and respect the sphere of authority of the other. On the other hand, postponing adjudication of the petition will extend the violation of the Petitioners’ rights,  the exalted constitutional status of which is not in doubt. This violation has affected them, and the community to which they belong, since the passage of the Agreements Law in 1996, and it constitutes only one of the many aspects in which Israeli law has not yet adapted itself to the reality of pluralistic life today.

18.       After having given serious thought to the matter, and not without hesitation, I have concluded that the time is not ripe for deciding on the matter of Petitioners 1-4, in light of the pending legislative proceedings in the Knesset, inter alia, on the question of the definition of “prospective parents” in the Agreements Law. I am certain that the legislature will be aware of the serious, on-going harm to the Petitioners, and will act with due dispatch to complete the legislative process. For this reason, I would recommend that we postpone hearing the petition for a six-month period, and that we order the Respondents to submit updated notice of the progress of the legislation no later than Feb. 4, 2018.

I will now proceed to the second part of the opinion – an examination of the constitutionality of the requirement of a genetic link in the surrogacy process.

The Requirement for a Genetic Link in the Surrogacy Process

19.       Medical procedures aimed at assisting fertilization for the purpose of pregnancy and birth have existed since the end of the eighteenth century, but recourse to these procedures became common only in the middle of the twentieth century, both in the wake of technological developments and in the wake of social changes (see: Ruth Zafran, Secrets and Lies: The Right of AID Offspring to Seek Out their Biological Fathers 35 Mishpatim 519, 527 (5765-2005) (Heb.) (hereinafter: Zafran, Secrets and Lies); Dolgin & Shepherd, at 321-28). To simplify the discussion, we can talk about four different links in the reproductive process that can be improved or replaced through medical procedures: the sperm, the egg, the fertilization process, and carrying the pregnancy by the woman (who is called a “surrogate”). Correspondingly, there are different medical procedures that can improve the quality of the sperm of the prospective father or allow for the use of a sperm donation in order to fertilize the egg. There are medical procedures that allow for ova to be extracted from the woman and fertilized outside of her body in order to overcome medical problems in fertilization; there are medical procedures that make it possible to donate a fertilized ovum and implant it in the womb of a woman who has not succeeded in becoming pregnant; and there are medical procedures for implanting a fertilized ovum into the womb of a woman who will serve as a surrogate. In other words, from a medical point of view, there are solutions that provide a response to various challenges in the reproductive process and allow for a child to be brought into the world without a genetic link to the prospective parent (Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 Wash. L. Rev. 1035 (2002); Noa Ben-Asher, The Curing Law: On the Evolution of Baby-Making Markets, 30 Cardozo L. Rev. 1885 (2009) (hereinafter: Ben-Asher, The Curing Law); on more innovative reproductive possibilities and the possibility of legal adoption, see: Erez Aloni, Cloning and the LGBTI Family: Cautious Optimism, 35 N.Y.U Rev. L. Soc. Change 1, 14-17, 18-36 (2011); and see Recommendations of the Public Committee for the Examination of the Legislative Regulation of the Subject of Fertility and Reproduction in Israel (hereinafter: Mor Yosef Committee). This possibility is not purely theoretical, as transpires from the case of Anon. that was heard recently by this Court. That case concerned a transaction entered into by a single woman who obtained an egg donation and a sperm donation, implanted the fertilized egg in a surrogate, and sought to be recognized as the single parent of the child, even though she had no genetic link to the child. The point is – and as decided there – such a request does not comport with the provisions of the Law. Section 2(4) of the Agreements Law conditions entering into a surrogacy agreement on the sperm being that of the prospective father; and secs 6(b), 11 and 13 of the Ova Donation Law, 5770-2010 (hereinafter: Ova Donation Law) allow women to receive egg donations for the purpose of a surrogacy process only in accordance with the provisions of the Agreements Law. For this reason, it was not possible to recognize the process of parenthood initiated by the petitioner in that case as a legal surrogacy procedure. However, whereas the Anon. case dealt with the possibility of retroactive recognition of the process described, and in doing so raised constitutional questions, in the present case the Petitioners have grabbed the bull by the horns, and they ask that we look into the very constitutionality of the arrangement. I will discuss this below in the context of the requirement for a genetic link, and in that context only.

The Arguments of the Parties

20.       Petitioners 5-6 are single women who seek to realize their right to become parents with the help of the surrogacy process. Due to medical problems, however, not only are they not able to carry an embryo in their wombs, but they also cannot provide their own eggs. Their request, therefore, is to enter into a surrogacy agreement without there being any genetic link between themselves and the child. On Oct. 31, 2013, Petitioner 5 asked the Approvals Committee that had been established pursuant to the Agreements Law to approve her entering into a surrogacy agreement. Her request was dismissed in limine on Nov. 24, 2013, since according to the Committee, the Petitioner did not fall within the definition of “prospective parents” as provided in the Law. The Committee was also of the opinion that because one of the requirements of the Law is the existence of a genetic connection between the prospective parents and the child-to-be, the Law does not allow for use of a sperm donation as well as an ovum donation for the purpose of the procedure.

On Oct. 31, 2014, counsel for the Petitioners submitted a letter on their behalf and on behalf of the other petitioners in the petition to the (then) Minister of Health, to the person responsible for the Agreements Law in the Ministry of Health, to the Attorney General, to the Legal Adviser of the Knesset and to the Legal Adviser of the Ministry of Health, in which she requested approval for them to submit their requests to enter into an agreement, and for these requests to be considered on their merits. In her response dated Jan. 4, 2015, the Legal Adviser of the Ministry of Health explained that it was not possible to respond positively to the Petitioners, and that the way to change the situation was by means of a legislative amendment. In view of this, the Petitioners submitted the present petition.

21.       The Petitioners contend that denying the possibility of their bringing a child into the world with the assistance of a surrogate constitutes a violation of their right to equality and their right to become parents – a violation that does not meet the criteria of the limitations clause. According to them, in the matter of surrogacy, there is no room to distinguish between a woman who is not capable of carrying a pregnancy to term but who is able to provide her own eggs for the fertilization process, and a woman who cannot  carry a pregnancy to term and is medically unable to use her own eggs for the fertilization. Their position is that in both cases, the right to parenthood is violated, and the state must repair this violation without distinction. The Petitioners point out that Israeli law recognizes parenthood in the absence of a genetic connection in several contexts: the Ova Donation Law allows a single woman to receive a donation of an ovum in order to become pregnant (where she is the one who carries the pregnancy); the Agreements Law allows a woman to be recognized as the mother when the child is born through surrogacy and there is a genetic link only to her partner, the prospective father; and the adoption procedures in the Child Adoption Law, 5741-1981, by their nature establish parenthood without a genetic connection. The Petitioners also think that the judgment in the Anon. case determined the issue of recognition of private surrogacy that is not in accordance with the Agreements Law, and that it therefore says nothing about the possibility of undergoing a controlled process of surrogacy without a genetic link, and in particular, it does not rule out this possibility.

As opposed to this, the Respondents insist that a parental connection in the absence of a genetic link is a complex matter that should addressed by legislation. According to them, this is all the more so in regard to surrogacy, which makes it possible to create a child with  no physiological link to the prospective parents. As a natural outcome, they argue, doing away with the requirement for a genetic link between the prospective parents and the child will turn the surrogacy process into a process resembling adoption. Here, the respondents refer to the position of the Mor Yosef Committee, which stressed the importance of the genetic link in fertilization procedures.

Deliberation and Decision

22.       As we know, the constitutional examination comprises three main stages: examination of the existence of a violation of a constitutional right, examination of the constitutionality of the violation in light of the limitations clause, and examination of the appropriate constitutional remedy. If there is no violation, or if the violation is constitutional, there is no need to move to the next stage of the examination (see: HCJ 9134/12 Gavish v. Knesset [20], para. 25 per President M. Naor; HCJ 10662/04 Hassan v. National Insurance Institute [21], para. 24, per President D. Beinisch, and the opinion of Justice U. Vogelman; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [22], paras. 20-21, per President A. Barak (hereinafter: Movement for Quality Government case). I shall discuss these stages in the above order.

23.       First, does the existing surrogacy arrangement violate the constitutional rights of Petitioners 5-6? As I shall immediately explain, in my view there is no violation of their right to equality. In my opinion, for the purpose of the process of surrogacy, there is a relevant distinction between prospective parents who are capable of having a genetic link to the child, and prospective parents who are unable to do so. As opposed to this, I am of the opinion that there is indeed a violation of the right of the Petitioners to parenthood.

The Alleged Violation of the Right to Equality

24.       The starting point is that there is a difference between people who are able to donate gametes (sperm or ovum) for the sake of creating an embryo, and those who are not able to donate gametes for the purpose of creating an embryo. This difference is a medical-biological difference that stems from the bodily capabilities of each person (on the developments in genetic research and their possible effect on the issue, see: Jennifer S. Hendricks. Genetic Essentialism in Family Law, 26 Health Matrix: The Journal of Law-Medicine, 109, 122 (2016); Jennifer S. Hendricks, Not of Woman Born: A Scientific Fantasy, 62 Cas. W. Res. L. Rev. 399 (2011); Rajesh C. Rao, Alternatives to Embryonic Stem Cells and Cloning: A Brief Scientific Overview, 9 Yale J. Health Pol'y L. & Ethics 603 (2009); Dolgin & Shepherd, 370-75). In the present matter, the question arises whether in the framework of the regulation of surrogacy agreements, there is a relevant distinction between a person who is able to provide gametes that will be used for the purpose of giving birth and will ensure that the child bears her genes, and another person who is unable to do so. The Petitioners argue that the condition whereby the prospective parent must supply his/her own genetic material in order for a surrogacy agreement to be approved, (i.e., a requirement for a genetic link) constitutes unlawful discrimination. I am of a different opinion. In my view, this is a distinction that is relevant and not discriminatory. The main reasons for this position are the recognition of the importance of the genetic link between parents and children in general, and the importance of this link in surrogacy in particular, as I will explain below.

25.       The genetic link between parents and their children is of considerable importance, and it has deep historical roots in most known human cultures. The words of Dr. Yehezkel Margalit on this link are apt here:

There is no material doubt that this is the most ancient model, which in almost every culture acquired historical and mythological exclusivity in determining legal parenthood – both fatherhood and motherhood. It should be stressed that even the critics of this model do not deny the very deep importance and significance of the genetic element (Yehezkel Margalit, Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553, 566-67 (2012) (Heb.).

The importance of the genetic link to the relationship between parents and children is a common thread in Israeli law. The legislature has referred to this link in several legislative acts: (see: secs. 3(a) and 9 of the Children’s Foster Care Law, 5776-2016; secs. 3(c) and 10(2) of the Succession Law, 5725-1965; sec. 6 of the Population Registry Law, 5725-1965; sec. 14 of the Legal Capacity and Guardianship Law, 5722-1962; secs. 1(a) and 3(a) of the Family Law Amendment (Maintenance) Law, 5719-1959; sec. 3(a) of the Women’s Equal Rights Law, 5711-1951; and arts. 5 and 9 of the Convention on the Rights of the Child, (concluded on Nov. 20, 1989, ratified on Aug. 4, 1991)); and this Court has mentioned several times the importance of the “voice of the blood” that symbolizes the genetic link between the child and parent (see, e.g.,: LFA 7141/15 A. v. B. [23], paras. 5-6 per Justice H. Melcer, and the references there (hereinafter: A. v. B. case); CFH 1892/11 Attorney General v. Anon. [24], per Justice E. Arbel (hereinafter: CFH 1892/11); LFA 5082/05 Attorney General v. Anon. [25], para. 5, per Justice A. Procaccia (hereinafter: LFA 5082/05); New Family case, para. 31, per Justice M. Cheshin; CA 50/55 Hershkovitz v. Greenberger [26], paras. 14-16, per Deputy President S.Z. Cheshin). I had the opportunity of relating to the matter in one of the cases, saying:

We must not forget the nature of the connection between a parent and his child. The connection of blood. The connection of life. The connection of nature … When we sever it, whether absolutely or relatively, we must act with great caution, taking into account the constitutional right of the parent, but on the other hand the constitutional rights of the child, the public interest, and sometimes the interest and even the right of the adoptive family, as may be appropriate (CFH 1892/11, para. 6 of my opinion).

26.       The elevated status of the genetic link has consequences for surrogacy, as emerged in the A. v. B. case. There, Justice Hendel noted three relevant links regarding surrogacy:  the genetic link, which is the connection between the prospective parent who contributed his or her genetic reproductive material and the child; the physiological link, which is the connection between the pregnant mother and the child; and the link to the link, which is the connection that a particular person has to the person with the genetic link to the child. It was explained there that the genetic link constitutes the basis for conferring the status of parenthood in the framework of the surrogacy process, and that it is a sine qua non for recognition of the link to the link. Justice Hendel explained that there is, indeed, also a physiological link – but its status in surrogacy is marginal, since this process, by its nature, separates the physiological mother (the surrogate) from the child (see, e.g., secs. 12-13 of the Agreements Law). Hence, in all that concerns the definition of parenthood in surrogacy, the genetic link is of great importance in the present legal situation.

The importance of the genetic link in surrogacy finds expression in several additional sources: the report of the Mor Yosef Committee, which found that surrogacy (as well as egg donation under the Ova Donation Law) is to be approved only on condition that one of the prospective parents has a genetic link to the child (see the Report, at 39-40, 62, 64); and see the Aloni Commission Report, 22-23, 48); in the language of sec. 2(4) of the Agreements Law; in the legislative history of the Agreements Law (see the minutes of session no. 430 of the 13^th Knesset, per the chairman of the Labor and Welfare Committee, Yossi Katz, and the Minister of Health Dr. Efraim Sneh (March 7, 1996) (hereinafter: minutes of session 430)); in the position of the State as presented to this Court (see secs. 47-49 of the Response of Respondent 1 to the amended petition); and in the bills to amend the Agreements Law that have been introduced in the Knesset in recent years (see: sec. 2(4) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment) (Amendment of the Definition of Prospective Parents and Conditions for Approval of Agreement) Bill, 5777-2017; sec. 3(2) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment – Extension of Eligibility for Surrogacy Processes and Extension of Protection of the Surrogate Mother) Bill, 5776-2016; Explanatory Notes to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014, and sec. 6(6) of this Bill; Explanatory Notes to the Bill, 1152, and sec. 2 of that Bill).

The importance of the genetic link in surrogacy has also been recognized in comparative law (see, in general: Michael Boucai, Is Assisted Procreation an LGBT Right?, 2016 Wis. L. Rev. 1066, 1082-93 and the references there; this is the position in South Africa (see: sec. 294 of the Children’s Act 38 of 2005; AB and Another v. Minister of Social Development [2016] ZACC 43, §§ 276-278 (hereinafter: AB case); in the UK – Human Fertilisation and Embryology Act 2008, art. 54(1)(b); in the Province of Alberta,  Canada (see: Family Law Act, Statutes of Alberta, 2003 Chapter F-4.5, § 5.1(d) (2016); in the State of South Australia (see: Family Relationship Acts 1975 – Sect 10HA § 2a(h)(2)); in the States of Virginia, Nevada and Maine in the United States (see: Alex Finkelstein et al., Surrogacy Law and Policy in the U.S – A National Conversation Informed by Global Lawmaking, Columbia Law School Sexuality & Gender Law Clinic 10, 55, 81-82 (2016); Nev. Rev. Stat. § 126.670, and in the European Court of Human Rights (see: Mennesson v. France (app. no. 65192/11, ECHR 2014); Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 195, 211). At the same time, it must be noted that some legal systems comprise arrangements that recognize surrogacy even without a genetic link. This is the case in the Canadian Province of British Columbia and in the Northwest Territories (see: Family Law Act [SBC 2011], C 25, §§ 20, 29; Children’s Law Act, S.N.W.T. 1997 §8.1(3)), in the State of California in the United States (see, e.g., Cal. Fam. Code §7960; and in further detail in the updating notice of the Petitioners), and in the States of Tasmania and Victoria in Australia (see: Assisted Reproductive Treatment Act 2008 No. 76 of 2008, §§ 3, 39-45 (Victoria); Surrogacy Act 2012 (No. 34 of 2012), §3 (Tasmania)).

27.       The consistent requirement of Israeli law and of most Western states for the existence of a genetic link between the prospective parents and the child in the surrogacy process has its logic. It is true that there are other significant connections between parents and children – emotional and psychological connections that build up over time. However, I believe that for the purpose of approving the surrogacy process, there is a relevant difference between the existence of those connections alone, which are present in every connection between parents and children, and the existence of a genetic link in addition to those connections. This is due, inter alia, to the special nature and the complexity of surrogacy for all those involved in it, and to the potential it harbors for causing harm unless it is properly regulated (see and cf: para. 42 below; AB case, paras. 177-85, 283-87, 293-94; on concern for “commercialization” of the production of children as a result of under-regulation of the surrogacy process, see: Elizabeth S. Anderson, Is Women's Labor a Commodity? 19 Phil. & Pub. Aff. 71, 75-80 (1990); Richard J. Arneson, Commodification and Commercial Surrogacy, 21 Phil. & Pub. Aff. 132, 150-51 (1992)). Now, the absence of a genetic link does not, per se, prevent recourse to assisted medical reproductive techniques that are not surrogacy. Even in the absence of such a link, a particular woman may seek the assistance of some reproductive technique, as long as she is able to have another, additional link to the child – for example, a physiological link (being pregnant with the child) or a link to a link (when there is a genetic link to the spouse who is the prospective parent). However, as I shall explain below, in the absence of the possibility of an additional link to the child in the surrogacy process, the importance of the genetic link rises to the point of exclusivity.

28.       Moreover, surrogacy is a sensitive process that brings together new medical techniques and the ancient societal need for survival – whose importance cannot be exaggerated – by the birth of children. This meeting requires extreme caution. Although surrogacy is becoming ever more common with the passage of time, it still raises various moral, ethical, religious and legal difficulties. However, these difficulties are somewhat tempered by the combination of this new reproductive technique with the recognized, central element of reproduction, i.e., the genetic link. What are the implications of this? Given the importance of reproduction for the existence and continuation of society, given the novel nature of the process of surrogacy and its possible effects on traditional reproduction, and given that the element of the genetic link is an established social element at the very heart of society, I believe that a distinction on the basis of a genetic link is relevant in the regulation of an assisted reproductive technique such as surrogacy. I would emphasize that this is not an expression of a position on the relationship between reproductive techniques and social conceptions in general – especially in regard to harm to groups that have been viewed as “suspect” – which requires a more careful study. What I have said is confined to the question of the relevance, solely in the context of surrogacy, of the distinction between prospective parents who have a genetic link to the child and prospective parents who are not able to establish such a link. Israeli law does not view those who are unable to establish a genetic link to the child on the basis of producing gametes as a “suspect group”,  and without laying down hard and fast rules, I am also not convinced that this is a case of “disability” as reflected in the anti-discrimination laws (see, and cf: AB case, paras. 298-302; Ben-Asher, The Curing Law 1912-1916; Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, 92 Chi.-Kent. L. Rev. 87, 91-93, 100-02 (2017)). It is therefore evident that when we are dealing with assisted medical reproductive techniques like surrogacy, a distinction on the basis of the existence of a genetic link constitutes, as stated, a relevant distinction.

29.       It emerges from the above that both Israeli law and most Western states that permit surrogacy regard the genetic link between prospective parents and the child as an essential condition for this process – despite the harm it entails to those people whose personal circumstances prevent them from providing the reproductive material that will allow for a genetic link. It seems to me that on the basis of this common conception and the values underlying it, the requirement of Israeli law for a genetic link in the surrogacy process is not discriminatory, but rather it is based on material, relevant reasons. Therefore, I find that it does not violate the constitutional right of the Petitioners to equality, and I will proceed to examine the alleged violation of the other right – the right to become a parent.

The Alleged Violation of the Right to Become a Parent

30.       The right to parenthood has been recognized in Israel as a constitutional right that derives from human dignity (see, e.g.: HCJ 11437/05 Kav LaOved v. Ministry of the Interior [27], paras. 29-32 and 38-40 per Justice A. Procaccia, para. 4 of my opinion, and para. 6 per Justice E. Rubinstein; HCJ 2245/06 Dobrin v. Israel Prisons Service [28], para. 12 per Justice A. Procaccia (hereinafter: Dobrin case); CFH 2401/95 Nahmani v. Nahmani [29], 675-78, 719, 785 (hereinafter: Nahmani case)). There are two separate aspects to the right to parenthood: one is the right to realize parenthood, on which I have elaborated on other occasions and which does not lie at the heart of this petition (see: Adalah case, paras. 1-14 of my opinion); the other is the right to become a parent (see: Anon. v. Anon. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit; HCJ 4077/12 A. v. Ministry of Health [30] para. 29 per Justice E. Rubinstein (hereinafter: A. v. Ministry of Health); Moshe case, paras. 6-7 per Justice (emer.) E. Arbel; CFH 1892/11, paras. 4 and 6 of my opinion; LFA 377/05 A. & B. v. Biological Parents [31], paras. 7-9 per Justice A. Procaccia (hereinafter: Biological Parents case)). The right to become a parent realizes the right to family life, the right of autonomy of the individual, and the right to privacy (see: Moshe case, para. 26 per Justice E. Hayut; Biological Parents case, para. 7 per Justice A. Procaccia; A. v. Ministry of Health case, para. 32 per Justice E. Rubinstein, and para. 6 per Justice D. Barak-Erez; Nahmani case, para. 7 per Justice D. Dorner, para. 2 per President A. Barak; and see also: Aloni Commission, at 10-11; Daphne Barak-Erez, Symmetry and Neutrality: Reflections on the Nahmani Case, 20 Tel Aviv U. L. Rev. 197, 199-200 (1996) (Heb.)). Recently, a position has been expressed whereby the right to become a parent also stems from the right to liberty, as stated in sec. 5 of Basic Law: Human Dignity and Liberty (A.. v. B.. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit).

31.       The Petitioners’ argue that the requirement for a genetic link as provided in the Agreements Law affects their possibility of bringing a child into the world with the help of medical reproductive techniques, and particularly, the technique of surrogacy. I believe that this argument is correct. In my view, the scope of the right to become a parent extends to all the various medical techniques that assist reproduction. As such, this right also includes the possibility of becoming a parent by means of surrogacy. This position emerges both from the rulings of this Court (see: New Family case, paras. 31-32 per Justice M. Cheshin; A. v. Ministry of Health case, para. 27 per Justice E. Rubinstein, para. 6 per Justice D. Barak-Erez; Moshe case, para. 28 per Justice E. Hayut, paras. 6-7 per Justice (emer.) E. Arbel; Dobrin case, para. 15 per Justice A. Procaccia; and see reservations as to this decision in the Anon. case, para. 23 per Justice N. Hendel, and the references there); as well as from comparative law (see: European Court of Human Rights: S.H. v. Austria, App. No. 57813/00, §§ 81-82, ECHR 2011(hereinafter: S.H. case); Dickson v. United Kingdom, App. No. 44362/04 §§ 65-66, ECHR 2007; in the Constitutional Court of South Africa: AB case, paras 94, 110, 118, 121; in the Greek Constitution: European Parliament – Directorate General for Internal Policies, A Comparative Study on the Regime of Surrogacy in EU Member States, 277-78 (2013), and esp. note 513; and a combination of arts. 12(1) and 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (signed Dec. 16, 1966, ratified Oct. 3, 1991), and on this matter see S.H. case, para. 9 of the minority opinion); also from academic research on the subject (see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights, vol. 2, 675-76 (2014) (Heb.); Aharon Barak, The Light at the End of the Tunnel and the LGBT Community in Israel, Vol. III, Selected Essays: Constitutional Inquiries 399, 402 (2017) (Heb.); Meir Shamgar, Issues on the Subject of Reproduction and Birth, 39 HaPraklit 21, 28 (1996) (Heb.); and from the approach of the public committees that examined matters of medical reproductive techniques (see: Aloni Committee, 13; Mor Yosef  Committee, 25).

32.       From all of the above it emerges that the Petitioners have a constitutional right to become parents with the assistance of medical reproductive techniques. This right is a relative one: it is limited by sub-constitutional arrangements, and particularly by the Agreements Law and the Ova Donation Law (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and paras. 25-26 per Justice E. Hayut; and see: Anon. case, para. 3 per President M, Naor; and see other limitations on aspects of the right to become a parent: A. v. Ministry of Health case, para. 51 per Justice E. Rubinstein, para. 11 per Justice D. Barak-Erez; and see AB case, paras. 237, 314-15). Below I will discuss whether this violation complies with the criteria of the limitations clause.

Limitations Clause

33.       As we know, the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty comprises four conditions: the violation must be by law or by express authorization in a law; the law must befit the values of the State of Israel as a Jewish and democratic state; the law must be for a proper purpose; and finally, the violation of the right must be proportionate (see: Desta case, para. 24 per President M. Naor; Sabah case, paras. 66-70 of my opinion; HCJ 3752/10 Rubinstein v. Knesset [32] paras. 66-67 per Justice (emer.) E. Arbel). I will now address the violations of the constitutional right of the Petitioners to become parents in light of these criteria.

34.       In the present matter, it is indisputable that the first condition is fulfilled, inasmuch as the violation of the protected right was effected by virtue of the Agreements Law. In my view, the Law complies with the second condition. The Agreements Law regulates and realizes both the right to become a parent with the assistance of medical reproductive techniques and protection of women who are pregnant in the framework of surrogacy (see, e.g., secs. 4(a)(2), 4(a)(3), (4(a)(4) of the Agreements Law) – and thus the Law promotes human rights. In these circumstances, and in view of the fact that this condition has not yet been sufficiently developed in the case law, it seems to me that the Agreements Law befits the values of the State of Israel as a Jewish and democratic state (see: HCJ 5304/15 Israel Medical Association v. Knesset [33], paras. 103-106 per Deputy President E. Rubinstein (hereinafter: Israel Medical Association case); HCJ 5239/11 Avneri v. Knesset [34], paras. 28-30 per Justice H. Melcer; Galon case, paras. 13-18, 27-31 per Justice (emer.) E.E. Levy, paras. 2, 8 of my opinion).

35.       The third condition examines whether the offending Law serves a proper purpose. I will first consider the purpose of the Agreements Law itself.  Justice M. Cheshin discussed the purpose of this Law in the New Family case, and ruled that its purpose was “to establish a comprehensive arrangement on the subject of surrogacy, and that there will be no surrogacy other than by virtue thereof […] to solve the problems of spouses, men and women, who are childless, and these problems alone (paras. 15, 18 of his opinion; and see the Moshe case, para. 44 per Justice E. Rubinstein). In my view, the purpose of the Agreements Law is broader than that determined by the late Deputy President M. Cheshin. My position is based on the subjective purpose of the Law, but mainly on its objective purpose. I shall explain.

36.       The subjective purpose of the Agreements Law may be inferred from two main sources. The first source is the language of the Law. Both the name of the Agreements Law and the broad areas regulated by the language of the Law – including approval of a surrogacy agreement (Chapter 2 of the Law), regulation of the status of the newborn, the surrogate mother and the prospective parents upon the birth of the child, which includes the link of the child to the prospective parents and severance of the link to the surrogate mother (secs.  4(a)(2), 4(a)(3), 4(a)(4) of the Law, and the criminal prohibition against surrogacy contrary to the provisions of the Law (sec. 19 of the Law) – attest to the legislative intention to permit surrogacy agreements, to regulate their conditions, to regulate the status of the child and its link to the prospective parents, and to assure the well-being of the surrogate mother. The second source is the legislative history. The explanatory notes to the Agreements Law reveal that “the proposed Law is intended to permit surrogacy agreements with certain limitations and in a controlled manner” (Explanatory Notes to the Agreements Bill, H.H. 259, 259) (hereinafter: Explanatory Notes to the Agreements Bill). Similarly, the Knesset members who voted on the Law in the second and third readings noted the regulatory purpose of the Law and its aspiration to realize constitutional rights. Thus, the Minister of Health, MK Dr. Ephraim Sneh, noted: “I, as initiator of this Law, insisted first of all that there be legislation, since there were those who wanted to allow some sort of free market in the State”. Thus, MK Yael Dayan, a member of the Labor and Welfare Committee of the Knesset, who worked on the Law, noted: “What is determinant with respect […] is the existence of a fundamental right, the right to be a parent […] in every case in which the right to motherhood is denied due to a physical handicap, due to the inability to become pregnant. This is a moral issue – a basic right of the first order” (minutes of meeting 430). What we see from the above is that the subjective purpose of the Law is to regulate surrogacy agreements in Israel, including the status of the prospective parents and their link to the newborn, and to realize the right to become a parent while preserving the dignity and the health of the surrogate. In addition, Justice M. Cheshin found that the intention of the legislature was also to restrict access to surrogacy so that only heterosexual couples would be eligible to avail themselves of this technique (see: New Family case, paras. 17-18 of his opinion).

37.       In order to determine the objective purpose of the Agreements Law, we will look at the interpretive presumptions. In the present matter, two of these presumptions are particularly relevant: the presumption that the law aspires to protect and realize human rights, and the presumption concerning legislative harmony. Regarding the first, the Agreements Law permits and regulates the realization of the right to become a parent with the assistance of medical reproductive techniques, and in particular, the technique of surrogacy. Similarly, the Agreements Law includes protection of the dignity and well-being of the surrogate mother – and in this way it realizes her constitutional rights in the framework of this process.

The second presumption concerning legislative harmony says that a piece of legislation should be interpreted in accordance with the legislative tapestry into which it is woven (LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co. [35], para. 32 per Justice E. Rubinstein; LCA 8233/08 Kovashi v. Adv. Eyal Schwartz [36], para. 37 per Justice E. Arbel ; CA 3213/97 Nakar v. Local Planning and Development Council Herzliya [37], 633-34. In this context I noted in one of the cases:

It is a well-known principle of our legal system that when the Court seeks to interpret any statute, it must examine legal arrangements that are materially related to the subject under discussion (in pari materia). Giving the identical interpretation to subjects in related areas realizes the principle of normative harmony (HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister [38], para. 6 of my opinion).

This rule of interpretation tells us that different laws that pertain to the same matter or that have a similar or identical purpose (in pari materia) must be treated as one system of law with a comprehensive purpose, composed of different parts that complement each other: this is the legislative template. This legislative template has one main purpose, and every law that composes this template plays a different role in realizing the purpose of this template (see: HCJ 1756/10 Holon Municipality v. Minister of the Interior [39], para. 33 per Justice D. Barak-Erez (hereinafter: Holon Municipality case); CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd. [40], paras. 22-26 of my opinion; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs [41], para. 42 per Justice M. Cheshin; Aharon Barak, Interpretation in Law: Statutory Interpretation 341-45 (5753-1993) (hereinafter: Barak, Statutory Interpretation) (Heb.)). This Court has recognized several legislative templates: thus, for example, the Hours of Work and Rest Law, 5711-1951, the Minimum Wage Law, 5747-1987, the Male and Female Workers Equal Pay Law, 5756-1996, the Employment of Workers by Manpower Contractors Law, 5756-1996, and the Foreign Workers Law, 5751-1991, all belong to one legislative template (see: Gluten case, paras. 11-12 of my opinion). It is similarly possible to identify a legislative template in the area of electronic media and radio broadcasts (see: HCJ 1030/99 MK Oron v. Speaker of the Knesset [42], paras. 16-22 per Justice T. Orr (hereinafter: Oron case); as well as in the area of environmental protection and prevention of pollution, see: CA 4239/15  Dor Alon Energy Israel 1998 Ltd. v. Tax Authority [43], paras. 17-19 per Justice N. Sohlberg; Holon Municipality case, paras. 30-31; HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister [44] paras. 14-15 per President A. Barak; and relating to road accident compensation, see: CA 420/83 Ashur v. Migdal Insurance Co. Ltd. [45], para. 22 per Justice A. Barak (27.5.1990); Aharon Barak, Interpretation of the Civil Codex “Israel Style”, Gad Tedeschi Memorial Volume – Essays in Civil Law 115, 147-48 (5756-1996) (Heb.)).

38.       Similarly, I believe that the various statutes that regulate assistance through medical reproductive techniques must be viewed as part of a legislative template. In the framework of this template one may mention the Ova Donation Law; the Agreements Law; the Public Health (In Vitro Fertilization) Regulations, 5747-1987 (hereinafter: IVF Regulations); and Public Health (Sperm Bank) Regulations, 5739-1979, Declaration of Control of Products and Services (Sperm Bank and Artificial Insemination), 5739-1979, and Circular of the Director General of the Ministry of Health, 2.1.14, “Rules Concerning the Administration of a Sperm Bank and Guidelines for Performing Artificial Insemination” (June 29, 1979) (hereinafter: Ministry of Health Rules). I base my position on several grounds: first, these laws share the common purpose of regulating the use of various medical reproductive techniques, they determine the relationship among these techniques, they permit certain techniques and prohibit others, and they include several guiding principles such as ensuring the well-being of women involved in the process and ensuring a link between the prospective parents and the child in these processes (see, e.g., in relation to the link: sec. 11 of the  IVF Regulations, which was struck down in HCJ 5087/94 Zabaro v. Minister of Health [46]; sec. 23 of the Ministry of Health Rules; secs. 10 and 12 of the Agreements Law; sec. 42(a) of the Ova Donation Law; and see also reference to the link in the various arrangements for recourse to assisted reproductive techniques in the recommendations of the public committees on which these laws were based – Aloni Commission, 22-23, 48; Mor Yosef Committee, 76-77). Second, from the fact that the provisions of these laws complement each other and refer to each other (see, e.g., reference to a “recognized department” under the IVF Regulations in sec. 2 of the Ova Donation Law and in sec. 1 of the Agreements Law; reference to the IVF Regulations in the Explanatory Notes to the Ova Donation Law, 292, and in the Explanatory Notes to the Agreements Bill, 259; and reference to the Agreements Law in secs. 4(b), 12(b) and 11 in the Ova Donation Law); and third, from their close material relationship (see: Blecher-Prigat & Zafran, 403-20; reference to the various arrangements as one whole in the report of the Mor Yosef Committee, 8-9; Dolgin and Shepherd, 328-34, at para. 19 above). We find, therefore, that a legislative template exists in regard to the regulation of assistance through medical reproductive techniques, and also that the Agreements Law is part of this legislative template. The primary purpose of this legislative template is to regulate assistance through medical reproductive techniques in order to realize the right to become a parent, while ensuring the health of those involved in the process, and regulating the link between the newborns and the parents. Adapting the purpose of the legislative template to the said Law shows that the objective purpose of the Agreements Law is to regulate the process of surrogacy in Israel in order to realize the right to become a parent, while preserving the dignity and the well-being of the surrogate mothers, and to regulate the status of the newborn and its link to the prospective parents. As we have said, this purpose also comports with the presumption concerning realization of human rights.

39.            Thus, the lion’s share of the subjective purpose is consistent with the objective purpose, but the other part – which is concerned with restricting availability exclusively to heterosexual couples – does not comport with the objective purpose. In examining the general purpose of the Law, I believe that the subjective purpose that comports with the objective purpose is to be preferred over one that contradicts it, for several reasons. First, in examining the general purpose of the Agreements Law on the basis of its two purposes, the effect of the time that has elapsed since the Law was enacted should be taken into account. As noted by Justice M. Cheshin in the Biological Parents case: “Everything flows. We never dip twice into the same river, and the law, as a system of norms that seeks to integrate into life and navigate the path of human beings, must consider time as a factor of prime importance. Time is the fourth dimension, both in our lives, and in the law” (para. 17; and see: CFH 2121/12 Anon. v. Dayan Urbach [47], para. 48 per President A. Grunis; CA 9183/09 Football Association Premier League Ltd. v. Anon. [48], para. 6 per Justice H. Melcer; New Family case, para. 53 per Justice M Cheshin; Barak, Statutory Interpretation, 242-44, 246-47, 264-71). In truth, we are not dealing with an archaic law, but with a law that was enacted in 1996. However, we may also not ignore the significant social changes that Israeli society has undergone since the nineties, including changes in the traditional family unit (see: Anon. v. Anon., para. 20 per Justice H. Melcer, para. 14 per Justice I. Amit; Pinhas Shifman, On the New Family: Opening Lines for Discussion, 28 Tel Aviv U. L. Rev. 643, 648-9, 667-70 (2005) (Heb.)) and changes in the approach of society to assisted reproductive techniques (see: recommendations of the Mor Yosef Committee to allow surrogacy for single women as well, and altruistic surrogacy for single men – Mor Yosef Committee, 15, 63; the changes in the Ministry of Health Rules over the years; Haim Abraham, Parenthood, Surrogacy and the State, 9 Hukim 171, 175-95 (2017) (Heb.)); Tali Marcus, It Takes (Only) Two to Tango? On the Possibility of Recognizing More than Two Parents for One Child, 44 Mishpatim 45, 416-19 (2014) (Heb.)). Secondly, given that we are concerned with statutory provisions that involve human rights, greater weight should be attributed to the objective purpose (see: HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security [49], para. 115 and the references there; AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa [50], para. 24 per Justice M. Naor (2.2.2012); Aharon Barak, Purposive Interpretation in Law 255, 421-27 (2003) (Heb.)). And third, in light of the interpretive principle that a non-discriminatory purpose should be preferred over a discriminatory purpose (see: HCJ 7245/10 Adalah –  Legal Center for Arab Minority Rights v. Ministry of Social Affairs [51], paras. 6-7 per Justice E. Hayut; HCJ 6698/95 Ka’adan v. Israel Land Administration [52], para. 13 per President A. Barak; HCJ 142/89 Laor Movement v. Speaker of the Knesset [53], para. 9 per Deputy President A. Barak). My approach is that the said societal changes, taken together with the rules for prioritizing the objective purpose when dealing with human rights, and preferring a non-discriminatory purpose, indicate that the objective purpose, which largely comports with the subjective purpose, should be preferred. Therefore, we should  hold that the condition allowing only heterosexual couples to enter into surrogacy agreements is not part of the purpose of the Law. Thus, the purpose of the Agreements Law is to regulate the surrogacy process in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child.

40.       Is this purpose a proper one? In my opinion, the answer to this question is affirmative. Indeed, the Agreements Law does somewhat violate the constitutional right to become a parent. However, the rule is that a law that violates a constitutional right may serve a proper purpose if that purpose “is intended to realize social purposes that are consistent with the values of the state as a whole, and that display sensitivity to the place of human rights in the overall social system” (Adalah case, para. 62 per President A. Barak; Israel Medical Association case, para. 107 per Deputy President E. Rubinstein Quality Government case, paras. 52-53 per President A. Barak; HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance [54], para. 45 per President D. Beinisch). My position is that the social goals that underpin the Agreements Law – regulation of recourse to surrogacy as a medical reproductive technique, preservation of the health of  those involved in the process, regulation of the status of the newborn children and their relationship to the prospective parents, and realization of the right to become parents – are important social goals that justify a certain violation of human rights. These goals make it possible to realize the right to become a parent, and they protect women from exploitation. In addition, they ensure that each child that comes into the world as a result of these assisted reproductive techniques will have a link to a particular parent, thus also preventing abuse of the said techniques (such as creating children for commercial purposes) and promoting the well-being of the children. Therefore, in my view, the Agreements Law reflects a proper purpose, and as such it complies with the third condition of the limitations clause (see: HCJ 566/11 Mamet Megged v. Minister of the Interior [55], para. 17 of my opinion (hereinafter: Mamet Megged case)). Having found that the Agreements Law meets the first three conditions of the limitations clause, I will now focus the discussion on the condition of proportionality, with its three sub-criteria.

41.       First, the rational connection criterion. Does the requirement for a genetic link bear a rational connection to the purpose that the Law seeks to realize? I believe that the answer to this is yes. As will be recalled, the purpose of the Agreements Law is to regulate the process of surrogacy in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child. The Law’s requirement of a genetic link is rationally connected both to the regulatory purpose of the Law, and to the realization of the link between the prospective parent and the prospective child.

With respect to the regulatory purpose, the legislature saw fit to restrict access to surrogacy to a person who is capable of having a genetic link to the child. As noted above, this exclusivity of access says that only a person who is able to supply his or her own genetic material in order to create the embryo that is implanted in the surrogate can enter into a surrogacy agreement. This, therefore, is a regulatory constraint adopted by the Law that is connected to the regulatory purpose of the Law in that it permits entering into an agreement only on the said condition. As explained above, this condition is relevant to approval of the surrogacy process, and it therefore also complies with the case-law criteria with respect to a link that is not “arbitrary, unreasonable or unfair” (see: Quality Government case, para. 58 per President A. Barak; HCJ 4769/95 Menahem v. Minister of Transport [56], para. 23 per Justice D. Beinisch). Moreover, a clear line can also be drawn between this requirement and the legislative purpose relating to the existence of a link between the parents and the child, for as we have said, the mechanism set by the Agreements Law for the purpose of a link between the prospective parents and the child is based on the genetic link between them (see above, para. 27; AB case, paras. 283-87, 293-94). As such, I find that the requirement for a genetic link has a rational connection with the realization of the purpose of the Law.

42.       Second is the criterion of the least harmful means. The question here is whether there exists a means that similarly serves the purpose of the law, but which entails a lesser violation of the constitutional rights. In my view, the existing arrangement meets this sub-criterion as well. In examining the requirement for a genetic link as provided in sec. 2(4) of the Law, of particular relevance is the legislative purpose with respect to ensuring the existence of a link between the prospective parents and the child. The means chosen to realize this purpose is the requirement that the newborn be genetically related to one of the prospective parents. Therefore, at this stage we must ask whether a means exists that realizes the purpose of ensuring the connection between the parents and the child to the same degree, but at the same time is less harmful to the right to become a parent (see: Nir case, paras. 47-49 of my opinion; Aharon Barak, Proportionality in Law 395, 411 (2010) (Heb.)). In my opinion, the answer is negative. I will explain.

One could, indeed, argue that the purpose of ensuring the link between the prospective parents and the child could be realized through their emotional connection at the stages of initiation, approval and implementation of the surrogacy process, without any genetic connection (see the dissenting opinion in the AB case, paras. 177-85). It is true that the emotional parental link cannot simply be dismissed, and we need not address the nature of this link in the present framework (see, inter alia, recognition of this approach in this Court: Anon. case, para. 3 per Justice D. Barak-Erez, para. 2 per Justice H. Melcer; A. v. Minister of Health case, para. 29, 43-45 per Justice E. Rubinstein; Mamet Megged case, para. 14 of my opinion; LAA 5082/05 Attorney General v. Anon., paras. 22, 36 per President A. Barak; in the Supreme Court of the United States: Lehr v. Robertson, 463 U.S. 248, 259-264 (1983); Troxel v. Granville, 530 U.S. 57, 87-89 (2000); and in the Grand Chamber of the European Court of Human Rights: Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 140, 148-149; and see: Dolgin & Shepherd, at 329-31)). It is clear to me that the Law assumed that every prospective parent would establish the said emotional and psychological connection with the prospective child – a link that has existed between parents and children from time immemorial. However, in order to allow a person to bring a child into the world with the assistance of medical reproductive techniques, it was determined that an additional link is required beyond that emotional connection that exists in any case. Thus, for example, in the artificial insemination process, a genetic and physiological link with the prospective mother is required; and similarly, in the process of IVF a physiological – or absent that, a genetic – link is required. We see, therefore, that the condition of the existence of an additional link between prospective parents and a child born with the assistance of medical reproductive techniques is not met without some additional connection between at least one of the prospective parents and the child, besides the emotional connection.

What additional link is required in the surrogacy process? In view of the fact that the surrogacy process by its nature severs the connection between the surrogate mother and the child, the existence of a physiological link is not a relevant alternative here. Hence, the only means that serves the purpose of legislation requiring a link between the parents and the child is that of a genetic link between the prospective parents and the child as a condition for approving a surrogacy agreement. As such, I find that there is no means that realizes the purpose to the same extent and causes a lesser violation of the constitutional right under discussion. Therefore, the Law is in compliance with the second sub-condition.

43.       Third is the criterion of proportionality stricto sensu. In the framework of this sub-criterion, we must decide whether the benefit derived from adding the requirement for a genetic link for the approval of the surrogacy process is greater than the damage caused by this requirement as a result of the violation of the constitutional right of Petitioners 5-6 to become parents. My view is that the benefit outweighs the harm, and that the Agreements Law also complies with this condition. I will explain.

Let us begin with the benefit of the requirement for a genetic link. Above I discussed the great importance attributed in Israel and in the Western world to the genetic link in general, and in the surrogacy process in particular. I also explained that this regulatory element is consistent with the ethical decision of the Israeli legislature, and with that of other legislatures, in regard to the great importance of the genetic link to parents in the surrogacy process. I also explained that the legislature sought to confine surrogacy to circumstances in which an additional link to the emotional link engendered by the parental connection would be forged in the framework of the broad regulation of assisted reproductive techniques, in which some kind of link in addition to the emotional link is required. Similarly, I pointed out that this link helps in addressing some of the potential problems raised by assisted reproductive techniques such as surrogacy, and it constitutes a fulcrum for assistance through such techniques (see above, para. 27). In this case, the requirement for a genetic link reflects benefits that are in keeping with the purpose of the Agreements Law – ensuring the connection between the newborn and the prospective parents, and helping regulate the use of surrogacy on the basis of relevant distinctions. These benefits cannot be brushed aside, and the proof is that most states in the Western world that permit surrogacy have adopted similar models requiring a genetic link between the child and the prospective parent.

I will now discuss the harm caused by the demand for a genetic link. This requirement undeniably entails a result that is harmful to the right of Petitioners 5-6, and of other men and women like them that fate has not been kind enough to allow to become parents. However, this harm is not at the core of the right to become a parent, and it does not affect the existence of this right. Rather, it affects its mode of realization (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and para. 26 per Justice E. Hayut). This is because Israeli law does not negate the right of the Petitioners to become parents in general, but rather, prevents their access to a particular, special track because they do not comply with the criteria required for this track. Blocking the track leaves open a wide range of ways for realizing their yearning for parenthood, for example, by means of adoption, by means of joint or shared parenting agreements, or by any other legal means. True, these possibilities are not a precise alternative to realizing of the right to become a parent by way of the process of surrogacy, but their existence means that the right is limited only in its means of realization, and it is far from being totally nullified. Hence, the harm to the right to become a parent in our case is not great. Moreover, I find that there is substance in the Respondents’ contention that removal of the requirement for a genetic link in the surrogacy process will lead to a great similarity between that process and the process of adoption. As explained by Justice N. Hendel in the Anon. case, Israeli law today recognizes parenthood on the basis of four alternative, complementary foundations – genetic link, physiological link, adoption, and a link to a link (para. 7 of his opinion). In its present format, the process of surrogacy rests on the first foundation, in view of the requirement for a genetic link. As stated, this classification therefore shows us that the genetic link constitutes a significant means of distinction between surrogacy and adoption. Unfortunately, since parenthood through a genetic link is not possible for Petitioners 5-6, this means of distinction does not exist as far as they are concerned, and therefore the alternatives of adoption and surrogacy become more similar to one another. Therefore, the harm inflicted by the requirement for a genetic link is confined and limited: it relates to one out of a number of possibilities for realizing the right to become a parent, it also affects a very particular way of realizing the right to parenthood (surrogacy with no genetic link), which is not significantly different from another way of realizing the right to become a parent (adoption). This is even more so when the particular nature of the process of surrogacy and the many dilemmas to which it gives rise are considered.

I therefore find that the requirement for a genetic link in the surrogacy process is of considerable benefit, and the harm it causes is limited. My position regarding the overall balance is that this benefit outweighs the constitutional harm that it entails. Accordingly, I have reached the conclusion that the Agreements Law also meets the third sub-criterion of proportionality, and that the harm done to the right of Petitioners 5-6 to become parents is proportional.

Summation

44.       From the above it emerges that the requirement of the Agreements Law for a genetic link complies with the limitations clause, and therefore its constitutionality is not flawed. Although the circumstances of Petitioners 5-6 arouse empathy, on the basis of all that has been said above I do not find that there is room, in the framework of the present petition, to change the principles expressed in the Agreements Law with respect to the requirement for a genetic link. I will therefore recommend to my colleagues that we deny the petition in regard to those Petitioners.

Before Concluding

45.       In the framework of this petition, the Petitioners ask that we order that the portals to the surrogacy process be opened so that also those who wish to establish a non-heterosexual family framework will be able to pass through them with pride. As stated, in view of the fact that the legislature addresses this issue in the Bill that passed its first reading last month, we have decided to allow it time and not to decide the matter at present. However, I wish to devote a few words to the existing legislative situation, and to shed some light on issues that apparently arouse more than a little discomfort.

46.       I find it hard to come to terms with a situation in which single people and single-sex couples are prevented from realizing their right to become parents by entering into surrogacy agreements when their heterosexual brothers and sisters enjoy this right. A legal arrangement that grants a right with constitutional status to one group and excludes another group because of its identity, preferences, orientations or ways of life, is an arrangement that appears  discriminatory and is hard to accept. For myself, I see no justification for preferring heterosexual parenthood over single-sex parenthood in general, and particularly insofar as the right to become a parent – in terms of all the techniques for its realization – is concerned (cf.: Mamet Megged case, paras. 5 and 10 of my opinion; Moshe case, para. 8 per Justice (emer.) E. Arbel).

This unfounded preferential treatment turns its back on the value of human dignity that appears in the Basic Laws of the State of Israel, and the principle of equality that is derived from it. Even though equality is not specifically mentioned in the Basic Laws, the principle of equality has long been recognized as part of “the soul of our entire constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [57], 698). It was accorded the status of a supra-statutory constitutional right deriving from Basic Law: Human Dignity and Liberty (see, e.g., Association of Banks case, para. 3 of my opinion; Sabah case, para. 13 of my opinion; Quality Government case, paras. 36-43 per President A. Barak), and it is a common thread running throughout the foundational documents of our State. It was Theodor Herzl who wrote in Altneuland: “Let me tell you, then, that my associates and I make no distinctions between one man and another. We do not ask to what race or religion a man belongs. If he is a man, that is enough for us.” This principle also appears in the writings of Ze’ev Jabotinsky, who stated that “human rights and citizens’ rights are the property of the person and the citizen, qua person and citizen. This is a first principle.  There is no room for negotiating or for reckoning who is entitled to rights and who is not” (Ze’ev Jabotinsky, Untitled Notes, Plitonim 23, 29 (5714-1954) (Heb.)), and it is captured in the words of the Declaration of Independence, namely, that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants …”.

47.       The prohibition against discrimination on the basis of sexual orientation is one of the basic elements of the principle of equality, and Israeli law has managed over the years to weave it into the web of legislation and case law (for a review see: AAA 343/09 Jerusalem Open House for Pride v. Jerusalem Municipality [58], para. 54 per Justice I. Amit). However, our legal system has unfortunately been left trailing behind in many aspects that are at the heart of the lives of LGBT citizens, and particularly recognition and equal rights for gay partnerships and families (see: Yotam Zeira & Barak Medina, The Right to Equality and Sexual Orientation, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law, 159, 176-88 (Einav Morgenstern, Yaniv Loshinski and Alon Harel eds., 2016) (Heb.)). This legal situation comprises a severe violation of human dignity, for it places a group of citizens with equal obligations and rights in an inferior position to that of the rest of Israeli society with no material justification. This violation, and the value of a legal system that is prepared to entertain change, was discussed by US Supreme Court Justice Anthony M. Kennedy, who stated in the context of a case related to our matter:

There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices […] If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied […] It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality” (Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (emphasis added – S.J.).

In the context of the subject of this petition, I had the opportunity of saying the following in the Mamet Megged case (albeit in a dissenting opinion with regard to the result):

As long as the interpretation of the Committee for the Approval of Embryo Carrying of the Embryo Carrying Agreements Law remains in force, and the Law itself has not been changed by the legislature or found unconstitutional by the Court, same-sex couples find themselves in a categorically inferior position. Unlike heterosexual couples, same-sex couples can resort to surrogacy arrangements only outside of Israel […] The policy of the Respondent in all that regards parenthood discriminates against same-sex couples, and this, alongside totally preventing same-sex couples from turning to the track of surrogacy in Israel. This general policy […] is discriminatory. This policy seeks to establish the heterosexual couple as “natural” […] This discriminatory policy, alongside the deep violation of human dignity and equality, also harms the constitutional right of every person to family life (paras. 5 and 10 of my opinion).

48. It bears saying that over and above the moral flaw involved, the distinction between heterosexual and homosexual parenthood lacks any basis in academic research that has studied the welfare of the newborn. See, for example, Triger and Mass’s article, which addressed  the various arguments raised against same-sex parenthood systematically and in depth, and shows, through broad research from different areas, that they have no basis. Thus, for example, it was demonstrated that children who are raised in single-sex families do not have particular difficulties as opposed to children who grew up in families with a father and a mother – either from the point of view of the child’s development, or from the point of view of the partnership of the parents in raising the child, as well as from other aspects (see: Triger and Mass, 448-53). Other studies have looked into and dismissed various claims concerning the apparently negative ramifications of single-sex arrangements in the surrogacy process. These studies indicate that there are good connections with the surrogate mother in the course of the pregnancy and thereafter, and they also determine that it is not possible to identify any difference between the situation of children who were born to heterosexual families and that of children born to single-sex families through assisted reproductive techniques (see: Lucy Blake, et al., Gay Father Surrogacy Families: Relationships with Surrogates and Egg Donors and Parental Disclosure of Children's Origins, 16 Fertility & Sterility 1503 (2016); The Ethics Committee of the American Society for Reproductive Medicine, Access to Fertility Treatment by Gays, Lesbians, and Unmarried Persons: A Committee Opinion, 100 Fertility & Sterility 1524, 1526 (2013); and see Moshe case, para. 23 per Justice (emer.) E. Arbel and the references there.

49.       Moreover, I am also struggling to find a relevant reason for the distinction between single women and single men in relation to realizing the right to become a parent (see and cf. HCJ 2078/96 Vitz v. Minister of Health [59]; New Family case, para. 26 per Justice M. Cheshin; Moshe case, para. 21 per Justice (emer.) E. Arbel, para. 17 per Justice E Hayut; and in the U.K.: Z (A Child) (No 2) [2016] EWHC 1191 (Fam) (20 May 2016)). It is clear that the principle of equality also extends to the difference in gender between women and men, and it seems to me, without setting the matter in stone, that limiting access to assisted reproductive techniques for one gender and not for another raises questions. Thus, for example, a distinction between men and women with respect to the realization of the right to become parents is liable, prima facie, to broadcast, even unwittingly, an approach whereby single-parent family units headed by a woman are preferable, and therefore a higher normative value is to be accorded to a single female’s yearning for parenthood than to that of a single man; it is liable to hint at a basic assumption whereby this family structure is more proper and desirable; and it may echo archaic social approaches whereby the role of a woman as a parent is more central than that of a man as a parent (cf.  Sessions v. Morales-Santana, 198 L. Ed. 2d 150 (2017); Ben-Asher, The Curing Law, 1913-15; Jean Strout, Dads and Dicta: The Values of Acknowledging Fathers’ Interests, 21 Cardozo J. L. & Gender 135, 148-149 (2015)) – and in this it may possibly reflect a discriminatory basic assumption (cf. LAA 919/15 A. v. B..  [60] paras. 103, 105, 107 per Justice U. Vogelman; my opinion in LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd. [61]).

50. We see, therefore, that the current surrogacy arrangement gives rise to considerable fundamental difficulties. With the caution required at this interim stage, I dwelt above on the substantial harm to single-sex couples and to single men, and on the shaky social-ethical basis on which the distinctions in the Law stand. In view of our decision to postpone our ruling on the petition in order to allow for completion of the legislative process, this is neither the place nor the time to deliberate on the merits of the arguments presented by the Respondents in their response to the petition. However since we cannot suffice by leaving the matter without comment, I will note – without making any firm determination – that although I listened attentively to the Respondent’s arguments and considered them carefully, I was left with an uncomfortable feeling as to the compatibility of this arrangement with the values of the Basic Laws and their provisions. Those who are involved in this very weighty matter must consider this.

Conclusion

51.       In this decision, we are postponing determining the very important issues that I addressed above. We do so out of respect for the legislature and for the relationship between the judiciary and the legislature. This relationship is a complex one, based on dialogue between the Court and the legislature. This dialogue turns on the basic principles and the laws of the State of Israel. In that framework, the two branches aspire to advance the goals of the State and address the challenges that face  it in an optimal manner, while preserving the basic rights of every person by virtue of the Basic Laws. At the end of this dialogue, the expectation is that a legal result will be achieved that is in keeping with the fundamental principles of the State and that protects individual freedoms. At present, it is the turn of the legislative branch to have its say. Presumably it will fulfill its constitutional obligations and act to realize constitutional rights (see, at length: Aharon Barak, The Constitutional Right to Protection of Life, Body and Dignity, 17 Law and Government 9, 16-19, 29-27, 31-35 (5776-2016) (Heb.)). As always, this Court will listen very carefully to what the legislative branch has to say. And as always, its doors will be open and its ear bent to any person who claims that his constitutional right has been violated. This is so in regard to the further handling of the present petition, as well as to future petitions.

 

President M. Naor

1.         I concur in the opinion and decision of my colleague Deputy President S. Joubran, and will add just a few of my own comments.

2.         In the course of the deliberations on the petition before us, the State announced that the Ministry of Health wishes to advance an amendment to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996 (hereinafter: Agreements Law), which will also enable single women to enter into surrogacy agreements. Several days ago, the State updated us on the progress of the legislative process and noted that the bill to amend the Agreements Law (Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) was due for a vote on the first reading that same day (July 17, 2017). Indeed, the Bill passed its first reading that day, and was sent for further discussion to the Labor, Welfare and Health Committee of the Knesset for the purpose of preparation for its second and third readings . Under the circumstances, passage of the Bill in its first reading and it being sent for preparation for its second and third readings created a new situation. At the time, we did indeed express our displeasure at the way in which the Respondents conducted themselves in this process, which expressed itself in submitting a memo of the Bill at the last minute, on the eve of the oral hearing. Now, however, this has indeed come to pass. Accordingly, we have decided as stated by Deputy President Joubran, not to decide at the present time on the issue at hand (other than in relation to the constitutionality of the requirement for a genetic link). This means that we who have or will soon have completed our tenure on the Court – my colleague Deputy President (emer.) Rubinstein, Deputy President Joubran and myself – will not be party to the final judgment, insofar as one may be necessary after the exhaustion of the legislative process. We are a “house of judgment” and not a “house of judges.”

3.         As a rule, a court may address the legal questions before it even when a bill on that same subject is pending in the Knesset (see and cf.: FH 25/80 Katashvili v. State of Israel [62]; HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health [63], para. 27 per Justice M. Mazuz). At the same time, in light of the principle of mutual respect among the branches if government, in relevant cases it is appropriate to refrain from competing with the legislature, and to give the Knesset the opportunity to complete the legislative process within a reasonable time (cf.: HCJ 8893/16 Cabel v. Minister of Communication [64], in which we granted the State’s request for an extension of the period for submitting a response due to the progress of legislation that would have affected the petition there). It is appropriate to do so in the present case, particularly considering the complexity of the issues that have been raised in the petition and the advanced stage of the legislative process. I will not deny that the Respondents have refrained from estimating when the legislative process is expected to be completed, thus giving rise to concern that they will not make progress as required (and cf. other cases in which consideration of petitions was postponed for many months, and even years, until the completion of the legislative process: HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services [65], ; HCJ 8300/02 Nasser v. Government of Israel [66], paras. 2-5 per President (emer.) D. Beinisch). Moreover, the Bill in its present formulation does not provide a response to the Petitioners, and on reading the responses of the Respondents one can cautiously surmise that the chance of this changing is not great. To this must be added the fact that when realization of the right to parenthood is at stake, prolongation of the proceedings is liable to lead to an irreversible situation. Finally, it must be borne in mind that the Agreements Law was enacted more than 20 years ago, and since then it has been deliberated in various legal proceedings, in some of which reservations were expressed regarding its scope. In recent years, there have even been attempts – unsuccessful – to amend it. For this reason, and in view of the additional considerations mentioned above, I believe it right to rule, as proposed by Deputy President Joubran, that the Respondents must submit notice of the progress of the legislation within six months.

4.         Notwithstanding the above, and considering the fact that this petition has been pending for several years and oral argument has been heard in this Court, I would like to address briefly the definition of “prospective parents” in sec. 1 of the Agreements Law. What I will say is in the category of musings alone, and cannot limit the discretion of the justices who will replace us in these proceedings, if it should be necessary. What I am about to say is directed at the ears of the legislature as considerations that would seem to warrant attention.

5.         The Agreements Law was originally intended to provide a solution to a limited number of childless couples, while preserving the rights of all those involved in the process – first and foremost the surrogate mother (see: Report of the Mor Yosef Committee, at 53-54); New Family case [9], 434-35, 442-43; HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying [67], para. 8 per Deputy President E. Rivlin). This being the case, the application of the Law was confined to prospective parents who are “a man and a woman who are a couple, who can never bring children into the world due to a physiological condition that prevents the woman from carrying a child or when pregnancy poses a risk to her life.” Several constitutional petitions have been submitted against the Law in the past – now is not the place to go into details – which in turn led to the establishment of various public committees. The latest committee to deal with this subject, including the question of expanding the circle of those eligible for surrogacy, was the Mor Yosef Committee. The Report of the Committee (submitted in May 2012) stated that “the Committee has been convinced of the strong desire of same-sex couples to bring children into the world and has heard that they regard surrogacy as having great potential … [that] constitutes a good solution … in light of the fact that it preserves the genetic link to one of the partners …” (at 57). Accordingly, the Committee assumed that in the absence of other significant interests, single men and women should not be prevented from bringing children into the world by way of surrogacy. However, the Committee also specified several opposing considerations: first, the concern was expressed that surrogacy would change from a specific solution for particularly difficult medical cases into an accepted way of bringing children into the world, and as a result it would be difficult to safeguard the well-being of the surrogates. Second, the concern was expressed that opening up surrogacy to broad populations would come at the expense of women who are suffering from a medical problem. Finally, there was a concern that broadening the scope of those eligible for the procedure would turn surrogacy into a solution only for the rich. In view of these considerations, the Committee ultimately recommended distinguishing between women and men in the sense that men would be permitted to enter into surrogacy agreements on an altruistic basis alone.

6.         In the petition before us, the Respondents explained that, in their view, expanding the scope of those eligible for surrogacy requires legislation. At the same time, they argued, in light of the considerations mentioned in the Mor Yosef Report, there is apparently a relevant distinction between single men or male couples and between women who suffer from a medical problem. Accordingly, as stated above, the Bill that is being considered seeks to expand the circle of those entitled to surrogacy to single women only. In my opinion, there is substance to the approach that entering into surrogacy agreements should be permitted only in a controlled fashion, and to the argument that turning surrogacy into the “major route” for bringing children into the world is problematic. Surrogacy involves health and emotional risks to the surrogate, and in certain cases it is also liable to spill over into exploitation of women and their objectivization (see: Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 442 (5773-2013) (Heb.) (hereinafter: Lipkin & Semama)). These risks, which are inherent in the surrogacy process, were raised before the Mor Yosef Committee and they figured in their recommendations. Indeed, one cannot ignore the physical, emotional and ethical difficulties that are liable to arise in the surrogacy process. Nevertheless, since entering into controlled, monitored surrogacy agreements has been permitted in Israel, I see no apparent justification for distinguishing between women with medical problems and single men or male couples in this matter. These two groups are not able to bring children into the world other than by artificial insemination and reproductive techniques. At the same time, we have not been shown factual data indicating that expanding the arrangement in the Law would necessarily lead to a significant increase in demand for surrogacy in Israel. Apart from gender, there is therefore no material difference between the groups. In all events – and this is the main point – both the Mor Yosef Committee and the Respondents themselves did not argue that such a difference exists (and see and cf. also: Mamet Megged case). The considerations of the Committee, like those of the Respondents, focused, as we have said, on the extent of the demand for surrogacy and the risks this entails. However, it seems right to solve these problems in an egalitarian manner. For example, it is possible (and maybe desirable) to tighten up the control and monitoring of the surrogacy process and to improve the terms of these agreements (see: Lipkin & Semama, at 490-97). Furthermore, it is possible to limit the number of times that a couple or an individual are permitted to enter into a surrogacy agreement, or to prohibit the surrogacy process in the case of a person who already has a child (see also: sec. 5(b) of the Bill). Similarly, the possibility exists of prohibiting commercial surrogacy, and to permit only altruistic surrogacy, as is the practice in some European states (but see: Report of the Mor Yosef Committee, in which it was recommended by majority opinion to permit commercial surrogacy in Israel, at 61-62; and cf. sec. 15 of the Organ Transplant Law, 5768-2008). In the final analysis, even though approval of surrogacy agreements is no simple matter, prima facie it would seem that there is no difference between women and single men or male couples that justifies discrimination. Let me again emphasize that I am not laying down the law on the present issues. These are only comments as I see things. In any case, the legislature, which must now address these issues, will have to think about them. Insofar as the legislative processes in the Knesset are not concluded within reasonable time, the subject will return for adjudication before this Court, which will deliberate and decide as it sees fit.

7.         With respect to the constitutionality of the requirement for a genetic link as a condition for entering into a surrogacy agreement, I accept the ruling of Deputy President Joubran that the requirement of the Law that there be a genetic link between one of the prospective parents and the child meets the criteria of the limitations clause. Bringing a child into the world without a genetic or physiological link to the prospective parent gives rise to complex social, ethical and moral questions, and providing an answer to these questions in a courtroom is liable to entail broad consequences that have not been elucidated in the present proceedings. Unlike surrogacy with a genetic link, which has been discussed from every perspective over the years, in the courts and by other institutional actors, discussion of the issue of reproduction without a genetic or physiological link has not yet been exhausted. This is even more evident in view of the position of the Mor Yosef Committee, which saw fit to recommend expanding the circle of those eligible for surrogacy as long as a genetic or physiological link exists with at least one of the prospective parents. I therefore accept the position that in relation to the issue of the genetic connection, the petition should be denied. It is important to clarify, however, that our decision on this subject does not, of course, prevent the legislature from considering it, like any other matter, in the framework of the ongoing legislative process. I will also mention, with the required caution, that one cannot rule out in advance a situation in which, as a result of particular changes that may occur in the future, the legislature will once again be called upon to address this issue. I do not make light of the plight of the Petitioners. Indeed, as I have said in the past, the very fact that there are different ways to become a parent does not necessarily mean that the state must allow the realization of them all (Moshe case, para. 2 of my opinion). At the same time, without laying down the law on issues that are pending in other proceedings (see, e.g., HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services [68], which deals with the scope of those entitled to adopt children), we should strive for alternative solutions that will enable the Petitioners to realize their right to parenthood.

8.         To summarize: I concur in the opinion of my colleague Deputy President Joubran, whereby the petition concerning the requirement for a genetic link must be denied. As for expanding the circle of those eligible for surrogacy to include single males and male couples, at the present stage this issue should remain without a final decision due to the ongoing legislative processes and taking into account the principle of mutual respect between the branches of government.

 

Deputy President (emer.) E. Rubinstein

1.         I concur in the outcome reached by Deputy President Joubran. The issues that arise for deliberation in this case add to the human, social and legal complexity that has been created in the present era, in which technological developments in the medical field on the one hand, and social developments in the area of family on the other, have engendered situations that our forefathers could not have imagined. In HCJ 407712 A. v. Ministry of Health [30], I had the opportunity, in a different context, to say the following (para. 2):

The "genetic era" and the increasing use in recent decades of artificial reproductive techniques have brought a real blessing to many who would have remained childless "in the old world". Reality has changed immeasurably, and technology presently enables many of those whose path to parenthood was previously blocked, to bring children into the world and have a family. This is one of the dramatic developments, which creates a new social and legal reality, and gives rise to complex, sensitive human questions. The legal world has not yet had the time to properly address these issues, and it falters behind them…

This “faltering along” continues to this day, and therefore issues arise such as the one before us. There are no bounds to a person’s desire for a child. My colleague Justice Barak-Erez, at the beginning of her opinion in the above case, quoted from the poem “Barren” by the poet Rachel: “A son! If I only … had one little boy, Dark, sable-curled and so smart …”; and I would add from the end of the poem: “But I’ll still weep like Rachel the Mother. And I’ll still plead like Channah at Shiloh. I’ll await him. I’ll await…”. Whose heart would not identify with this prayer?

2.         The point is that these issues, which change the known reality, such as the situation of single women and men and same-sex couples, should in principle be addressed by the legislature, which sees the entire picture in all its aspects. My colleague (in para. 6) quoted from the Moshe case (para. 46), and I will repeat what he said in order to complete the picture:

In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it will not trail behind the legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes, constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is, first and foremost, the legislature, and the existence of advanced legislative processes warrants such judicial restraint.

These words appear to me to be in keeping with what my colleague has now proposed, that is, postponement of the decision at a time in which the legislature is acting as reported. I support his proposal, and the constitutional arguments will be reserved for the petition when it comes.

3.         I also concur in the determination as to the importance of the genetic link, for it seems to me that anyone reading the judgment in the Moshe case cannot fail to form the impression that its basic assumption is genetic parenthood for the purpose of the Agreements Law, alongside severance between the surrogate mother and the prospective parents. It is true that the “genetic model,” which was the focus of legislation in the past, has been weakened to a certain degree (see in detail the above A. v. Ministry of Health. case, para. 44), but the genetic link still carries great weight (para. 45).

4.         I will conclude with the comment that regarding all the subjects raised by my colleague at the end of his written opinion, there is room for gradual progression in order to arrive at appropriate, correct results from the overall social aspect as well. This Court should, in my opinion, address these issues while observing the progress of the legislation, without slamming the door on judicial intervention. I will only mention that, on the one hand, the Mor Yosef Committee recommended expanding the circle of those eligible for surrogacy to single women, while on the other hand, it recommended the establishment of altruistic surrogacy for single men. However, the memorandum of the Law that was submitted at the time – which differs from the present one with the change of Government – expanded the circle of those eligible for commercial surrogacy to include single men as well (see my opinion in the Moshe case, para. 45). The reason given by the Committee – that expanding the circle may numerically limit the possibilities available for single women – bothered me, even upon carefully reading what my colleague Deputy President Joubran and my colleague the President wrote, and their thoughts regarding a solution. As for myself, I think that, in general, a committee is established in order that its conclusions be adopted, unless it has clearly deviated from what is reasonable. But of course, the legislature is permitted to think differently and act differently. On the other hand, there is the question of equality, which is no small thing: we are all created imago dei, nor does time stand still, socially and personally.

5.         This judgment, in its various opinions, comprises recommendations – even if cautious – to the legislature. In order to “glide over the lips of sleepers” (Song of Songs 7:10), and to show the progress that has been made by Israeli law, I would like to cite a summary of a memo written by Supreme Court President Itzhak Olshan during his tenure (1954-1965 – the date of the memo is unknown), who is quoted by Professor Pnina Lahav in her article, The Pains and Gains of Writing the Biography of Chief Justice Simon Agranat, Harris, Kedar, Lahav & Lichovski (eds.), The History of Law in a Multi-Cultural Society (2002) 147, 157-158. I cite these words not due to agreement with their content, but as an historical comment. President Olshan wrote (I do not have the original Hebrew text) – and according to him the subject had already arisen in discussions with judges in the past – that it is not recommended to make recommendations in a written opinion (he does not explain exactly which recommendations he means, and it may not necessarily be only legislative recommendations), particularly not in criminal matters. He says that it puts the authorities in a difficult position, for if they do not accept the recommendation, they are liable to be seen as offending the Court. On the other hand, the authorities may have good reasons for not accepting the recommendation, but they will be seen as offensive. President Olshan says that he raised the subject because he had been approached on the matter. Prof. Lahav, the author, notes that the memo is of interest both because it refers to informal connections between the governmental branches, and because although President Olshan was very careful to preserve and fight for judicial independence, he also preserved the relationship with the executive branch and was prepared to deliver its requests to the judges. She points out that the proclivity of courts for writing recommendations is common; it is something that could be said to contradict the principle of separation of powers, but on the other hand it could be seen as a “safety valve” attesting to the discomfort of the Court in applying a particular law as against considerations of justice, and prohibiting it would dilute judicial opinion and prevent the Court from sounding a moral voice. According to the author, the justices did not comply with the “rebuke” of the President, but the very fact that the memo was issued is an indication of the leadership of President Olshan.

As I noted, I cited these words as an historical comment, although I disagree with the position expressed in the memo, and I would add that in my opinion, on the basis of long years of practice and common sense, it is absolutely inappropriate to withhold judicial recommendations that are generally based on long professional, institutional and personal experience, and on consideration of the distressing situations that the Court encounters. On the contrary, the fifty years that have elapsed since President Olshan retired have shown us that there was and is great value to judicial recommendations. Many of them have found their way into legislation and governmental actions, and have contributed to their improvement. Even if caution is wise in making recommendations on matters of principle that are controversial, lack of action on the part of the legislature sometimes compels the Court to have its say. In any case, in general, not only is there nothing wrong with making judicial recommendations, but they are a good thing, for the benefit of all. The dialogue between the branches is important – that is the nature of democracy. The ability to listen is invaluable, and it is of course multi-directional. The spirit of our generation in the context of judicial recommendations was aptly described by Justice Melcer in describing academic discourse (see: Desta case, paras. 6-7 of his opinion, and the references cited there).

6.         I will conclude with what I wrote in the Moshe case (para. 23):

It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an egg donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in 8 Hukkim (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, 7 Moznei Mishpat 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, which is charged with weighting the balances..

Subsequently, it was said that there is a need (in that context) for a “guide” in the form of statutory directives, which would not require any great legislative effort. This applies, mutatis mutandis, in the present case. The last word has not yet been said.

7.         This judgment is being handed down on the day of the retirement of my good friend, Deputy President Selim Joubran. I have merited to serve alongside him in friendship and with affection throughout the whole period of our tenure, since we were sworn in on the same day in 2004. Deputy President Joubran – a proud Israeli, a proud Christian Arab – has in the period of his tenure made a great contribution to Israeli law and Israeli society, both with his substantive jurisprudence in his learned opinions, and with his incomparably amiable personality as a colleague, a friend, and a public personality. The “golden mean” approach that he represented in the law, which is particularly close to my heart, has contributed greatly to the peaceful settlement of conflicts, as a lover of peace and a pursuer of peace. May my friend continue in the ways of peace, of health and of contentment.

 

Justice E. Hayut

1.         What is the appropriate scope of the circle of persons eligible for assistance through the surrogacy process in Israel?

This is an issue that the Petitioners have once again laid at the door of this Court in the present petition. The petition raises arguments against the constitutionality of the arrangement provided in the Agreements Law, most of which concern the violation of the right to parenthood and the right to equality of single-sex couples (Petitioners 1-4) and men and women who do not have partners (hereinafter: single men and women), including women who, due to the inability to become pregnant or to donate their own ovum to the reproductive process (Petitioners 5-6) will not have a genetic link to the child as required by sec. 2(4) of the Agreements Law.

2.         This Court first considered the matter of the appropriate scope of those eligible for assistance through the surrogacy process in the New Family case, but this was in one single derivative only – a single but fertile woman who was not able to become pregnant and give birth. The judgment determined by majority opinion that denial of the right of a single woman to be included within the definition of “prospective parents” in the Agreements Law, and confining the process of surrogacy under the Law exclusively to “a man and a woman who are a couple”, appeared to constitute a violation of the principle of equality and discriminated against women such as the petitioner without justification. At the same time, the Court denied the petition for the reason that it dealt with a “new and complex” issue that should be developed gradually, in small steps, through legislative processes and not by way of case law that intervenes in the legislation of the Knesset. In the New Family case, the Court therefore confined itself to a call to the legislature to the effect that –

… it think about the plight of single women such as the Petitioner; that it give serious consideration, weighing one against the other, the reasons for and reasons against the application of the Law to single women; and that it decide on the merits of the question one way or another. Indeed, the plight of single women is genuine, their plight is not less than that of couples, and those single women deserve to have the legislature think specifically about them and about the prohibitions it placed on their path to surrogacy (at 461) (for an analysis of the status of calls such as this on the part of the Court to the legislature, see: Liav Orgad and Shai Lavi, Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv L. Rev. 437 (2011) (Heb.)).

3.         More than 14 years have passed since judgment was rendered in the New Family case, but the definition of “prospective parents” in the Agreements Law has remained unchanged. As pointed out by my colleague Deputy President Joubran, some 8 years after the judgment in the New Family case, the Director General of the Ministry of Health appointed a public committee to examine the statutory regulation of the subject of fertility and reproduction in Israel, and this committee submitted a report in May 2012 (the Mor Yosef Report) in which it recommended, inter alia, to expand the circle of those eligible for assistance through surrogacy under the Agreements Law to include a single woman who has a medical condition preventing her from becoming pregnant, and a single man (with respect to whom it was recommended to permit only an altruistic surrogacy track). Also, in 2014, in the wake of the Mor Yosef Report, a governmental bill was formulated which expanded the circle of those eligible for surrogacy in Israel such that both single women and men would be able to employ the process for payment in Israel (Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014). However, this Bill was not moved forward, and when the rule of continuity was not applied to it, it lapsed.

4.         The present petition was submitted on Feb. 2, 2015. On July 17, 2017, after we – sitting as an expanded bench – had completed hearing the objections to the order nisi that had been issued, we were informed that the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) had been published and introduced in the Knesset on July 5, 2017. Under this Bill, the circle of women eligible for surrogacy in Israel would be expanded to include single women who suffer from a medical problem that necessitates undergoing the process, on condition that the genetic link between the prospective mother and the newborn is preserved. We were also informed that the Bill had passed its first reading and was sent to the Labor, Welfare and Health Committee of the Knesset for preparation for its second and third reading.

5.         In view of the conduct of the legislature regarding this issue over the years, it may be assumed that our deliberations on the present petition served as a fairly significant accelerant in the present legislative process. At the same time, and even though the Bill currently under consideration is more limited than the 2014 version (it does not include single men), I agree with my colleague Deputy President Joubran and with my colleague President Naor that at this stage, we should not enter into a “race” with the legislature, which should be allowed to complete the legislative process before we decide on the present petition insofar as it concerns Petitioners 1-4, given the principle of mutual respect between the branches by which we should abide. I therefore concur in this context in the position of my colleagues that we postpone handing down a judgment on the petition (insofar as it concerns Petitioners 1-4) for a period of six months, in order to allow the Knesset to complete the legislative process that it has begun.

6.         As opposed to this, like my colleagues, I too am of the opinion that with respect to Petitioners 5-6, the petition should already be denied at this stage.

As will be recalled, Petitioners 5-6 (hereinafter: the Petitioners) are single women who, due to medical problems are not able to carry a pregnancy nor are they able to donate their own ova for the purpose of fertilization and implantation into the womb of a surrogate. As described in the petition, Petitioner 5 has no children, and after attempts to become pregnant from fertilized ova implanted in her womb were not successful, her doctors determined that she could not become pregnant. Petitioner 5 is in possession of several frozen fertilized eggs that were prepared in the framework of her earlier attempts to become pregnant, and after she was told that she would not be able to carry a pregnancy herself, she turned to Respondent 1 (hereinafter: the Committee for Approval of  Embryo Carrying or the Committee) with a request to allow her to embark on a process of surrogacy using these ova. The Committee for Approval of Embryo Carrying rejected Petitioner 5’s request outright, due to her personal status as a single woman and due to the provision of sec. 2(4) of the Agreements Law that makes the process of surrogacy conditional upon the existence of a genetic link between the prospective parents and the child. Petitioner 6 is also a single woman who, as the result of a medical issue, cannot carry a pregnancy, nor can she donate her own ova for the purpose of surrogacy. Petitioner 6 has one child who was born after she became pregnant through the donation of another woman’s ovum that was fertilized by a sperm donation. After she gave birth to her son, Petitioner 6 was told she would not be able to carry further pregnancies, and that several fertilized ova remained carrying the same genetic load as that of her son. Petitioner 6, too, approached the Committee asking to be allowed to embark upon the surrogacy process, in the framework of which those fertilized ova would be implanted in the womb of the surrogate mother. The Committee also rejected the request of Petitioner 6 for the same reasons as those grounding its rejection of the request of Petitioner 5. Alongside the arguments common to them and to the other Petitioners regarding the discriminatory definition of “prospective parents” in the Agreements Law, the Petitioners further argue that denying the possibility of surrogacy  to a person who has no possibility of having a genetic link to the child, as provided in sec. 2(4) of the Agreements Law, violates the right to parenthood and to equality, and that for them, this causes harm in addition to the harm caused to them by virtue of their being single women.

7.         This Court has not infrequently discussed the importance attributed by society to the human desire of many for progeny who will carry their genetic material and who will be related to them “by blood” (see: New Family case, 447; CA 488/77 A.. v. Attorney General [69], 441-42; and see further in this context: Yehezkel Margalit, The Rise, Fall and Rise Again of the Genetic Foundation for Legal Parentage Determination, 3  Medical Law and Bio-Ethics 125 (5770-2010) (Heb.)). Now, as I pointed out in one of the cases in another context:

The biological-genetic connection between parent and child is not the be-all and end-all. No less important (and sometimes even more important) “raw material” constituting and fashioning the relationships between parents and their children is the emotional link and the commitment to the well-being of the children and raising them. At the same time, and has already been mentioned, real and significant justification is required in order to deny a person the possibility of realizing the right to parenthood that includes a blood tie between himself and the child (Moshe case, para. 33 of my opinion); see also Yehezkel Margalit,  Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553 (2012) (Heb.); Yehezkel Margalit, Towards Determining Legal Parenthood by Agreement in Israel, 42 Mishpatim 835 (2012) (Heb.)).

It may also be said that the medical limitations due to which the Petitioners are unable to form a genetic link to the child, alongside their single status, places them in certain senses at the top of the ladder of those who encounter difficulty in realizing their right to parenthood. However, the question facing us is not whether realization of the right to parenthood must be allowed in the case of a person who cannot have a genetic relationship with a child, but whether that person should be allowed to realize this right by way of the process of surrogacy under the Agreements Law.

8.         In the New Family case, Justice M. Cheshin said as follows:

… people are not always ready and able to absorb and digest the achievements of science and technology. This is the general case. A fortiori in relation to the subject of surrogacy, in which the most sensitive and intimate aspects of a person are involved.

            Justice Cheshin further mentioned there that in view of the novelty and the complexity of the issue of surrogacy from various perspectives, it is appropriate that this process develop in a gradual, proportionate manner (at 459-60). Indeed, the issue of the scope of the circle of persons eligible to realize the right of parenthood by means of surrogacy is a complex one that involves medical, social and ethical considerations, the sensitivity of which cannot be overstated. This applies to the process of surrogacy in general, and all the more so where the prospective parent lacks a genetic link to the child. First, in the absence of a genetic link, we are not concerned with denying a person the possibility of realizing parenthood that includes a blood relationship between himself and the child. It can therefore be said that the prospective parent has no special interest in bringing a child into the world by way of surrogacy in particular. In effect, it can be said that absent a genetic or physiological link to the prospective parent, we are dealing with the production of children for the purpose of adoption (see: Anon. case, paras. 25-26 per Justice N. Hendel; and Mor Yosef Report, at 6 and 61 (note 28)). And insofar as the matter is one of a variation of adoption, the question naturally arises why the prospective parent, who has no particular interest in the process of surrogacy, should not be directed to the adoption track, with all its advantages from the point of view of benefitting children who already exist.

Similarly, in this context of surrogacy  with no genetic link, ethical questions that are not simple arise concerning, inter alia, the possibility of creating children who are in certain senses “children by order”, with all the ramifications from the point of view of the surrogate mothers who participate in the process; questions about “industrialization” of these processes; and concerns about a concept of property taking root with regard to children created in this framework (Lipkin and Semama, 441-43). As my colleague the President pointed out, it may not be right to rule out in advance the possibility of considering the process of non-genetically linked surrogacy in the future, and it may be that the experience that will continue to accumulate regarding surrogacy in Israel and the world  will warrant legislative reconsideration of the issue. However, like my colleagues, I too think that the petition does not show constitutional grounds for striking down the provision of sec. 2(4) requiring such a link. This is similar to the approach adopted in this context in most states that permit surrogacy, and respectively, to the approach adopted by the Israeli legislature in additional statutes that attribute importance to the genetic link in the context of parent-child relationships (see paras. 25-26 per Deputy President S. Joubran).

9.         In summary, I concur in the opinion and decision of my colleague Deputy President S. Joubran.

 

Justice H. Melcer

1.         I concur with the result reached by my colleague Deputy President S. Joubran. I choose not to express a detailed opinion with respect to his main reasoning, for in view of what appears in the decision part of my colleague’s opinion, I am likely to deal further with this petition, alongside my colleague Justice Hayut (and other justices who will join the panel).

Nevertheless, I will permit myself to make several comments regarding the right of Petitioners 5-6 (in relation to whom the petition is denied) to realize their aspiration for parenthood by way of surrogacy, specifically in the legal situation pertaining at present and the future, and concerning the link between legislative initiatives and the case law of this Court.

I will discuss these subjects in their order.

The right of Petitioners 5-6 to realize their aspiration for parenthood specifically by means of surrogacy

2.         Petitioners 5-6 wish to realize their aspiration for parenthood by means of surrogacy, without having a genetic link (their ova) or a physiological link (pregnancy) to the child.

In LFA 7141/15 A. v. B. [23], I explained the similarity and the difference between the right to parenthood (which is not necessarily biological) and the right to continuity (which is at base genetic). Both these rights are in my view constitutional rights, as I explained there.

In the present case, Petitioners 5-6 wish to obtain approval to enter into an agreement with a “surrogate mother”, but various provisions in the existing Agreements Law stand in their way, including the requirement for a biological link, as expressed in sec. 2(4) which provides as follows:

The implantation of a fertilized egg for the purpose of impregnation of a surrogate mother in order for the child who will be born to be given to prospective parents will not be performed unless all the following are fulfilled:

….

(4)                   The sperm used for the in vitro fertilization is that of the prospective father and the ovum is not that of the surrogate mother.

These provisions indeed violate the rights of Petitioners 5-6 to parenthood, but as my colleagues showed, it cannot be said that the requirement for a genetic link, in this context of surrogacy, fails with respect to the criteria of the limitations clause. However, the right of Petitioners 5-6 (and others like them) to parenthood may possibly be realized in other ways that do not require a genetic link.

Moreover, in the case of Anon. [11], I called upon the legislature to consider finding a means for helping those belonging in this category. This is how I stated it there:

Thus, just as in the past, the institution of adoption provided for the problem of childlessness, now it can be expanded, either to enable individuals who have no available alternative … to resort to new medical technologies in order to become parents, or to be considered such, even without a genetic link …Following these paths is intended to provide a response to a reality within which technology usually precedes the law. The legislature and the courts are therefore asked in these cases to pour the essence of the good, well-grounded existing principles into legal containers that have not been in use before (as if these were old wine that improves over time and simply requires a newer container). Cf.: Steven Breyer, Active Liberty 64 (2009); see also my opinion in CA 9183/09 Football Association Premier League Ltd. v. Anon. [48] (13.05.2012)).

3.         In conclusion: my heart goes out to Petitioners 5-6 to whom we could  not extend more help in this process, given the existing legal situation. Nevertheless, I would point out that this does not detract from the possibility on the part of the said Petitioners to present their case and the interests of those like them to the Knesset during the deliberations that are to be held in the Labor, Welfare and Health Committee (hereinafter: Labor Committee) in preparation for the second and third readings of the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) that was introduced in the Knesset on  July 5, 2017 and passed its first reading on July 17, 2017.

4.         Owing to the fact that the Bill passed its first reading, the Respondents requested that we not decide upon the petition, and we have granted this request partially, as described in the opinions of my colleagues. On this issue of the constitutional dialogue, which is important, I will add several comments below, as a type of introduction for the future.

 

The ramifications of legislative initiatives for pending processes

5.         In principle we (as well as the administrative authorities) are supposed to decide according to the existing law. See: HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion [70]. However, over the years exceptions to this rule have emerged. A comprehensive discussion of them appears in a recently published article: Bell Yosef, A Mixed Blessing – The Normative Status of Legislative Initiatives, 40 Tel Aviv U. L. Rev. 253 (2017) (Heb.). See also: Aharon Barak, Partnership and Dialogue between the Legislative and the Executive Authority and the Judiciary, 4 Moznei Mishpat 51, 68 (2005) (Heb.); Barak Medina, Strategic Considerations behind Normative Explanations: Lessons from Israel’s Supreme Court Expropriations Case: A Reply to Haim Sandberg, 11 Int’l J. Const. L. 771, 773-776 (2013); Alison L. Young, Democratic Dialogue and the Constitution (Oxford University Press, 2017) (hereinafter: Young)).

A related issue concerns the question of whether the reviewing court should give directives to the legislature when it strikes down a law – how to legislate a future law that will be immune, as it were, to constitutional judicial review ‒ or whether it should confine itself to a constitutional analysis of the new law that will be brought before it, after the legislature has had its say.

In the Desta case [1], I discussed this question and said as follows:

There is much theoretical discussion of the dialogue between the judiciary and the legislature that develops in such situations (for the theoretical literature on the subject, see the article by Liav Orgad and Shay Lavie,  Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv U. Law Review 437, 440 (2011) (Hebrew) (hereinafter: Orgad & Lavie, Judicial Directive), and see: Ittai Bar Siman-Tov, The Puzzling Resistance to Judicial Review of the Legislative Process, 91 B.U. L. Rev. 1915, 1954-1958 (2011); Aharon Barak, The Judge in a Democracy 382-389 (2004) (Hebrew) (English: Princeton, 2008) ; Gideon Sapir, The Constitutional Revolution in Israel: Past, Present & Future 219-222 (2010) (Hebrew)).

            The answers to this question can be classified into three categories, although the dividing line between them is sometimes blurred (the analysis, references and presentation below are based upon the article Orgad & Lavie, Judicial Directive):

(a)        One model is that of “judicial advice”. Judicial advice is an approach that allows the judge to recommend necessary legislative changes to the legislature. It does not express a demand, but rather a legal preference, while leaving discretion to the legislature (compare: Nitya Duclos & Kent Roach, Constitutional Remedies as "Constitutional Hints": A Comment on R. v. Schachter, 36 McGill L.J. 1 (1991)).

(b)        A second model is that of the “constitutional roadmap”. The constitutional roadmap is a technique that allows the judge to recommend to the legislature, expressly or impliedly, how to overcome the defects in the current law. In the constitutional context, it constitutes a sort of recommended path to correcting the constitutional defect found by the court (see: Erik Luna, Constitutional Road Maps, 90 Crim. L. & Criminology 1125 (2000)).

(c)        A third model is the “fire alarm”. The fire alarm is a technique that allows the judge to warn the legislature of defects in the current law. In the constitutional context, this concerns cases in which the court just barely accepts the constitutionality of the law, but explains that although the law is “still constitutional”, it may become unconstitutional in the future (see: Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1719 (1998)).

7.         In Israel, in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 412-413 (1997) (hereinafter: the Investment Managers case), President A. Barak employed the “constitutional roadmap” approach, informing the Knesset of the alternatives that it might adopt in order to create an arrangement that would pass constitutional review in place of the provision that the Court had declared void in that case, emphasizing: “Choosing the proper balance point is given to the legislature” (ibid.).

            A tendency toward approach (a) appeared in later decisions (for example, by some of the justices in the Eitan case), or toward approach (c) (for example, in the Admissions Committees case: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014), or the judgment in the matter of raising the electoral threshold:  HCJ 3166/14 Gutman v. Attorney General (March 12, 2015)). However, there has been no decisive verdict on this issue to date, and I do not propose that we adopt one here. However, I do think it appropriate to emphasize that it would be proper, in my opinion, to tell the legislators not only what is not constitutional, but also to provide them with general guidelines as to what can be expected to meet constitutional requirements, as President Barak did in the Investment Managers case. Beyond that, I believe that the said dialogue must continue openly, comprehensively and with mutual respect.

            This is the place to note that in the meantime a tendency has developed, at least in Europe, towards a fourth approach that takes the view that a court that declares a law unconstitutional must not suggest to the (national) legislature how to fix the law (see: the majority opinion in Hirst v. United Kingdom (No. 2) 42 EHRR 41 (2006), decided by the European Court of Human Rights, and which was influenced, inter alia, by the need to grant relative freedom to the EU member states. As opposed to this, see the leading article supporting substantive dialogue: Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited – Or “Much Ado About Metaphors”, 45 Osgoode Hall L.J. 1 (2007)).

6.         Now, after having presented the comparative law on this issue, and the theoretical streams that indicate the possible routes for dealing with it, I will return to the matter at hand.

It appears to me that the legislators, when they discuss the Bill in preparation for its second and third readings, must give thought to the words of my colleague the President, and my colleagues who are retiring from this Court (and therefore from this panel), which were uttered by way of “judicial advice” in relation to the subjects that remain pending in this petition. Moreover, the Respondents have made it clear that issues that the Petitioners raised could be discussed in the framework of the deliberations of the Labor Committee. The same applies, in my view, to the situation discussed in the Moshe case – a petition that was denied by a majority of four judges against three, and which presented, according to all the judges, a problem that called for a solution, preferably within the borders of Israel, without sending those petitioners (one of whom had a genetic connection and the other a physiological one) to a foreign country in other to fulfill their yearning for parenthood.

7.         How is the matter of Petitioners 1-4 therefore distinguishable from that of Petitioners 5-6, such that we leave the petition of the first group pending? I will now answer that briefly.

8.         The matter concerning Petitioners 1-4 does not encounter the barrier of an absence of a genetic link (at least with respect to one of the couples). At this stage, therefore, their request ought not to be rejected in advance, for it may be possible to find a solution for the issues that they raise within the framework of particular constitutional remedies, which my colleague Justice E. Hayut and myself were ready to consider in the framework of our dissenting opinion in the Moshe  case.

However, the legislature takes precedence in this regard, and a first step has already been taken in the framework of the Bill. Therefore, we found that we should wait for the process to ripen by virtue of the principle of mutual respect between the branches. However, the Bill, even if it is approved within a reasonable period of time, still does not, apparently, provide a solution for Petitioners 1-4 and others like them. Thus, their right to claim that a constitutional omission in this area violates their basic constitutional rights must be preserved. Recognition of this, if it should be given, and if  the violation is not protected in the framework of the limitations clause, might justify obligating the legislature to act (see: Aharon Barak, The Constitutional Right to Protection of Life, Body and Liberty, 15 Mordechai Kremnitzer Volume (Ariel Bendor, Haled Ghanayim, Ilan Saban eds., 2017)  (Heb.)), or the development of a suitable constitutional remedy. I say this here, without laying down the law, as a milestone or traffic sign in the framework of the above models (cf.: Young, at 131).

9.         In conclusion: this judgment is being handed down on the day of the retirement of my colleague Deputy President Selim Joubran. In translation from Arabic to Hebrew, the name Selim has two, separate or perhaps complementary, meanings: completeness and health. I know how much my colleague wanted his opinion in the case before us to be complete and to address all the aspects of the petition, so that his opinion would give expression to his complete judicial approach, which supports equality. The irony is that due to his pursuit of peace and in light of the above legislative initiative, which appeared only recently, he is forced to leave the labor for others to complete (the legislature, and if there is no choice – this Court).

It remains to me, therefore, only to wish our colleague Selim good health – which, as we have said, is the other meaning of his name – and that he continue to engage in productive activity, and to say to him who has in our eyes symbolized the possibility of co-existence with mutual respect, recognition and appreciation – goodbye and may peace be with you.

 

Decided in accordance with paragraphs 18 and 44 of the partial opinion and decision of Deputy President S. Joubran.

Given this day, 11 Av 5777 (Aug. 3, 2017).

 

HCJ 2435/20

Petitioners:                              1.  Yedidya Loewenthal, Adv.

                                                2.  David Izacsohn, Adv.

                                                3.  Moshe Lipel, Adv.

                                                4.  Zvi Zaks, Adv.

 

                                                            v.

 

Respondents:                          1.  Prime Minister Benjamin Netanyahu

                                                2.  Minister of Health Yaakov Litzman

                                                3.  Minister of Defense Naftali Bennet

                                                4.  Moshe Bar Simon, Director General, Ministry of Health

                                                5.  Minister of Public Security Gilad Erdan

                                                6.  Minister of the Treasury Moshe Kahlon

                                                7.  District Commander Roni Numa

                                                8.  National Emergency Network

                                                9.  Bnei Brak Municipality

                                                10.  Avraham Rubinstein, Mayor of Bnei Brak

 

Attorney for the Petitioners:   Pro se

Attorneys for Respondents 1-8: Nahi Benor, Adv.; Tehola Roth, Adv.

Attorneys for Respondents 9-10: Yehuda Leibowitz, Adv.; Ariel Yunger, Adv.

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice I. Amit, Justice A. Baron, Justice Y. Elron

 

 

Petition for order nisi and interim order

 

 

Israeli Supreme Court cases cited:

[1]       HCJ 8938/11 “All for Peace” v. Minister of Communications, (Feb. 24, 2015)

[2]       HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection, (July 23, 2018)

[3]       HCJ 5438/19 Jan Chibartkin v. Ministry of Justice of the State of Israel, (Feb. 26, 2020)

[4]       HCJ 13/80 Nun Canning Industries v. Ministry of Health, IsrSC 34(2) 693 (1980)

[5]       HCJ 4675/03 Pfizer Pharmaceuticals v. Director General of the Ministry of Health, (May 12, 2011)

[6]       HCJ 1407/18 Koffolk (1949) Ltd. v. Head of the Medical Preparations Registration Department, (Aug. 19, 2019)

[7]       HCJ 703/19 MBI Pharma v. Ministry of Health, (Aug. 26, 2019)

[8]       LAA 2199/20 Peshe Brook v. Ministry of Health, (March 24, 2020) [https://versa.cardozo.yu.edu/opinions/brook-v-ministry-health]

[9]       HCJ 2233/20 Pardes Hanna-Karkur Local Council v. Ministry of Health, (March 26, 2020) [https://versa.cardozo.yu.edu/opinions/pardes-hanna-karkur-local-council-v-ministry-health]

[10]     HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62(4) 715 (2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

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

 

 

Judgment

(April 7, 2020)

 

Justice I. Amit:

1.         The coronavirus epidemic leaves its mark on every area of life. Since the outbreak of the epidemic in December 2019, the world has been contending with the rapidly spreading virus, which has, to date, left a long trail of over a million sick and tens of thousands of dead. Israel has not escaped this struggle, and sadly, as of the date of this writing, over 9,000 people have been diagnosed, and dozens have died.

            From a legal standpoint, the epidemic leads us through a land not sown [Jeremiah 2:2], to legal and constitutional places and paths not imagined by our predecessors, nor even predicted by prophets of doom. Basic constitutional rights, like the right to privacy and property, freedom of occupation and freedom of movement in Israel are dumbfounded in the face of terms like closure, quarantine, encirclement, roadblocks, cellphone location tracking by the I.S.A., social distancing, etc. All of these file before us like a dystopian nightmare in a democratic state founded upon freedom of the individual. In normal times, such means would be summarily rejected as manifestly unlawful, but these are not normal times, and due to the “need of the hour” (TB Yevamoth 90b, Sanhedrin 46a), there is no alternative but to punish the public, although it did not sin and is not worthy of punishment.

2.         The present petition was submitted by four lawyers, residents of Bnei Brak, who ask that we issue an order nisi requiring that the Respondents explain why Government Decision no. 4958 of April 2, 2020, which declared the Bnei Brak municipal district as a “restricted zone” for six days (hereinafter: the Government Decision) not be revoked. The Petitioners also ask that we issue an interim order instructing the Respondents to refrain from exercising their authority under the said declaration until the petition is decided.

            Alternatively, the petition asks that we order the Respondents to provide basic food items to the city’s healthy and ailing residents, and to provide them with appropriate food, that is certified as kosher-for-Passover under rabbinical supervision acceptable to the city’s residents.

3.         The petition was brought before me last night. Due to its urgency, and with Passover soon upon us, I ordered Respondents 1-8 (hereinafter: the State) to respond to the petition by this morning at 10:00 AM (which was extended several times at their request, and the response was ultimately submitted at about 4:00 PM). In addition, I also allowed Respondents 9-10 (the Bnei Brak Municipality and the Mayor (hereinafter, collectively: the Municipality)) to submit their response.

 

Arguments of the Petitioners and the Municipality

4.         The Petitioners argue that the declaration of Bnei Brak as a “restricted zone” was intended only to prevent the spread of the virus to adjacent cities, but in no way relates to the prevention of its spread among the residents of Bnei Brak themselves. The Petitioners describe the severe consequences of the declaration, among them, they argue that the city’s residents have difficulty obtaining food, medicine, and medical treatment; that it mortally violates the residents’ freedom of occupation, their liberty, dignity and their freedom of movement. The harm is particularly severe given that we are concerned with a socially and economically deprived population that is characterized by large families and a low standard of living, given that the families have been imprisoned in their homes since several days prior to the imposition of the quarantine. The Petitioners describe the situation that has been created as “collective punishment”, and take this opportunity to complain of incitement against the ultra-Orthodox community in general, and the residents of Bnei Brak, in particular, and of the humiliation suffered by the city’s residents of ultra-Orthodox appearance, when they go out to purchase food and drugs.

            In addition, the Petitioners argue that the declaration was made “contrary to the obligatory constitutional norms”, that its provisions violate the International Covenant on Civil and Political Rights, that the provisions should have been established in primary legislation, and that the declaration does not meet the tests of proportionality. Lastly, they argue that the declaration was made without public debate, without sufficient evidentiary grounds, and in violation of the right to be heard. According to the Petitioners, they addressed a demand to revoke the declaration to the Respondents, but received no reply (I would note that contrary to what is stated in the petition, the Petitioners’ letter to the Respondents was not appended to the petition).

5.         The Municipality admitted, both at the beginning and at the end of its response, that all involved are working around the clock in the holy effort of aiding the residents of Bnei Brak.

            On the merits, the Municipality supports the petition, and joined its arguments. In its response, it argued that “the blood of the residents of Bnei Brak is no less red than that of the residents of Israel’s other cities,” and that from the outset, the Municipality expressed its opinion to the authorities that “it is wrong to adopt the historically unparalleled, draconian measures taken against the city of Bnei Brak alone”.

            The Municipality complained of the manner of making the decision that is the subject of the petition. It argues that before declaring Bnei Brak a restricted zone, the authorities should have heard its opinion, as it is better acquainted with the lifestyle of the city’s residents than any regulator, and is deeply involved in the city’s ongoing affairs. It claims that decisions affecting the fate of thousands of large families and thousands of elderly should not have been made without first obtaining complete, comprehensive information from the Municipality’s social services department, and without familiarity with the unique characteristics of the city’s population. For example, the Municipality (and the Petitioners) pointed out that a large portion of the city’s residents rely on “kosher” phones that cannot receive SMS messages intended to provide information to the city’s residents. Against this background, the Municipality asks that even if the Petition be denied, the Court order the end of the quarantine no later than the originally established date, and that no extension be made without prior, professional, interdepartmental consultation, and primarily, after consultation with the Municipality.

6.         The Municipality listed the following failures, one by one: The 104 call center of the National Emergency Network did not undergo basic training in regard to the special character and needs of the residents, and was not available for hours; there was no food delivery, and as a result, residents thronged the food distribution centers; there was a lack of even a basic response for support and solutions for the many sick people throughout the city; large families struggled to obtain food, drugs, and medical services. Doctors and other essential workers and service providers cannot enter the city, and those who are willing to do so just give up in the face of demands for presenting permits that no one knows how to obtain, if they can be obtained at all; people sent into quarantine in hotels complain of being ignored and abandoned; and the lack of supply of goods and food items, hygiene and other basic needs prevents the residents from properly preparing for Passover. The Municipality further complains that there was no consideration of the possibility of forbidding soldiers and security forces from moving about the city with their weapons, nor consideration of the fact that the very presence of thousands of soldiers, police and border patrol officers had a traumatic effect upon many of the city’s residents.

7.         On the legal plane, it is argued that the means adopted are disproportionate, and that they, therefore, do not meet the conditions set out at the end of sec. 12 of Basic Law: Human Dignity and Liberty, which establishes:

This Basic Law cannot be varied, suspended or made subject to conditions by emergency regulations; notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708-1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required.

According to the Municipality, the trampling of the public’s basic rights to freedom of movement and liberty “for the medical needs of the handful of sick persons in Bnei Brak” is disproportionate. At the very least, no consideration was given to the possibility of isolating certain sick persons, given that their number is only about 900, some of whom are members of the same family, or to impose a quarantine only upon certain areas of the city rather than on the entire city. According to the Municipality, the harm caused by the quarantine outweighs its benefits, inasmuch as the overwhelming majority of the city’s residents are completely healthy, but they, too, have been imprisoned in the city due to the quarantine, and people suffering from chronic ailments who require medicine and treatment have also been harmed. It is further argued that the purpose of the quarantine is to prevent the transmission of the virus outside the city, and thus the fear that the State seeks to use the city’s residents as “guinea pigs” in order to test the herd effect, which is an improper purpose, and moreover, its effectiveness has not been proven.

8.         Like the Petitioners, the Municipality also emphasizes in its response that in addition to the harm caused and that will be caused to each and every one of the city’s residents, “no less important is the public harm and the stigma attaching to all the residents of Bnei Brak like a mark of Cain”. It is argued that the quarantine has resulted in wild incitement against the Bnei Brak public, and that the residents may be stigmatized as lawbreakers and “spreaders of disease”. Thus, the Municipality requests and demands that a message and declaration be sent out that “the fate of the residents of Bnei Brak is no different than that of all the citizens of the State of Israel”.

 

The normative framework

9.         In order to contend with the difficult situation created by the coronavirus epidemic, the Israeli Government exercised its authority under sec. 39 of Basic Law: The Government, and promulgated emergency regulations in regard to a number of subjects, which were intended to mitigate the danger of the spreading of the virus (see, inter alia, Emergency Regulations (Novel Coronavirus – Restriction of Activity), 5780-2020 (March 21, 2020); Emergency Regulations (Novel Coronavirus) (Isolation in a State Assigned Place of Isolation), 5780-2020 (April 2, 2020)).

10.       On April 2, 2020, the Israeli Government decided to promulgate Emergency Regulations (Novel Coronavirus) (Restricted Zone), 5780-2020 (hereinafter: the Regulations). This is the text of reg. 2(a) of the Regulations:

                        Declaration of a Restricted Zone

                        2(a)      If the coronavirus has significantly spread in a particular are in Israel, and the Ministerial Committee is convinced of the need for restricting entry and exit therefrom in order to prevent the spread of the illness outside the said area, it may, with the consent of the Government, declare the area a restricted zone, on the condition that during the period when the declaration is on force, there will be appropriate supply of necessary goods and services in the area.

            Pursuant to that, reg. 3 details a list of restrictions that would apply to a “restricted zone”, which treat of prohibiting exiting and entering the restricted zone, and a limited number of exceptions, among them: exiting for medical care, legal proceedings, the funeral of a first-degree relative, and entry by medical teams, social workers and the press, and entry for the purpose of supplying necessary goods and services.

            In addition, reg. 4 details the authorities granted to the police for the purpose of enforcing the provisions of reg. 3. It should be noted that under reg. 7, the Regulations will remain in force for a period of 30 days from the day of publication.

            [Parenthetically: Reg. 3 of the Regulations was amended in Emergency Regulations (Novel Coronavirus) (Restricted Zone) (Amendment), 5780-2020. The amendment establishes that where the Ministerial Committee declared a particular area as a restricted zone, it may also include in the declaration that “all or part of the restrictions listed in reg. 3 will apply, and it may establish exceptions to the application of the said restrictions, in accordance with the circumstances of the restricted zone” (Official Gazette 8460 of April 6, 2020, p. 1036)].

11.       In terms of authority, the promulgation of the Regulations is facially in accordance with the Governments’ authority under sec. 39 of Basic Law: The Government, subject to the various limitations as established by law and precedent. I see no need to address those limitations in the context of this petition, inasmuch as the Attorney General expressed his opinion on the matter in his letter to the Prime Minister of April 6, 2020, and a separate petition in this regard is currently pending before this Court (HCJ 2399/20 Adalah v. Prime Minister).

12.       There was good reason for our lengthy presentation of the arguments of the Petitioners and the Municipality. This is the first time in the history of the State of Israel that a quarantine was imposed upon a city within the Green Line.[1] Naturally, this unprecedented decision raises a variety of problems for implementation in the field. This petition, although it misses the mark here and there in terms of exaggeration and analogies to dark periods of history that were better left unmentioned, expresses the authentic distress of the residents of the city of Bnei Brak, which was placed under quarantine, such that none may leave or enter its gates. It is a bitter irony that Passover has changed from the festival of freedom to a holiday of families sheltering together, imprisoned between the four walls of their homes.  Indeed, the quarantine weights heavily upon the residents of Bnei Brak, and their cries have risen to Jerusalem and the Supreme Court.

13.       With all due understanding of the distress expressed in the petition and the Municipality’s response, in view of what is stated in the State’s response, the petition must be denied.

            On April 4, 2020, the day the Regulations were promulgated, the Government made the decision to declare the Bnei Brak municipal area “restricted zone” for a period of six days. From that perspective, the petition was submitted late – four days after the declaration and two days before the end of the original date set for the end of the period.  I would note that in their response, the Respondents have informed us that the present intention is to extend the period until April 10, 2020.

14.       In practice, due to the pace of events, with one decision following on the heels of another, the petition became partly “moot” within hours of its submission, due to the intention to impose a general closure upon the entire state, such that the residents of Bnei Brak will not stand alone in the campaign. However, the Municipality argues that precisely the fact that a quarantine is being imposed at this very hour upon other places throughout the country emphasizes the discrimination against the residents of Bnei Brak, inasmuch as the imposition of the quarantine to other places is more balanced and reasonable, and is more considerate of the needs of the residents.

15.       The declaration of Bnei Brak as a “restricted zone” followed a large number of incidents of infection in the city, and the fear of the unrestrained transmission of the virus. As noted, the petition before us challenges the legality of that declaration. According to the Municipality, two preconditions for declaring the city a restricted zone were not met: the quarantine is not necessarily required to stop the spread of the virus, and there is an absence of “appropriate supply of necessary goods and services in the area”. In the Municipality’s view, a distinction should be drawn between sheltering-in-place and quarantine, and the decision was made without data and without information.

16.       However, as we learn from the State’s response, the decision to impose a quarantine was not taken lightly, but was made only after consultation with the relevant professional bodies. Thus, the State pointed out that the decision was made on the basis of an expert epidemiological opinion of the Deputy Director of the Public Health Service in the Ministry of Health, Dr. Udi Kleiner, which was also signed on April 4, 2020.

            In that opinion, appended to the State’s response (Appendix R/3), Dr. Kleiner addressed the illness caused by the coronavirus, its spread in the world and in Israel, and the steps that had been taken in Israel in order to contend with the virus. It was pointed out that Israel has adopted a general policy of “social distancing” to lessen the outbreak of the virus, and while this policy has proven itself in terms of slowing the pace of the rise in cases over the last few days, there are still areas and towns in which there are indications of significant concentrations of illness and high rates of transmission. It was also noted that these concentrations are of both local and national significance, inasmuch as they may become the source of morbidity. Dr. Kleiner emphasized that imposing strict limits upon movement in a limited area in which there is significant morbidity and a high rate of transmission, inasmuch as this means “is more effective in preventing the spread of the epidemic than increasing the restrictions upon the entire state. This will make it possible to lower the rate of transmission in the restricted zone […] and in other areas, due to a reduction in the export of infection from the restricted zone to other areas”.

            Further on, the opinion sets out the criteria for establishing a restricted zone subject to additional limitations, which are: a high level of incidence relative to other areas; a significantly higher level of incidence that in the general population; high population density; and clear concentrations of respiratory ailment in the area in the report of the Israeli Center for Disease Control (hereinafter: ICDC). It was explained that meeting most or all of the criteria adds support for deciding to declare an area as a restricted zone.

            The opinion listed the following data in regard to the city of Bnei Brak:

            (-)        The number of sick in the city stands at 966 to date (the 2^nd highest rate of incidence and number of patients in the Israel), 418 of them were added over the last three days (about a fifth of the number of people testing positive over those days);

            (-)        The rate of incidence stands at 492.1 per 100,000 residents (no. 4 in Israel among towns with a population exceeding 5,000 persons), as opposed to a rate of 76.1 in Israel (according to a rate of incidence of 6,852 among 9 million residents);

            (-)        A population density of 26,368.4 persons per square kilometer (the most densely populated city in Israel by a significant margin among towns with a population exceeding 5000);

            (-)        A clear concentration of respiratory illness according to the ICDC analysis, and over time.

            We should note that the opinion was accompanied by a report of concentrations of the ICDC, and a slide detailing the ten leading towns in terms of illness and number of patients in Israel as of April 1, 2020.

            The position of the opinion’s author was that in weighing the data, “the city of Bnei Brak currently constitutes an exceptionally significant center of illness, which will undermine the national effort to lessen the coefficient of contagion”. It was noted that the city of Bnei Brak meets all of the criteria for establishing a restricted zone, and accordingly, severe restrictions upon movement must be imposed.

            As stated, on the basis of the opinion, the Government made a unanimous decision to declare the municipal area of Bnai Brak a restricted zone for a period of six days. It is that decision that is challenged by the petition.

17.       It is settled law that when the Court reviews a decision by a governmental agency, it does not presume to stand in its shoes and make decisions for it in its area of expertise. It is not the practice of this Court to intervene in matters of the agency’s policy, and this is particularly so in regard to policy that is based upon clearly professional data, and where the decision is of a clearly professional nature under the agency’s authority and expertise. That is the case in general (see, among the many cases: HCJ 8938/11 “All for Peace” v. Minister of Communications [1], para. 18; HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection [2], para. 11; HCJ 5438/19 Jan Chibartkin v. Ministry of Justice [3], para. 16), and it is particularly the case in regard to professional matters concerning public health (HCJ 13/80 Nun Canning Industries v. Ministry of Health [4], 695-696; HCJ 4675/03 Pfizer Pharmaceuticals v. Director General of the Ministry of Health [5], para. 39; HCJ 1407/18 Koffolk (1949) Ltd. v. Head of the Medical Preparations Registration Department [6]; HCJ 703/19 MBI Pharma v. Ministry of Health [7], para. 19; and see the recent cases concerning the coronavirus epidemic:  LAA 2199/20 Peshe Brook v. Ministry of Health [8], para. 6; HCJ 2233/20 Pardes Hanna-Karkur Local Council v. Ministry of Health [9]).

            While we are not concerned with a regular administrative decision, but rather with a Government Decision by virtue of emergency regulations, we are concerned with a clearly professional matter. The Ministry of Health outlined a policy of reducing contact, to the extent possible, among the population, together with isolation of validated patients. In that framework, as fully explained in the response, various restrictions were imposed that were intended to prevent congregating, which is a fertile ground for infection, restricting movement in the public domain, closing educational, cultural and leisure institutions, and places of work and commerce. According to the data and the status report, this policy has borne fruit in the form of a slowing of the pace of the increase in patients. The general status report for the state shows areas and towns in which the concentration of incidence is significant and the rate of transmission high. This has both local and national impact. Thus, the position of the professional organs is that severe restrictions on movement be imposed on these areas, in the form of declaring the area a “restricted zone”, with the resultant extreme limitations on going out in public areas and restrictions upon entering and exiting the area. This was done to reduce the “export” of infection to other areas, and to prevent the entry of infected persons who might further increase the number of those infected. As stated, as of the present time, the professional bodies have established a number of parameters for examining whether and when to declare a particular area a “restricted zone”: the number of infected persons in the area as compared to other areas; the rate of morbidity in the area relative to the general rate in the population; population density; and locating a clear concentration of respiratory illness in the area.

            On the basis of these parameters, and as stated in the aforementioned expert opinion, the data showed that Bnei Brak is a significantly exceptional center of illness – the number of patients, the morbidity, and the population density required adopting the unprecedented step of declaring the city a “restricted zone”.

18.       The stage theory  that applies constitutional review is well known: a violation; the limitations clause with its four stages (by law or by virtue of a law,  befitting the values of the State of Israel, for a proper purpose, and proportionality in accordance with the three subtests), and the remedy (Aharon Barak, The Constitutional Right and its Violation: The Three-Stage Theory, 19 Mishpat Umemshal 119 (2018) (Hebrew). I will now examine the challenged decision in accordance with the three-stage theory that applies to constitutional review, as briefly as possible, and without digressing into dissertations. The time for that will come after the plague has passed and the dust has settled, and we will leave it to the academic scholars to expand.

19.       Clearly, the declaration of Bnei Brak as a restricted zone involves a number of violations of basic rights, like freedom of movement. The purpose of the severe restrictions imposed upon the city’s residents is clear – protecting the health and lives of the city’s residents and the residents of the entire State of Israel. In accordance with the professional discretion, and the data available to the decisionmakers – the scope of illness in the city, the rate of infection, and the population density – there was no recourse but to declare the city of Bnei Brak a “restricted zone”, and thus the declaration was made for a proper purpose.

20.       The three subtests are well known: the rational connection test, the necessity test (the less harmful means), and the proportionality test stricto sensu.

            There is a clear rational connection between the means and the purpose, and I see no need to elaborate. The second subtest – the less harmful means – examines the matter on a metaphoric ladder: was it possible to adopt a “lower” rung on the ladder that would be less harmful to the right? In the present case, there is no denying that the means of quarantine, or more precisely, declaring the city of Bnai Brak as a “restricted zone”, is a very high rung on the ladder. However, it is not sufficient to show that there are other means that would violate the right to a lesser degree. The requirement is that the means to achieve the purpose do so in an appropriate and necessary manner (see, among many: HCJ 10203/03 Hamifkad Haleumi v. Attorney General [10], para. 51 per Justice Naor). Weighing the less harmful means where there are several alternatives is contingent upon whether the means realize the law’s purpose equally (HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [11], 387).

            The State proceeded up the ladder in adopting the means employed. The declaration did not appear as a bolt from the blue and as the first step adopted. It was adopted after less harmful means, of the type imposed on the general population, were imposed but did not yield the desired results. In view of the number of people infected and the rate of transmission, and against the background of the city’s extreme density, there were no the less harmful means available that could provide the necessary response for stemming the spread of the virus outside the Bnei Brak area at this time. Thus, the second subtest was met.

            In regard to the proportionality stricto sensu test – a cost-and-benefit test – we can only rely upon the professionals, who are of the opinion that there was no recourse but to impose the restrictions of a “restricted zone” in order to stem the spread of the virus. The cost, which is certainly high from the perspective of the city’s residents, “is worthy of the king’s trouble” [Esther 7:4] when it is preserving the health and lives of the residents of city and the entire State of Israel.

21.       The quarantine is not hermetic, as we see from the exceptions established in the regulations themselves, and in light of the details provided in the State’s response, inter alia: the National Emergency Network was authorized to permit individual requests in areas not listed in the Regulations; a mechanism was established for addressing exceptional cases; the SMS response of the 104 call center can be received by “kosher” phones; and in addition, the development of a liaison system through the police is currently underway.

22.       We have noted the State’s undertaking that the Homefront Command is acting and will continue to act to assist the city in regard to necessary goods and services. We were informed that, to date, 13,800 meals, including food packages for individuals and families, have been distributed; informational material appropriate to the city’s unique population was distributed; and special assistance was provided to at-risk populations, with emphasis on food and medicine. The State is working on the removal of validated and isolated patients from the city to dedicated apartment hotels that have been specially prepared for that purpose, in order to prevent circles of infection around the patients. The hotels were prepared and adapted with a mind toward the special needs of the ultra-Orthodox population in general, and in particularly in view of Passover.

            We further note that there are ongoing evaluations of the situation in accordance with updated data, and where there is no further justification for the restrictions, or where it is possible to suffice with less restrictive means, the restrictions will be eased or removed.

23.       We face an unprecedented situation of fear of the rapid spread of the coronavirus in large numbers, with all that portends in terms of morbidity, death, and the collapse of the health system. In the horizontal balancing of rights, we now place the violation of fundamental liberties and rights like freedom of movement against the right to life and physical integrity – an uncommon situation in our state. In that horizontal balance, the right to life prevails.

 

Before concluding

24.       While we write these lines, the Petitioners have filed a request for an interim order and for an expedited hearing of the petition. This is brought in response to the State’s announcing its intention to extend the declaration for two additional days, until April 10, 2020, and that the Government will hold a teleconference to approve the extension.

            That decision has not yet been made, but in any case, in view of the above, we find no cause for granting an interim order. It would not be superfluous to point out that, according to what has been reported by the media, the extension of the various restrictions until April 10, 2020 is intended to apply to all residents of the Israel.

 

Conclusion

25.       We see no grounds for intervening in the Government’s decision. Even if we can understand the painful sense of humiliation expressed between the lines of the petition – the humiliation of the residents of Bnei Brak – we need only point to the State’s response, which completely rejected the claim of discrimination against the residents of Bnei Brak for their social and religious affiliations. We act under the presumption that, in this matter, the Government made its decision on the basis of the recommendations of the professional organs, and solely for relevant reasons.

            Although we have denied the petition, we find it proper to observe that the Government’s response provided no real answer to the Municipality’s claim that the decision was made without conferring with it. This may be because the Municipality’s response was submitted shortly before the State submitted its response, and thus it did not have adequate time to respond in that regard. In any case, without addressing the factual veracity of the claim, if this was not done, it would seem that there is merit to the Municipality’s complaint, and the State must take note of this, unless there are material reasons for not doing so.

26.       This is a time of distress for all Israel, as is reflected in this petition. Let us hope that the coming festivals of Passover, Easter, Ramadan and the Prophet Jethro (Nabi Shu’eib) will mark a turning point.

            The petition is denied without an order for costs.

 

Justice A. Baron:

            I concur.

Justice Y. Elron:

            I concur.

Decided as stated in the opinion of Justice I. Amit.

Given this day, 13 Nissan 5780 (April 7, 2020).

 

The Supreme Court sitting as High Court of Justice

HCJ 10042/16

HCJ 10046/16

HCJ 10054/16

HCJ 76/17

HCJ 802/17

 

Quintinsky v. Knesset

 

In the matter of the Multiple Apartments Tax Arrangement

 

Summary

 

            The petitions challenged the Multiple Apartments Tax Arrangement and its legislative procedures. An expanded five-justice panel of the Court (per Justice N. Sohlberg, Deputy President M. Naor and Justices E. Hayut and N. Hendel concurring, Justice M. Mazuz dissenting) granted the petitions and declared the Multiple Apartments Tax Arrangement relatively void, such that that the Knesset was not required to revisit the legislative proceedings prior to the Arrangement’s deliberation in committee in preparation for the second and third readings, but could “return” to the legislative proceedings from the point in which the defect occurred – i.e., the stage of the deliberations in the Finance Committee.

1.         The Tax Arrangement, anchored in Chapter XII of the Economic Efficiency (Legislative Amendments for the Implementation of the Economic Policy for Budget Years 2017 and 2018), 5777-2016, imposed a designated tax upon owners of multiple apartments whose aggregate rights in the apartments was 249% or more. Under the Tax Arrangement, a holder of apartments to the said extent would be subject to a tax of 1% of “the determining amount” for each apartment held, exclusive of two apartments as he may choose, where the “determining amount” would be calculated in accordance with a formula set out in the Appendix to the Law.

2.         Five petitions were submitted, arguing that the Court should annul the law both for defects in the legislative process and for unconstitutionality. On Feb. 28, 2017, the Court issued an order nisi requiring the Respondents to show cause why the Tax Arrangements should not be revoked “due to a substantive defect in its legislative proceedings that goes to the heart of the proceedings”. Inasmuch as the order nisi addressed only the defects in the legislative proceedings, the Court’s judgment focused solely upon that subject.

3.         At the outset of his opinion, Justice N. Sohlberg addressed the fundamental guiding principles of judicial review of the Knesset’s legislative procedures. On the one hand, he emphasized the principle of the separation of powers, from which the Knesset derives its elevated status as an independent authority entrusted with legislation, and which requires restraint and moderation in the judicial review of its actions. On the other hand, he presented the justifications for judicial intervention in the legislative process, bearing in mind, inter alia, the principle of the rule of law and the Knesset’s role in supervising and monitoring the activities of the government. Indeed, the principle of the separation of powers requires that judicial review of the legislative process be carried out with awe and reverence, moderation and respect. However, it also requires that the Court vigilantly stand guard lest the Knesset serve as the government’s doormat. This particularly so in Israel’s parliamentary regime in which the executive branch controls a majority of the members of the legislative branch, and all the more so when an “exceptional” legislative process like that of the Arrangements Law is concerned. The Court must, therefore, ensure that the Knesset fulfils it role faithfully and responsibly, inter alia through a proper, productive legislative process. Justice Sohlberg also noted that the Court was not concerned with review of the content of the Law, but solely with an examination of the process of its enactment.

4.         After presenting the guiding principles, Justice Sohlberg addressed the criteria for judicial review of the legislative process as developed in HCJ 4885/03 Israel Poultry Farmers Association Agricultural Cooperative Society v. Government of Israel, IsrSC 59(2) 14 (2004) (hereinafter: the Poultry Growers case) – deemed the leading case on the subject of judicial review of the legislative process – which established that judicial intervention in the legislative process is justified only in the presence of  “a defect in the legislative process that ‘goes to the heart of the process,’” that involves a severe and substantial violation of the basic principles of the legislative process. Such defects include, inter alia, the “principle of participation”, which is examined on the basis of two criteria: the first is whether the Knesset members were “denied any practical possibility of knowing about what they are voting”; the second is whether the Knesset members were denied any “practical possibility of formulating their position with regard to the draft law”.

5.         Thirteen years having passed since the Court’s decision in the Poultry Growers case – and in light of the experience accumulated in the interim, and in view of the Knesset legal adviser’s statement in the course of hearing this case that the case law does not currently provide adequate guidance to the legislature – Justice Sohlberg was of the opinion that some further polishing and direction was required. The Poultry Growers case had served its purpose, but at present, achieving a proper balance between the Knesset’s sovereignty and the need for legislative procedures appropriate to Israel’s constitutional parliamentary regime required that emphasis no longer be placed upon the question whether the Knesset members were “denied any practical possibility of knowing about what they are voting”. Rather, a somewhat different, more easily implemented and effective test was required along the lines of the second criterion raised in the Poultry Growers case. The legislative process must allow the members of the Knesset to adopt a substantive position, if only in a very limited manner, in regard to the bills placed before them. Under this approach, adopting a position is not a mere “passive” act, but requires a certain cognitive process, independent processing of the information presented to the Knesset member, and the formulation of an informed decision for or against the proposed law. Only when such an opportunity is provided, can it be said that the Knesset members were granted an opportunity to participate in a real, active sense in the legislative process.

6.         Justice Sohlberg addressed the substance and importance of parliamentary debate, and held that a proper legislative process requires debate in the substantive sense of an exchange of ideas. In the absence of an opportunity to conduct a debate, the Knesset members’ participation in the legislative process is deprived of content, and is limited merely to a basic, “passive” understanding of the proposals before them. In such a situation, there is a not-insignificant fear that the Knesset will become a “rubber stamp” for the law’s sponsors – at times, the executive branch which, as noted, enjoys a parliamentary majority. Justice Sohlberg emphasized, however, that the Knesset is not under a duty to conduct a hearing like the “due process” required of administrative agencies. The Court’s intervention in the legislative process would be justified only when Knesset members are deprived of any practical possibility for conducting a minimal discussion of the proposed bill and form an opinion in its regard – even if only in the most basic sense (para. 79 of the opinion). However, if the legislative process was conducted in the said manner, but the Knesset members failed to exploit the opportunity afforded them, there would be no grounds for judicial intervention that would “coerce” the Knesset members to conduct themselves in some particular manner.

7.         Justice Sohlberg further stressed that the question whether a parliamentary debate was conducted must not be examined in accordance with rigid, formal rules in the absence of which the principle of participation is not fulfilled. Care must be taken not to set an overly high, unattainable bar. Often, time limitations and workloads do not permit “sitting seven clean days” on every law, and conducting a comprehensive, exhaustive discussion of every jot and tittle. Clearly, it is often impossible to grant each and every Knesset member the opportunity to present all of his arguments at length and in detail. Judicial review of the legislative process thus requires addressing the matter in light of all its circumstances.

8.         Justice Sohlberg also addressed the “exceptional” procedural framework through which the Tax Arrangement was enacted. In this regard, he noted that the need for the earlier noted parliamentary debate would seem to be inconsistent with the haste that characterized the enactment of the Arrangement Law, but he nevertheless held, in accordance with the holding in the Poultry Growers case, that despite the not inconsequential problems presented by this legislative mechanism, recourse to it does not, itself, invalidate a law. Judicial review of the legislative process must be substantive, and must focus upon the maters themselves, viz., whether there was a clear, serious infringement of the fundamental principles of the legislative process. This conclusion is a consequence of the view that even if ab initio it were preferable to take the ‘high road” of the normal legislative process, after the fact there is no justification for judicial intervention in the legislative process as long as the fundamental principles of the process were maintained. Moreover, we must take care not to adopt a “pure” approach that would impose demands upon the legislative process that the public’s representatives would be unable to maintain. Therefore, the government must be permitted some leeway in this regard, and the Court should not preclude a priori a mechanism that facilitates a more rapid legislative process that makes it possible to combine matters that are directly and substantively connected to achieving the budgetary goals, as long as this does not constitute a clearly serious violation of the fundamental principles of the legislative process.

9.         Against this background, Justice Sohlberg examined the legislative process of the law under review, and held that the cumulative circumstances surrounding the legislative proceedings of the Tax Arrangement in the course of the preparation of the bill by the Finance Committee for a second and third reading leads to the conclusion that there was a defect that went to the heart of the legislative process. In this regard, Justice Sohlberg took note of the hurried schedule of the Finance Committee’s debate, which did not allow the Knesset members time to examine the details of the updated bill prior to the debate; the atmosphere of haste, pressure and panic that characterized the Committee’s debate (as reflected by the protocol of the session); and the complexity of the Multiple Apartment Tax Arrangement, which had serious economic and legal ramifications, and which could not be addressed in a hasty, routine manner.  It was further emphasized that no one characteristic of the process under review, alone, constitutes grounds for annulling the legislative procedure. However, when members of Knesset are required to hear the reading of the provisions of a bill – “new” as well as “old” – understand and assimilate the explanations, express an opinion and listen to other opinions under such time restraints and haste, in the middle of the night, and following long, exhausting debates of other issues, while all the while being pressed to hurry, it becomes clear that no real debate can be held. Inasmuch as the members of the Finance Committee who so desired were not granted an opportunity to conduct a proper debate and form a considered opinion in regard to the Multiple Apartments Tax Arrangement, the principle of participation was clearly and substantially infringed. Under such circumstances, there is no recourse but to hold that there was a flaw going to the heart of the legislative process of the Multiple Apartments Tax.

10.       Incidentally, Justice Sohlberg noted that the “abandoning” of the Finance Committee debate by members of the opposition may have had its political reasons, but such conduct does not provide grounds for judicial review of the process. Judicial review of the legislative process focuses upon the possibility afforded the Knesset members to conduct a debate and establish a position in regard to the bill. A Knesset member’s choice to relinquish that possibility does not itself justify judicial intervention.

11.       As for the remedy, Justice Sohlberg held that the finding of a flaw going to the heart of the legislative process does not necessarily require the nullification of the legislation under review. A distinction must be drawn between the question of the existence of a flaw going to the heart of the process and the question of the conclusion to be drawn from such a flaw. The decision as to the consequences of a flaw in the legislative process must be examined in light of the doctrine of relative voidness. In that framework, consideration must be given to the public interest that may be harmed from declaring a law or administrative act to be void, as well as to the extent of reliance upon the legislation, the scope of reasonable expectations that it created, and the consequences of declaring it void.

12.       Justice Sohlberg addressed the proposal of the Knesset’s attorney that a “warning of voidness” – a cautionary sign for the future – would suffice, but held that it would be inadequate under the circumstances. From a forward looking perspective, a mere warning would be insufficient in view of the seriousness of the defect in the legislative process, as well as in light of the opinion of the Knesset’s legal adviser in regard to the need to give expression to the principle of participation and the need to set a minimum standard, and also owing to the fact that warnings – that were, in effect, “warnings of voidance” – were repeatedly given in the past, along with expressions of great concern in regard to flaws in hasty  legislative procedures in regard to the Arrangements Law and other laws.

13.       The arguments in regard to expectations created by the Tax Arrangement were examined, along with the reliance upon its provisions in the marketplace and the public arena, and particularly by individuals, but such expectations were not found sufficient to justify retaining the Tax Arrangement. While some individuals and some of the public would certainly lose due to the nullification of the Multiple Apartments Tax, that loss would be made up for by the gain of proper legislative practices. Moreover, an examination of the protocol of the Finance Committee’s debate, and in light of the arguments made by the parties, the possibility cannot be ruled out that a proper debate in the Committee prior to the second and third readings may have resulted in changes in the content of the chapter concerning the Multiple Apartments Tax that would have influenced the ultimate legislative product.

14.       In this regard, Justice Sohlberg emphasized that the judgment was entirely focused upon the legislative process, and not on the content or wisdom of the Tax Arrangement. The Knesset may reenact the Multiple Apartments Tax Arrangement, and such a reenacting would not be what is polemically referred to as a “High Court bypass law”. A proper legislative process could give the Tax Arrangement legal force. Only then will the Arrangement’s expectations, reliance interests, and purposes be properly founded.

15.       Lastly, it was held that despite the severity of the defect in the legislative process, it was centered in the Committee’s deliberations in preparation for the second and third readings. That being the case, it would be proper that the remedy be focused upon what needed correction and not beyond that. There is no need or justification for voiding the entire legislative process and starting again from the beginning, which would cause greater harm than benefit. In light of that, Justice Sohlberg proposed ordering the Multiple Apartments Tax Arrangement relatively void, that is, it would not be necessary to repeat the legislative stages prior to the Committee’s deliberations in preparation for the second and third readings, and the legislature could “return” to the legislative process from the stage of deliberation in the Finance Committee – the stage at which the defect occurred – and continue as required.

16.       President M. Naor concurred in the judgment of Justice Sohlberg, the main points of which were presented above, and added only a few comments of her own. Inter alia, President Naor addressed the role of the chair of a Knesset committee and that of the chair of the Finance Committee in particular. The President noted that while the role of the chair of the Finance Committee is complex and requires consideration of various interests, ultimately, as the chair of a Knesset committee he must ensure the principle of parliamentary independence and the conducting of a proper legislative process. On one hand, he must ensure efficient debate, while on the other hand, he must not surrender to a demand to bring a law to a vote at any price and at any time. Against this background, the President noted that in the instant case the Chair of the Finance Committee should have acted differently, for example, by convening a further hearing on the bill on the following day, as was requested by some of the committee’s members. The President further noted that the Court had expressed criticism in regard to the legislative process, but had refrained from intervening in a law that had been enacted by such a process due to the restraint and moderation demanded by the relationship among the branches of government. However, she emphasized that this does not mean that “everything is permitted” in legislative proceedings. When the separation of powers is undermined, it is the role of the Court to ensure that each branch act within its own realm.

17.       Justice E. Hayut concurred in the judgment of Justice N. Sohlberg, and noted that given the inherent problems of accelerated legislative proceedings, as in the case of the Arrangements Law, there is no avoiding the presumption that such proceedings are facially susceptible to defects. She therefore added that it is important to establish rules and criteria that would lessen the threat, and it is regrettable that such rules have not been incorporated into the Knesset rules even 13 years after the Poultry Growers case. Justice Hayut noted that the Knesset’s legal adviser, Advocate Eyal Yinon, faithfully fulfilled one of his central statutory roles in clearly explaining to the Knesset House Committee, in advance, the importance of strict observance of the proper legislative procedures despite the pressing schedule. However, the new draft of the Multiple Apartments Tax Arrangement was only presented for the review of the members of the Finance Committee at the outset of the debate upon it, which raised objections from Knesset members from the entire political spectrum, as well as by the committee’s legal adviser. Under such circumstances, “the writing was on the wall” and it was clear that the debate that was about to take place under such circumstances would be improper and tainted by a defect that went to the heart of the process. In regard to the Knesset legal adviser’s letter warning that there was a defect going to the heart of the legislative process of the Multiple Apartments Tax Arrangement, and the Knesset Speaker’s letter asking the chair of the Finance Committee to consider reconvening the committee in view of the defects in the legislative process, Justice Hayut noted that one might have expected that such an exceptional letter from the Knesset legal adviser, especially when accompanied by a request from the Speaker, would have fallen on attentive ears. Unfortunately, the chair of the Finance Committee did not heed that call, and we have thus arrived at this juncture. Inasmuch as more-than-sufficient “warnings of voidance” were given in this matter, Justice Hayut concurred in the opinion of Justice Sohlberg and the remedy he proposed.

18.       Justice N. Hendel concurred in the opinion of Justice N. Sohlberg, and expanded upon the theoretical and practical importance of the right of Knesset members to participate in legislative proceedings from the perspectives of political theory and Jewish law. Often, modern legislation is not the product of philosophical enquiry seeking truth and justice, but rather of political negotiations that involve political pressure and the relinquishing of principles. However, such a procedure does not violate the honor of legislation, as that derives from the nature of the common social project reflected by lawmaking. That joint creation that balances the values of all parts of society is a significant achievement that grants the law a special status worthy of public respect. But that is only true if the representatives of all the public were afforded an opportunity to participate in the legislative process. It is that participation that makes the law a foundational, unifying force, and transforms the exigencies of the process from coercion to a source of strength.

            Justice Hendel further addressed the question of the duty of Knesset members to participate in the legislative process. Jewish law stresses the recognition of this view in light of the conception of the public’s elected representatives as partners, agents and trustees of the public. Common to these approaches is a raising of the bar required of the holders of elected office. Justice Hendel’s opinion referred to a number of halakhic decisors who were active at the time of the establishment of the State of Israel and thereafter who were supportive of democracy in general, and of the State of Israel in particular. As opposed to Jewish law, Israeli law leaves the duty of Knesset members to participate in the legislative process to the public sphere. But that public duty of participation also carries legal weight when the scope of the right to participation is examined.

            The importance of the right of participation and the existence of a “public duty” of Knesset members to participate in the legislative process lead to the conclusion that, in the instant case, members of Knesset were actively deprived of that right of participation to an extent of a flaw going to the heart of the process that leads to the nullification of the law.

 

Dissent of Justice M. Mazuz:

 1.        Justice M. Mazuz, dissenting, was of the opinion that the petitions should be denied. He disagreed with the Court majority both in regard to the principles applied in reviewing the process in this case, as well as in regard to the application of those principles to the instant case.

2.         In the opinion of Justice Mazuz, the majority’s approach constituted an unjustified, substantive deviation from over three decades of the Court’s consistent precedent in regard to judicial intervention in the Knesset’s legislative process. The approach to intervention in the Knesset’s work procedures had, until now, been limited to protecting the democratic “rules of the game”. It was accordingly held that the Court would intervene in the internal decisions of the Knesset only when confronted by a serious violation of “substantive values of our constitutional regime” (the Sarid rule [HCJ 652/81 Sarid v. Speaker of the Knesset, IsrSC 36(2) 197]). That position was justified, inter alia, by considerations of the separation of powers and mutual respect among the branches of government.

3.         As far as the constitutional review of a law on a claim of flaws in its legislation, the leading case in this matter (the Poultry Growers case) established a more exacting rule under which the Court’s intervention is limited only to cases in which it is proven that the legislative process was tainted by “a defect in the legislative process that ‘goes to the heart of the process.’ A defect that ‘goes to the heart of the process’ is a defect that involves a severe and substantial violation of the basic principles of the legislative process in Israel's parliamentary and constitutional system”. That rule, which the Court reiterated on numerous occasions, focuses upon preserving the democratic “rules of the game” in regard to the legislative process (“the basic principles of the legislative process”), and expressly held that the Court would not review the legislative process on the basis of arguments as to the quality of debate (“proper legislative process”). In accordance with that rule, all of the many petitions submitted in this matter to date were unanimously denied.

4.         Justice Mazuz was of the opinion that although the majority viewed their position as implementing the extant rule in this matter, its approach actually represents a substantive change of the rule in law and in practice. In practice, the majority approach abandons the rule established in the Court’s consistent precedent that focuses upon protection of a Knesset member’s right of participation in the legislative process, and concentrates its constitutional review for claims of defects in that process upon criteria that concern the quality of the of the legislative debate in the Knesset (the length of the deliberations on the bill; the influence of the deliberations upon the bill; and the time that elapsed from the presentation of the bill for examination by the Knesset members and the date of the deliberations), inter alia in reliance upon criteria proposed by Victor Goldfeld in the framework of the doctrine of “legislative due process”, a doctrine expressly rejected by the Israeli Supreme Court.

5.         In the opinion of Justice Mazuz, we are concerned with a far-reaching change in the delicate, sensitive relationship between the Court and the Knesset in its primary role as the legislature – from the role of protecting the democratic “rules of the game” to that of conducting detailed review of the quality of the Knesset’s legislative debates. In Justice Mazuz’s view, this is a very problematic conception that raises a series of difficult theoretical and practical issues, both in terms of the normative aspect of the principles of constitutional review and in terms of the principle of the separation of powers and inter-institutional comity, as well as in terms of its practical consequences. This approach was expressly rejected over and over again by the Supreme Court in a large number of judgments spanning over three decades, and it has no counterpart in the law of other states.

6.         In the opinion of Justice Mazuz, an examination of the procedures adopted in enacting the Multiple Apartments Tax Law clearly shows that there was no violation of the right of the members of Knesset in general or of members of the Finance Committee in particular to participate in the legislative process. The rule of intervention established by the case law in this regard refers to a situation in which Knesset members are “denied any practical possibility” of knowing about what they are voting and of formulating their position with regard to the draft law. An examination of the matter refutes the argument that such was the case in matter before the Court.

            The proposal regarding the “Multiple Apartments Tax” was published for public review on Aug. 2, 2016. Shortly thereafter, the proposal was approved by the Government, and a memorandum of the law was published for public comment. After comments were obtained from various bodies, the bill was approved by the Ministerial Legislation Committee. The bill was submitted to the Knesset on Oct. 31, 2016, and was debated in two lengthy sessions of the Finance Committee held three weeks apart. The first session, held on Nov. 21, 2016, lasted some two-and-a-half hours. In the course of that session, the details of the bill were presented and comments and objections were voiced by members of the committee. The second session was held on Dec. 15, 2016. That marathon session lasted some eight hours, and at its conclusion, the bill was approved for submission to the plenum for a second and third reading. During this not inconsiderable period from the publication of the first proposal, the proposal was the subject of active, sometimes turbulent debate in the media and in various public forums. In addition, during the period of some three weeks between the two sessions of the Finance Committee, meetings and consultations were conducted between representatives of the Ministry of Finance and coalition and opposition members of the committee, as well as with the legal advisers of the committee and representatives of the Bar Association and the Institute of Certified Public Accountants. While by the very nature of the process, various changes were made in the bill in the course of the process, primarily in response to requests by Knesset members, these were included in the draft presented to the committee prior to the debate, and they were also presented and explained in the lengthy concluding session by senior representatives of the Treasury who were present at the session.

7.         Under these circumstances – in which the legislative process proceeded for nearly five months, including publication to the public, a plenum debate and vote in the first reading, two lengthy sessions of the Finance Committee, and a plenum debate and vote on the second and third readings – one can hardly say, in the opinion of Justice Mazuz, that the members of Knesset were denied any practical possibility of formulating their position and of knowing about what they were voting, which is the test for a constitutional violation of the right of participation.  Justice Mazuz was also of the opinion that this was not a legislative process of which to be proud. There is no doubt that the haste and urgency of the concluding session of the Finance Committee impeded the possibility for a detailed examination of the bill. However, that is not the test for intervention, particularly when the Knesset members were acquainted with the main points of the bill for some considerable time.

8.         In Justice Mazuz’s opinion, even a comparison between the circumstances and defects argued against the process in the present case and those addressed in prior judgments shows that the defects in the present case were not of a kind that differed or were of greater severity than those addressed in previous petitions that were all denied. On the contrary, in at least some of the previous petitions, including that of the Poultry Growers case itself, the defects were clearly more severe in various aspects. In the opinion of Justice Mazuz, this demonstrates that the criteria applied in this case were different from those applied in the Court’s previous decisions.

9.         Justice Mazuz was of the opinion that broadening the scope of constitutional review of legislative proceedings also raises a significant theoretical normative problem in regard to the source of authority for constitutional review of the quality of legislative proceedings themselves. Justice Mazuz surveyed the legal situation in other countries (the United States, England, Canada and Germany), and pointed out that constitutional review of legislative proceedings per se is not accepted in those countries, and that the approach adopted by the Court’s majority deviates from the accepted practice of other states.

10.       In concluding, Justice Mazuz expressed a dissenting view in regard to the appropriate remedy in this case, as well. In his view, even if there were defects in the legislative procedures that would justify the Court’s intervention – as was the view of the majority, and with which he disagreed – the operative result decided upon by the Court’s majority is not the remedy that accords with the circumstances and the principles of constitutional relief. In his view, it would have been sufficient in this case to point out the defect, which did not influence the results of the vote, or to issue a “warning of voidance”, or at most, to declare “delayed voidance”, that is, to establish a time frame during which the law would remain in force and during which the Knesset could reenact the law from the point in which the alleged defect occurred.

 

 

The Supreme Court sitting as the High Court of Justice

 

HCJ 6706/14

 

 

Before: The Honorable President M. Naor

The Honorable Deputy President E. Rubinstein The Honorable Justice S. Joubran

The Honorable Justice E. Hayut The Honorable Justice H. Melcer

 

The Petitioners:                1.            MK Hanin Zoabi

2.            Adalah – The Legal Center for Arab Minority Rights in Israel

3.            The Association of Civil Rights in Israel

 

v e r s u s

 

The Respondents:           1.            The Knesset's Ethics Committee

                2.            The Chairperson of the Knesset

                3.            The Knesset

 

Petition to Grant an Order Nisi

 

Date of Session:               17th of Kislev, 5775 (December 9, 2014)

 

On behalf of the Petitioners:      Adv. Hassan Jabarin; Adv. Dan Yakir;

Adv. Maisana Morani

 

On behalf of the Respondents: Adv. Eyal Yinnon; Adv. Dr. Gur Bligh

 

 

J U D G M E N T (R E A S O N S)

 

 

President M. Naor:

 

1.            On December 10, 2014, we issued  a judgment without reasons in which the Petition was denied by a majority opinion (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer, against the dissenting opinion of Justice S. Joubran). In the judgement we ruled that:

 

"1. The Petition before us addresses the decision of Respondent 1, the Knesset's Ethics Committee, which determines that Petitioner 1 violated Rule 1A of the Rules of Ethics for Members of Knesset, and instructs that she be removed from sittings of the Knesset's plenum and committees, other than participating in votes, for a period of six months, commencing on July 30, 2014, and ending on January  29,  2015.  Approximately  half  of  the  period  of

 

 

 

removal was during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014.

 

2.            In the Petition, the Court was requested to intervene in and cancel the  Ethics Committee's decision  regarding the Petitioner. Alternatively, the Court was requested to intervene in the removal sanction that was imposed upon the Petitioner.

 

3.            On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

4.            On December 9, 2014, we heard the Parties' oral arguments.

 

5.            The six month period is meant to end on January 29, 2015. Therefore we have found it to be appropriate to give our ruling now, without reasons. The reasons shall be given separately.

 

6.            By a majority of opinions (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer) and against the dissenting opinion of Justice S. Joubran, we rule as follows: There is no place to intervene in the Ethics Committee's decision that the Petitioner violated Rule 1A of the Rules of Ethics for Members of Knesset. As for the sanction: the sanction that was imposed is indeed unusual in its severity compared to sanctions imposed in the past. However, in the circumstances at hand and in light of the Petitioner's harsh words and the timing in which they were spoken, and considering that a significant part of the period of the sanction was during times of recess, we have not found it appropriate to intervene in the broad discretion that is granted to the Ethics Committee. Inter alia, we have taken into consideration the fact that two days ago the Dispersal of the 19th Knesset Law, 5775-2014 was legislated. In light of this law, the practical significance of intervening in the sanction is miniscule, if at all existent.

 

7.            Therefore, the Petition is denied. There shall be no order for expenses".

 

We shall now elaborate on our reasons.

 

 

 

Background

 

The Complaints Against the Petitioner and Her Responses Thereto

 

2.            The Petitioner is a member of the 19th Knesset on behalf of the Balad party. On June 17, 2014, the Petitioner interviewed on a morning program on Radio Tel Aviv (hereinafter: the "Interview"). The Interview primarily addressed the abduction of the three teenagers: the late Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, which occurred on June 12, 2014, in the area of Gush  Etzion.  The Interview was held approximately five days after the abduction, at a time when the teenagers' fate was not yet known. During the Interview the Petitioner said the following:

 

"Look, look… I, let's ask a question like this, ah, naively, is it strange that people who are under occupation, who live lives that are not normal, and who live in a reality in which Israel abducts detainees every day, is it strange to you that they abduct? […] They are not terrorists […] Even if I do not agree with them, they are people who do not see any opening […] They are people who do not see any opening to change their reality, and they are forced to use these means, until Israel shall sober up a little, until the citizens of Israel, the Israeli society shall sober up a little and shall see the suffering, feel the other's suffering"

 

3.            On July 13, 2014, in the midst of operation "Protective Edge", the  www.felesteen.ps website published an article that the Petitioner wrote, and which had been previously published on the www.arab48.co.il website (hereinafter: the "Article"). Inter alia, the following, was written in the Article:

 

"In order for Israel to be convinced that it is not possible to maintain and deepen the occupation, and for it to declare the end of the achievements of the detestable trinity: the fence, the siege and coordination, which it believed turned the occupation into a no-cost occupation absent from the Israeli reality – the Palestinians must declare the end of their own lethal trinity: coordination, negotiations and the internal dispute. We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith, and unity instead of the internal dispute" (a copy of the Article in Arabic and its translation to Hebrew were attached as Exhibit P/5 of the Petition).

 

4.            Following these  remarks, a number of complaints were filed with the  Ethics Committee against the Petitioner. The main complaint was filed on July 22, 2014, by the Chairperson of the Knesset. In this complaint the Chairperson  of  the Knesset stated that while he is aware of the Ethics Committee's position that the members of Knesset's freedom of political expression must be protected, he is of the opinion that the Petitioner "has long since crossed any line with respect to the

 

 

 

conduct that is expected of the MKs" and that the many approaches that are directed to him from the public in this matter "indicate that this is not an 'ordinary' case of a harsh or outrageous remark […], but rather continuous provocative conduct, which could materially erode the status of the Knesset in the eyes of the public." The Chairperson of the Knesset's complaint also mentioned a video clip that documents a confrontation between the Petitioner and policemen during a protest. The Ethics Committee decided not to refer to this video clip in its decision, and therefore I shall not address it.

 

5.            The Petitioner filed a response to the complaint. In her response the Petitioner stated that she "completely rejects the vexatious complaint that is indicative of a dominating culture of racism and a need to rule others and oppress their political opinions". The Petitioner added that the complaints against her were filed on political grounds and that "one must not surrender to those who disagree with me and want to silence me and punish me and even retaliate against me." With regard to the things she said in relation to the abduction of the teenagers, the Petitioner stated laconically that "I referred to the context of the sentence in a series of media interviews and I shall not reiterate it again, and I shall ask that the Ethics Committee review them to receive a complete picture". It is not superfluous to note that the Petitioner did not attach the said interviews to her response. Based on her said statement, the Petitioner asked that the Ethics Committee reject the complaint.

 

The Decision which is the Subject of the Petition

 

6.            On July 29, 2014, the Ethics Committee convened to discuss the said complaints against the Petitioner. The committee decided by a majority of opinions that the two remarks specified above constitute a violation of Rule 1A of the Rules of Ethics (Decision 16/19 of the Knesset's Ethics Committee "In the matter of Complaints against Knesset Member Zoabi" (July 29, 2014)). The  committee indeed emphasized that its consistent position is that to the extent possible, the limitation of freedom of political expression of members of Knesset should be avoided; that the members of Knesset's right to express public criticism of the government is maintained also during times of war; and that the mere voicing of harsh criticism on military moves or on government policy during times of war, should not be viewed as a violation of the Rules of Ethics. However, the committee ruled that one must distinguish between legitimate protest – harsh as it may be – and encouraging the enemies of the State and legitimizing acts of terror against its citizens. The committee added that the public in Israel, like in any state, "expects that members of Parliament, who declare allegiance to the State, shall not encourage those who act against it and those who wish to kill its soldiers and citizens and shall not support them […]" (paragraphs 8-9 of the decision).

 

7.            As for the Interview, the Ethics Committee ruled that even though the Petitioner clarified that she does not agree with the abductors, her statement that they are not terrorists and her justification of their actions – especially when the abducted teenagers' fate was yet unknown – constitutes "identifying with enemies of the State" (paragraph 9 of the decision). Regarding the Article, the committee ruled that it is not possible to interpret its content as anything other than "statements which intend to harm  the State  of Israel,  its security and its basic  interests" (paragraph 10 of the decision).

 

 

 

 

8.            The Ethics Committee ruled that the Petitioner's words do not coincide with the State's best interest and prejudice the public's trust in the Knesset and the Knesset's image. Therefore, it was ruled that the Petitioner violated Rule 1A of the Rules of Ethics and imposed a sanction of her removal from the sessions of the Knesset plenum and its committees, other than participating in votes, for a period of six months, beginning from July 30, 2014, and ending on January 29, 2015. Approximately three months of the removal period were during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014. On December 9, 2014, the Dispersal of the 19th Knesset Law, 5775-2014, was published in the Official Gazette (Reshumot). This law provides that the 19th Knesset shall disperse before the end of its term and that the elections for the 20th Knesset shall take place on March 17, 2015. Consequently, the Knesset Committee decided that an elections recess shall begin on December 11, 2014, lasting until the 20th Knesset convenes (see: Knesset Committee Decision "In the Matter of the Dates of the Elections  Recess and the Knesset's Activity During the Recess" (December 10, 2014)). Therefore, the remaining part of the period of removal – over a month and a half – also falls during recess.

 

9.            To complete the picture, it shall be noted that on August 3, 2014, the Petitioner's attorneys requested, "in order to file a petition to the High Court of Justice" against the decision, to review the minutes of the Petitioner's matter and the materials presented to the committee in the process of reaching its decision. On August 7, 2014, the Knesset's legal counsel replied to the request and informed the Petitioner that pursuant to Rule 21 of the Rules of Ethics, the ethics proceedings, including the documents and the minutes in the matter thereof, are privileged. The Knesset's legal counsel explained in his response that the committee recognizes that there are exceptional situations in which public interest requires disclosure of material from its sessions, such as a situation in which the use of the material is required for the purpose of legal proceedings. However, he stated, the exception relates to the circumstances in which the material from the committee's sessions is required for other legal proceedings and not for the purpose of challenging the decision of the Ethics Committee itself. It was elucidated that the committee is concerned about creating a precedent which will adversely affect the ability of committee members to properly fulfill their duties. Therefore, he informed that the committee unanimously rejected the petition to lift the privilege from the minutes of the session, but decided that if indeed a petition shall be filed, it shall provide the minutes of the session in the Petitioner's matter, for the Court's eyes only.

 

The Petitioner's Appeal of the Decision

 

10.          On August 13, 2014, the Petitioner appealed the Ethics Committee's decision before the plenum of the Knesset. The Petitioner's appeal was filed pursuant to Section 43 of the Knesset's By-Laws, which provides that a member of Knesset may appeal a decision of the Ethics Committee before the plenum, if it decided, inter alia, to remove him from Knesset sessions for the duration of four days of sessions, or more.

 

11.          In her appeal, the Petitioner argued that the Ethics Committee acted ultra vires and in a manner that is contrary to the principle of freedom of political expression. She

 

 

 

further argued that it emerges from the reasoning of the decision that it is not based on a proper evidentiary foundation, and that the sanction imposed is "as far as is known, the most severe sanction that was ever imposed upon a member of Knesset", due to irrelevant considerations and is disproportionate. The Petitioner requested that the Chairperson of the Knesset schedule an urgent session before the plenum of the Knesset to hear the appeal, and on August 20, 2014, she also sent a reminder letter regarding this matter. On August 25, 2014, the Knesset's legal counsel replied to the Petitioner's letter claiming that the Chairperson of  the Knesset does not have authority to convene the plenum of the Knesset during the recess (other than pursuant to Section 9(b) of the Knesset Law, 5754-1994, which empowers him to convene the plenum of the Knesset during recess, in accordance with the demand of 25 members of Knesset or of the Government). Therefore, he informed that it will not be possible to hear the appeal before the beginning of the winter session.

 

12.          The Knesset plenum held a discussion regarding the Petitioner's appeal on October 29, 2014. The Petitioner argued before the plenum, inter alia, that the Ethics Committee's decision is unprecedented in its nature and severity and that this is a vindictive and disproportionate decision. The chairperson of the Ethics Committee, Knesset Member Yitzchak Cohen, responded to the Petitioner's statements. In his response, the chairperson of the Ethics Committee reiterated the committee's main reasons, as were expressed in its decision. In the vote that took place thereafter, 16 members of Knesset voted in favor of accepting the Petitioner's appeal, 68 members of Knesset objected and one member of Knesset abstained. Thus, the petition was denied.

 

The Petition before Us

 

13.          The Petition before us was filed on October 7, 2014, approximately two and half months after the Ethics Committee's decision in the Petitioner's matter and before her appeal had been heard by the Knesset plenum. Therefore, and in light of the Respondents' notice dated October 20, 2014, that the appeal will be heard on October 28, 2014, the Court ruled that it is inappropriate to address the Petition before the Knesset rules on the Petitioner's appeal (Justice Y. Danziger, decision dated October 22, 2014). After the Knesset plenum denied the Petitioner's appeal, the discussion regarding the Petition was renewed. On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

On December 9, 2014, we heard the Parties' oral arguments.

 

The Petitioners' Arguments

 

14.          According to the Petitioners, the Ethics Committee acted ultra vires deciding as it did. The Petitioners claimed that the Petitioner's remarks are political remarks, which are protected by the material immunity granted to a member of Knesset under Section 1(a) of the Knesset Members Immunity, Rights and Duties Law,

 

 

 

5711-1951 (hereinafter: the "Immunity Law"). The Petitioners claimed that, following the Interview, the Petitioner explained in the media that she objects to causing harm to civilians, and to abduction of civilians in particular. The Petitioners further argued that the Attorney General examined complaints that were filed against the Petitioner following the Interview and deemed it inappropriate to open a criminal investigation into her remarks. To this regard, the Petitioners filed the State's response to the petition in HCJ 5716/14 which was directed against the Attorney General's decision in this matter (the hearing in said petition is scheduled to take place on June 10, 2015). In the aforementioned response it was noted that even though the Petitioner identified with the actions of the abductors, her statements did not amount to incitement to violence. Therefore, the Petitioners argued that the Petitioner's remarks which are the subject of the Petition are part of her freedom of political expression, and as such the Ethics Committee did not have any authority to intervene therein.

 

15.          The Petitioners further argued that while this Court has reiterated in its rulings that the material immunity of members of Knesset does not serve as a defense against sanctions at the ethical level, that case law applies only to inappropriate conduct within the house, or to slanderous remarks against another member of Knesset, an individual or a certain public. Such remarks, so it is argued, relate to managing the internal affairs of the Knesset and the relationship between its members and therefore fall within the authority of the Ethics Committee. The Petitioners draw this argument, inter alia, from a principle decision of the Ethics Committee (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013) (hereinafter: "Decision 2/19")), which states that, as a rule, complaints regarding political remarks by members of Knesset should not be discussed.

 

16.          The Petitioners argued that the Ethics Committee acted ultra vires also by basing its decision on Rule 1A of the Rules of Ethics, which "prescribes general values and principles and is not an operative provision" (paragraph 37 of the Petition). This rule, they claimed, has only a declaratory status and thus it is impossible to impose a sanction due to a violation thereof. The Petitioners claimed that the Ethics Committee is only authorized to impose sanctions in consequence of a violation of Rules of Ethics that anchor specific norms relating to  morality, conflict of interest, proper activity of the Knesset and proper conduct in the house. The Petitioners further argued that this is also customary in England. Finally, it was argued that the Ethics Committee is not authorized to determine which remarks are for the benefit of, or contrary to, the State's best interest. In light of all of the reasons specified above, the Petitioners argued that the committee's decision was ultra vires.

 

17.          Alternatively the Petitioners argued that the sanction imposed upon the Petitioner is "discriminatory and exceedingly severe" (paragraph 51 of the Petition). The Ethics Committee imposed its most severe sanction and for the longest possible period of time  and  therefore the  Petitioners  argued that its decision is disproportionate. According to the Petitioners this can also be deduced from a comparison to the committee's previous decisions which were quoted in the Petition itself, and namely the principle decision in the matter of remarks by members  of  Knesset  (Decision  2/19).  It  shall  be  noted  that  the  Petitioners

 

 

 

complained inter alia, about the Ethics Committee's refusal to provide them with the minutes of the Committee's session regarding the Petitioner's matter and requested that we instruct that they be delivered thereto. However, in the oral hearing, and due to the need for a quick ruling, the Petitioners' attorney did not insist on this, while reserving all of his arguments.

 

The Respondents' Arguments

 

18.          The Respondents argued that according to case law, the material immunity does not preclude the Ethics Committee from taking disciplinary actions against a member of Knesset. According to them, particularly in light of the existence of the material immunity, which does not allow for criminal or civil action to be taken against a member of Knesset due to his remarks, it is important to allow the Knesset to deal with such remarks at the ethical level. It was argued that the case law took a principle approach and did not support the argument that the imposition of sanctions for remarks that are covered by material immunity should only be possible in cases where the remarks are harming to collegial relationships between members of Knesset or disrupt the Knesset's proper conduct. The Respondents further argued that the fact that in a long list of decisions, the Ethics Committee recognized the importance of the freedom of political expression granted to members of Knesset, and that it is necessary, to the extent possible, to refrain from limiting it, does not mean that the Committee does not have the authority to impose sanctions for political remarks. This is not a matter of authority, so it is argued, but rather a matter of discretion.

 

19.          The Respondents further claimed that Rule 1A of the Rules of Ethics is not a declaratory rule but rather an operative provision, the violation of which can carry the imposition of sanctions. According to them, the Rules of Ethics include a variety of norms, part of which are designed as rules and part of which are designed as principles (standards) – but all of which are operative. To illustrate their argument, the Respondents stated that Rule 1A was used in the past as a basis for imposing sanctions at an ethical level in a series of cases, both as a single normative source and alongside other rules of ethics.

 

20.          As to the exercise of discretion, the Respondents argued there was no flaw in the conclusion that the Petitioner violated the Rules of Ethics. Especially taking into consideration the broad discretion that is granted to the Ethics Committee in such matters. According to the Respondents, the sanction that was imposed upon the Petitioner is proportionate. The main reason indicated by the Respondents was that the severity of the sanction is commensurate with the severity of the violation for which it was imposed – a severity that stems from the content of the Petitioner's statements and the timing thereof, and which justifies deviating from the lenient policy which the Ethics Committee has exercised with respect to political remarks. The Respondents further argued that the Petitioner's remarks during the Interview "can be perceived as legitimization of and identification with the State's enemies who are carrying out acts of terror against the citizens of the State" (paragraph 70 of the Respondents' response), at a sensitive time – approximately five days after the abduction of the teenagers and at a time when their fate was unknown. The statement that the Petitioner does not agree with the abductors does not diminish the severity of her remarks. It is further argued that the Petitioner's remarks in the

 

 

 

Article can be deemed as a call to harm the State of Israel, in the midst of the fighting in the Gaza strip during the "Protective Edge" operation. The Respondents also claimed that the time the sanction came into effect, which was at the beginning of the Knesset's summer recess, should also be considered. According to the Respondents, practically speaking this was a removal that, when decided, was for approximately three months, since during the recess the Knesset plenum only assembles in rare cases and the majority of the Knesset committees convene relatively infrequently.

 

Discussion and Ruling

 

21.          The main questions that are presented in this case are whether the Ethics Committee is authorized to impose sanctions against the Petitioner because of her remarks, which in and of themselves are protected by material immunity and which are not among those remarks that are defined as remarks that disrupt the Knesset's work or the internal relationships between its members; and whether there are provisions in the Rules of Ethics that authorize the Ethics Committee to impose sanctions in consequence of such remarks. If such authority exists, this shall lead to an additional question – whether such authority, in the circumstances at hand, was exercised lawfully. I shall discuss the questions in the order of their appearance.

 

Was the Ethics Committee Authorized to Make the Decision?

 

22.          Section 17 of the Basic Law: The Knesset prescribes that "The  members  of Knesset shall have immunity; details shall be determined in the law". The details of the immunity were determined in the Immunity Law. Sections 1(a) – 1(A1) of the Immunity Law, provide:

 

 

Immunity in the Framework of Fulfilling a Position

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal actions, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

[…]

 

(a1) To avoid doubt, an act, including, a remark, that are not random, by a member of Knesset, which constitutes any of the following, for the purpose of this section is not deemed an expression of an opinion or an act that are made in the framework of fulfilling his position or for the sake of fulfilling his position as a member of Knesset:

 

 

 

(1)          Denial of the existence of the State of Israel as the state of the Jewish people;

(2)          Denial of the democratic character of the State;

(3)          Incitement to racism due to color or racial belonging or ethnical-national original.

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad.

 

Section 1(a) of the Immunity Law grants a member of Knesset protection against criminal or civil liability and against any other legal action which could be taken, inter alia, due to expression of opinion in the framework of fulfilling his position. Section 1(a1) sets limits to this immunity.

 

23.          Alongside the material immunity, Section 13E(a) of the Immunity Law authorizes the Knesset Committee to promulgate Rules of Ethics for Members of Knesset. Additionally, Section 13D of the Immunity Law grants the Ethics Committee of the Members of Knesset the authority to judge a member of Knesset, inter alia, in matters involving the violation of the Rules of Ethics. These authorities derive from the Knesset's constitutional authority to determine its working procedures (Section 19 of the Basic Law: The Knesset). In the matter at hand, the Committee ruled that the Petitioner violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. These rules provide as follows:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

24.          The sanctions that the Ethics Committee may impose upon a member of Knesset are set in Section 13D:

 

The Ethics            13D. (a) The member of Knesset who committed

 

 

 

Committee    one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated a rule of the Rules of Ethics. […]

(d)          If the Ethics Committee ruled, by a majority of the votes of all of its members, that the member of Knesset violated the provisions of sub-section (a)(1), (1A) or (2), it may impose one of the following thereon:

(1)          A comment;

(2)          A warning;

(3)          A reprimand;

(3A) A severe reprimand;

(3B) Denial of the right to receipt the right to speak in all or some of the Knesset committees of the plenum, for a period that shall not exceed ten days of sessions;

(3C) Limitations of his activity as a member of Knesset, including prohibiting filing bills, agenda proposals, parliamentary questions, etc. except limitations regarding the right to vote, all as the committee shall decide and for a period that it shall decide and provided that the said period shall not exceed the period that remains until the end of such Knesset's session;

(4)          Removal from the sessions of the Knesset plenum and its committees for a period that shall not exceed six months, provided that the member of Knesset shall be entitled to enter the session solely for the purpose of voting;

(5)          Denial of salary and Other Payments for the period of the absence as stated in Section 2(a) or denial of salary and Other Payments for a period which shall not exceed one year due to any violation of any other provision of Section 13A.

For this purpose, "Other Payments" – payment pursuant to Chapter 9 of the Knesset Law, 5754-1994, and payments by virtue of the Retirement of Office Holders in Government Authorities Law, 5729-1969.

 

(d1) If the Ethics Committee has ruled by a majority of votes of all of its members that a

 

 

 

member of Knesset violated the provisions of sub-section (a)(3), it may exercise its authority pursuant to the provisions of sub-section (d), other than the authority under sub-section d(5).

 

25.          From the above citations, one can conclude that the Ethics Committee may impose any sanction provided in Section 13D(d) of the Immunity Law, other than the sanction provided in Section 13D(d)(5), which addresses the denial of salary or Other Payments, upon a member of Knesset who violated any of the Rules of Ethics. In the case at hand, the Ethics Committee imposed a sanction upon the Petitioner pursuant to Section 13D(d)(4) of the Immunity Law, i.e., a sanction of removal from the sessions of the Knesset plenum and its committee for six months. Prima facie, it is the maximum sanction that could be imposed due to violation of any of the Rules of Ethics. It shall be noted that the option of imposing such a sanction was added in the amendment to the Immunity Law from 2002 (Knesset Members Immunity, Rights and Duties Law (Amendment no. 28), 5762-2002). I shall return to the matter of the sanction further on.

 

26.          The parties to the Petition before us assumed that the above-quoted remarks by the Petitioner are covered by the material immunity that is granted to her as a member of Knesset, under Section 1(a) of the Immunity Law. This leads to the question whether or not said immunity prevents the Ethics Committee from addressing these remarks. In my opinion, the answer should be negative. In HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) (hereinafter: the "Makhoul Case"), this Court (President A. Barak, with the consent of Justices A. Procaccia and S. Joubran) ruled that the material immunity of a member of Knesset does not extend to the actions of the Ethics Committee against any of the members of Knesset. There it was ruled as follows:

 

"It has been found that the Immunity Law, in that part that relates to the immunity of a member of Knesset, was primarily meant to allow the member of Knesset to perform his work as required and to protect him against being harassed by the executive authority. The Immunity Law was not meant to prevent the Knesset from dealing with conduct occurring within itself that violate its own Rules of Ethics. Indeed, actions and remarks that fall within the framework of material immunity benefit from broad protection. As such, a member of Knesset's immunity cannot be lifted in consequence thereof. The member of Knesset is not exposed to criminal proceedings or civil actions in consequence thereof. However, such rule does not mean that such actions cannot be the subject of other internal proceedings of the Knesset, in general, and of the proceeding pursuant to Section 13D of the Immunity Law [a proceeding before the Ethics Committee – M.N], in particular. This does not mean that the Ethics Committee is prevented from handling them […]. Indeed, the material immunity protects the member of Knesset against legal actions being taken against him. However, such legal action

 

 

 

does not include actions which the Knesset takes vis-à-vis itself, when at hand are internal Knesset matters […]" (on page 388; emphases added – M.N).

 

Similarly, in the Miari Case, the justices were of the opinion that the material immunity does not apply to sanctions which the Knesset imposes upon its members, pursuant to its By-Laws, which also incorporate the Rules of Ethics (HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 218-219, 234 (1987) (hereinafter: the "Miari Case")). Therefore, according to case law, material immunity does not shield members of Knesset from the authority of the Ethics Committee (compare: Bar Association Appeal 8/79 Sufrin v. The Tel Aviv District Committee of the Bar Association, PD 34(4) 185, 188 (1980) (hereinafter: the "Sufrin Case")). The Petitioners are not asking that we deviate from this case law, but rather that we interpret it narrowly. According to them the Makhoul rule applies only to circumstances relating to remarks that were made within the Knesset building or to slanderous remarks which can disrupt the Knesset's proper work or can harm the internal relationships between its members. Whereas in the case at hand, we are dealing with, what the Petitioners refer to as "pure" political remarks made in the media. I do not accept this distinction proposed by the Petitioners. Indeed the circumstances of the Makhoul Case were different from those at hand, since that case regarded a sanction that the Ethics Committee imposed due to prejudicial remarks against the government, which were made during a speech in the Knesset plenum. Notwithstanding, the main question that was raised and discussed in the Makhoul Case was a question of principle, and it addressed the relation between the Rules of Ethics and  the material immunity granted to members of Knesset. The Court ruled on this question, and  determined  that imposing sanctions  due  to  unethical  actions or remarks does not constitute a circumvention of the material immunity:

 

"Section 13D, which anchors the authorities of the Ethics Committee, does not prejudice the material immunity that is prescribed in Section 1 [of the Immunity Law – M.N.]. In fact, this section, which provides for an internal judgment mechanism, an ethical-disciplinary judgment, is meant to complement and realize the Immunity Law's underlying objectives. Actions taken at an ethical level do not circumvent the protection that is granted to the member of Knesset in the Immunity Law. It is not for no reason that the Ethics Committee's authorities are anchored in the Immunity Law which determines the members of Knesset's immunity. Section 13D complements that which is stated in Section 1. Thus, while Section 1 exempts the member of Knesset from civil or criminal liability due to unethical remarks said in the framework of fulfilling his position (or for the sake of fulfilling his position), Section 13D, which is of the same normative standing, clarifies that the member of Knesset is not absolutely exempt. Indeed, Section 13D of the Immunity Law reflects the 'interest of the Knesset itself to denunciate negative conduct among its member, and the public importance this must be granted'[…]"

 

 

 

(on page 339; emphases added – M.N).

 

These statements are also relevant to the remarks which are the subject of our discussion, even though they were made outside of the house and not in connection with a specific organization or person. The material immunity was meant to ensure that a member of Knesset would have freedom of expression and opinion, without being concerned that this could cost him in a criminal conviction or a personal monetary charge in a civil proceeding (see: HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 300 (2006) (hereinafter: the "Bishara Case");

HCJ 1843/93 Pinchasi v. The Israel Knesset, PD 49(1) 661, 682 (1995); Criminal Appeal 255/68 The State of Israel v. Ben Moshe PD 22(2) 427, 439 (1968)). Additionally, the material immunity was meant to promote parliamentary supervision of the executive authority, without being concerned of being harassed thereby. However, the material immunity was not meant to protect a member of Knesset against internal criticism applied by the Ethics Committee. As has been ruled "The purpose of the Immunity Law was not to grant the legislative authority a mechanism that would prevent it from critiquing the actions of its members, while frustrating its constitutional authority to determine its own procedures […]" (the Makhoul Case, on page 337; emphasis added – M.N). The objective of the Immunity Law is not to prevent the Knesset from taking actions at the internal-ethical level, pursuant to the Rules of Ethics that were determined. Such conclusion is also supported by the material differences between these arrangements: a ruling that a certain act by a member of Knesset is not covered by the material immunity or that immunity should be lifted also has implications towards entities outside of the Knesset. In contrast, the ethics proceedings are internal proceedings (see and compare: the Miari Case, on page 196; compare: HCJ 306/81 Flatto Sharon v. The Knesset Committee, PD 35(4) 118, 126 (1981) (hereinafter: the "Flatto Sharon Case")). Determining that a member of Knesset's remark is not covered by the material immunity could result in criminal charges, with all that that entails. In contrast, the ruling that a member of Knesset violated one of the Rules of Ethics could at most result in a partial interruption of his parliamentary activity, for a limited period of time (see and compare: Permission for Civil Appeal  7504/95  Yassin  v. The Registrar of  Parties,  PD 50(2)  45 (1996); the Bishara Case, on pages 313-314, 318; compare: Permission for Civil Appeal 2316/96 Isaacson v. The Registrar of Parties, PD 50(2) 529 (1996); see also in  the  judgment of the  European Court  of Human Rights, in  which the majority opinion addressed the distinction between immunity that is granted to a member of parliament and internal parliamentary critique of his conduct; A. v. United Kingdom, 2002-X Eur. Ct. H. R. 917, para 86). The harm caused by determining that a member of Knesset violated one of the Rules of Ethics is less intense than in the case of determining that material immunity does not apply to his actions. The applicability of the material immunity and its objectives can be a consideration in the framework of the Ethics Committee's decisions, but they do not undermine its authority. In light of that stated, even assuming that the Petitioner's remarks are covered by the material immunity, there was nothing preventing the Ethics Committee from addressing them pursuant to the existing Rules of Ethics.

 

27.          As mentioned, the Petitioners further argued in a general and sweeping manner that  the  Ethics  Committee  has  no  authority  to  address  political  remarks  by

 

 

 

members of Knesset and that its authority is limited to inappropriate conduct of members of Knesset within the house or to the internal relationships between the members. I do not accept these arguments. Indeed, freedom of political expression is of special importance for a member of Knesset, since it is by such means that the member of Knesset expresses the positions of the public that elected him. This is particularly true when a member of Knesset who represents a minority group is concerned (see also, in a context similar to the matter at hand, the position of the European Court of Human Rights in this matter: Szel v. Hungary, App. no. 44357/13 (Sep. 16, 2014) (hereinafter: the "Szel Case"); Karacsony v. Hungary, App. no. 42461/13 (Sep. 16, 2014) (hereinafter: the "Karacsony Case")), "The political expression – the speech, the article, the interview – are the primary workings tools of the member of Knesset" (the Bishara Case, on page 325; see also, ibid, on page 317). The freedom of expression also affects the disciplinary rules that apply to members of Knesset (compare: Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel (January 1, 2002) (hereinafter: the "Sheftel Case"); Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227, 237 (1986)). Due to freedom of expression, the ethical review of remarks by a member of Knesset must be as limited as possible. Indeed, the Ethics Committee instructed itself – and justifiably so – to refrain, to the extent possible, from limiting the members of Knesset's freedom of political expression. In Decision 2/19, the committee decided as follows:

 

"[…] If, in all that relates to political remarks, the committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing,  slandering, mudslinging and humiliating of individuals and publics, the committee's position is materially different. The committee is of the opinion that such remarks materially harm the status of the Knesset and its dignity […]" (emphasis omitted – M.N).

 

28.          The Ethics Committee expressed a similar position in additional principle decisions (see: Decision 83/18 of the Knesset's Ethics Committee "In the Matter of Complaints regarding Remarks by Members of Knesset Against Persons and Organizations" (December 31, 2012); Decision 7/18 of the Knesset's Ethics Committee "In the Matter of Ethics and Freedom of Expression – the Committee's Decisions regarding Remarks by Members of Knesset" (October 12, 2009)). However, this does not mean that the committee is not authorized to address extreme expressions that amount to supporting acts of terror against the citizens of the State or identifying with such actions. The purpose of the Rules of Ethics for Members of Knesset is to maintain proper conduct by members of Knesset in order to foster the public's trust in the Knesset, preserve the dignity of the Knesset and its integrity (see and compare: the Sheftel Case, paragraph 22 of my judgment, Bar Association Appeal 2579/90 Bar Association District  Committee  v. Anonymous, PD 45(4) 729, 733 (1991); see also: the Report of the Committee for Preparing the Rules of Ethics for Members of Knesset, December 2006, on pages 43-45 (hereinafter: the "Rules of Ethics Preparation Committee Report")). The public's trust in the Knesset may also be prejudiced by remarks made by a member

 

 

 

of Knesset outside of the Knesset, which are not necessarily related to inappropriate conduct within the Knesset or to the internal relationships between its members. This is the case, for example, when an act or remark that is interpreted as supporting violence against citizens is concerned. A member of Knesset carries the Rules of Ethics with him wherever he goes (compare: the Sheftel Case, paragraphs 13-16 of my judgment). Their applicability is not limited to his relationship with other members of Knesset or internal parliamentary conduct. It is possible that the applicability of the Rules of Ethics on remarks outside of the Knesset is narrower. However, the circumstances of the case at hand are extreme. It is worth noting that the code of ethics for members of Parliament in Britain, to which the Petitioners referred, provides that the Rules of Ethics are not intended to regulate a member of Parliament's conduct in his personal life, outside the walls of the parliament. However, conduct by a member of Parliament that significantly damages the reputation or the integrity of the parliament or its members is excluded from that rule (U.K Code of Conduct for Members of Parliament (passed pursuant to the Resolution of the House of Jul. 19, 1995) § 2-3 (hereinafter: "U.K. Code of Conduct for Members of Parliament").

 

29.          The Petitioners further argued that the Ethics Committee's decision in the case at hand does not coincide with its above-mentioned principle decisions which reject intervening in the members of Knesset's freedom of political expression. However, these decisions do not constitute a precedent that denies the committee of its authority to address extraordinary remarks which in its opinion constitute a violation of the Rules of Ethics. The Ethics Committee elaborated on this matter in its decision that addressed harsh remarks by a member of Knesset during the "Pillar of Defense" operation, against those he referred to as "leftists":

 

"The majority of the complaints that have been filed to the Ethics Committee in the 18th Knesset were related to remarks by members of Knesset. The Ethics Committee, despite repeatedly being of the opinion that harsh and outrageous remarks were at issue, decided, in the majority of cases, not to exercise its  authorities, based on an orientation  of not narrowing the members of Knesset's freedom of expression […] however the fundamental principle of freedom of expression cannot protect anything a member of  Knesset says, and the committee is of the opinion that this is one of the cases in which it must intervene and express its opinion that a line has been crossed between a legitimate, albeit harsh and outrageous, statement and words of incitement. Statements in the form of 'Leftists Out', 'Leftist to Gaza' and 'Leftist Traitors' are not statements in the framework of the broad freedom of political expression which is granted to members of Knesset and do not coincide with the proper and expected conduct of a member of Knesset […]" (Decision 85/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Michael Ben Ari regarding Remarks" (December 31, 2012)) (emphasis added – M.N.)

 

 

 

30.          The Ethics Committee also found it to be justified in other cases to exercise its authority with regard to remarks by members of Knesset which encouraged acts of terror or violence. For example, the committee decided to apply sanctions for statements praising Shahids (martyrs) (Decision 73/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Ahmad Tibi due to a Speech on Martyrs Day'" (March 5, 2012) (hereinafter: the "Decision regarding the "Martyrs Day"")); for public support of the Intifada (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Uri Yehuda Ariel against Knesset Member Ahmad Tibi" (June 24, 2003) (hereinafter: the "Decision regarding Supporting the Intifada")); and for the statement "Whoever removed sovereign land from the State of Israel – is to be sentenced to death" (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Colette Avital against Knesset Member Arie Eldad" (June 24, 2008) (hereinafter: the "Decision in the Matter of Knesset Member Eldad"). Therefore, the Ethics Committee's principle decisions do not prevent its intervention in the current case and exercising the committee's authority with respect to remarks of the kind addressed in the Petition is not unprecedented.

 

31.          An additional argument by the Petitioners regarding the Committee's authority is that there is no explicit provision in the Knesset's By-Laws or in the Rules of Ethics that authorizes the Ethics Committee to impose sanctions against the Petitioner's remarks. The Petitioners argued that Rule 1A of the Rules of Ethics – upon which the Ethics Committee's decision in the Petitioner's matter relied – is a "declaratory section that includes abstract principles and values and therefore has only an interpretational declaratory status" (paragraph 39 of the Petition), and does not have operative status. This argument, too, is to be denied. The provision of Rule 1A of the Rules of Ethics for Member of Knesset, as was presented above, prescribes fundamental values which bind the member of Knesset, such as promoting society and the best interest of the State and preserving the dignity of the Knesset and its members. Other Rules of Ethics regulate a series of specific matters, such as additional occupation of a member of Knesset (Chapter E of the Rules of Ethics) or provisions that relate to a declaration of capital (Chapter F of the Rules of Ethics).

 

32.          The fundamental values that were prescribed in Rule 1A of the Rules of Ethics outline general criteria for the members of Knesset's conduct (compare: Bar Association Appeal 7892/04 The Tel Aviv District Committee of the Bar Association v. Boteach, paragraph 14 of Deputy President M. Cheshin's judgment (May 10, 2005) (hereinafter: the "Boteach Case")), and express the need to preserve the public's trust in the Knesset. I am of the opinion that they should be considered as having an independent status, which allows imposing ethical sanctions in consequence of the violation thereof. This is necessary since naturally, specific rules of ethics do not cover all the issues that could arise at an ethical level. In the absence of a specific rule that regulates a specific situation, the member of Knesset can  find guidance in  advance in the  general values; and retroactively, the Ethics Committee can decide that a member of Knesset violated the Rules of Ethics, by violating one of the general values (see also: the Rules of Ethics Preparation Committee Report on pages 45-46; Proposal for Code of Ethics that was Submitted by the Knesset Committee's Rules of Ethics Preparation Sub-Committee,  2011;  Assaf  Shapira  "Ethics  in  the  Knesset"  Parliament  70

 

 

 

(2011). This illustrates the advantage of normative arrangements that are formatted as principles, which allow them to be applied in dynamic circumstances (for the distinction between rules and principles see, for example: Aharon Barak Purposive Interpretation in Law 248-249 (2003)).

 

33.          My conclusion also coincides with this Court's judgment in the Makhoul Case, where the Court did not find cause to intervene in the ethical sanctions that were imposed upon a member of Knesset in consequence of violating Rule 1A of the Rules of Ethics. It shall be noted that Rule 1A, as well as Rule 2 of the Rules of Ethics, which also outlines general criteria for the conduct of the members of Knesset, has served in various cases as the basis for imposing ethical sanctions on members of Knesset (see, for example: Decision 30/17 of the Knesset's Ethics Committee "In the Matter of Mutual Complaints of Knesset Member Effi Eitam and Knesset Member Ahmad Tibi" (May 27, 2008); Decision 2/17 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Ruhama Avraham against Knesset Member Sofa Landver" (July 11, 2006)). Furthermore, general principles exist in various systems of disciplinary rules. The violation of these principles could justify imposing a disciplinary sanction upon the violating party. For example, the Rules of Ethics for Lawyers include general principles, the violation of which could raise cause for being found guilty of a disciplinary offense (see: Rules 2, 23, 32-33 of the Bar Association (Professional Ethics) Rules, 5746-1986); the Boteach Case, paragraph 14 of Deputy President M. Cheshin's judgment; Bar Association Appeal 736/04 District Committee of the Bar Association v. Mizrachi PD 58(6) 200 (2004); Bar Association Appeal 2379/07 Tel Aviv – Jaffa District Committee of the Bar Association v. Rosenzweig (February 12, 2008); also see and compare: Section 61(3) of the Bar Association Law, 5721-1961, which prescribes that any act or omission that do not befit the legal profession are, inter alia, a disciplinary offense; Bar Association Appeal 15/88 Anonymous v. The  State's Attorney, PD 43(1) 584. 588 (1989); Bar Association Appeal 17/79 Tel Aviv Jaffa District Committee of the Bar Association v. Anonymous, PD 34(3) 756, 660-661 (1980); also see: Gabriel Kling Ethics For Lawyers 489-494 (2001)).

 

34.          Similarly, the Rules of Ethics for judges include general principles, the violation of which has operative implications (see: Rules 1-7, and particularly Rule 2(b) of the Rules of Ethics for Judges, 5767-2007; see also: Gabriel Kling Ethics for Judges 15-16 (2014)). Accordingly, the judges' ethics committee has refrained from approving certain actions in advance, based on general principles, such as the principle that a judge must refrain from actions which do not befit his status (see: Decision A/13/17 (February 25, 2013), which did not permit judges to participate in a personal mentoring venture of the Executives Program in the School of Public Policy; Decision A/11/53 (July 27, 2011), that it would not be appropriate to allow charging the parties to a legal proceeding a judge's travel expenses; see also Section 18(a) of the Courts [Consolidated Version] Law, 5744-1984, which prescribes that the Minister of Justice may file a complaint to the disciplinary court against a judge who behaved in a manner that does not befit the status of a judge in Israel). Thus, applying such a rule with respect to the Rules of Ethics for Members of Knesset is not unusual compared to other systems of disciplinary rules. In any event, the Ethics Committee has broad authority to address matters that relate to the ethics of the members of Knesset, including a matter that does not have a

 

 

 

provision in the Rules of Ethics (Rule 24 of the Rules of Ethics). It follows, a fortiori, that the committee is authorized to address the violation of the general values which are anchored in the rules themselves.

 

35.          Among the general principles that are set in Rule 1A are the member of Knesset's obligations to act to advance the best interest of the State and preserve the dignity of the Knesset. The decision at hand is based on these obligations. Once I have reached the conclusion that the committee is authorized to address the violation of the general principles, it follows that it is, inter alia, authorized to address the duty to act for the benefit of the best interest of the State. As such, the Petitioners' argument that the Ethics Committee cannot decide who is acting for the benefit of the State, since such a decision is reserved for the voting public or that such a decision opens "a dangerous opening for political persecution" (paragraph 34 of the Petition), is in fact directed against the Rules of Ethics themselves and not towards the decision which is the subject of the Petition. In comparison, the Rules of Ethics in Britain include similar principles, including the duty of the members of Parliament to act in the interests of the nation as a whole (U.K. Code of Conduct for Members of Parliament § 4-7).

 

36.          In light of that stated above, the decision of the Ethics Committee was given within its authority. The question that remains is whether it is appropriate to intervene on the merits of the decision. On this level, the question that arises is whether the Petitioner's remarks constitute a violation of the Rules of Ethics, and if so – whether the sanction that was imposed due to such violation befits the severity of the offense. It shall already be clarified here that the Petitioners' arguments focused on the question of the Ethics Committee's authority to address the Petitioner's remarks, and not on the question of whether the committee was correct in its conclusion that ethical obligations were violated (compare: the Sheftel Case, paragraph 11 of my judgment). As mentioned, the Petitioners also argued that it is appropriate to intervene in the sanction that was imposed upon the Petitioner. However, in order to present a complete picture, I shall address the question of whether or not the Rules of Ethics were violated.

 

The Discretionary Level: Was the Ethics Committee's Decision that is the subject of the Petition Adopted Lawfully?

 

37.          The examination of the Ethics Committee's decision in the case at hand derives from the scope of the judicial review of the Ethics Committee's decisions (see: the Makhoul Case, on page 340). The scope of the judicial review of the Knesset's decisions changes in accordance with the essence of the decision under review: Legislative acts that were completed, internal parliamentary proceedings and quasi-judicial decisions (see: HCJ 652/81 Sarid v. The Chairperson of the Knesset, PD 36(2) 197 (1982); the Flatto Sharon Case, on pages 124-126)). When the Ethics Committee addresses complaints against members of Knesset, it is fulfilling a quasi-judicial duty (the Makhoul Case, on page 340; HCJ 7993/07 Legal Forum for Israel v. The Knesset's Ethics Committee, paragraph 6 of my judgment (April 30, 2009) (hereinafter: the "Legal Forum A Case"); HCJ 6280/07 Legal Forum for Israel v. The President of the State, paragraph 22 of Justice A. Procaccia's judgment (December 14, 2009) (hereinafter: the "Legal Forum B Case")).

 

 

 

 

In principle, the judicial review that is applied to the Knesset's quasi-judicial decisions is the same as the judicial review that is directed towards quasi-judicial authorities (see: ibid). However, in contrast to other quasi-judicial authorities, the Ethics Committee of the Members of Knesset, mainly addresses internal Knesset matters that relate to discipline and the ethics of its members. "[…] the essence of the activity of the Ethics Committee, in contrast, for example, from the removal of immunity which is performed by the Knesset Committee, is directed internally towards the Knesset, and in fact, in general its actions do not have any implications outside of the house of legislators" (the Makhoul Case, on page 343). Therefore, it was ruled that this Court's intervention in the decisions of the Ethics Committee should be in a more limited scope than the scope of intervention in the activity of other quasi-judicial entities in the Knesset (see: ibid). This reflects the Ethics Committee's broad scope of discretion, when handling matters of ethics and discipline of members of Knesset. The Court may intervene when the Ethics Committee's decision was reached in violation of law, or when at hand are material matters such as a violation of basic constitutional rights, the right to due process or violation of the  principles of natural  justice (see: the Legal Forum A Case, paragraph 6 of my judgment; the Legal Forum B Case, paragraph 22 of Justice A. Procaccia's judgment). In general, "[…] the more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the  actions deviates from the proper extent, this more this Court will be willing to intervene" (the Makhoul Case, on page 344).

 

38.          As mentioned above, the Ethics Committee ruled that the Petitioner's remarks, in light of their content and sensitive timing, do not coincide with the best interest of the State and severely prejudice the public's trust in the Knesset and its image. Hence, the Ethics Committee ruled that the Petitioner's remarks violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. For the sake of clarity, I shall requote these Rules verbatim:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4)          Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

The language of Rules 1A(2) and 1A(4) is broad and leaves room for the Ethics

 

 

 

Committee's discretion regarding the manner of their application in specific cases. Such application must be in accordance with the objectives underlying these Rules. The Rules of Ethics reflect the principle that a member of Knesset, as an elected official, is also a trustee of the public. As such, he must make the public interest a higher priority compared to his personal matters. This also leads to the need to preserve the public's trust in the Knesset, and the Rules of Ethics are a means to realize this trust (On the importance of public trust in governmental authorities in general, see HCJ 6163/92 Eisenberg v. The Minister of Construction and Housing, PD 47(2), 229 (1993); and also see: HCJ 4921/13 OMETZ – Citizens for Good Governance and Social Justice v. The Mayor of Ramat Hasharon (October 14, 2013)).

 

39.          It is, therefore, my opinion that the committee's conclusions did not deviate from the broad range of discretion granted to it. The Petitioner's statements in the Interview and the Article were interpreted as a support of terror and the killing of civilians. In the case at hand it is not criticism of the government's policy during wartimes that is at issue and not even criticism of legislation in the Knesset or of other political maneuvers of the majority. The severity of the matter is enhanced considering the timing of the Petitioner's remarks, just a few days after the abduction of the teenagers, at a time when their fate was unknown, and in the midst of the "Protective Edge" operation. Additionally, the cumulative effect of the Petitioner's remarks, which were published in proximity to each other, must also be taken into consideration. Considering all of the circumstances of the current case – the Petitioner has gone too far. The Ethics Committee ruled that the Petitioner's statements amount to "legitimizing acts of terror against the citizens of the State", and that this is a violation of the Rules of Ethics. Indeed, words of support of terror of any kind, from either side, could severely prejudice the public's trust in the Knesset and its image. Therefore, and taking into consideration the nature of the Petitioner's remarks and their timing, it is inappropriate to intervene in the committee's conclusions that the Petitioner's statements severely harm the public's trust in the Knesset and its image, and violate Rule 1A(4) of the Rules of Ethics. The committee further ruled that the Petitioner's remarks violate rule 1A(2) of the Rules of Ethics that, inter alia, provides that a member of Knesset shall act to advance the State's best interest. It appears that the main objective of this rule is to guarantee that members of Knesset will act for the sake of the public interest, and shall not take advantage of their status and authorities for the sake of personal matters. In the case at hand, prima facie, the Petitioner's remarks were not intended to promote her personal affairs. Notwithstanding, it appears that both extreme remarks and actions which legitimize acts of terror against the citizens of the State do not coincide with the State's best interest (compare: the Miari Case, on pages 226-227). The Petitioners themselves agreed that statements that encourage and support violence are not legitimate. In support thereof, both in the Petition and in the hearing before us, the Petitioners provided a series of "explanations" of the Petitioner's remarks, and asked that we not perceive them as supporting terror. With respect to the Petitioner's statements regarding the abductors of the teenagers

– "they are not terrorists" – it was explained that the Petitioner's principle position is not to use the term "terror" in Israeli media. Since, according to her, the term "terror" is used in Israeli media only to describe Palestinian violence and not to describe Israeli violence against the Palestinian population. As to the Petitioner's Article, the Petitioner's intention when calling upon the Palestinians to turn to

 

 

 

"popular resistance" and to impose a "siege" on Israel, which was interpreted by the Ethics Committee as supporting a violent uprising against the State of Israel, was not explained in the Petition. In his oral arguments before us, the Petitioner's attorney explained that the Petitioner's intention in her Article was to encourage non-violent civil Palestinian resistance, and to express support for a "political siege" on Israel. In response to our questions, the Petitioner's attorney even stated that if the Petitioner's intention was to support a military siege, this would be problematic. However, these explanations were given retroactively, by the Petitioner's attorney, and not by the Petitioner herself. The Petitioner did not provide them to the Ethics Committee in her filed response and not even to the Knesset plenum in her appeal. It would have been appropriate for the Petitioner's explanations to be given in the framework of her response to the complaint that was filed to the Ethics Committee, and at least in the framework of her appeal of the committee's decision (compare: the Makhoul Case, on page 344). In any event, these explanations – which as mentioned were only given retroactively – are not sufficient to justify our intervention in the Ethics Committee's decision. The Petitioner's remarks were not published in the media with explanatory notes. The spirit of the statements, despite the Petitioner's later reservations, is that of identification with acts of terror and support of violence, as a means of attaining political objectives. In my opinion, in these circumstances it is inappropriate to rule that the Ethics Committee's decision that the Petitioner violated the Rules of Ethics was flawed in a manner that justifies our intervention. I shall clarify that this judgment only addresses the violation of the Rules of Ethics by the Petitioner, and no other matter.

 

40.          The Petitioners requested that we intervene in the sanction that was imposed upon the Petitioner, due to it being, according to them, discriminatory and disproportionate. We have ruled, by a majority of opinions, that such intervention is inappropriate in the circumstances at hand. I elaborated above on the fact that the Ethics Committee has broad discretion, and this is true also with regard to prescribing the sanction. However, the committee's broad authority is not to be interpreted as a permit to impose arbitrary sanctions. When imposing a sanction due to the violation of the Rules of Ethics, the Ethics Committee must take a variety of considerations into consideration. In general, the sanction imposed must be proportionate to the severity of the ethical offense committed by the member of Knesset (see: the Makhoul Case, on page 344). Subsequently, the committee must take the severity of the offense and the circumstances in which it was committed into consideration. As to remarks by members of Knesset, their content, subject matter and timing must, inter alia, be taken into consideration. A remark that slanders or humiliates individuals and publics does not carry  the  same consequence as another extraordinary and extreme remark (see also in this matter: the Ethics Committee's Decision "In the Matter of the Amendment of the Knesset Members Immunity, Rights and Duties Law, 5711-1951" (June 24, 2002)). Among all of its considerations, the Ethics Committee must also include the circumstances of the concrete member of Knesset who is being judged thereby, including the question whether he expressed remorse for his actions and his entire disciplinary past (for Ethics Committee decisions in which such considerations were considered, see, for example: The Knesset's Ethics Committee's Decision "In the Matter of Ziv Price, Eliezer Dvir and Pinchas Wolf against Knesset Members Ahmad Tibi, Taleb el-Sana and Jamal Zahalka" (June 22, 2004) (hereinafter: the

 

 

 

"Decision in the Matter of Knesset Members Tibi, el-Sana and Zahalka"); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Limor Livnat, Minister of Education, Culture and Sport against Knesset Member Issam Makhoul" (December 21, 2004); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 19, 2005); the Knesset's Ethics Committee's Decision "In the Matter of the Complaints of Knesset Member Arie Eldad and Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 26, 2005); the Makhoul Case, on page 344; and compare to Decision 64/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Danny Danon against Knesset Member Hanin Zoabi" (January 3, 2012) (hereinafter: "Decision 64/18")). It must also take the punishing standard in similar cases into consideration.

 

And From These General Principles – To the Case at Hand.

 

41.          In the circumstances at hand, we have not found it appropriate to intervene in the sanction that was imposed upon the Petitioner. The Ethics Committee has a broad range of proportionality and the Petitioner's remarks are especially severe, particularly – considering their timing. The severity of the statements is also reflected in the Attorney General's decision in the Petitioner's matter. While the Attorney General did not find justification to open a criminal investigation in this case, he did find it appropriate to state that his decision does not prevent taking actions against the Petitioner at an administrative or ethical level (also compare with: the Sufrin Case, on page 188). The Ethics Committee also took the impact of the decision and its accompanying sanction on the Petitioner's freedom of expression into consideration among the entire considerations, and emphasized the importance of the right to publicly criticize the government during times of war. The Ethics Committee indeed weighed relevant considerations from every direction, which were reflected in the reasoned decision. The Petitioner was given the right to be heard both before the committee and before the Knesset plenum, in the framework of her appeal. In addition, according to the data on the Knesset's website, the decision to reject the Petitioner's appeal was adopted by a significant majority, which also included members of Knesset from the opposition, and on the other hand, one of the members of Knesset from the coalition voted in favor of accepting the Petitioner's appeal. The proceeding in the case at hand was conducted while maintaining the Petitioner's procedural rights. The Petitioner's conduct during the procedure created the impression that she did not take it seriously. As mentioned, some of her explanations were first presented during oral arguments before us, by her attorney and not by her.

 

42.          Indeed the sanction that was imposed upon the Petitioner – being removed from sessions of the Knesset's plenum and its committees for the maximum possible period of time – is the most severe sanction in the existing scale of penalties. There was no dispute that this sanction had never in the past been imposed for the maximum period of time prescribed in the Immunity Law. However, in the circumstances of the case, the Petitioners' argument of discrimination and lack of proportionality, cannot be accepted. This is not the first time that the committee attributes significant severity to such remarks, remarks that encourage acts of terror or violence (see: the Decision regarding the "Martyrs Day", the Decision

 

 

 

regarding Supporting the Intifada). At the ethical level – which is meant, inter alia, to preserve the public's trust in the Knesset – remarks that express support of terror or violence against citizens, are no less serious than threats or slander that are directed at a specific sector or person. In this context it shall be noted that the majority of the decisions that were quoted in the Petition do not address remarks of this kind, and in any event not remarks during times of war or terror events. I have not ignored the judgments in the above-mentioned Szel Case and Karacsony Case, in which the European Court of Human Rights addressed fines that were imposed on opposition members of Parliament in Hungary, due to unethical conduct during sessions in parliament. At issue there, were acts of protest against a controversial bill (in the Szel Case) and acts of protest against the conduct of the majority party (in the Karacsony Case). These acts of protest included, inter alia, waving signs. The European Court ruled that indeed the fines that were imposed infringed the members of Parliament's right to freedom of expression in a disproportionate manner and ordered that they be cancelled; however the remarks in these cases are less severe than in the case before us. The Ethics Committee indeed has never before imposed a penalty of removal for the duration of six months, but penalties of this kind had been imposed for shorter periods of time – both for remarks and for actions (see, for example: Decision 7/19 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Meir Porush" (November 13, 2013) (removal from Knesset plenum sessions for two weeks); Decision 66/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Anastasia Michaeli" (January 10, 2012) (removal from sessions of the Knesset plenum and its committees for a month); The Decision in the Matter of Knesset Member Eldad (removal from sessions of the Knesset plenum and its committees for one day); The Decision in the Matter of Knesset Member Tibi, el-Sana and Zahalka (removal from sessions of the Knesset plenum and its committees for two days)). An examination of the Petitioner's entire disciplinary past indicates that her remarks have been discussed by the Ethics Committee many times. In some of the cases it was found that she did not violate the Rules of Ethics or that it is inappropriate to impose a sanction for her remarks, and in some of the cases various penalties were imposed upon her (see, for example: Decision 64/18; Decision 55/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Hanin Zoabi due to her Participation in the Flotilla to Gaza in May, 2010" (July 18, 2011); Decision 52/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Legal Forum for Israel against Knesset Members Hanin Zoabi and Jamal Zahalka" (July 5, 2011)). I shall at this point note that in my opinion no weight should be attributed to the mere filing of complaints against a member of Knesset, as in the case at hand. According to the law, any person may file a complaint against a member of Knesset (Section 1of the Knesset Members Ethics Procedure (Complaints)). Many complaints are not accepted and many are dismissed in limine. Granting weight to complaints that were filed – even if they were not found to have any substance – could lead to abuse of this tool and to unjustified harm to members of Knesset. However, this consideration did not receive significant weight in the decision which is the subject of our discussion.

 

43.          I shall not deny that I was concerned by the "quantum leap" in the sanction that was imposed in this case. As may be recalled, the sanction of removal was added

 

 

 

to the Immunity Law in 2002, and as such, in general, should be imposed gradually (see and compare: Criminal Appeal 1042/03 Meretzplas Limited Partnership Ltd. (1974) v. The State of Israel PD 58(1) 721, 731-732 (2003); Criminal Appeal 7936/13 Levy v. The State of Israel, paragraph 46 of Justice N. Solberg's judgment, paragraph 2 of my judgment (December 16, 2014)). However, from a practical perspective, we are not dealing in this case with the Petitioner's complete removal from the Knesset's activity for six months. The summer recess, during which the Knesset operates in a limited format, took place during the first half of the removal. During the recess the Knesset plenum convenes only in extraordinary cases and Knesset committees also convene less frequently. As such, during the recess the two committees in which the Petitioner is a member convened only five times (but it shall be noted that meetings of other committees were also held), while according to the Knesset's website, during the month of November, these committees held more than twenty meetings. Furthermore, there was an elections recess during the seven weeks that remained of the period of removal, from the time of the hearing before us that was held on December 9, 2014, and the judgment that was given the following day. Therefore, the practical significance of intervening in the sanction in these circumstances is miniscule, if at all existent. I shall emphasize that in any event, the Petitioner's right to vote was not denied, and furthermore, that the sanction does not prevent the Petitioner from using parliamentary tools, such as filing bills, proposals or questions. At issue also is not a suspension from the Knesset (compare: the Flatto Sharon Case, on page 126). Considering all of the reasons mentioned above, I have not found justification for our intervention in the broad discretion granted to the Ethics Committee.

 

44.          Epilogue: The Petition is denied without an order for expenses, as stated in our judgment dated December 10, 2014.

 

The President

 

Justice E. Hayut

 

1.            I concur with the opinion of my colleague the President, both with regard to the question of the Ethics Committee's authority to impose sanctions against the Petitioner for the remarks which are the subject of the Petition and with regard to the conclusion that the authority in the circumstances at hand was exercised lawfully. I also share my colleague's remarks (paragraph 43 of her opinion) regarding the excessive severity of the sanction that was exercised in the case at hand. However, like my colleague, I am of the opinion that it is inappropriate to intervene since in the case at hand the severity of the sanction has de facto been mitigated to a considerable degree, given the fact that the majority thereof occurred during the summer recess – and this was taken into consideration by the committee – and during the election recess – even though this was not known at the time the sanction was imposed.

 

Due to the matters that emerged in this Petition, the importance of which cannot be overstated, I have found it appropriate to add two short comments: one – relates to not exposing the minutes of the Ethics Committee and the material presented thereto to be reviewed by the Petitioner despite her request in this

 

 

 

matter, and the second – relates to limiting the freedom of political expression of an elected official who represents a minority group in society.

 

The  Refusal  to  Deliver  the  Minutes  of  the  Committee  and  the  Material Presented thereto to the Petitioner's Review

 

2.            My colleague elaborated in her opinion on the fact that the Petitioner approached the Ethics Committee and requested, "in order to file a petition to the High Court of Justice", to review the minutes of its meetings and the material presented thereto in preparation for it reaching a decision, but was refused. The Knesset's legal counsel reasoned the refusal by referring to Rule 21 of the Rules of Ethics for Members of Knesset, which provides that the ethics proceedings, including the documents and the minutes, are privileged, and are not to be published except with the committee's written permission, and subject to the terms it shall prescribe. The legal counsel further stated in his response to the Petitioner that while the use of material and minutes of the committee's meetings for the purpose of legal proceedings is one of the exceptions the committee recognizes in this context, it is his position that this should not include a legal proceeding that is meant to challenge the decision of the Ethics Committee itself, due to the concern that this could adversely affect the committee members' ability to properly fulfill their duties. Finally, the legal counsel stated in his response to the Petitioner that if the Petition shall be filed, the minutes of the committee's session shall be delivered for the Court's review only. And indeed, immediately following the filing of the Petition, the Respondents delivered the minutes of the committee's session, in a sealed envelope to be reviewed only by the members of the bench.

 

During the hearing that was held before us on December 9, 2014, the Petitioners' attorney informed us that in order to make the hearing more efficient and to move it forward, he does not insist on the arguments he raised in the Petition regarding the refusal to provide him with the minutes of the committee's session and the material that had been presented thereto, while reserving his arguments in this matter. As such, my colleague did not find it necessary to refer to this matter in her opinion. Without setting rules in the matter, I find it appropriate to note that in my opinion the Knesset legal counsel's  reasons for refusing to make the minutes of the committee's session and the material that had been presented thereto available to the Petitioner, create non-negligible difficulties, in light of the distinction he made between general legal proceedings and legal proceedings that are intended to challenge the disciplinary decision that was adopted by the committee. It appears to me that not making the minutes and the material available to the Petitioner in these circumstances significantly impairs her ability to effectively challenge the decision and therefore it appears to me that the position presented by the Knesset's legal counsel in this context should be reexamined. This Court has elaborated in the past on the intensity of an individual's interest to receive detailed information  regarding a proceeding – disciplinary or other – in which a decision regarding him has been reached, especially in the context of a judicial proceeding against which he wishes to take action, so as to allow him to exercise his right to due process. In HCJ 844/06 Haifa University v. Oz (May 14, 2008) it was ruled in this context as follows:

 

"Whatever the extent of concern that the functioning of the

 

 

 

university examination committees will be impaired, that concern is subordinated to the need to allow the employees who were harmed by the conclusions of these committees to defend themselves against that which was attributed to them and to prove their argument that the decision regarding them was not lawfully adopted… The underlying rationale of this approach is that there is a significant social interest in giving the employees the possibility of exhausting their rights, and the interest of the efficient functionality and existence of such examination committees, however important it may be, does not in and of itself justify recognizing the material as privileged. This is certainly relevant when, as in the case at hand, there was a proceeding before a judicial instance which is addressing a question of the legal validity of the petitioner's decisions regarding changing the terms of employment of respondent 1 and terminating the employment of respondents 2 and 3. In this context, the interest that exists that the said examination committees be efficiently functional is subordinated to the respondents' right to due legal process, in the framework of which they shall be granted the possibility of reviewing all of the material relevant to establishing the arguments against terminating their employment in the School of Theatre" (the Oz Case, paragraph 18, see also: Permission for Civil Appeal 7568/00 The State of Israel – Civil Aviation Administration v. Aharoni, PD 55(5) 561, 565

(2001)).

 

It is my position that the intensity of this interest is certainly not weakened when at hand is a disciplinary proceeding that is being taken against a member of Knesset, and in this context it is not superfluous to add that the proper balance between the need to preserve the proper functionality of the Ethics Committee – the importance of which was elaborated upon in the Knesset's legal counsel's response – and the Petitioner's right to due process, can be obtained by way of stipulating terms and preventing the exposure of certain details, for example with regard to the identity of the speakers in appropriate cases, as per the committee's authority pursuant to the end of Rule 21 (see and compare: HCJ 7793/05 Bar- Ilan University v. The National Labor Court in Jerusalem, paragraph 20 (January 31, 2011); Administrative Petition Appeal 6013/04 The State of Israel

– Ministry of Transportation v. The Israel News Company Ltd. PD 60(4) 60, 96 (2006)). In any event, once the Petitioners did not insist on their argument in this matter, then, as my colleague chose, the ruling on this matter can be left for another time.

 

 

 

Limiting  the  Freedom  of  Political  Expression  of  an  Elected  Official  who Represents a Minority Group in Society

 

3.            In her opinion, my colleague elaborated on the distinguished and special status of the freedom of political expression in the order of constitutional rights, particularly when at hand is a member of Knesset who represents a minority group. This position is grounded in the past rulings of this Court, in HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 336-338 (2006), and in the ruling of the European Court of Human Rights (Szel v. Hungary, 44357/13 (2014) at para 69; Karacsony v. Hungary, 42461/13 (2014) at para 72) to which my colleague referred. See also Tarlach Eoghan McGonagle, Minority Rights and Freedom of Expression: A Dynamic Interface (PhD Thesis, University of Amsterdam, 2008) for the special importance of protecting the freedom of expression of minority groups, in general, and the duty imposed on the state to restrain the infringement of this freedom of expression and to take measures to allow it to be realized.

 

However, the attempt to define what a "minority group" is, is not always an easy task (see and compare for example: Michael M. Karayanni, Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel 1, 42 (January 12, 2015). Available at SSRN:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2548548; Civil Appeal 466/83 Shahe Ajemian, Archbishop in the Armenian Church in Jerusalem v. Archbishop Yeghishe Derderian, PD 39(4) 737, 747 (1986)), and it should also be noted that at times there can be situations in which it appears that it is actually the freedom of expression or other freedoms of the majority that are at risk and need steadfast protection against being infringed upon by certain minority groups. In any event, the freedom of political expression of an elected official, as well as an elected official who represents a minority group, is not absolute, but rather, as any other constitutional right, is relative, and it is not a freedom that is free of any limitations whatsoever. Like my colleague, I am of the opinion that in the case at hand, the Petitioner's remarks crossed the line and exited the zone worthy of protection in the name of freedom of political expression, even considering the fact that she represents a minority group in Israeli society. The Petitioner's statements in the Interview, regarding the abduction of the teenagers, reflect understanding and legitimization of the atrocious act of abduction, and identify with those who committed the act, whom, according to her, should not be referred to as "terrorists". The words the Petitioner wrote in the Article that was published on various websites are no less severe from the perspective of the Rules of Ethics that apply to someone who serves as a member of the Israeli Knesset. In that same Article, the Petitioner went so far as to hand out advice as to the effective ways in which it is possible to fight the State and to harm it. Inter alia, it was written in said Article: "We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith". These words, when voiced by a person who is a member of the Israeli Knesset, justify the steps taken by the Ethics Committee, because they illustrate that what the Petitioner had in mind when writing that Article was neither "the advancement of society and the best interest of the State" nor "fostering public trust in the Knesset". The Petitioner advocates to cease the coordination and the

 

 

 

negotiations between Israel and the Palestinians, which according to her are nothing but part of what she refers to as the "lethal trinity" and instead of negotiations and coordination she calls for popular resistance and imposing a siege on Israel. The Petitioner's attorney's attempt to retroactively argue that this is not a call for violence, is perplexing, inter alia, given the manner the term "popular resistance" is de facto implemented in the reality of our lives.

 

It is important to emphasize that remarks, and particularly remarks by elected officials, which constitute criticism and even extremely harsh criticism, of government policy are completely legitimate, and this is true with respect to remarks that emphasize the suffering of the other party to a conflict and which exhibit empathy towards and understanding of such suffering. This Court elaborated on this in the early days of the State, when stating that the difference between an autocratic regime and a democratic regime is marked by the possibility that is granted to the representatives chosen by the people to scrutinize the acts of government at any time "Whether to cause such acts to be rectified and create new arrangements in the State, or to bring about the immediate termination of those 'governing' or their replacement by others when comes the elections" (HCJ 73/53 'Kol Ha'am' Company Ltd. v. The Minister of Interior PD 7(1) 871, 876 (1953)). However, as mentioned, the Petitioner's remarks, for which the Ethics Committee deemed it appropriate to apply sanctions against her, completely deviated from this legitimate category, even if one takes into consideration the special caution that must be  applied  when dealing with the freedom of political expression of an elected official who represents a minority group.

 

4.            My colleagues emphasized the excessive severity that accompanies  the Petitioner's remarks given that they were made during times of war and crisis. I am of the opinion that it is inappropriate to set different criteria for the protection of the freedom of expression during times of crisis compared to those that should be applied during times of calm. However, it is clear that the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis. President A. Barak elaborated on this in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), when he stated that:

 

"Indeed, Israeli constitutional law has a uniform approach to human rights during times of relative calm and during times of enhanced war. We do not recognize a sharp distinction between the two. We do not have special balancing laws for times of war. Of course, human rights are not absolute. They can be limited during times of calm and times of war… During times of war the likelihood that damage to a public interest shall occur is greater, and the harm to the public interest is more intense, and as such it is possible to limit rights in the framework of the existing criteria… Indeed we do not maintain two systems of rules or balances, one for times of calm and other for times of terror. There is a uniform set of laws and balances, which applied both during times of calm and times of terror (the Adalah Case, paragraph 20; see

 

 

 

also: Abrams v. United States 250 U.S. 616, 627-628 (1919)).

 

Based on the grounds listed by my colleague the President, to which I added a few comments, I am of the opinion that the Petition is to be denied.

 

Justice

 

Deputy President E. Rubinstein

 

A.            I concur with the comprehensive reasons written by my colleague, the President.

 

B.            I shall add some brief remarks: Section 1(A1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 is somewhat of a mirror image of Section 7A of the Basic Law: The Knesset which was adopted a short while earlier and defines when a list or a candidate shall be prevented from participating in the elections to the Knesset.

 

C.            Section 7A of the Basic Law: The Knesset, which was adopted on the 4th of Iyar, 5762 (May 15, 2002) (Sefer Hachukim 5762, 410) prevents a party or a candidate from participating if their goals or actions "explicitly or implicitly include one of the following: (1) denial of the existence of the State of Israel as a Jewish and democratic state; (2) incitement to racism; (3) support of an armed struggle by an enemy state or of a terrorist organization against the State of Israel".

 

D.            Section 1(A1) of the Immunity Law which was adopted on the 13th of Av, 5762 (July 22, 2002) (Sefer Hachukim 5762, 504) excludes that which is listed below from the material immunity of Section 1(A1) of the law which addresses a vote, an expression of opinion or an act while fulfilling the position or for the sake thereof – and we shall already take note of the similarity to Section 7A of the Basic Law:

"(1) Denial of the existence of the State of Israel as the state of the Jewish people.

(2)          Denial of the democratic nature of the State;

(3)          Incitement to racism due to color or belonging to a race or ethnic national origin;

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs due to their being Jewish or Arab, in Israel or abroad."

 

E.            It is not necessary to conduct a meticulous comparison between Sections 1(A1) of the Immunity Law and 7A of the Basic Law in order to receive the impression that we are dealing with provisions that are comparable and correspond to each other. The legislators of Section 1(A1) had the model of the Basic Law before them; see the bill that was filed by Knesset Members Eliezer Cohen, Zvi Hendel, Michael Nudelman and Nissim Ze'ev, Hatzaot Chok 5762, 210, which explicitly addresses this. I shall note that I reviewed the discussions in the plenum in the first reading on January 29, 2002 (in the second and third readings on May 27, 2002, no real discussion was held) and the matters discussed were split between left and right; there was also a reservation to the bill by Minister Dan Meridor. In

 

 

 

any event, the amendment was legislated.

 

F.            In light of the above, it is clear that we are dealing with the core of the Israeli parliamentary duty to which the members of Knesset pledge allegiance pursuant to Section 15(a) of the Basic Law, as follows: "I pledge myself to bear allegiance to the State of Israel and faithfully to fulfill my mandate in the Knesset"; Knesset Member Zoabi also pledged this when declaring "I Pledge" (Section 1(c) of the Knesset Law, 5754-1994). We are not dealing with a marginal matter, but rather one which is undoubtedly at the root of being a member of Knesset; the legislators of Section 1(A1) of the Immunity Law – as mentioned – viewed the matters therein as drawing sustenance from Section 1A of the Basic Law. This Court applied a very restrained approach in the context of Knesset Member Zoabi's candidacy to the Knesset with regard to her compliance with the terms of Section 7A of the Basic Law: The Knesset. Until now an extremely lenient approach was preferred with respect to her, and I shall only mention Election Approval 9255/12 The Central Election Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment dated December 12, 2012, reasons dated August 30, 2013); where President Grunis spoke (in paragraph 34) of Knesset Member Zoabi's activity which "comes very close to the grey area of which Section 7A warns and which it is meant to prevent", and of evidence that came close "to that 'critical mass' of evidence that justifies disqualification" – but the line was not crossed. Additional justices on the bench in that judgment expressed a similar spirit, but the judicial policy of narrowly and stringently interpreting the causes in Section 7A of the Basic Law as being designated for "most extreme cases which cannot possibly be dealt with using ordinary democratic tools" (paragraph 35), was upheld. In the context of the elections, a non-excluding approach was preferred, and subsequently the judicial and democratic tolerance was flexed to its limits. I mention this because ultimately the legal significance is that once Knesset Member Zoabi was elected to the Knesset and pledged allegiance to the State, she is in her position by right and not by grace; see Nathan Alterman's unforgettable poem "The Rebuke to Tawfik Toubi" (The Seventh Column A 276) of the 1950's (also quoted in my article "On Equality for Arabs in Israel" in my Netivei Mimshal UMishpat book (5763- 2003), 278), in which, inter alia, it was said "Such is the nature of democracy: Her servants owe gratitude to no person; In part it may not be easy, but if it shall not go without saying, it shall not be understood by us at all". Often the things that Knesset Member Zoabi says and does are not easy for many Israelis, but they are to be considered "the choosing of the lesser of two evils" (as the words of the Mecelle), and her parliamentary right is in place.

 

G.           We now approach the Rules of Ethics, which are an internal parliamentary layer, and in my opinion should be interpreted both based on their content and taking into consideration the general background of a member of Knesset's obligations, on the one hand, and his or her immunity and the exceptions thereto, on the other hand. Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, "a pressure release valve" to maintain a framework of parliamentary norms. My colleague listed the general values underlying the Rules of Ethics (in paragraph 23), and in the matter at hand, we are dealing with Rule 1A(2) which designates the member of Knesset as "a trustee of the public and it is his duty to represent the public that voted for

 

 

 

him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;" and with Rule 1A(4) pursuant to which the member of Knesset shall "preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset". Indeed, these rules address  fundamental values, but, similarly to my colleague (paragraph 32), I do not accept the argument that they do not have an independent standing; in my opinion they are the soul of the Rules of Ethics, they are what gives them their real essence and their proper application.

 

H.            As my colleague mentioned (paragraph 26), the parties to this Petition assumed that the Petitioner's remarks which are the subject of the complaints are covered by the material immunity by virtue of Section 1(a) of the Immunity Law, which – as mentioned – grants immunity "due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset". I shall take the liberty to doubt whether Knesset Member Zoabi's words which we are addressing meet the criteria of Section 1(A1)(4) which excludes "support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad." However, even with the lenient assumption that my colleague described, it is clear that there is nothing preventing discussing Knesset Member Zoabi's remarks at an ethical level.

 

I.             We shall briefly review the actual remarks.

 

J.             First of all, the interview on June 17, 2014, five days after the abduction of the three teenagers Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may G-d avenge their deaths. According to Knesset Member Zoabi, the abductors, the abductors of innocent teenagers, "are not terrorists… even if I do not agree with them, they are people who do not see any opening…, and they are forced to use these means". It is known that throughout the world and in international law there are disputes as to the definition of terror, and it has already been said that a freedom fighter for one is a terrorist for the other. But is there a humane human in their right mind who would not deem the abduction of the teenagers and their cold blooded killing anything other than terror? Must the national liberation for the Palestinians, for which Knesset Member Zoabi is wishing, pass through despicable crimes of terror? And the stretched explanation that was voiced, that her statements were said because terror is only attributed to Arabs and not to Jews cannot hold water, inter alia, because acts of terror by Jews are on more than one occasion referred to as "Jewish Terror", and an simple surfing on the internet with such headline will prove this. Terror is terror is terror, regardless of who performs it, Jews, Arabs or others. Hence, can it be said, in this case, that the value of a member of Knesset's duty to serve human dignity, as appears in Rule 1A(2), was not violated? – There is no greater human dignity than the sanctity of life itself; "There shall be no violation of the life, body or dignity of any person as such." (Section 2 of the Basic Law: Human Dignity and Liberty, and see also Section 4 of the Basic Law).

 

 

 

 

K.            Secondly, the call in the article dated July 13, 2014, to the Palestinians "… to impose a siege on Israel instead of negotiating therewith". These words should not be read as a sacred text with multiple interpretations, but given the context of the matters which is "(Israel's – E.R.) detestable trinity: the fence, the siege and the coordination", it is extremely difficult to interpret the call to "impose a siege on Israel" as only a "political siege" (not that such a call in and of itself would be permitted and legitimate), but rather as an armed siege. If we shall read these statements in light of the "State's best interest" chapter in Rule 1A(2) of the Rules of Ethics, we shall ask ourselves whether a call to impose a siege on the State can be in the "State's best interest" – and this is not a political slogan of "saving Israel from itself", which some of Israel's "friends" raised in the past, but, as my colleague stated, rather an unexplained statement – which simply means joining forces with the State's enemies. The answer cannot be positive; and the forced interpretation that was given, even though it was not from the member of Knesset but rather from those supporting her, is not convincing. In light of all of that stated above, one cannot cast a doubt regarding the violation of the Rule of Ethics.

 

L.             Indeed, Knesset Member Zoabi is from a minority in Israel – and it is appropriate to apply interpretation that takes this into consideration and expands the limits of patience and tolerance; but in the case at hand, as my colleague also stated (paragraph 39) it simply went too far. Of course, this is enhanced by the timing, during the search for the teenagers, while the sounds of the cries of the mothers and fathers were heard, and during severe combat – the member of Knesset was undermining any common ground that exists and should exist among the entire Israeli public, without any explanation which could, even at a stretch, be acceptable.

 

M.          One must not criticize the members of the Central Ethics Committee, who, when dealing with the ethical level, did not take the approach of those three monkeys who do not hear, do not see and do not speak, since at hand are the core and essence of principle, central ethical obligations. Therefore, I agree with  the rulings of my colleague, the Deputy President, for example in paragraphs 31-32, 35, 39, in the principle questions that were addressed here. At issue is not the matter of the limits of the freedom of expression, which the State of Israel maintains on a very high level, as emerges from the rulings of this Court – and I personally doubt whether the type of statements that underlie this case would even be acceptable in a country that maintains ultimate freedom of expression such as the United States, pursuant to the First Amendment of its constitution. The matter at hand is the ideological base that is – or should be – shared by all members of Knesset, and which in the absence thereof – there is no survivability. I shall re-emphasize that in my opinion one of the more burdening parts of the story, as also emerges from the words of my colleague, in addition to the statements themselves, is the explanations – or the lack thereof – with respect to the remarks; it is clear that Knesset Member Zoabi's explanations are extremely stretched, and her attorney had to, skillfully, try to fill voids, at times in an impossible manner, as is stated in the Bible: "Wilt thou put out the eyes of these men?" (Numbers, 16, 14).

 

 

 

N.           Finally, as to the sanction, which ultimately ended up being more in the symbolic dimension than one of essence or substance, since, as my colleague described, it was eroded between a recess and elections, and therefore it clearly had a weak impact.

 

O.           Upon reading the opinion of my colleague, Justice Hayut, in paragraph 2, regarding the delivery of the minutes of the Ethics Committee's session to the Petitioner, I shall request only to state that we are dealing with a very delicate balance, which is intended to protect the committee members' freedom to express themselves freely on the one hand, and fairness towards the injured member of Knesset, on the other hand. As my colleague mentioned, this matter has emerged in other contexts as well. The difficulty is that even when the exposure of certain details, such as the identity of the speakers, is prevented, it is easy to comprehend that the matter still remains complex, since in a small committee (as opposed, for example, to the other Knesset committees which are large), anyone who is able to figure things out will not have difficulty identifying the speakers. Since the matter remains to be further addressed, it does not have to be ruled upon now.

 

P.            Further to the remarks of my colleague, Justice Melcer, I shall concur with his statements regarding the relationship between law and ethics. It is known that ethical duties also apply to us as judges. The Jewish Law also addresses the distinction between ethics and the letter of the law, and as we – Judge Eran Shilo and myself – wrote in an article that is scheduled to be published in the Zvi Tal Book, "Judicial Ethics in Jewish Law", "The rules of ethics are rules that professionals took upon themselves, as opposed to the law – which is externally imposed upon them, as upon the entire public"; Furthermore – "The distinction between ethics and law is what allows the judge, in circumstances that justify it – to exercise discretion with respect to the norms that are prescribed, knowing that the letter of the law that guarantees a just trial shall not be prejudiced". In the case at hand, we are dealing with the legislator itself, who also prescribes the law and not only the rules of ethics, and therefore we can adjust that which is stated and say that the Rules of Ethics are directed internally, towards the sphere of parliamentary conduct, while the law that is legislated by the Knesset is directed externally, towards everyone. However the ethical matters in the Knesset are obviously uniquely public due to the institution's status and importance, and they are meant to draw behavioral lines so that the legislator shall know its own limits, not only through constitutional review but also within the boundaries of conduct that befits those who represent the entire Israeli public.

 

Q.           My colleague, Justice Melcer, addressed the pledge of allegiance, similarly to my words in paragraph F above. It is known that the wording of this declaration is defined and a member of Knesset is not permitted to add anything thereto (HCJ 400/87 Kahane v. The Chairperson of the Knesset PD 41(2) 729); The declaration (Section 15(a) of the Basic Law: The Knesset) addresses "Bearing allegiance to the State of Israel and faithfully fulfilling my mandate in the Knesset"; similarly, the President of the State is also required to "bear allegiance" (Section 9 of the Basic Law: The President), as are the Prime Minister and ministers (Section 14 of the Basic Law: The Government), judges (Section 6 of the Basic Law: The Judiciary – which was applied as early as in 5708 (my book The Judges of the Land (5741-1980), 79); religious judges (Section 10 of the

 

 

 

Religious Judges law, 5715-1955); Qadis (Section 7 of the Qadis Law, 5721- 1961), and Madhhab Qadis (Section 13 of the Druze Religious Courts Law, 5722-1963), as well as the State Comptroller, pursuant to Section 9 of the Basic Law: State Comptroller. In my opinion, by pledging this allegiance those filling these positions express the expectation of an extra degree of loyalty by any personality filling a governmental position, beyond the basic loyalty imposed by citizenship (see Section 5(c) of the Citizenship Law, 5712-1952, in which a person being naturalized pledges to be a "loyal citizen". The pledge of allegiance is a deep moral instrument, and as stated, is at the root of being a member of Knesset, and is a common thread that connects all holders of senior positions in the government system, in the framework of their mandate. One must either be a great believer or greatly naïve, to be of the opinion that Knesset Member Zoabi's statements which we are addressing here, constitute bearing allegiance.

 

R.            As to the position of my colleague, Justice Joubran: There is no dispute regarding the centrality of freedom of political expression  and the significance of the material parliamentary immunity, even what at issue is the expression of outrageous opinions. This is true for all and especially in the case of minorities from various sectors. This stems from us being a Jewish and democratic state, and from the legacy of the prophets of Israel, and as prophet Isaiah said (58, 1) "Cry aloud, spare not, lift up thy voice like a horn, and declare unto my people their transgression, and to the house of Jacob their sins."; see also the principle paragraph in the Declaration of Independence which establishes the State of Israel on "the foundations of freedom, justice and peace as envisaged by the prophets of Israel"; and Section 1 of The Foundations of Law Law, 5740-1980. My colleague is of the opinion (paragraph 17) that also when dealing with ethics it is necessary to apply restraint, and I especially agree when dealing with "politicians who are judging politicians", in the Knesset's Ethics Committee, when – without heaven forbid insulting anyone – there is an inherent concern regarding political considerations being involved in the material considerations. However, we are dealing with ethics in which severity of sanctions do not get to the root of the matter (and in the matter at hand has been wondrously eroded), and with a message which has already been described in the various opinions here.

 

S.            Where do I disagree with my close colleague Justice Joubran? In laying down the line. For example, my colleague (paragraph 19) distinguishes between one who "acted not for the advancement of the best interest of the State" and one who "did not act to advance the best interest of the State", and he is of the opinion that "neutral actions by members of Knesset which on the one hand do not advance the best interest of the State and on the other hand do not harm it, shall not be included in the prohibition". Even if such distinction is appropriate, and I shall not address this (but see the words of our colleague Justice Melcer, in paragraph 7), this is not what is at issue, since the words of Knesset Member Zoabi which we are addressing are blatantly not in the best interest of the State. According to Justice Joubran (paragraph 20), Section 1A(2) of the Rules of Ethics, which imposes upon a member of Knesset to act "in a manner that shall serve human dignity, the advancement of society and the best interest of the State", should be interpreted in a liberal manner, and its sanctions shall be limited to extreme cases. In my opinion, even in the most far reaching liberal interpretation, calling for the

 

 

 

imposition of a siege on your own state and supporting terror cannot – with all due respect – be interpreted with common sense and in the eyes of an ordinary person – as neutral, certainly not as an act "in the State's best interest". I am sorry, but this is nothing other than a blatant an act against the State's best interest. There are ethical boundaries and I shall not address the question of the boundaries of freedom of expression, and the manner of dealing with expressions that are not only provocative but tap existential roots.

 

T.            In summation: The (Middle) Eastern culture to which all of us, each sector, person and style, belong, attaches great importance to honor. Ethics is part of the values and manners between people. In the Jewish world this shall be referred to in various contexts as the theory of values (ethics). I shall quote statements that I had the opportunity to write in my article "The Equality of Minorities in a Jewish and Democratic State" Zehuyot 3 (5773-2013), 140. It is said there (on page 142) that "Mutual respect between Jews and Arabs in Israel is necessary. This is emphasized due to the importance that the culture surrounding us, the culture of the (Middle) East, attributes to the matter of honor, a culture that is expressed in words such as 'Sharaf (honor) and 'Kilmat Sharaf' (word of honor)" and hereinbelow (pages 143-144) "I myself perceive honoring my fellow-person, first and foremost as something natural that stems from within oneself, … this is also the case, mutatis mutandis, of course, with respect to matters related to the relations with Israeli Arabs within" and further on (page 145) "the principle prescription for relationships between the majority and minority in the State of Israel is complex – it is a matter of awareness and insights, which call for reciprocity. It includes Jewish insight as to the need for respect towards the Arabs and an ongoing, relentless, effort, to amend the gaps in equality in all spheres – as mentioned, I see myself as one of the first who was willing to stand up for the task of amending and bridging the gaps. However, awareness and insights are also necessary from the other side, among some of the Arab leadership  in Israel… it must recognize and understand that the objective of the struggle must be equality, and the Jewish population cannot be concerned that at hand is a struggle against the essence of the State of Israel as a Jewish and democratic state". Indeed, this was said in the context of the state being Jewish and democratic, but they  are  relevant also  when referring to terror.  When  three families and an entire country were worried about the fate of teenagers who had been abducted (and murdered) by evils, according to Knesset Member Zoabi, they are not terrorists, an ordinary person shall then ponder whether to accept her stretched explanations, and in my opinion the answer is crystal clear. This is also true with respect to the "siege sophistry", and no more words are needed.

 

Deputy President

 

Justice H. Melcer

 

1.            I concur with the exhaustive and measured judgment by my colleague, President

M. Naor.

 

However, due to the importance of the matters, I take the liberty to add a few words regarding the distinction between the prohibition of law and the prohibitions of ethics, since in the case before us the matter that emerged was

 

 

 

whether Knesset Member Hanin Zoabi violated the Rules of Ethics for Members of Knesset (hereinafter, also: the "Rules of Ethics") and whether judicial intervention in the sanctions that were imposed thereupon by the Knesset's Ethics Committee, is appropriate. I shall briefly address below the said distinction, and its derivatives and implications.

 

2.            Prof. Asa Kasher, in his article Professional Ethics (published in Ethical Issues for Professionals in Counseling and Psychotherapy, ed. Gaby Shefler, Yehudit Achmon, Gabriel Weil, pages 15-29 (Y"L Magnes – 5763-1993)) distinguishes between ethics and law using the terms of shelf and threshold, and clarifies that along the range of possible courses of actions:

 

"There appear to be two lines, one at the top of the ladder… even if not at its very top, and one at the bottom of the ladder… even if not at its very bottom. The top line shall be called the 'shelf'. In this picture it represents ethics. The bottom line shall be called the 'threshold'. In the current picture it represents the law.

These lines, the 'shelf' and the 'threshold' divide the entire range into three natural parts: the segment from the 'shelf' and upwards, the segment between the 'shelf' and the 'threshold' and the segment below the 'threshold'. It is important to understand the essence of each of these three segments, in order to properly understand the relationship between the world of ethics… and the world of law…

The 'shelf' represents the professional ethics, the practical ideal of professional conduct. It is the 'shelf' of proper conduct… an action at the height of the 'shelf' or above it is proper conduct, as it is conduct that is in accordance with the practical ideal of professional conduct. The segment from the 'shelf' upwards, within the range of possible courses of actions, is the proper sphere of conduct…

The 'threshold' represents the law…, the binding approach of legal conduct, the 'threshold' of permitted conduct pursuant to the law, from a legal perspective. An action at the height of the 'threshold' or beneath it constitutes… conduct that is contrary to the binding approach of legal conduct…

For the sake of accuracy, we shall mention a simple aspect of the relationship between the 'shelf' and the 'threshold', in this picture, which is not at all obvious in any context. In the picture proposed here, the 'shelf' is always higher than the 'threshold'. In reality, the relationship between a certain 'shelf' and a certain 'threshold' could, at times, be more complex… Between the 'shelf and the 'threshold' is the interim sphere. An action in this sphere constitutes improper conduct, from an ethical perspective, since it is under the said 'shelf', but it is  concurrently  deemed  a  permitted  action,  from  a  legal perspective, since it is above the said 'threshold'…"

(Ibid, on pages 23-24, original emphases – H.M)

 

 

 

Justice Yitzhak Zamir, who also dealt extensively with the distinction between law and ethics – added as follows in HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel PD 51(3) 46, on page 61 (1997):

 

"It is the law that determines the limit between law  and ethics. Furthermore, the law nibbles away at ethics. Rules of ethics can become rules of law. From time to time the legislator will prescribe this, and from time to time the courts will rule this, when it turns out that the power of ethics, in and of itself, does not prevent wrong behavior or severe consequences. In such an event, the law, on more than one occasion, will step in and help the ethics. See: Y. Zamir "Ethics in Politics" Mishpatim 14 (5747-5748) 250".

 

See also the opinion by Justice M. Cheshin in HCJ 1993/03 The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon, PD 57(6) 817, on pages 917-918 (2003).

 

3.            In the Petition before us – we are not dealing with the legal sphere which, for example, prescribes in Section 7A of the Basic Law: The Knesset terms and conditions that allow preventing a list of candidates from participating in, or a person from being a candidate for, elections to the Knesset. This is the threshold and as such, its interpretation and application are exercised narrowly and its judicial review is meticulous.

 

See: Election Approval 9255/12 The Central Elections Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment from December 30, 2012; reasons from August 30, 2013, and review the references mentioned therein).

 

4.            The Petition here addresses a different matter, since it focusses on the rules of conduct that apply to a person who was elected to serve as a member of Knesset. These bind the member of Knesset by virtue of Sections 13D and E of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Knesset Members Immunity Law"). These Rules of Ethics demand that a member of Knesset behave as expected of an elected official presiding in the Knesset, which is the "State's House of Representatives" (Section 1 of the Basic Law: The Knesset). This is the threshold. The said threshold leans on two supporting beams:

 

(a)          The pledge of allegiance, which the member of Knesset declares by virtue of Sections 15 of the Basic Law: The Knesset and Section 1(c) of the Knesset Law, 5754-1994, and on this matter I concur with the position of my colleague, the Deputy President, Justice E. Rubinstein.

 

(b) The Rules of Ethics of the "House of Representatives"

 

I shall address each of the two said sources separately below:

 

 

 

 

Pledge of Allegiance

 

5.            Since the dawn of political thought and democratic history the pledge of allegiance has had more than just ceremonial meaning, but also deep substantial relevance. Indeed, as early as in ancient Greece, the governors in the Police were required to swear their allegiance to the unification of the state, and Plato, the reputed jurist of such time, in his book: Laws (Volumes III 685 and XII 960) wrote that the pledge of allegiance has both legal significance and political importance. Aristotle, in his book: Politics (Volume III, 1285) analyzed the meaning of the pledge of allegiance as a means of securing the rule of law. See: Matthew A. Paully, I Do Solemnly Swear: The President's Constitutional Oath: Its Meaning and Importance in the History of Oaths (1999) ibid, on pages 45-52. See also: Suzie Navot "The Knesset Chapter on the Constitution Draft: Three Remarks" Mishpat U'mimshal 10 593, 624-633 (the chapter on the status of the pledge of allegiance) (5767) (hereinafter: "Navot on the Status of Pledge of Allegiance"); Yigal Marzel "On a Judge's Pledge of Allegiance" Orr Book 647 (5773-2013; hereinafter: "Marzel on the Pledge of Allegiance").

 

Therefore, anyone who crossed the threshold and his/her candidacy was approved and he/she was elected to the Knesset, must still declare allegiance in order to actually take the position, This is the significance of the pledge of allegiance, in the framework of which the member of Knesset undertakes:

 

"To bear allegiance to the State of Israel and to faithfully fulfill his mandate in the Knesset".

 

It indeed turns out that while candidates to the Knesset must first cross the threshold and after they are elected they must represent their voters – those who sent them and their party – still the common denominator for all members of Knesset is the pledge of allegiance from which the shelf is derived. If the pledge, which has a uniform wording for all members of Knesset, and which cannot be deviated from in any way – is not made, the members of Knesset cannot function in the Knesset (see: Section 16 of the Basic Law: The Knesset; HCJ 400/87 Kahane v. The Chairperson of the Knesset, PD 41(2) 929 (1987); see also: Marzel on the Pledge of Allegiance page 651 and 664-665).

 

Comparative law further demonstrates that not only is a person who is not willing to pledge allegiance not entitled to benefit from his rights in parliament, but that the "house" may deny, or de facto limit the rights and actions in parliament of a person who violates his said pledge. Compare: McGuinness v. The United Kingdom, case no. 39511/98 ECHR (1999); Spanish Constitutional Court decisions: number 101 dated November 18, 1983; number 122 dated December

16, 1983, number 8 dated January 25, 1985; number 119 dated June 21, 1990, and number 74 dated April 8, 1991. See: Navot on the Status of the Pledge of Allegiance, on pages 628-631 and see Prof. Aparicio Perez' article that is mentioned in Prof. Suzie Navot's said article, in the framework of which the following was written (free translation from Spanish by Prof. Navot):

 

"The member of parliament benefits from a dual status: the

 

 

 

one which derives from his status as an elected person and a representative, since his status stems from the fact that he was elected by the public in the framework of his party: and that of a member in a representative organ. The fact that a member of parliament is "elected" does not automatically grant him the rights in the representative organ, meaning, the parliament… This duality is possible. In certain cases, the parliament may, by virtue of its internal arrangements, even take away the mandate a member of parliament received and remove him. The fact that a person was elected as a member of parliament is a condition for him to participate in the common organ referred to as the parliament. However, in order to be included in this organ, the elected person must fulfill the material conditions to be included in this organ. Only after the member of Parliament has fulfilled these terms, can he be considered a 'parliamentarian'…"

 

It is appropriate to add here that both the European Court of Human Rights and the Spanish Constitutional Court denied judicial intervention in decisions that limited parliamentary participation from those who refused to pledge allegiance, and ruled that even the right to vote in parliament (which was not denied from Knesset Member Zoabi in this case) may be limited, provided that the prevention is meant to attain a proper goal and is proportionate. See: Navot on the Status of the Pledge of Allegiance, on page 630. With respect to the applicability of the proportionality criteria in the context of immunity and the denial thereof – also compare with that stated in the judgment in Cordova v. Italy (No. 1 and No. 2), Application no. 40877/98 and Application no. 45649/99, which was given by the European Court of Human Rights (dated April 30, 2003).

 

Rules of Ethics for Members of Knesset

 

6.            These are relevant to the matter at hand, since in the framework of Section 1A thereof they further anchored general values that apply to the member of Knesset. In the framework of these rules – the member of Knesset must (inter alia):

 

(1)          Fulfill his position out of loyalty to the basic values of the State of Israel as a Jewish and democratic State;

(2)          Act as a trustee of the public, and fulfill his duty to represent the public that voted for him in a manner that will serve human dignity, the advancement of society and the best interest of the State;

(3)          Diligently uphold the laws of the State of Israel and act to advance the principle of the rule of law;

(4)          Preserve the dignity of the Knesset and the dignity of its members, be devoted to fulfilling his duties in the Knesset, conduct himself in a manner that befits his status as a member of Knesset, and act to foster public trust in the Knesset;

(5)          Fulfill his mandate in the Knesset responsibly, honestly and fairly, out of dedication to his status as a leader in society, and strive to serve as a personal example for proper behavior;

 

 

 

(My emphases – H.M.)

 

As to the "dignity of the Knesset", Section 2 of the Rules of Ethics provides that: "The member of Knesset shall uphold the dignity of the Knesset and the dignity of its members, shall act in a manner befitting his status and duties as a member of Knesset, and shall avoid using his immunities and rights as a member of Knesset in an improper manner" (My emphases – H.M.)

 

7.            In light of Knesset Member Zoabi's conduct which was the subject of the complaints that were filed against her – it can certainly be said, as was ruled in the decisions which are the subject of the Petition, that she violated Section 1A of the Rules of Ethics for Members of Knesset, and particularly the provisions of the above sub-sections (2) and (4) of the said Rules, since, according to my position, she was not diligent about maintaining allegiance to the State (see: Yaffa Zilbershats, Loyalty to the State, Zamir Book, 491 (2005); Marzel on the Pledge of Allegiance 669-673). These violations were reflected in the "understanding" Knesset Member Zoabi exhibited towards the acts of the abductors of the teenagers: Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may their memories be blessed, and in her calls to impose a siege upon Israel. In doing so she not only ethically violated her fiduciary duty towards the State of Israel, but also prejudiced her status as a trustee of the public, who is meant to act in a manner that shall serve the advancement of the best interest of the State (sub-section 1A(2) above). She also deviated from her obligation as one who is required to uphold the dignity of the Knesset and act in a manner that befits her status as a member of Knesset, and to act to foster the public's trust in the Knesset (above sub-section 1A(4)). See: Suzie Navot "The Member of Knesset as a 'Trustee of the Public'" Mishpatim 31(2) 433 (particularly ibid, on pages 518-

520) (5761). In this context my colleague, Justice S. Joubran states that in his opinion an ethics violation is possible "when a member of Knesset acts not for the advancement of the best interest of the State, as opposed to a situation in which he did not act to advance its best interest" (original emphases – H.M.) I am willing to accept this interpretation, however, even according thereto – Knesset Member Zoabi's conviction of an ethical offense is not to be cancelled. Calling for a siege on the State of Israel is explicitly an act not for the advancement of the best interest of the State and here we must clarify that for this purpose it makes no difference whether at hand is a "military siege" or a "political siege", as Knesset Member Zoabi's attorney retroactively argued before us.

 

8.            Here one should note that it is possible that MK Zoabi also violated additional Rules of Ethics however since this was not reflected in the decisions which are the subject of the Petition – I shall refrain from addressing this, just as I shall also presume (although this presumption could be disputed, in light of the provision of Section 1(A1)(4) of the Knesset Members Immunity Law) that the material immunity applies with respect to her actions, which are the subject of the complaints, in all that relates to criminal, or civil, liability (as opposed to ethical liability – see: HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) and see Barak Medina and Ilan Saban, "Expanding the Gap?" on the Scope of a Member of Knesset's Right to Support Resistance to the Occupation, Following HCJ 11225/03 Bishara v. The Attorney General, Mishpatim 37 219, on page

 

 

 

236, footnote 42 (5767)).

 

9.            Before ending I shall add and emphasize that I concur with the words of my colleague, Justice E. Hayut, with respect to the right to review the minutes of the Ethics Committee when at issue is a disciplinary proceeding that is being held against the member of Knesset. This is warranted by the principle of "proper process".

 

10.          In summary: All that is stated above leads to the conclusion that in the circumstances of the matter (including the actual duration of the sanctions that were imposed upon the Petitioner) – it is inappropriate to intervene in the ethical decisions that were issued in the matter of the Knesset Member Zoabi, which are the subject of the Petition.

 

I shall end with a note, as I also remarked in the hearing, that it is not for no reason that the Petitioners and their educated attorneys did not find even one case in comparative law in which a member of parliament called for a siege against his state, and was absolved.

 

Justice

 

Justice S. Joubran

 

1.            Is the Knesset's Ethics Committee (hereinafter: the "Ethics Committee" or the "Committee") authorized to apply sanctions of one kind or another due to political remarks that one of its members said or wrote outside of the Knesset, when such remarks are covered by the material immunity granted to a member of Knesset? If so, did the Ethics Committee exercise its authority lawfully? These are the two questions we are to rule on in this Petition.

 

2.            After hearing the Petition, this Court, by a majority of opinions, decided to deny it. My opinion was different, and had it been heard, we would have ruled that the Ethics Committee exercised its authority unlawfully, and we would have cancelled its decision. At the end of our judgment, we ruled that our reasons would be given separately, and now the time for the reasons has come.

 

3.            As mentioned, the Petitioner argued that the Ethics Committee lacks the authority to impose a sanction upon her for remarks that are covered by the material immunity that is granted to a member of Knesset. She also argued that the things that she said and wrote do not constitute a violation of the Rules of Ethics. My colleague, President M. Naor, is of the opinion that the Ethics Committee was authorized to address the Petitioner's remarks and that in the current case it exercised its authority lawfully. I agree with my colleague the President on the matter of the authority. I am also of the opinion that the Committee is authorized to address the Petitioner's remarks. The scope of disagreement between me and my colleague relates to the discretionary level. I am of the opinion that the Petitioner did not violate the Rules of Ethics, and therefore, the Committee's authority was exercised unlawfully. I shall add a few words on the authority level, and thereafter shall discuss the discretionary level.

 

 

 

 

The Authority Level

 

4.            The Ethics Committee operates by virtue of Section 19 of the Basic Law: The Knesset, which constitutes authorization for regulating the Knesset's work proceedings in By-Laws, and by virtue of the Knesset Members  Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Immunity Law"). The two main provisions which are relevant to the case at hand are:

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal action, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

 

13D. (a) The member of Knesset who committed one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated any of the Rules of Ethics.

 

5.            The Rules of Ethics appear in the Knesset's By-Laws and their power is vested by virtue of Section 13E(1) of the Immunity Law. In the matter at hand, the Ethics Committee ruled that the Petitioner violated Section 1A of the Rules of Ethics which prescribes, in the relevant parts, that:

 

1A. The member of Knesset –

…

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

…

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

6.            The Petitioner's approach is that there is no place for the Ethics Committee to act if the member of Knesset's action is protected by material immunity. According to this approach, Section 1(a) of the Immunity Law requested to exclude  these matters from the Committee's authority. This approach was denied in HCJ 12002/04 Makhoul v. The Knesset PD 60(2) 325 (2005) (hereinafter: the "Makhoul" Case). In that matter, it was ruled that the Ethics Committee's decision is not a "legal action" which is included in Section 1(a) of the Immunity Law, and therefore a member of Knesset is not immune from facing it. This ruling coincides with the purpose of Section 13D of the Immunity Law, which anchors the Ethics

 

 

 

Committee's authority to address the violation of the Rules of Ethics and to apply sanctions on members of Knesset for such violations. This ruling also coincides with the interpretive proceeding which should be applied to Sections 1 and 13D of the Immunity Law. Thus, it was ruled in the Makhoul Case that normative harmony requires the interpretation that at hand are two provisions which complement each other, rather than there being a contradiction between two provisions that are mutually exclusive (ibid, on pages 334-335). Therefore, I am of the opinion that that stated in Section 13D complements that stated in Section 1 and does not contradict it.

 

7.            The Petitioner raised an additional argument on the authority level, that the Ethics Committee is not authorized to discuss political remarks by members of Knesset and that its authority is limited to remarks that substantially disturb the work of the Knesset and relate to the social relationship within the Knesset. Indeed, the position of the Ethics Committee in its decisions is that "in all that relates to political remarks, the Committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks". However, I am of the opinion, as is my colleague, the President, that this does not mean that the Ethics Committee lacks authority to discuss these remarks (see paragraphs 27-28 of her opinion). Indeed, my opinion is that one must distinguish between remarks that are only political, and remarks that constitute bad-mouthing and slandering of individuals and publics. However, I am of the opinion that the distinction does not have to be made at the authority level, but rather at the discretionary level. Meaning, in the scope of judicial review which should be applied on decisions that discuss these remarks and the scope of protection that should be given to remarks of such nature, as I shall elaborate below.

 

The Discretionary Level

Limiting the Freedom of Political Expression of an Elected Official

 

8.            At the discretionary level, the Court examines the merits of the Ethics Committee's decision. In the case at hand, whether the Petitioner, through her remarks, violated the Rules of Ethics by virtue of which she was convicted. This matter is directly related to the question of members of Knesset's freedom of political expression and the question of the limitation thereof. I am of the opinion that the point  of reference in this matter lies in the recognition of the importance of guaranteeing the existence of elected official's freedom of political expression and of striving to promote it.

 

9.            "The political expression – the speech, the article, the interview – are the member of Knesset's primary working tools" – so wrote President A. Barak in HCJ 11225/03 Knesset Member Dr. Azmi Bishara v. The Attorney General PD 60(4) 287, 326 (hereinafter: the "Bishara" Case). Political expression is the core of parliamentary activity and constitutes a primary tool for the member of Knesset to perform his main duty – expressing his position and the positions of the public that voted for him on public matters.

 

10.          In order to guarantee that the member of Knesset shall be able to faithfully fulfill his position and represent the public that voted for him while giving free and full expression of his opinions and perspectives, without fear or concern, the legislator

 

 

 

chose to grant the members of Knesset material immunity against being criminally charged or against a civil law obligation, for remarks that were expressed in the framework or for the sake of fulfilling their position. This immunity is essential to guarantee the democratic character of the ruling government. In the Bishara Case it was ruled as follows:

 

"The purposes underlying the material immunity are varied. They are meant to protect the fundamental political freedoms. They are meant to allow proper activity of the legislative authority. They reflect a desire to guarantee the member of Knesset's independence and freedom of action. They are meant to strengthen the democratic rule. On the other hand, one must not ignore the other (general) purposes of the Immunity Law" (ibid, on page 323)

 

One can learn of the importance of protecting the members of Knesset's freedom of political expression, which is reflected in the material immunity granted to them, and of the tight linkage between it and the proper activity of the democratic process, from the spirit of the words of President S. Agranat in Criminal Appeal 255/68 The State of Israel v. Avraham Ben Moshe, PD 22(2) 427, 435 (1968), when he examined the actions of a person who was harassing a member of Knesset due to words spoken by such elected official:

 

"The right of a member of a house of representatives, in this forum or elsewhere, to voice his views on the "cutting-edge" political questions, without fear and concern that he will be harmed by anyone who does not support such perspectives or who is convinced that they are dangerous for the nation – such right is but only a tangible reflection of the tight linkage that exists between the principle of freedom of expression and dispute and the proper activity of the democratic process. Moreover, due to the significant importance we attribute to the later aspect of the discussed principle, the legislator deemed it fit to grant the members of Knesset an  entire system of privileges, which are meant to guarantee that each of them shall be able to express their opinion and formulate their positions, regarding the political issues that require solution and decision, in an open and free manner and without them having to be accountable for them to any person or authority. I mean the various immunity rights… one of which is that which is prescribed in Section 1(a)…"

 

11.          The Israeli legislator even adopted a rather broad model of material immunity in Section 1(a) of the Immunity Law. This immunity applies also to actions and not only to voting or expressing an opinion and spans over the activity of the member of Knesset within the walls of the Knesset and outside thereof, and applies also after he ceased being a member of Knesset (see: HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 204 (1987) (hereinafter: the "Miari" Case); the Bishara Case, on page 301). The broad scope of the material immunity indicates the great importance the legislator attributes to protecting the

 

 

 

members of Knesset's freedom of expression. This protection is not meant to serve the member of Knesset's personal well-being, but rather is meant to guarantee the right of all of the citizens to full and effective political representation – that their opinions be heard, through their elected representatives, in the public discourse, in general, and in the house of legislators, in particular.

 

12.          It shall be noted that guaranteeing the existence of freedom of political expression is also important when at hand are aggravating and outrageous remarks and ideas, and it is especially important for members of Knesset who express ideas that are perceived as such by the majority of the public. Indeed "Freedom of expression is also the freedom to express dangerous, aggravating and deviant opinions, which disgust the public and which it hates (HCJ 399/85 Kahane v. The Executive Committee of the Broadcast Authority, PD 41(3) 255, 279 (1987)). The essence of the importance of this right is granting protection to words that are not popular and not in consensus and which can even grate on the ears.

 

13.          There is no denying that guaranteeing the existence of freedom of free political expression and minimizing the limitation thereof is especially critical for members of Knesset who belong to minority groups in the population. My colleague, Justice E. Hayut, elaborated in her opinion on the special importance of protecting the freedom of expression of minority groups in general. I am of the opinion that when members of Knesset are at issue, this is all the more relevant. There is great significance to protecting the freedom of expression of minority groups in the parliament and restraining the infringement thereof. So as to guarantee effective and egalitarian representation of the minority groups in the parliament, in a manner in which their voice shall be heard and not excluded. This approach is grounded in the rulings of this Court. For example, in the Bishara Case, President A. Barak stated, in the context of the members of Knesset's material immunity, that protecting freedom of expression is "vital particularly for citizens who are members of minority groups in the population. In this sense the material immunity also advances civil equality by also protecting the right of the members of the minority groups in the population to full and effective political representation, and protects them by protecting the member of Knesset who is representing their affairs and their  perspectives against the power of the majority" (ibid, on page 323).

 

14.          This approach was also recognized in the judgment of the European Court of Human Rights (Szel v. Hungary, 44357/13 (sep. 16, 2014) at para 69; Karacsony

v. Hungary 42461/13 (sep. 16, 2014) at para 72), to which my colleagues also referenced. As mentioned, the European Court cancelled the conviction of an ethical offense of four opposition members of Parliament in Hungary, due to their remarks in the framework of acts of protest. In that matter, it was ruled that in a democratic society, freedom of expression is a tool of supreme importance for members of Parliament. It was also ruled that this freedom of expression is particularly necessary for members of Parliament who belong to minority groups, in order to guarantee their right to express their positions and the right of the public to hear these positions.

 

 

 

 

One can also learn of the importance of protecting freedom of expression of minority groups from the spirit of the judgment of the European Court of Human Rights in Jerusalem v. Austria ECHR 26958/95. In that case it was ruled that interfering with an opposition member of parliament's freedom of expression calls for broader scrutiny by the Court:

 

"Interference with the freedom of expression of an opposition member of parliament, like the applicant, calls for closest scrutiny on the part of the Court" (at para 36)."

 

The Ethics Rules

 

15.          As to the ethics rules. As mentioned, the point of reference in any legal examination of the matter being discussed – including the examination of the ethics rules - is the recognition of the supreme status of freedom of expression in our legal system and the importance of minimizing interference therewith. I agree with my colleague, the President, that freedom of expression also projects onto the laws of ethics that apply to members of Knesset (see paragraph 27 of her opinion). This Court has ruled in the past that "Freedom of expression projects onto and has implications for all the other branches in our legal system, including disciplinary rules" (Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel, paragraph 25 of the judgment of (then) Justice M. Naor (January 1, 2002)). This Court applied a similar approach with respect to the disciplinary rules that apply to civil servants (Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227 (1986) (hereinafter: the "Sapiro" Case)). In that case it was ruled that:

 

"We must be diligent about the promotion and existence of freedom of expression, even in light of the reasonable assumption that there is a difference, in terms of the range of permitted actions, between an ordinary citizen and a civil servant, and consequently there are certain limitations on the public remarks by a civil servant […], the qualifications that are imposed upon civil servants, should, to the extent possible, be minimized. Additionally, general and unspecified reservations should not be imposed upon the civil servants, but rather their classification should be limited to those circumstances in which there is near certainty of damage or harm to the public service or to the interests it serves (ibid, on pages 236-237)

 

I am of the opinion that this is all the more relevant when at issue is the limitation of members of Knesset's freedom of political expression, since their political expression is the main tool for them to perform their duty. Therefore,  the question is what are the criteria for ruling that a member of Knesset violated the ethics rules? I am of the opinion that one can learn of the proper criteria from looking at the laws of the members of Knesset's material immunity. As mentioned, the broad scope of material immunity that is granted to the members of  Knesset  embodies  the  supreme  importance  the  legislator  attributed  to

 

 

 

protecting their freedom of expression. I have listed the reasons for this in the paragraphs above, and, as I have demonstrated, previous rulings of this Court have also done this well. It appears that these reasons are relevant also when at issue are the ethics rules. My colleague, Deputy President E. Rubinstein is of the opinion that "Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, 'a pressure release valve', to maintain a framework of parliamentary norms" (paragraph G of his opinion). Indeed, a conviction of an ethical offense is generally considered less severe than a civil or criminal conviction against which the material immunity protects, and generally the sanctions accompanying it are less severe. It appears that this also justifies distinguishing between the extent of the democratic tolerance which applies in each set of rules. Thus, there can be remarks that do not cross the red lines that are defined by the material immunity and are covered thereby, while they do constitute ethical violations. However, a conviction of an ethical offense is also not a trivial matter, and the sanctions accompanying it can be especially severe, as in the current case – removal from the sessions of the Knesset's plenum and its committees for a period of six months. This can create a chilling effect for members of Knesset. In my opinion, this approach requires the Ethics Committee to apply restraint when limiting members of Knesset's freedom of expression and convicting them under the laws of ethics, for political remarks.

 

16.          It is important to note in this context that that which is stated above is relevant when at issue is the violation of an ethical provision in the matter of a member of Knesset's purely political remark - as in the case at hand – and not when dealing with remarks that constitute slander or bad-mouthing. The reason for this is the degree of importance that should be attributed to political expression, since it promotes a free market of opinions and reflects the perspectives of the voting public. This is in contrast with the second type of expressions which do not promote these values, but rather harm the status and dignity of the Knesset and deteriorate the public discourse in Israel. This also coincides with the approach of the Ethics Committee itself, as it emerges from its decisions:

 

"To the extent possible, the limitation of the members of Knesset's freedom of political and ideological expression should be avoided, even when the words they say are harsh and outrageous. The right of freedom of expression constitutes a tool of supreme importance for members of Knesset, within the Knesset and outside thereof, the essence of the importance of this right is granting protection to words that are not popular and which can even grate on many ears. However, if, in all that relates to political remarks the position of the committee is that that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing, slandering, mudslinging and humiliating individuals and publics, the committee's position is materially different. (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013)).

 

 

 

17.          In the case before us the Ethics Committee decided that the Petitioner violated both of the values prescribed in Sections 1A(2) and 1A(4) of the Rules of the Ethics, which read as follows:

 

1A. The member of Knesset –

…

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

…

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

The Ethics Committee ruled that "The Member of Knesset's words that were written and spoken in sensitives times do not coincide with the best interest of the State, even if we grant this term an expansive interpretation, and they constitute a violation of the duty of allegiance that applies to members of Knesset". It was further ruled that "The words severely prejudice the public's trust in the Knesset and its image, which is also reflected in the large number of complaints that were filed with the Committee".

 

18.          The above-mentioned Section 1A prescribes basic values which outline general criteria for the conduct of members of Knesset. As my colleagues, I am of the opinion that even though at hand are basic values that do not delineate a sanction alongside them, they benefit from an independent status and members of Knesset who act in contradiction to that stated therein, can be convicted by virtue thereof. Thus, a conviction of an ethical offense based on Section 1A(4) would be appropriate when a member of Knesset prejudices the harms the Knesset or the members thereof (the Makhoul Case; Rules of Ethics Preparation Committee Report, December 2006, on page 46), or when a member of Knesset acts in a manner that prejudices the public trust. In my opinion, it appears that a conviction of an ethical offense based on Section 1A(2) would be appropriate when a member of Knesset acted not for the advancement of the best interest of the State as opposed to a situation in which he did not act to advance its best interest. Such interpretation takes into account that neutral actions by members of Knesset which on the one hand do not advance the best interest of the State, and on the other hand do not harm it, shall not be included in the prohibition.

 

19.          According to my position, an interpretation that expands the limits of patience and tolerance is appropriate in this matter as well. In my opinion, one must act with a strict and stringent criterion when determining that a member of Knesset violated the values of "advancing the best interest of the State" and "fostering the public's trust". General and unspecified limitations should not be imposed upon a member of Knesset, but rather the classification should be limited to those extreme cases. Consequently, the member of Knesset should be granted broad freedom of action and his actions and words should be interpreted liberally,

 

 

 

such that only the extreme and clear substance of the contents of his words can be the basis for his conviction (compare: the Miari Case, on page 212). There are a number of reasons for my said position. Firstly, the specific provision deals with political remarks, which by their nature are intertwined with the member of Knesset's duties. As such, members of Knesset who engage in political expression as a main part of their position, are at a high risk of committing this ethical prohibition (compare: the Bishara Case, on page 326); Secondly, in light of the broad language in which the values of "advancing the best interest of the State" and "fostering the public's trust" are drafted, there is a concern that if members of Knesset shall be exposed to severe sanctions, which can reach six months of being removed from the sessions of the Knesset's plenum and its committees (Section 13D(d)(4) of the Immunity Law), this could chill their ability to express themselves without fear also in cases in which what they are saying does not constitute an ethical offense. Thirdly, members of Knesset often express themselves in controversial matters in a manner which could appear to be callous and outrageous to part of society. This is especially true in the divided Israeli society (see: E. Benvenisti "Regulating Freedom of Expression in a Divided Society" Mishpatim 30 29 (1999)). Hence, it is natural that in light of the Petitioner's perspectives and the platform of her party, she will find herself expressing positions regarding the Israeli-Arab conflict, and the risk that her statements shall be interpreted by a large part of society, as statements that harm the State's best interest, is great. (Compare: the Bishara Case, on page 327).

 

20.          Given the above, one must examine whether the Petitioner, through her remarks, violated the Rules of Ethics. Meaning, is the Ethics Committee's decision which is the subject of the Petition, lawful. Examining the merits of the Committee's decision raises a question of the scope of judicial review of the Ethics Committee's decisions. I shall now address the examination of this scope and thereafter examine, in the form of applying the general rule to the specific case, whether the current case justifies our intervention.

 

The Scope of Judicial Review of the Ethics Committee's Decisions

 

21.          Case law prescribes that the scope of judicial review is impacted by the type of decision which is the subject of the review (see: HCJ 652/81 Knesset Member Yossi Sarid v. The Chairperson of the Knesset PD 36(2) 197 (1982)). As my colleague, the President, elaborated, it was ruled in the Makhoul Case that in general the Ethics Committee has broad room for maneuver and consequently the room for judicial review is relatively narrow (ibid, on page 343). I agree with this position, however, each case is examined on its own merits and the scope of the judicial review is determined in accordance with the circumstances of each case. In the Makhoul Case, the main reasons for determining the relatively narrow scope of judicial review were that the Ethics Committee's decisions are closer to the sphere of the Knesset's internal matters; that its decisions harm the member of Knesset in a relatively mitigated manner; and that at issue are matters which generally have a small impact outside of the Knesset. Therefore, it was ruled that the extent of this Court's intervention shall be less than that which is exercised with respect to other quasi-judicial decisions that are in the framework of the Knesset's authority. However, these reasons are not relevant in the current case. Since at hand are political remarks that were said outside of the Knesset and

 

 

 

which do not relate to its internal affairs or its conduct or to the conduct of any of its members. The Ethics Committee's decision in the current case harms the core of the freedom of political expression, and as such its impact outside of the Knesset is not small. In my opinion in such cases, when the Committee examines purely political remarks, there is no justification for the judicial review to be narrower that the judicial review of other quasi-judicial decisions.

 

22.          This ruling coincides with the ruling in the Makhoul Case, that when examining the Ethics Committee's decision, the Court shall take into consideration those consideration that relate to the severity of the infringement of the basic rights and the proportionality of the sanction that is imposed by the Ethics Committee. Indeed, ethics rules are not a cover for infringing basic rights that are granted to a member of  Knesset. When the Knesset wishes to exercise its authority  and qualify the rights granted to a member of Knesset by law, it must comply with the legal criteria that are required for exercising this authority (see: the Miari Case, on page 196). The more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the act deviates from the proper extent, the more this Court will be willing to intervene (see: the Makhoul Case, on page 344). In the case before us the member of Knesset's freedom of expression was infringed. The fact that at hand is a member of Knesset from a minority group exacerbates the infringement and justifies broader judicial review. In this matter, the words of Justice E. Rivlin in the Bishara Case, are relevant:

 

"In any event the special significance of judicial review in those cases in which basic human rights are at issue, should be recognized. It is here that it is important that the judicial review exhaust its full power and ability. This ability shall serve it if it shall succeed in refraining from scattering its legal and social resources which are nurtured by the public's trust, when the scope of deference expands. This is true in general, and particularly when immunity relating to freedom of expression is at issue, and in the case at hand – not just expression, but political expression, and not just political expression, but political expression of a member of Knesset, and not just a member of Knesset, but a representative of a minority group" (ibid, on page 337) [emphases added – S.J.]

 

From the General Rule to the Specific Case

 

23.          I shall now examine the Petitioner's remarks in light of that stated. I shall state at the outset that in my opinion the Petitioner did not violate the Rules of Ethics. I did not reach this conclusion easily, and it is not obvious. Indeed, in my opinion this is quite a borderline case. The Petitioner's statements, at the timing in which they were said, are harsh and in my opinion near the line beyond which it could not be said that they comply with the Rules of Ethics. However, in my opinion, given the circumstances of the matter, and considering the entire considerations, the proper conclusion is that ultimately the Petitioner did not violate the Rules of Ethics. The main reason for this is that one cannot extract any clear and unequivocal content, that amount to a violation of the ethical values, from her

 

 

 

remarks, but rather her remarks were vague, some had reservations attached and some had explanations that were later attached, as I shall immediately describe in detail.

 

24.          As for the call in the article dated July 13, 2014, to impose a siege on the State of Israel, the Petitioner did not state what type of siege she is calling for – whether a political siege or a military siege. The Petitioner's attorney claimed in the hearing before us that the Petitioner meant the imposition of a political siege and not the imposition of a military siege. I agree with my colleague the President that the words of the Petitioner's attorney were stated retroactively and that the Petitioner should have presented this explanation to the Ethics Committee. However, I am of the opinion that this interpretation that was suggested by the Petitioner's attorney – that the call is for a political and not a military siege – is at least possible, and could be implied from the words the Petitioner wrote. In this context, I do not agree with my colleague, the Deputy President, that it is very difficult to interpret the call "to impose a siege on the State of Israel" as only a political siege, but rather as a military siege.

 

25.          As to the Petitioner's statements in the interview dated June 17, 2014, that the abductors of the teenagers "Are not terrorists", these statements were accompanied at the time they were said, by a reservation from the act of abduction, as it was said "even if I do not agree with them". Following the said interview, the Petitioner explained in the media that she objects to the abduction, that she does not agree with this act and that she objects in principle to harming civilian population, Israeli and Palestinian. As to her remark "They are not terrorists", she explained that it is her principle position not to use the term "terror" in the Hebrew press. I am of the opinion that in the circumstances of the matter, these words by the Petitioner somewhat soften her remarks in the interview. There are two reasons for this. Firstly, the statement "They are not terrorists" was made orally, in an interview, as a response to the interviewer's question. Meaning, the Petitioner did not have time to redraft or refine her statements, or retract them before they were made public. A similar position was expressed in the European Court of Human Rights in Mondragon v. Spain 2034/07, where it was ruled that the Court must take into account the fact that the statements were made orally during a press conference so that it was not possible to redraft or retract the statements before they were made public:

 

"The Court further takes account of the fact that the remarks were made orally during press conference' so that the applicant had no possibility of reformulating' refining or retracting them before they were made public (at para 45)".

 

Secondly, the Petitioner provided explanations in the media to the meaning of her remarks with regard to the teenagers' abductors, in order to convince the public that she objects to the act of abduction and to harming civilian population. The Petitioner explained that the statement "They are not terrorists" stems from her principle position against using the term "terror" in Israeli media, and not from her identifying with the act of abduction. Even if these explanations which the Petitioner provided to the media, do not reflect her inner feelings, the fact that they are possible explanations, is sufficient to somewhat soften her remarks. I

 

 

 

agree with the position of my colleague, the President, that extreme acts or expressions which legitimize acts of terror and which encourage and support violence against civilian population, cannot overcome the ethical prohibitions. However, as I explained above, this is not exclusively and unequivocally implied from the Petitioner's statements, in light of her reservations when they were said and in light of her later explanations. One must also add that the Attorney General ruled on July 24, 2014, that a criminal investigation shall not be opened against the Petitioner for her remarks regarding the teenagers' abductors. The explanation given to this by the deputy Attorney General is that the Petitioner's reservation from the act of abduction "creates difficulty in perceiving the statements as inciting abduction". It appears, from all of that stated above, that one cannot extract clear and unequivocal content from the Petitioner's remarks that amount to a violation of the ethical prohibitions.

 

26.          As for the timing in which the statements were said, I concur with the remark by my colleague, Justice E. Hayut, that one must set uniform criteria for the protection of freedom of expression during times of war and times of calm (see paragraph 4 of her opinion). In my opinion, the supreme status of the freedom of expression is also reserved during times of war. The Ethics Committee also ruled in its decision which is the subject of the Petition that "The right of members of Knesset to express positions that are not in consensus and to express public criticism on the government, is reserved also during times of war". It shall also be noted that the distinction between times of calm and times of crisis is not always sharp and clear, particularly in the Israeli reality. In this context the words of President A. Barak in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), to which my colleague referred, are relevant:

 

"Furthermore, it is not possible to make a sharp distinction between the status of human rights during times of war and their status during times of peace. The line between terror and calm is thin. This is true everywhere and certainly in Israel. It is not possible to sustain this over time. We must treat human rights seriously both during times of war and times of calm" (ibid, in paragraphs 20-21).

 

However, as my colleague, Justice E. Hayut, stated "the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis."

 

27.          In summary, in light of the great value of granting members of Knesset free political expression and minimizing the limitation thereof as much as possible, particularly when at issue are members of Knesset who belong to  minority groups, and in light of the broad language of the ethical provisions by virtue of which the Petitioner was convicted, the conviction of members of Knesset by virtue of these provisions should be limited only to cases in which the content of the statements is clear, unequivocal and extreme. In the case before us, I am of the opinion  that one  cannot extract clear and unequivocal content from the Petitioner's statements, both in light of her reservations from the act of abduction while making the remarks and in light of her later explanations in the media.

 

 

 

Therefore,  it is my position that  the  decision of the  Ethics  Committee  was reached unlawfully.

 

28.          In light of all that stated, if my opinion were to have been heard, we would have accepted the Petition and cancelled the Ethics Committee's decision in the Petitioner's matter.

Justice

 

It was decided by a majority of opinions as stated in the judgment of President M. Naor.

 

Given today, the 21st of Shvat, 5775 (February 10, 2015).

 

President            Deputy President            Justice

Justice  Justice 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

considered democratic, is pointless. We refer to the definition of democracy which is accepted today and in accordance with our own view, according to which, for example, not allowing women to vote would be considered a distinctly anti- democratic act, which no one would even think of doing. The same applies to the idea of collectively depriving citizens belonging to a certain group of their rights, which is also an absolutely anti-democratic act that one should not come to terms with.

The Appellant’s objectives and conduct are also clearly racist: systematically fanning the flames of ethnic and national hate, which causes divisiveness and animosity; calling for the forceful deprivation of rights; systematic and intentional degradation directed towards a specific part of the population selected because of their national origin and ethnicity; [calling] for their humiliation in ways very similar to the terrible experiences of the Jewish nation. All these reasons suffice, in light of the evidence presented, to come to this conclusion regarding incitement to racism. The extent of the actions taken by the Appellant in all its forms; the extremism through which it presents the action accompanying it; and the terrible distortion of the nature of the State and its regime that flow from it point to the severity of its objectives and conduct that requires that we affirm the decision of the Central Election Committee.

We have decided to dismiss the appeal.

 

 

Decided today, 7 Cheshvan 5749 (October 18, 1988)

 The Supreme Court sitting as Court of Administrative Appeals

AAA 662/11

 

Before:                                                The Honorable Justice E. Hayut

                                                The Honorable Justice N. Hendel

                                                The Honorable Justice U. Vogelman

 

The Appellants:                       1.  Yehudit Sela

                                                2.  Sima Ben Haim

                                                3.  Peri Shahaf

                                                4.  Yinon Sela

                                                5.  Yoav Ben Haim

                                                6.  Katy Shilo Oliver

                                                7.  Michael Ayash

                                                8.  David Cohen

                                                9.  Amnon Ben Ami

                                                10. Zachary Grayson

                                                               v.

The Respondents:                   1.  Head of the Kfar Vradim Local Council, Sivan Yehieli

                                                2.  Kfar Vradim Local Council

                                                3.  Oriette Amzalag

                                                4.  Shimon Amzalag

                                                5.  Victor Haziza

                                                6.  Tibi Hertz

                                                7.  Jacques Ben Zaken

                                                8.   Nissim Avital

 

Appeal of the judgment of the Haifa Administrative Affairs Court (The Honorable Judge R. Sokol) in AP 21404-06-09 of Dec. 23, 2010.

Date of hearing: 29 Adar 5774 (March 31, 2014)

 

Attorneys for the Appellants: Avi Weinroth, Adv.; Amir Lockshinsky-Gal, Adv.

Attorney for the Respondents: Haim Pitchon, Adv.

Attorney for the State Attorney’s Office: Tadmor Etzion, Adv.

 

Facts:   An appeal of the decision of the Haifa Administrative Affairs Court, dismissing the petition of the Appellants and holding that the court should not intervene in the decision of the Kfar Vradim local council according to which a women’s mikve (ritual bath) would not be constructed in the town in the near future.

Held:   As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes. In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention.

            It is clear that the council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects.

            Although the council’s decision relied upon the recommendations of the committee for examining criteria for the construction of public buildings in the village, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. However, that does not mean that the council is bound by the recommendations of the criteria committee, which is merely an advisory body. Under the circumstances, the decision to rescind its decision to build a mikve in the village, adopt the recommendations of the criteria committee in full, and refrain from taking action in the near future to establish a mikve in the town does not pass the reasonableness test, and does not reasonably balance the needs of the religiously observant female residents of the community, who are required to fulfil their religious obligation of ritual immersion, against the budgetary considerations and the available land resources.

            The religious obligation of ritual immersion is an integral part of the life of a religiously observant, married woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to the free exercise of religion and religious practice. No mikve has ever been built in Kfar Vradim. Given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the nearby towns on foot.  Under the circumstances, the absence of a mikve in the town deprives the female residents of the town of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community.

            The primary consideration that led to the decision was the limited resources available to the council. In its deliberations, the council could, indisputably, give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, under the circumstances of the instant case, the resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant. Under those circumstances, the weight of the budgetary consideration relative to the opposing interest was limited.

            That being so, in circumstances in which appropriate weight was not given to the substantial harm to the religiously observant, female residents of the town by the absence of a mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was given disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the council due to external funding – The Court held that the council’s decision not to erect a mikve was unreasonable and must, therefore, be annulled.

 

Judgment

 

Justice U. Vogelman:

 

            An appeal of a judgment of the District Court sitting as a Court Administrative Affairs in Haifa (the Honorable Judge R. Sokol), denying the petition of the Appellants, and holding that the court would not intervene in the decision of the local council of Kfar Vradim (hereinafter: the Council or the Local Council) not to erect a mikve for the women of the town in the near future.

 

Background

1.         The town of Kfar Vradim was established in the western Galilee following a government decision made in 1978. The town currently has some 6,000 residents. Some of the residents (many dozens of families according to the Appellants) define themselves as religious or traditional. In the past, the authority to plan, develop and market building lots in the town was held by the Kfar Vradim Development Corporation Ltd. In 2008, that authority was transferred to the Council. In 2005, the Local Council and the Ma’ale Yosef Regional Religious Council agreed that the former would be responsible for providing religious services in the village, including “family purity and the instruction of brides”. No mikve was ever erected in Kfar Vradim, and the closest mikves [ritual baths] for women are a short drive away, in the neighboring communities. Over the last few years, some of the local residents began working toward the establishment of a mikve in the town.

2.         On March 12, 2007, the National Religious Services Authority in the Prime Minister’s Office (hereinafter: the Authority) undertook to provide an “extraordinary budget” in the amount of NIS 745,000 for the building of a mikve in the town (hereinafter: the EB). The Local Council was asked to approve the Authority’s offer in order to receive the EB, and on May 22, 2007, it decided to approve it on condition that the Authority agree to exempt the Council from any obligation to finance the construction or maintenance of the mikve. The Council then completed the necessary application for receiving the EB – deleting the sections regarding the Council’s obligation to participate in financing – and returned it to the Authority, while emphasizing the condition that the Council not be required to fund the construction or maintenance of the mikve in any way. At the Council meeting, the chairman at the time informed the Council that, in a meeting with the Minister for Religious Affairs, the Minister informed him that the application to receive the EB would not be approved due to the reservations and deletions made in the application, but added and promised that the maintenance of the mikve would be financed by the Religious Services Authority, and that no funding would be required of the Council. In the course of that Council meeting, Mr. Amnon Ben Ami (Appellant 9, hereinafter: the Donor) – a community resident who had contributed monies in the past for the construction of the community’s synagogue – asked that the mikve be attached to that synagogue, and agreed to guarantee that the maintenance of the mikve will not require funding by the Council. At the end of the meeting, the Council decided “to approve the EB as is, without any changes, and in the “Stage B zone” (by the term “Stage B”, the Council was referring to a particular area in the village).

3.         Pursuant to that decision, on Oct. 23, 2008, the Council published a public tender for the construction of the mikve (hereinafter: the Tender). A petition submitted in regard to alleged flaws in the tender process was dismissed on Nov. 6, 2008, following a declaration by the Council that it would not open the bid envelopes until after the elections for the Local Council and until a decision was reached by the new Council in regard to opening the envelopes (AAA 10/08 (Haifa Administrative) Akirav v. Kfar Vradim Local Council (Nov. 6, 20018)). On Nov. 11, 2008, elections were held for the Local Council, in which a new Council head was elected (Respondent 1). On Nov. 16, 2008, the outgoing Council head requested that the Israel Lands Administration suspend the Council’s request to allocate land for the construction of the mikve, and instead, allocate the land for the construction of the Tefen comprehensive high school. This suspension request resulted from a compromise agreement, granted court approval in 2008, under which the Council agreed to allocate land for the construction of the Tefen school in its jurisdiction (AP (Haifa Administrative) 630/08 Association for the Ma’alot and Region Experimental School (R.A.) v. Industrial Local Council Migdal Tefen (Sept. 4, 2008)).

4.         On Dec. 22, 2008, the new head of the Council informed the bidders of the cancellation of the Tender, and the sealed envelopes were returned to the bidders unopened. In the course of February 2009, a decision was taken to change the location for the construction of the Tefen school, and to allocate other land in the town for that purpose. A Council meeting was held on May 13, 2009. In the course of the discussion of the allocation of land for religious purposes, the head of the Council requested the repeal of the decision of the previous Council in the matter, and added that the Tender for the building of the mikve had been cancelled due to a problem concerning the allocation of the land, and because there was no available budget and the Donor had not provided his share. It was further noted that, in the meantime, the Ministry of Religious Services’ commitment to underwrite construction of the mikve had lapsed. At the end of the meeting, the Council decided to repeal the decision of the previous Council from Nov. 18, 2007 in regard to the synagogue and mikve in Stage B (hereinafter: the Repeal Decision). As a result of this decision, several dozen residents organized in order to bring about its repeal. When their efforts failed, they submitted a petition against the Council’s decision to the Haifa District Court in its capacity as a Court of Administrative Affairs.

 

Proceedings in the Lower Court

5.         In their petition to the lower court, the Appellants argued that the Council’s decision to suspend and cancel the Tender for building the mikve should be annulled, and that the Respondents should be ordered to publish a new tender. A hearing was held on Sept 8, 2009. In the course of the hearing, it was argued, inter alia, that a decision could not be made to construct a mikve, or any other public building, without clear criteria for the allocation of public resources. In the end, a procedural agreement was reached between the parties under which the proceedings in the case would be adjourned for six months, during which the Council would establish criteria for the allocation of land for public buildings and for budgetary support for public purposes. It was agreed that those criteria would “relate to all the needs of the village, including religious needs, among them the construction of a mikve”; and that “in the framework of the criteria that will be established by the Council, the Council will consider the public desire and all the public needs, and will take the public’s constitutional rights into account. In addition, the Council would consider the burden on the public purse […] [and in that regard] the possibility of obtaining public or other funding for the construction of public buildings, including public funding already approved […], and the possibility of combining different needs together in order to reduce and save expenses”. It was made clear that the agreement would not derogate from any of the parties’ claims in regard to the petition itself.

6.         On Dec. 14, 2009, pursuant to the procedural agreement, the Council decided to establish a committee to evaluate the criteria for constructing public buildings in the town (hereinafter: the Criteria Committee or the Committee). The Committee comprised nine members, including representatives of the Appellants. Following five meetings and a public discussion to which the entire community was invited, the Committee presented its conclusions. The Committee decided that the priorities for the construction of public buildings in the town should be based upon a group of criteria, and quantified the relative weight that should be given to each criterion, as follows:

 

            Criterion                                                                                              Relative Weight

1. Expected number of users                                                                                    30%
2. Necessary for well-being in the town                                                       25%
3. Appropriate to the character of the town                                     25%
4. Cost relative to number of expected users                                                10%
5. Possibility of fulfilling the need in neighboring communities                  10%

 

            In light of these criteria, the members of the Committee ranked the list of 17 public buildings required by the town. After the mikve placed last under each of the criteria, separately and cumulatively, the mikve was ranked last in priority for the construction of public buildings required for the town.

7.         On April 21, 2010, the Council ratified the Committee’s recommendations, and explained that the priorities would serve as a “compass” for the Council’s decisions in this area, but added that the recommendations do not relieve the Council of its authority to consider each case on its merits. Following the ratification of the recommendations, and in light of the low ranking given to the construction of the mikve, the Appellants submitted an amended petition in which they reiterated the claims made in the original petition, and added claims against the criteria established and the method for ranking public buildings.

The Judgment of the Lower Court

8.         On Dec 23, 2010, the lower court (the Hon. Judge R. Sokol) dismissed the petition and assessed NIS 20,000 against the Appellants for costs. At the beginning of its judgment, the court explained that the fundamental rights of the Appellants to freedom of religion and worship were not in question, but the discussion must be focused upon the question of the criteria for the allocation of public resources in the local authority and the lawfulness of the procedures adopted by the Respondents. The court found that the building of the mikve required the allocation of public resources – land and budget – for construction and maintenance. The court explained that even if the Appellants expect to raise contributions for the project, those contribution are not expected to eliminate the need for public resources, but only to limit the costs. Against this background, the court rejected the Appellants’ claims in regard to the Repeal Decision, as well as the Council’s decision – made following the recommendations of the Criteria Committee – to rank the mikve as the lowest priority in the list of public building construction in the town (April 21, 2010).

9.         As for the Repeal Decision, the court found that since the allocation of land for building of the mikve was contingent upon conditions that were not fulfilled – the money was not provided by the Donor, and the Religious Affairs Authority required an unconditional undertaking that the Council underwrite the construction and maintenance costs – the Council’s decisions were lawfully repealed. Moreover, the Council was at liberty to repeal those decisions inasmuch as they were not made in accordance with the criteria established later in accordance with the Council’s new policy, and because the circumstances under which the decisions were made had changed after it was decided to allocate the land for the building of a school.

10.       All of the Appellant’s arguments against ranking the mikve as the lowest priority for the construction of public buildings were dismissed, as well. As for the claim that there was insufficient factual basis, the court found that the Committee’s reliance upon the data of the Council, upon oral and written public requests, and upon the Committee members’ personal knowledge of the town was reasonable, and that the Appellants had been given an opportunity to present data to the Committee as they wished. It further held that the statements of the Committee members in regard to the town’s future did not testify to the existence of improper considerations in regard to preventing an increase in the number of observant residents in the town, and that that the worldviews of the Committee members in regard to the needs of the community were relevant and required for addressing the matter. As for the Appellants’ claim that the criteria established under the procedural agreement were not included in the final list of criteria, the court held that the procedural agreement could not limit the Council’s exercise of its discretion, and that the said agreement was not intended to establish the criteria, but rather to set out the considerations that the Council should take into account in deciding upon those criteria, which it did. It was further found in this regard that the Council’s decision not to include the availability of resources as a criterion was intended to prevent the use of contributions in order to erect buildings for which there was no real need, and was, therefore, a relevant, legitimate consideration. The court added that the ritual needs of the residents are seen to by the Ma’ale Yosef Regional Religious Council, and that there are mikves in neighboring communities. It held that the absence of a mikve in the town presented a hardship for residents seeking to fulfil the religious obligation of ritual immersion, but it did not prevent the fulfilment of that obligation. Lastly, the court held that, in view of the appropriate judicial restraint to be shown in regard to intervention in administrative discretion, the court should not intervene in the criteria in a manner that would grant priority to the construction of the mikve.

            That is the background that led to the appeal before this Court.

 

Arguments of the Appellants

11.       The Appellants ask that the Court set aside the judgment of the lower court, annul the Council’s decision of May 13, 2009 (in regard to the EB and the allocation of land for the construction of the mikve), and of April 4, 2010 (in regard to ranking the mikve as the lowest priority for public buildings required in the village), and invalidate the recommendations of the Criteria Committee. The Appellants further ask that we order that the Council erect a public mikve in reliance upon the funding from the Ministry of Religious Services, and apply for an extension for obtaining the EB, as may be necessary.

12.       According to the Appellants, the construction of a mikve in the town will protect the right of the residents to freedom of religion and worship, on the one hand, while not affecting the communal resources, on the other. The Appellants argue that the mikve can be combined with another public building, such that it will not detract from the land available for public use, while its construction and maintenance will be funded through state funding and not from the Council’s budget. Under those circumstances, they argue, the Council’s decision to refrain from building a mikve in the town was disproportionate and unreasonable, and derived from improper, extraneous considerations that arose from a desire to preserve the secular character of the community and keep religiously observant people out of the village. They further raised a series of flaws in the Council’s decision-making process in the matter. The Appellants also argued that there were factual errors in the lower court’s judgment, among them, the finding that the mikve was to be built in reliance upon funding by a private donor (whereas, they argues, the funding was to be provided by the State); the finding that the Appellants claimed only a burden upon their constitutional right to freedom of religion and worship (whereas, according to the Appellants, they claimed a real infringement and absolute denial of the ability to perform the religious obligation on the Sabbath and holidays); the finding that allocating land for the mikve was contingent upon conditions that were not met (whereas the Council decided, on Nov. 18, 2007, to waive the conditions it had previously set for the building of the mikve).

 

Arguments of the Respondents

13.       The Respondents support the judgment of the lower court. First, they argue that there were no flaws in the work of the Criteria Committee. On point, the Respondents argue that the Criteria Committee rightly decided that the availability of resources should not serve as a criterion for the construction of public buildings, as otherwise, the Council would have to erect every building for which there was outside funding; that the possibility for combining a number of functions in one building should not be considered in the framework of establishing criteria, as it is a preliminary stage; and that the constitutional rights of the residents should not serve, in and of themselves, as a criterion, and it is sufficient that they are taken into account in the framework of the established criteria. It was further argued that, at present, there were other public buildings that remained to be built, for which the residents had long-ago paid the development costs The Respondents are of the opinion that once the parties decided upon the establishing of the Criteria Committee, there was no longer any justification for reexamining the Council’s decisions prior to the establishing of the Committee, and moreover, in light of the decision of the former Council head to build the Tefen school on the lot, the Council had no choice but to cancel the Tender; in any case, the Council is permitted to decide upon a change of policy; and that, in any case, the requisite preconditions for carrying out the repealed decision – full outside funding and available land – were not met.

 

Proceedings before this Court

14.       On Sept. 6, 2012, a hearing was held on the appeal (E. Hayut, U. Vogelman, Z. Zylbertal, JJ), in the course of which the Court recommended that the parties attempt to settle the dispute amicably and out of court, inter alia, in light of the suggestion that arose in the course of the hearing that it might be possible to build the mikve privately in the town’s commercial center. On Nov. 11, 2012, the parties informed the Court that no agreement had been reached, and that the possibility of building a private mikve as suggested was in doubt inasmuch as it was contingent, inter alia, upon obtaining a zoning variance. Following a further hearing before this panel (E. Hayut, U. Vogelman, N. Hendel, JJ) on Nov. 4, 2013, the Court requested that the State (the Ministry of Religious Services, and, if necessary, the Israel Lands Authority) declare its position on the matter.

15.       The State submitted its reply on Dec. 24, 2013. The reply stated that the Council could submit a request for funding for the construction of a mikve, which would be considered based upon the criteria of the Ministry of Religious Services, and that it was possible to erect a “standard” public mikve in reliance upon state funding. However, it was noted that there are cases in which the local council participates in certain related costs (such as, environmental development and various complimentary costs), and that, as a matter of course, the Ministry of Religious Services requires that the local authority undertake – as a condition for receiving funding – to pay the difference, if any, between the cost of construction and the funding. It was further made clear that there was no need to allocate specific land for the purpose of submitting the application, and that the salary of the mikve attendant would be provided by the Ministry of Religious Affairs, prorated in accordance with the number of users. It was further explained that the state does not participate in the construction or maintenance of private mikves. As far as the allocation of land was concerned, the Israel Lands Authority informed the Court that, after investigating the matter with the engineer of the Lower Galilee Local Building and Planning Committee, it found that there are three lots in the town– lots 718, 720 and 856 – that could be appropriate, in terms of planning, for the construction of a mikve. In light of the above, we were informed that “The State is of the opinion that there is a possible course for the erection of a mikve in Kfar Vradim, the construction of which will be funded (entirely or primarily) by funding from the Ministry of Religious Services. This, if an application is duly submitted on the prescribed dates, and subject to its examination in accordance with the criteria, and its approval”.

16.       Following the State’s reply, the Appellants submitted an urgent request for an interim order. The Appellants asked that we order the Respondents to submit an application to the Ministry of Religious Services for funding for the erection of a public mikve in accordance with the State’s recommendation, in order to meet the timetable for receiving the funding in 2014. The Respondents opposed the request, arguing that they should not be ordered to submit such a request before the matter is approved by the Council in an appropriate administrative procedure. On Dec. 29, 2013, we dismissed the request for an interim order, and ordered that a date be set for a further hearing of the appeal, in which the State’s representative would also participate.

17.       In updated notices submitted on Feb. 28, 2014 and March 3, 2014, the parties informed the Court that the attempt to initiate the erection of a private mikve had failed due to the Local Council’s decision to deny the request for a zoning variance, and that it the possibility of obtaining such a variance was now unclear inasmuch as it would only be possible to resubmit the request after the completion of the parcelization process for the commercial center. We were further informed that the parties remained divided on the issue of allocating Council resources for the construction and maintenance of a public mikve.

18.       On March 31, 2014, this panel conducted a further hearing of the appeal, in which the attorney for the Respondents claimed that there were planning and practical problems in regard to constructing the mikve on lot 856, which had been mentioned in the State’s reply. At the conclusion of the hearing, we ordered that the Respondent’s attorney submit a notice to the Court, no later than April 6, 2014, detailing the planning and other problems cited in his arguments in regard to lot 856, which had been found suitable, in terms of planning, for the erection of a mikve, as well as in regard to the other lots in the area that might be suitable, and that the State’s attorney then submit an updated notice in regard to the possibility for allocating a lot for the erection of a mikve.

19.       On April 6, 2014, the Respondents submitted an update in which they informed the Court that it would not be possible to build a mikve on lot 856, inasmuch as it would require a new urban development plan and the adjustment of infrastructures; because the type of use of the buildings surrounding the lot was not appropriate for the building of a mikve; and because part of the lot had been sold to a private individual. Therefore, according to the Respondents, the possibility of building the mikve in the commercial center would be preferable, since work on the project had begun (without a permit). On May 1, 2014, the State submitted a further notice in which it stated that building a mikve of lot 856 was possible. The State explained that there are no current negotiations for the transfer of parts of the lot to private hands; there is no need for a new, detailed plan for erecting a mikve, as the current plan is sufficient; and that nothing about the type of use of the surrounding lots would prevent the building of a mikve on the lot. It further noted that a mikve could also be built of lots 718 and 720, both from a planning and practical point of view. The State further explained that building a mikve in the area of the commercial center would involve planning and practical problems: under the relevant plan, the area is zoned for “commercial purposes”, and therefore the erection of a mikve would require initiating planning proceedings in order to change zoning; the proximity to commercial areas is incompatible with the operation of a mikve; and the ownership of the lot and construction violations had yet to be resolved. As for funding the building of the mikve, the Council could submit an application for funding to the Ministry of Religious Services for 2015, which would be reviewed in accordance with the Ministry’s criteria that would be published in the final months of the current year.

 

Deliberation and Decision

            Is the Kfar Vradim Council’s decision to rescind its decision to erect a mikve in the town and refrain from acting towards its construction compatible with the rules of public law? That is the question that we must decide.

 

The Scope of Judicial Review over a Local Authority’s Decision in regard to Allocating Public Resources

20.       The Kfar Vradim Council is a local council authorized to decide how resources will be allocated, subject to the provisions of the law. Indeed, “What use a local authority will make of its property, and to what extent will it permit an individual to use it and when will it refuse, is the question that the authority itself, through its elected representatives, is authorized to decide” (HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council, 16 IsrSC 2101, 2114 (1962) (hereinafter: the Peretz case)). As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes (whether we are concerned with a local authority or a governmental authority). In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention. Such restraint is a corollary of the principle of the separation of powers. In this regard, the words of Justice S. Netanyahu are apt:

 

“The Court will not instruct the authority how to allocated and divide its resources. Requiring an expenditure for a specific purpose must come at the expense of another, perhaps more important, purpose, or perhaps, require enlarging the budget it is granted by the state treasury, which must then come at the expense of other, perhaps more important, purposes. This Court is not the authorized body, and cannot treat of the allocation of the public’s resources” (HCJ 3472/92 Brand v. Minister of Communications, 47 (3) IsrSC 143, 153 (1993) (hereinafter: the Brand case); and see HCJ 2376/01 Federation of Local Authorities in Israel v. Minister of Science, Culture and Sport, 56 (6) IsrSC 803, 811 (2002)).

 

            Despite the broad reach of discretion and the narrow scope of judicial review that it implies, it is clear that the Council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. As Justice H. Cohn put it:

 

“The private sphere is not like the public sphere. In the former, one grants at will and denies at will. The latter exists for no reason other than to serve the public, and has nothing of its own. All it has is held in trust, and it has no other, different or separate rights or obligations than those that derive from that trust or that are granted or imposed by the authority of statutory provisions” (HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem, 25 (1) IsrSC 325, 331 (1971); and see HCJ Israel Contractors and Builders Center v. State of Israel, 34 (3) IsrSC 729, 743 (1980); the Peretz case, at p. 2115).

Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria (see: HCJ 3638/99 Blumethal v. Rehovot Municipality, 54 (4) IsrSC 220, 228 (2000); HCJ   5325/01 L.K.N. Association for the Advancement of Women’s Basketball v. Ramat Hasharon Local Council, para. 10 (June 2, 2004); AAA 5949/04 Mercaz Taxi Ltd. v. Hasharon Taxi Service Ltd., para. 16 (Nov. 28, 2005); and see and compare: HCJ 59/88 Tzaban v. Minister of Finance 42 (4) IsrSC 705, 706 (1989); HCJ 637/89 A Constitution of the State of Israel v. Minister of Finance, 46 (1) IsrSC 191, 200 (1991); HCJ 5023/91 Poraz v. Minister of Construction and Housing, 46 (2) IsrSC 793, 801 (1992); and also see: Dafna Barak-Erez, Administrative Law, 231-235 (2010) (Hebrew); Yitzhak Zamir, The Administrative Authority, 246-248 (2d ed., 2010) (Hebrew); for the anchoring of these principles in the Directives of the Ministry  of the Interior, see: Circular of the Director General of the Ministry of the Interior 5/2001 “Procedure for the allocation of land and buildings without or for minimal consideration” 4-11 (Sept. 12, 2001)). Before reaching a decision on the allocation of public resources, the authority is required to “establish for itself priorities and precedences, and rules and guiding criteria for their application, which must meet the test of reasonableness, and which it must apply equally. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects” (the Brand case, at p. 153).

We will now turn to an examination of whether the decision of the Local Council in the case before us was taken in a proper administrative process, and whether it falls within the scope of the discretion granted the Council.

 

Review of the Decision of the Local Council

21.       I will begin with the conclusion before presenting the analysis: In my opinion, the Council’s decision not to move forward with the building of a mikve for women in the town in the near future does not pass the reasonableness test. Under the special circumstances of the case, I find that the Council’s decision did not reasonably balance the need of religiously observant women to observe the religious obligation of immersion against the budgetary considerations and the available land resources. Under these circumstances, addressing the other claims of the Appellants in regard to flaws that they believe fell in the decision-making process is superfluous, as I shall explain.

22.       As we know, an administrative decision is reasonable if the decision is made as a result of a balance between relevant considerations and interests that have been given appropriate weight under the circumstances (see HCJ 389/80 Golden Pages Ltd. v. Broadcasting Authority, 35 (1) 421, 437 (1981)). Indeed, “A decision may be flawed even when the authority weighed only the relevant considerations, without a hint of an extraneous consideration in its deliberations, if the internal balance among the considerations and the internal weight assigned to each consideration were distorted” (HCJ 1027/04 Independent Cities Forum v. Israel Lands Authority Council, para. 42 (June 9, 2011); Barak-Erez, at p. 725). Examining the reasonableness of the Council’s decision therefore requires that we look at the nature of the considerations that it weighed when it reached that decision, upon the manner of striking the balance, and upon the weight assigned to each consideration. Although the Council’s decision relied upon the recommendations of the Criteria Committee established to set criteria for the construction of public buildings in the town, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits.

23.       What weight was the Council required to assign to the recommendations of the Criteria Committee in examining the possibility of acting to erect a mikve in the village? Having established the Criteria Committee for that purpose, the Council was required to take note of the Committee’s recommendations in deciding upon the manner for allocating the town’s resources. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. It is decided law that “in the absence of an administrative flaw in the opinion of the advisory body, special reasons and extenuating circumstances are required in order to justify deviation from its opinion, especially when the authority is the one that established the advisory body and authorized it to carry out its task” (HCJ 5657/09 The Movement for Quality Government in Israel v. Government of Israel, para. 48 (Nov. 24, 2009); and see HCJ 8912/05 Mifgashim Association for Educational and Social Involvement v. Minister of Education, Culture and Sport, para 16 (March 14, 2007)). However, that does not mean that the Council is bound by the recommendations of the Criteria Committee, which is merely an advisory body. On the contrary, the Council is required to exercise its discretion independently. As Justice Y. Zamir aptly stated: “[…] a recommendation is only a recommendation. In other words, a recommendation does not exempt the authority from the duty to exercise its own discretion. The authority must weigh the recommendation and decide if it would be appropriate, under the circumstances, to accept or reject the recommendation” (HCJ 9486/96 Ayalon v. Registration Committee under the Psychologists Law, 5737-1977, 52 (1) IsrSC 166, 183 (1988); and for a more detailed discussion, see Zamir, at pp. 1219-1222).

24.       Thus, the Local Council was required to examine each request to erect a public building individually, on the basis of the recommendations of the Criteria Committee, while taking into account all the considerations relevant to the decision. In the matter before us, the Council did not discuss the possibility of proceeding with the erection of the mikve in the town in its meeting on April 21, 2010, and from the documents submitted to us, it would appear that this possibility was also not addressed on its merits in the meetings held thereafter. In fact, it would appear that in the Council’s opinion – as can be inferred from the responses that it submitted throughout the proceedings in this case – there was no need for any concrete consideration of the possibility of erecting a mikve in the town once the project was ranked last in the list of public priorities. From the moment that the Council failed to consider the request to erect a mikve in the town on its merits, not deciding to consider the subject of erecting a mikve in the town in the near future was tantamount to a “decision” as defined by law (see sec. 2 of the Administrative Courts Law, 5760-2000, according to which the lack of a decision is deemed a “decision of an authority”; and see HCJ 3649/08 Shamnova v. Ministry of the Interior, para. 3 (May 20, 2008)). Against the said background, the question before us is whether, under the circumstances of the instant case, the Council’s decision to rescind its decision to build a mikve in the village, to accept the recommendations of the Criteria Committee in toto, and therefore refrain from acting in the near future toward the erection of a mikve in the village, does not deviate from the scope of its discretion.

 

The Reasonableness of the Council’s Decision – The Proper Balance of Relevant Considerations

A.        Considerations supporting the erecting of a mikve in the town – the needs of the religiously observant residents

 

25.       Section 7 of the Jewish Religious Services Law [Consolidated Version], 5731-1971 (hereinafter: the Jewish Religious Services Law) provides that the religious councils of the local authorities are competent to provide for the religious services of the residents. The subject of “family purity”, which concerns the operation of ritual baths, is among the religious services for which the religious councils are responsible (see: HCJ 516/75 Hupert v. Minister of Religion, 30 (2) IsrSC 490, 494 (1976); HCJ 6859/98 Ankonina v. Elections Official, 52 (5) IsrSC 433, 447-448 (1998); HCJ 4247/97 Meretz Faction in the Jerusalem Municipal Council v. Minister of Religious Affairs, 52 (5) IsrSC 241, 251 (1998); HCJ 2957/06 Hassan v. Ministry of Building and Housing – Religious Buildings Development Section (July 16, 2006); Shelly Mizrachi, Religious Councils 7-6 (Knesset Research and Information Center, 2012) (Hebrew); Hadar Lifshits and Gideon Sapir, “Jewish Religious Services Law––A Proposed Framework for Privatization Reform”, 23 Mehkarei Mishpat - Bar-Ilan Law Studies 117, 147-148, 153-154 (2006) (Hebrew)).

26.       Mikve services for women are necessary to maintaining the religious lifestyle of Israel’s religiously observant population. Ritual immersion in a mikve is a vital need for those who observe the laws of “family purity”, which require a women to immerse in a mikve after her monthly period. As is commonly known, the observance of the religious obligation of immersion is deemed very important in Jewish law, to the extent that religious decisors have ruled that erecting a mikve takes precedence even over erecting a synagogue (Yalkut Yosef, Reading the Torah and the Synagogue, secs. 152-153) (Hebrew). The obligation to immerse in a mikve forms an integral part of the life of an observant, married Jewish woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to freedom of religion and worship, which our legal system has recognized as a fundamental right of every person in Israel, although the case law has not yet established that it imposes a positive obligation requiring that the State allocate public resources for the provision of religious services. In the framework of this appeal, I will not attempt to provide a precise definition of the interrelationship between the right to freedom of religion and worship and the State’s obligation to provide religious services, as in any event, as will be explained below, an administrative review of the authority’s decision in this case, in accordance with the accepted standard of review, leads to the granting of the appeal (on the recognition of the importance of the right to freedom of religion and worship in this Court’s decisions, see: CrimA 112/50 Yosifof v. Attorney General 5 (1) IsrSC 481, 486 (1951) [http://versa.cardozo.yu.edu/opinions/yosifof-v-attorney-general]; HCJ 866/78 Morad v. Government of Israel, 34 (2) IsrSC 657, 663 (1980); HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, 34 (2) IsrSC 657, 663 (1980); HCJ Foundation of the Movement for Progressive Judaism in Israel v. Minister of Religion, 43 (2) IsrSC 661, 692 (1989); HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 3261/93 Manning v. Minister of Justice, 47 (3) IsrSC 282, 286 (1993); HCJ 4298/93 Jabarin v. Minister of Education, 48 (5) IsrSC 199, 203 (1994); HCJ 257/89 Hoffman v. Director of the Western Wall, 48 (2) IsrSC 265, 340-341 (1994); HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority, 55 (4) IsrSC 267, 277 (2001) [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r... HCJ 11585/05 Israel Movement for Progressive Judaism v. Ministry of Absorption, para. 16 (May 19, 2009); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras. 71-72 (Aug. 1, 2010); and see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter-Rights, vol. 2, 769-774 (2014) (Hebrew) [published in English translation as: Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge, 2015)]; Amnon Rubenstein and Barak Medina, The Constitutional Law of the State of Israel, 354-378 (6^th ed., 2005) (Hebrew); Daniel Statman and Gideon Sapir, “Freedom of Religion, Freedom from Religion and the Protection of Religious Feelings”, 21 Mehkarei Mishpat - Bar-Ilan Law Studies 5, 7-38 (2004) (Hebrew)).

27.       As noted, there is no religious council in Kfar Vradim (the Ma’ale Yosef Regional Religious Council is responsible for providing religious services in the town, under an agreement signed in 2005 with the Local Council). Therefore, the Appellants directed their request to the Local Council. No mikve has ever been built in Kfar Vradim, and the religiously observant residents of the town must travel to neighboring towns in the Ma’ale Yosef Regional Council District in which there are mikves, and that are a short drive from the town. According to the Respondents, inasmuch as there are mikves in the neighboring towns, the harm to the ability of the town’s religiously observant residents in observing the obligation of immersion is not significant, and is merely an inconvenience. It is further argued that even if there were a mikve in the town, due to the town’s topography and the winter weather, the residents would have to drive to the mikve and could not go on foot. And in any case, the ratio of the number of mikves in the area relative to the population is among the highest in the country when compared to various cities. As opposed to this, the Appellants argue that we are not concerned with a mere “inconvenience” but with an absolute denial of the possibility of performing the religious obligation of ritual immersion. They argue that the absence of a mikve in the town deprives women whose day of immersion falls on a Sabbath eve or on a holiday from performing the obligation at its prescribed time. It is argued that when the immersion day falls on a Sabbath eve or on a holiday, one cannot drive to the mikve, and since it is practically impossible to walk to the neighboring mikves, the possibility of observing the obligation of immersion on such days is entirely denied them. In this regard, the Appellants explain that Jewish religious law ascribes supreme importance to the observance of the obligation of immersion at its prescribed time, because “[…] it is a religious obligation to immerse at the prescribed time so as not to refrain from procreation even for one night” (Shulhan Arukh, Yoreh De’ah, Laws concerning Niddah, 197:2). It is further argued that the said harm is exacerbated because not immersing at the prescribed time deprives the observant families of the ability to observe the obligation of onah (marital relations), sometimes for several days (when holidays coincide with the Sabbath eve). Lastly, the Appellants argue that the absence of a mikve in the town even makes it difficult to observe the obligation of immersion on weekdays, as there is no available public transportation by which one can travel to the mikves in the neighboring communities.

28.       After considering the arguments, I find that given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the neighboring communities on foot.  Under the circumstances, the absence of a mikve in the town cannot be said merely to “inconvenience” the religiously observant residents. The absence of a mikve in the town – given its particular circumstances – completely deprives the female residents of the town whose prescribed day of immersion falls on a Sabbath eve or holiday of the ability to perform the religious obligation of immersion at its proper time, and as a result, also deprives them of the possibility of performing of the religious obligation of onah. Thus, the women of the town are deprived of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community, and which is substantively connected to the expression of their personal and group identity. As Justice E. Arbel aptly stated:

 

“We recognize the importance of a mikve for the public, and certainly for the public that uses it. The mikve is of great importance for the traditionally observant family unit, and the authorities are required to provide this service for the interested public as part of the provision of religious services by the authorities. It is also important that the mikve be situated within reasonable walking distance from the homes of the public, for those who are Sabbath observant. However, these considerations, that should not be underestimated, must be weighed against other needs that are of public importance, and against the character of the community that resides in the place, as well as against other alternatives for the erection of public buildings, as noted” (AAA 2846/11 Rehovot Religious Council v. Claudio, para. 19 (Feb. 13, 2013) (hereinafter: the Claudio case).

 

            Thus, the need of the religiously observant female residents to observe the obligation of ritual immersion at its prescribed time – a practice whose realization derives from the autonomy granted every person, as such, to follow the dictates of her conscience and faith, and observe the rules and customs of her faith – must be granted significant weight in the framework of the decision-making process in regard to the erection of public buildings in the town (compare: the Gur Aryeh case, at p. 278). However, the need of the religiously observant residents for the erection of a mikve in the town must be balanced against the opposing considerations. What, then, are the opposing considerations that tilted the scales in favor of the Council’s decision not to move forward on the construction of a mikve in the town in the near future?

 

B.        The “Budgetary” Consideration

 

29.       As best we can understand from the Respondent’s response, the primary consideration that led to adopting the decision was the limited public resources available to the Council. According to the Respondents, the construction of a mikve in the town would require that the Council allocate public monies and land at the expense of other public construction of greater importance. Indeed, “it is decided law that a public authority may, and even must, consider budgetary restrictions in the framework of its discretion, as part of its public obligation” (see: HCJ 3071/05 Louzon v. Government of Israel, 63 (1) IsrSC 1, 39-40 (2008) [http://versa.cardozo.yu.edu/opinions/louzon-v-government-israel]; HCJ 3627/92 Fruit Growers Association v. Government of Israel, 47 (3) IsrSC 387, 391 (1993); HCJ 2223/04 Nissim v. State of Israel, para. 29 (Sept. 4, 2006); HCJ 9863/06 Association of Combat Leg Amputees v. The State of Israel, para. 13 (July 28, 2008); HCJ 1662/05 Levi v. State of Israel, para. 51 (March 3, 2009); Barak-Erez, at pp. 661-663, 745-746; Aharon Barak, Proportionality in Law: Infringing Constitutional Rights and its Limits, 460-461 (2010) (Hebrew) [published in English translation as Proportionality: Constitutional Rights and their Limitations (Cambridge, 2012)]).  In the matter before us, among its considerations, the Council could certainly give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, as shall be explained below, under the circumstances of the instant case, the Council resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant.

30.       In regard to the allocation of land for the construction of the building, the State informed us that there are, at present, at least three available lots in the town that would be appropriate for the construction of a mikve, in terms of both existing planning and practicality. In addition, there is a possibility – that the Respondents do not deny – of incorporating the mikve in other public buildings. In such a case, building the mikve will not come at the expense of public land earmarked for other purposes. As for financing, the matter can be divided into two parts: the monies required for constructing the building, and the monies needed for maintenance. As far as financing the construction is concerned, it is clear from the State’s response that if the Council’s application for funding the construction of a mikve is approved – and there is no reason to believe that it will not be reapproved, in light of the letters from the Ministry of Religious Services and the fact that an EB was already approved in the past for the construction of a mikve in the town – the construction of the mikve will be financed from state funds, and not from the Council’s budget. The Local Council will incur expenses only if the cost of construction exceeds the funding due to deviation from the budgetary framework, or if it will be required to bear certain related costs (such as environmental development and complementary costs). As for maintenance costs, according to the State’s response and the letters from the Ministry of Religious Services, the salary of the mikve attendant will be paid from the budget of the Ministry of Religious Services, prorated to the number of users, while maintenance (electricity, water, etc.) will be funded in part by users’ fees collected by the attendant. Thus, the Council can expect to pay only a small, insignificant part of the ongoing expenses of maintaining the building. Under these circumstances, in which the construction and maintenance are barely likely to come at the expense of the limited resources of the Council, the weight of the budgetary consideration is limited relative to the opposing interest.

 

2.         Preserving the Secular Character of the Town

 

31.       The parties are divided on the question of whether the Council’s decision gave weight to the consideration of protecting the town's secular character. According to the Appellants, the main consideration that grounded the Council’s decision not to erect a mikve in the town was the desire – that they consider an extraneous, improper consideration – to preserve the secular character of the town and to keep the religious community away. As opposed to this, the Respondents claim that the consideration of preserving the secular character of the town had no weight in the Council’s decision. The question if and under what circumstances a local authority may entertain the consideration of preserving a particular character of the town is complex (and compare: HCJ 528/88 Avitan v. Israel Lands Administration, 43 (4) IsrSC 297 (1989); HCJ 4906/98 “Am Hofshi” Association for Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing, 54 (2) IsrSC 503, 508-509 (2000); and for an opposing view: HCJ 6698/95 Ka’adan v. Israel Lands Administration, 54 (1) IsrSC 258 (2000) [http://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-admin... and see: HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister for Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras 68-90 (Aug. 1, 2010); the Claudio case, at para. 12; Statman and Sapir; Gershon Gontovnik, Discrimination in Housing and Cultural Groups, 113-127, 201-209 (2014) (Hebrew)). We need not decide this issue in the matter before us, as even if we assume – to the Respondent’s benefit – that the consideration of preserving the town’s character carried no weight in the Council’s decision – as they claim – the decision must, nevertheless, be voided because it did not strike a proper balance between the considerations that were taken into account even according to the Respondents, as we shall explain below.

 

C.        Balancing the various Considerations and Examining the Reasonableness of the Decision

 

32.       Having reviewed the considerations on both sides of the scales, all that remains is to examine whether the decision struck a reasonable balance between those considerations. In doing so, we should bear in mind that such balancing does not, generally, lead to a single, reasonable result. Indeed, the Council enjoys some latitude in which different and even opposing decisions may coexist. However, in the circumstances of the instant case, I find that the Council’s decision not to act toward the erecting of a mikve in the town does not fall within that discretionary latitude. As is commonly known, the weight to be assigned to budgetary considerations is examined, inter alia, in relation to the importance of the opposing rights and interests (see: Barak-Erez, at pp. 746-747; and also see the citations at fn 86, loc. cit.). In the matter before us, the harm to the religiously observant women in the town, which I discussed above, is of significant force, whereas the “price” involved in erecting the mikve is minor. In this context, we should recall that the Council already decided several years ago to erect a mikve in the town, but chose to rescind that decision for “budgetary” reasons that would seem no longer to exist. In this situation, the Council’s decision not to erect a mikve in the near future does not grant adequate weight to the harm caused to the religiously observant women, to the availability of external funding that would render the burden upon the Council insignificant, and to the possibility of incorporating the construction of the mikve within the framework of a building with another purpose, in a manner that would limit the need for a separate allocation of public land, and preserve it for other, necessary public purposes.

33.       In the final analysis, in the circumstances of the present case, in which appropriate weight was not assigned to the substantial harm to the religiously observant, female residents of the town due to the absence of mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was granted disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the Council due to external financing, I find that the Council’s decision not to erect a mikve was unreasonable and must, therefore, be quashed. In light of the long “history” of the proceedings in this matter, we do not find it appropriate to remand the matter to Council, yet again, inasmuch as, under the circumstances, the decision required is the erection of the mikve with due haste (and compare, for example: HCJ 1920/00 Galon v. Release Board, 54 (2) IsrSC 313, 328 (2000); HCJ 89/01 Public Committee against Torture in Israel v. Release Board, 55 (2) 838, 878 (2001); AAA 9135/03 Council for Higher Education v. Haaretz, 60 (4) IsrSC 217, 253 (2006) [http://versa.cardozo.yu.edu/opinions/council-higher-education-v-haaretz]; AAA 9353/10 Yakovlev v. Ministry of the Interior, para. 19 (Dec. 1, 2013).

 

Conclusion

34.       Given the conclusion reached, I would recommend to my colleagues that we grant the appeal such that the judgment of the lower court be reversed and the appeal granted. The Kfar Vradim Council is ordered to act immediately to erect a mikve on one of the lots in the town listed in the State’s reply – or some other lot that it may find appropriate – such that construction will commence as soon as possible, and no later than a year and a half from the date of this judgment. The Council may submit an application for funding support for the erection of the mikve from the Ministry of Religious Services with due speed. Respondent 2 will pay the Appellants’ costs in both instances in the amount of NIS 25,000.

                                                                                                            Justice

 

Justice E. Hayut:

I concur.

                                                                                                            Justice

 

Justice N. Hendel:

I concur.

                                                                                                            Justice

 

Decided in accordance with the opinion of Justice U. Vogelman.

Given this 14^th day of Elul 5774 (Sept. 9, 2014).

 

 

 

           

 

 

The Supreme Court sitting as the High Court of Justice

HCJ 2442-11

CrimApp 4002/11

 

Before:                                                His Honor President A. Grunis                                                                                   His Honor Justice E. Rubinstein                                                                                 His Honor Justice H. Melcer

 

The Petitioner in HCJ 2442/11:           Haim Shtanger, Adv.

 

The Applicant in CrimApp 4002/11:  The State of Israel

 

V.

 

The Respondents in HCJ 2442/11:         1.     The Speaker of the Knesset

                                                                2.     The Government of Israel

 

The Respondents in CrimApp 4002/11: 1.     Hagai Zaguri

                                                                2.     Ramy Azran

                                                                3.     Yossi Mirilashvili

 

                                                                        Petition to Grant an Order Nisi and an Interim Order

                                                                        and a Request to Extend a Detention

 

Date of Session:                                           12^th of Tamuz, 5771 (July 14, 2011)

 

On behalf of the Petitioner

in HCJ 2442/11:                            Himself; Adv. Guy Halevy

 

On behalf of the Applicant

in CrimApp 4002/11:                    Adv. Shaul Cohen

 

On behalf of Respondent 1

in HCJ 2442/11:                            Adv. Dr. Gur Bligh

 

On behalf of Respondent 2

in HCJ 2442/11:                            Adv. Aner Helman

 

On behalf of Respondent 1

in CrimApp 4002/11:                    Adv. Avigdor Feldman

 

On behalf of Respondent 2

in CrimApp 4002/11:                    Adv. Moshe Sherman

 

 

 

 

 

 

 

 

J U D G M E N T

 

President A. Grunis:

 

1.The question of the legality of two arrangements in the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (hereinafter: the "Detention Law") stands at the center of the petition before us. These arrangements were added to the Detention Law as part of the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 8) Law, 5771-2011 (hereinafter: the "Amendment to the Detention Law" or the "Law") which was legislated by the Knesset on March 14, 2011. The first arrangement amends Section 53 of the Detention Law. This arrangement provides that from now on, appeals to the Supreme Court on District Court decisions in appeals on Magistrate Court decisions regarding matters of detention, release, violation of bail or motions for reconsideration, will be appealed by permission and not as of right. The first arrangement therefore provides that, from now on, the option of a second appeal will be by permission only. The second arrangement amends Section 62 of the Detention Law and provides that a Supreme Court judge will be permitted to extend the period of detention of a defendant who is detained until the end of proceedings, beyond nine months, for a period of up to 150 days (and to re-order this from time to time). This, in cases in which it appears that it will not be possible to conclude the trial proceedings within a period of 90 days, due to the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges.

 

Background

 

2.The Criminal Procedure (Enforcement Powers – Detention) (Various Amendments) Legislative Memorandum, 5770-2010, upon which the Amendment to the Detention Law was enacted, detailed the reasoning for the new arrangements, which were incorporated into the Detention Law. It emerges from the legislative memorandum that the purpose of the first arrangement, which, as stated, addresses the revocation of the right to a second appeal and its transformation into an appeal by permission, was to reduce the number of detention hearings being held at the Supreme Court (hereinafter: the "First Arrangement"), and this is what was written in the memorandum:

 

"In light of the heavy workload imposed on the Supreme Court and the scope of appeal hearings, including "third instance" appeals, it is recommended to amend the law such that it will grant only one right of appeal on decisions regarding detention, release, violation of terms of bail, decisions on motions for reconsideration, while allowing the option of a second appeal by permission only. Additionally, in order to prevent courtroom hearings regarding the motion for permission to appeal, and in order to streamline the process, it is recommended that the Supreme Court hearing the second appeal (on a District Court's decision in an appeal) be authorized to dismiss an application in limine, based on the reasons detailed in the motion for permission to appeal, if it did not find there to be a cause justifying granting the application."

 

The purpose of the Second Arrangement, which addresses the extension of the period of detention until the end of proceedings to a period of up to 150 days, was to enable flexibility in extending detentions beyond the nine months prescribed in the Law, in unusual cases in which it is clear in advance that the maximum time period for extending the detention – 90 days – is not sufficient to exhaust the legal proceedings, even given efficient and practical management of the trial. The section specified the circumstances in which, in general, an extended detention extension will be necessary. For example, in cases of complex serious crimes or in cases in which there are a large number of defendants or witnesses (hereinafter: the "Second Arrangement").

 

3.A bill in the spirit of the said legislative memorandum (The Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010) was presented to the Knesset on July 13, 2010, as a government bill. On July 21, 2010, the Knesset plenum passed the bill in the first reading, and it was sent to the Constitution, Law and Justice Committee, to be deliberated and prepared for the second and third readings. The committee held two meetings regarding the bill. On March 14, 2011, the bill was debated in the Knesset plenum, in accordance with the updated draft that was prepared by the committee. The Knesset passed the entire bill in the second and third readings on that same day.

 

It will be noted that the First Arrangement, which addresses the right of a "third instance" appeal, underwent a number of changes over the years. At first, in Amendment no. 10 of the Detention Law of 1998 (S.H. 5748 no. 1261) the legislator distinguished between the right of a detainee to a second appeal (meaning, an appeal before the filing of an indictment) and the right of a defendant to a second appeal (meaning, an appeal after an indictment has been filed). Hence, it was prescribed that a detainee, a person released on bail, and a prosecutor may, as of right, appeal for the second time a decision regarding detainment, release, or a motion for reconsideration. In contrast, a defendant may only appeal "in a third instance" if given permission to do so by a Supreme Court judge. This provision was amended in 1995 (S.H. 5755 no. 1514), and the distinction between a "third instance" appeal prior to the filing of an indictment or thereafter was revoked, and a right to a second appeal was granted in both cases. In 1997 this section was revoked in its entirety, and was replaced by the arrangement, the change of which is deliberated in the petition before us (and which, as mentioned, allowed a second appeal as of right).

 

4.Here is the wording of the arrangement, as currently prescribed in the Detention Law. For the sake of convenience, the relevant statutory clauses are presented in their entirety and the additions to the Detention Law, which are the subject of our discussion, appear in bold:

 

Appeal of the Court's Decision	53. (a) A detainee, a person released on bail and a prosecutor may appeal a decision of a court on any matter relating to detention, release, violation of terms of bail or a decision on a motion for reconsideration, and a guarantor may appeal a matter of his guaranty before a court of appeals, which will hear the appeal by a single judge;   (a1) (1) Each of those specified in sub-section (a) may motion the Supreme Court to be granted permission to appeal a District Court decision in an appeal pursuant to sub-section (a) ;   (2) The Supreme Court shall hear the motion by a single judge, however, the Supreme Court may deny the motion in limine, without a hearing in the presence of the parties; if permission to appeal was so granted, the Supreme Court shall hear it by a single judge and it may hear the motion for permission to appeal as though it were the appeal. …
Release in the Absence of Judgment	61. (a) If, after an indictment was filed against a defendant, he was detained for a cumulative period of nine months, and his trial in the first instance did not conclude with a judgment, he shall be released from detainment, either with or without bail.   (b) (Cancelled)   (c) …
Extension or Renewal of Detention	62. (a) Notwithstanding the provisions of Sections 59 to 61, a Supreme Court judge may order the extension or renewal of a detention for a period which will not exceed 90 days, and may repeat that order from time to time, and he may also order the release of the defendant either with or without bail.   (b) Notwithstanding the stated in sub-section (a), if the Supreme Court judge was of the opinion that it will not be possible to conclude the trial proceedings within the period of 90 days stated in sub-section (a), because of the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges, he may order the extension of the detention to a period which shall not exceed 150 days, and may re-order this from time to time, and may order the release of the defendant, with or without bail.

 

The Parties' Arguments

 

5.The Petitioner in HCJ 2442/11, an attorney by profession, filed his petition as a public petitioner. He requests that the Court declares the Amendment to the Detention Law void, based on two arguments. The first and main argument is a procedural argument and it relates to the legislative process of the Amendment to the Detention Law. According to this argument, during the legislative process, the Knesset deviated from the specific provisions prescribed in Sections 126 and 128 of the Knesset by-laws (hereinafter: the "By-Laws"), which delineate the manner of debating government bills. The Petitioner points to two central flaws in the process: First, after a reservation to a certain section was rejected, a separate vote was not conducted on the wording of the section as proposed by the Constitution, Law and Justice Committee (hereinafter: the "Constitution Committee"), but rather a vote was held on the wording of the section as proposed by the Constitution Committee together with the subsequent section, with respect to which no reservation had been submitted. This vote was conducted contrary to what is prescribed in Section 126 of the By-Laws, according to which it is necessary to vote separately on each section of the law with respect to which reservations were submitted. The second flaw relates to the fact that the chairperson of the Constitution Committee did not respond to the reservations that were submitted to some of the sections of the law, despite the fact that Section 126(f) of the By-Laws explicitly provides that "The chairperson of the committee or whomever is appointed thereby or by the committee, shall respond to those who submitted reservations." In light of these flaws, the Petitioner claims, the Knesset could not vote on the Law at the third reading, and therefore it is void ab initio.

 

6.The second argument raised by the Petitioner is an argument of substance. According to the Petitioner, the arrangements that were prescribed in the Amendment to the Detention Law are contrary to the Basic Law: Human Dignity and Liberty. The crux of the Petitioner's arguments was directed at the revocation of the right to a second appeal as of right and its transformation into an appeal by permission only. According to the Petitioner, one cannot compare between the scope of the right to appeal granted to a defendant in a primary proceeding and the scope of the right to appeal of a detainee, since the former is not necessarily being detained while his trial is being held. Furthermore, according to the Petitioner, the amendment to the Law is wrong in not distinguishing between an appeal filed by the detainee and an appeal filed by the State. According to this argument, one cannot compare between the right of the detainee to a second appeal on a decision to re-detain him (after the Magistrate Court ordered his release from detainment), and the right of the State to appeal a decision to release a defendant. According to the Petitioner, where the State appeals the Magistrate Court's decision, and the District Court accepts the appeal and orders detention, the detainee is not entitled even to one appeal as of right. Therefore, his rights are infringed. As for the second arrangement, about the possibility of extending a defendant's detention period until the end of proceedings for a period of up to 150 days, the Petitioner argued that the Law denies the detainee's right to have his matter examined and reviewed by a Supreme Court judge knowingly and in advance. Therefore, it is argued, this arrangement is not proportionate, does not befit the values of the State of Israel, was not meant for a proper purpose and infringes on a detainee's right of freedom in a scope which is greater than necessary. It will be noted that in the petition, the Petitioner also argued against the legality of an additional arrangement in the Amendment to the Detention Law, which allows the Court to order a maximum 72 hour detention given a prosecutor's declaration regarding an intention to motion the Supreme Court to extend the detention. In the hearing we held in the petition, the Petitioner stated that he withdraws his arguments against the legality of this arrangement.

 

7.It will be noted that CrimApp 4002/11 was joined to the hearing in the petition before us. In this case, a detention extension of 150 additional days beyond the nine months was requested. Incidentally to the hearing regarding the application to extend the detention, the defendants raised arguments regarding the legality of the Second Arrangement. In the decision dated June 14, 2011, it was ruled that the constitutional arguments that were voiced in the hearing before us and that primarily relate to the Second Arrangement, will be examined in the framework of the petition before us (Justice H. Melcer).

 

The Respondents' Response

 

8.The Knesset and the State (hereinafter together: the "Respondents"), filed separate responses to the petition, but their arguments were similar. Therefore, we shall present the essence of their arguments together. Both the Knesset and the State rejected both parts of the Petitioner's arguments. The Knesset's response specified the proceedings that preceded the vote on the Law. The Knesset confirmed in its response that Member of Knesset Ofir Akunis, who chaired the session, added the vote on Section 2 – to which reservations had not been submitted, to the vote on Section 1 of the bill, to which a reservation had been submitted and was rejected. However, according to the Knesset, the process was not flawed, and certainly not by a "flaw that goes to the root of the process", which would justify this Court's intervention in the legislative process. While the Respondents did not deny that according to the provisions of the By-Laws, the Knesset should have put each section for which reservations had been submitted to a separate vote, they argue that the fact that the vote was held for a section for which a reservation had been submitted along with a section for which a reservation had not been submitted, does not constitute a flaw that goes to the root of the matter. The Respondents argue that, as is apparent from the minutes of the Knesset plenum session, during the course of the second reading, the plenum de facto voted separately on each of the reservations that were submitted to the bill, and rejected them all. It further emerges from the minutes that in the votes in the second and third readings the Knesset plenum also positively confirmed the wording of all of the sections of the Law, in accordance with the proposal of the Constitution Committee. In the Knesset's response it was further argued that the technical flaw did not lead to any substantive impairment of the legislative process or to its fundamental objective, i.e., the realization of the right of participation by the Members of Knesset. This, so it was argued, is because Members of Knesset were given two opportunities to consider their position regarding the bill. It is argued that in fact, this practice of voting in an aggregated manner on a section of law for which reservations were submitted, together with an adjacent section for which no reservations were submitted, is customary at the Knesset in many cases. Therefore, the Knesset argued it should be deemed a kind of custom that projects onto the proper interpretation of Section 126 of the By-Laws. The Knesset further argued that pursuant to Section 126(c) of the By-Laws, the chairperson of the session may vote on consecutive sections in an aggregated manner, unless a Member of Knesset demanded to vote separately on each or any of them. In this case, it is argued, Member of Knesset Dov Khenin – who presented the reservations – did not request such a vote. According to the Knesset, this indicates that the Members of Knesset were not of the opinion that the voting process was significantly flawed or that their right to participate in the voting process was infringed.

 

9.The Respondents also rejected the argument that the chairperson of the Constitution Committee did not respond to the reservations to the bill. They argue that a review of the minutes of the Knesset session indicates that during the presentation of the bill the chairperson of the Constitution Committee explicitly related to the reservations and explained why they should be rejected. Therefore, the Respondents were of the opinion that the flaws in the legislative process against which the Petitioner is arguing, are simply technical flaws that at most constitute a slight deviation from the provisions of the By-Laws, and have no real impact on the legislative process.

 

10.The Respondents also requested to reject the substantive constitutional arguments that the Petitioner raised. In the Knesset's response it was even argued that these arguments should be dismissed in limine, since they were raised in a general manner without specifying the substance of the constitutional infringement or the reason why the infringement does not allegedly comply with the terms of the limitation clause. To the point, the Respondents argued that an examination of the substance of the Amendment to the Detention Law does not reveal an infringement of the detainees' basic rights, since the amendment does not relate to the original decision regarding the detention and does not deny the detainee's right to appeal the detention decision. The revocation of the right to a "third instance" appeal (i.e., a second appeal), as argued in the State's response, does not lead to an infringement of the constitutional right of freedom, since the freedom of the detainee or of the defendant was already denied by a previous judicial instance. It was further argued that the basic rights to freedom and dignity do not include the right that the matter of a concrete detention be heard by a third judicial instance – neither as of right nor by permission, as is indicated in the provisions of Section 17 of the Basic Law: The Judiciary, which deals with the right to appeal in Israeli law.

 

11.The Respondents also disagreed with the Petitioner's argument that there is an infringement of constitutional rights in light of the lack of distinction between an appeal submitted by the detainee and an appeal submitted by the State. They argue that it is not unusual because when a State’s appeal on the acquittal of the defendant as part of the primary trial is granted, the defendant also does not have a right to appeal such a judgment. In any event, it was argued, the detainee will have the option of presenting its arguments before an additional instance as part of the appeal procedures, regardless of the identity of the party appealing. This last matter, as it emerges from the Knesset's response, was also discussed at the Constitution Committee, where it was argued that it should be assumed that upon examining motions for permission to appeal, the Court will examine, among its considerations, whether the decision to detain was given following an appeal of the State and whether this prejudices the detainee in such a manner that justifies granting permission to appeal.

 

12.The Respondents also requested to reject the Petitioner's arguments regarding the constitutionality of the Second Arrangement, which allows a Supreme Court judge to extend a detention until the end of proceedings, for a period of up to 150 days. The State argued that since this amendment constitutes a new arrangement, which authorizes ordering the detention of a person, it infringes on the constitutional right of freedom. However, it was argued, the infringement of the right is limited and proportionate, since it is limited to unusual cases and reflects the balance underlying the bill between the principle of the finality of the process and the types of matters which should be examined in the Supreme Court, and the realization of the substantive rights of detainees and defendants.

 

13.It will be further noted that in its response, the State elaborated on the customary practice at the Ministry of Justice pursuant to which Ministry initiatives of legislation amendments in significant matters and matters of principle in the field of criminal procedure and evidence laws are presented for examination to the Minister of Justice's Criminal Procedure and Evidence Laws Advisory Committee (hereinafter: the "Committee"). The Committee is appointed by the Minister of Justice and is headed by a Supreme Court judge. The Committee is comprised of three additional judges (two District Court judges and one Magistrate Court judge), the Deputy Attorney General (Criminal), representatives of the State's Attorney, representatives of the Public Defender, representatives of the Israel Bar Association, a lawyer from the private sector, representatives of the Israel Police and representatives from academia. The State noted in its response that both of the arrangements being examined in this petition were presented to the Committee and that after the Committee examined them it recommended that the Minister of Justice act to amend the Detention Law so that the said arrangements would be prescribed.

 

Discussion

 

The Arguments regarding the Legislative Process of the Amendment to the Detention Law

 

14.The Petitioner's arguments regarding flaws in the legislative process of the Amendment to the Detention Law focus on the proceedings in the Knesset plenum during the second reading. According to the Petitioner, the legislative process did not comply with the provisions of Sections 126 and 128(a) of the Knesset By-Laws. Section 126 of the Knesset By-Laws, entitled "Proceedings for Second Reading" and Section 128(a) entitled "Voting at Second Reading", prescribe as follows:

 

126. (a) The discussion in the second reading shall begin with a speech on behalf of the committee, by the chairperson of the committee or a committee member appointed thereby for such purpose, or, in the chairperson's absence, by a committee member appointed thereby for that purpose by the committee, and the speech on behalf of the committee shall be deemed as a proposal to adopt the bill in the second reading.

 

(b) The chairperson shall put each of the sections of the bill to a separate vote.

 

(c) The chairperson may put consecutive sections for which no reservations were submitted to a vote together, unless a Member of Knesset demanded to vote separately on each or any of them or on one of them.

 

(d) If a reservation was recorded for a specific section, the person submitting the reservation shall be given the right to speak for five minutes to explain the reservation.

 

(e) The chairperson may, with the consent of the person submitting the reservation and of the chairperson of the committee, combine the explanations for the reservations of a number of sections at once.

 

(f) The chairperson of the committee, or whomever appointed thereby or by the committee for such purpose, shall respond to the reservations.

 

(g) The right granted to each member of government to speak on behalf of the government at any stage of the discussion is also granted, at the second reading, to the deputy minister whose ministry is in charge of implementing the proposed law.

 

…

 

128 (a) The chairperson shall first vote on the proposal of the party making the reservation; if the proposal by the party making the reservation is not adopted, the section, as drafted by the committee, shall be voted upon; if the proposal of the party making the reservation is adopted, he shall vote on the section as drafted in line with the reservation.

 

15.There is no dispute that Section 126 of the By-Laws explicitly provides that the chairperson of the session must put the sections of the bill to a vote one at a time, unless there are consecutive sections for which reservations were not registered – in which case the chairperson may put them to a collective vote (assuming he was not requested to act otherwise by one of the Members of Knesset). There is also no dispute that in accordance with that stated in Section 126 of the By-Laws, the chairperson of the Constitution Committee (or another committee member appointed thereby) should have presented the bill to the plenum and responded to reservations to the bill.

 

In the case at hand, the legislative process indeed did not precisely correspond with the provisions of Sections 126 and 128 of the Knesset By-Laws. The chairperson of the session did not act in accordance with Section 126(c) in all that relates to voting on Section 1 of the bill (relating to the revocation of the right to appeal and its transformation into an appeal by permission), when it put Section 1 of the bill, with respect to which a reservation had been registered, to a vote along with Section 2 of the bill, with respect to which a reservation had not been registered. Additionally, the chairperson of the Constitution Committee did not respond to the reservations after these were presented by Member of Knesset Dov Khenin, but rather, as argued in the Knesset's response, the reservations should be deemed as having been given at the outset of his statement, when he presented the bill to the plenum. The question that arises is whether these deviations from the provisions of the By-Laws should lead to the conclusion that the Law is void or voidable, as the Petitioner claims.

 

The Court's Intervention in the Legislative Process

 

16.The legislative processes in Israel are prescribed, pursuant to Section 19 of the Basic Law: The Knesset, in the Knesset By-Laws. The Knesset By-Laws "prescribe provisions, pursuant to which the Knesset's authorities must act, in the house's 'internal' procedures" (HCJ 652/81 Sarid v. The Speaker of the Knesset, PD 36(2) 197, 202 (1982); hereinafter: the "Sarid Case"; see also Tzvi Inbar "The Legislative Processes in the Knesset" Hamishpat A 91 (5753)). Thus, in order for a "law" to pass, a series of provisions prescribed in the By-Laws, must be satisfied (see, HCJ 975/89 Nimrodi Land Development Ltd. v. The Speaker of the Knesset, PD 45(3), 154, 157 (1991); hereinafter: the "Nimrodi Case"). At the basis of the legislative process is the obligation to conduct three hearings in the Knesset plenum and to enable a discussion in the Knesset committee relevant to the bill, in order to prepare the bill for the second and third readings (ibid, ibid). The Knesset By-Laws distinguish between a private bill, which is presented by one or more Members of Knesset and a bill presented on behalf of the government. The Seventh Chapter of the Knesset By-Laws, which includes Sections 126 and 128, which are relevant to the case at hand, addresses discussions regarding bills on behalf of the government. This chapter outlines the legislative process from the submission of the bill to the Knesset, through the first reading and the discussions at the relevant Knesset committee and ending with tabling the bill for the second and third reading. Sections 126 and 128 focus specifically, on the particular procedures of voting on the bill at the second and third reading.

 

17.A series of rulings by this Court prescribes the conditions upon which the Court will intervene in internal parliamentary proceedings, and specifically, the circumstances in which a statue would be declared void on the grounds of flaws in the legislative process (see, inter alia, HCJ 4885/03 Israel Poultry Farmers Association Agricultural Cooperative Society Ltd v. The State of Israel, PD 59(2) 14 (2004) (hereinafter: the Poultry Farmers Case); HCJ 5131/03 Member of Knesset Litzman v. The Speaker of the Knesset, PD 59(1) 577 (2004)). In the first cases in which the scope of this Court's intervention in internal parliamentary proceedings was examined, the Court ruled that even though it is authorized to examine the Knesset's internal decisions, it will tend to intervene in internal parliamentary proceedings in a limited way, taking into consideration the extent of the alleged infringement of the fabric of the parliamentary relations (see, HCJ 761/86 Miari v. The Speaker of the Knesset, PD 42(4) 868 (1989) (hereinafter: the "Miari Case"); the Sarid Case; the Nimrodi Case). In accordance with this criterion, it was prescribed that when the alleged infringement is slight and "does not impact the structural foundations of our parliamentary system" (the "Sarid Case", page 204), the Court will tend to avoid intervening in the Knesset's internal working procedures (see also, the Miari Case, page 873; Suzie Navot "Twenty Years After the "Sarid Test": Revisiting Judicial Review of Parliamentary Decisions" Mechkarei Mishpat 19 721 (5762-5763)).

 

18.This case law, which allows limited review of the internal work of the Knesset, was interpreted even more narrowly in matters related to judicial review of the legislative process. Justice Barak elaborated on this in the Miari Case, on page 873, when ruling that:

 

"The High Court of Justice is not required to exercise every power with which it is vested. The Court has discretion in exercising the power. Exercising this discretion is of particular importance in matters related to the judicial review of the activity of entities of the legislative authority. Therefore, we will intervene in internal parliamentary proceedings only when there is a allegedly significant infringement which prejudices substantive values of our constitutional system… This self-restraint must be, first and foremost, exercised when the process in which the intervention is requested is the legislative process itself."

 

The constitutionality of the Arrangements Law was discussed during this Court's intervention in the legislative process in the Poultry Farmers Case. In this case Case it was held that the criteria for the Court's intervention in the legislative process, and for the declaration of a law as void due to flaws in the process of its legislation. Therefore, it was held that "the Court must examine, in each and every case, whether it was tainted by a flaw that "goes to the root of the process" which would justify judicial intervention, and that only a flaw that severely and significantly infringes on the fundamental principles of the legislative process in our parliamentary and constitutional system will justify judicial intervention in the legislative process (the Poultry Farmers Case, page 42, original emphases). The fundamental principles of the legislative process, so it was held in the Poultry Farmers Case, include, inter alia, the principle of the majority rule, the principle of formal equality – pursuant to which each of the Members of Knesset has one vote, the principle of publicity and the principle of participation – which guarantees the right of each Member of Knesset to participate in the legislative process (ibid, page 43).

 

19.Does the case before us indeed involve such a flaw that “goes to the root of the process" and severely and significantly infringes on the fundamental principles of the legislative process? The answer is no. The underlying purpose of the process prescribed in the Seventh Chapter of the Knesset By-Laws, and particularly in Sections 126 and 128 which are relevant to the case at hand, is to ensure that the reservations to the sections of the bill being voted on are heard. An additional purpose underlying the legislative process is to ensure that the Members of Knesset choose, in accordance with their vote, one of the drafts for each of the sections of the bill – either the draft that was proposed by the Constitution Committee or the draft that was proposed by the Members of Knesset who raised reservations. In order to realize these purposes, Section 126 prescribes a detailed procedure, in the framework of which the Members of Knesset are presented with drafts of the sections proposed in the bill, and those raising reservations are given an opportunity to express their position. Section 126 further prescribes that the chairperson of the relevant committee (or someone on his behalf) respond to the reservations and present the committee's position regarding the arguments that were raised by those with reservations. After the various positions are presented to the Members of Knesset they are requested to vote in the second reading. The chairperson of the session is required to put each section and reservation to a vote one at a time to ensure that the Members of Knesset are aware that these sections were subject to some kind of dispute, and that by their vote they are supporting one of the proposed drafts.

 

20.In the case before us the chairperson of the session acted properly with respect to most of the sections in the bill, but did not do so when putting section 1 of the bill to a vote. A review of the minutes of the session reveals that the Members of Knesset first voted on the reservation regarding section 1, and only after it was rejected did they move on to vote on section 1, but along with section 2 of the Law. Indeed, according to the provisions of the By-Laws, the Members of Knesset should have voted on section 1 separately from the vote on section 2. However, this deviation does not constitute "a substantial flaw that goes to the root of the process". Due to the separate vote on the reservation, which preceded the vote on the section, it appears that a distinction was made between the draft proposed by those who raised the reservation and the draft that was proposed by the committee. As such, the primary purpose of the legislative process was realized, and therefore no room for the argument that the root of the process was flawed in a manner justifying declaring the Law void.

 

21.The argument that the legislative process was substantively flawed because the chairperson of the Constitution Committee did not respond to the reservations that were raised by Member of Knesset Dov Khenin, is also to be rejected. As mentioned, the position of the Knesset was that the chairperson of the Constitution Committee responded to the reservations when presenting the Law for the second and third reading. Personally, I doubt if the intention of the section was an advance response to reservations that are yet to be presented during the discussion. As stated above, Section 126 prescribes a certain chronological sequence in order to allow the committee that examined the bill to convince the Members of Knesset to support the bill in accordance with the draft proposed. Reversing the order – so that the response to a potential reservation is made before the reservation is presented –misses to some extent the point underlying the section. Therefore, it would be better had they avoided that and acted in accordance with the sequence prescribed in Section 126. However, in the case at hand the minutes of the session indicate that this deviation did not lead to a significant flaw at the root of the process. It seems that Member of Knesset David Rotem, the chairperson of the Constitution Committee, knew of the reservation that Member of Knesset Dov Khenin would present after him, and therefore explicitly stated:

 

"The Hadash group proposed a few reservations which request not to cancel the right to a second appeal in decisions regarding detention and to allow the extension of detention beyond the nine months by 100 days instead of by the 150 days proposed by the committee, and to enable a "bridging" detention of 36 hours instead of 72. We request to reject the reservations, which upset the balance between making the court procedures more efficient and the detainee's rights" (Divrei Haknesset 36 42 (2011)).

 

After Member of Knesset Dov Khenin finished presenting the reservations, the chairperson of the session turned to Member of Knesset Rotem and asked him if he wishes to respond. Once he received a negative answer (from Member of Knesset Ze’ev Bielski) the chairperson said: "He doesn't want to, we shall proceed immediately to voting" (Minutes of the Knesset plenum dated March 14, 2011, page 47. The Minutes were attached to the petition and marked Annex C). It merges from here that the option of relating to the reservations was examined but rejected, probably because of the things voiced by Member of Knesset Rotem when presenting the bill to the Members of Knesset. As mentioned, it would have been better had the committee's response to the reservations been presented after they had been presented to the Members of Knesset, but in the case at hand, it appears that Member of Knesset Rotem's reference satisfies the principle need for a reference to the merits of the reservations, even if the sequence in which it was presented constituted a procedural violation of the provisions of the By-Laws. It will be parenthetically noted that in any event those who could have been prejudiced by the fact that the reference to the reservations was given in advance and not after they were presented to the committee, are those supporting the bill and not those objecting to it; since the response to the reservation is intended to convince the Members of the Knesset to vote for the draft proposed by the committee and not by those raising reservations.

 

Inconclusion,  although the Members of Knesset deviated from the provisions of the By-Laws in the legislative process, this deviation was not a flaw at the root of the process, which infringes on the fundamental principles of the legislative process in Israel, in a manner that would lead to declaring the Law void.

 

The Arguments regarding the Arrangements in the Law Infringing on the Right of Freedom

 

22.The Petitioner's second argument was directed to the merits of the arrangements. As mentioned, according to the Petitioner, these arrangements result in disproportionate infringement of the right of freedom. It will be noted at the beginning that the Petitioner's arguments in this matter were general and unclear. The Petitioner did not specify the nature of the infringement of the right of freedom, and did not clarify why the infringement does not satisfy the terms of the limitation clause. On these grounds alone the Petitioner's arguments could have been rejected (on burdens of proof in constitutional petitions see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village, PD 49(4) 221, 428-429 (1995) (hereinafter: the "Mizrachi Bank Case"); HCJ 366/03 The Association for Commitment to Peace and Social Justice v. The Minister of Finance, 2nd paragraph of Justice D. Beinisch's judgment (December 12, 2005)). Nevertheless, and in light of the importance of the main constitutional right discussed in the petition, we shall discuss the merits of this argument (see in this context, HCJ 6055/95 Tzemach v. The Minister of Defense, PD 53(5) 241, 268 (1999); hereinafter: the "Tzemach Case").

 

The Stages of Judicial Review

 

23.As is known, the constitutional review customary in our legal system is divided into three main stages. At the first stage (the "Infringement Stage"), the Court examines whether the law infringes on a constitutional right. If it is found that the law does not infringe on a right, the constitutional examination ends. If it is found that the law infringes on a constitutional right, the examination proceeds to the second stage, in which the Court examines whether the law satisfies the conditions prescribed in the limitation clause. The limitation clause conditions the validity of an infringement on the satisfaction of cumulative conditions: the infringement is prescribed by a statute or pursuant to a statute by virtue of explicit authorization therein; the infringing statute befits the values of the State of Israel; the infringing law is intended for a proper purpose, and the last condition, the proportionality condition, requires that the infringement is no greater than necessary. If the law satisfies the four conditions of the limitation clause, the infringement is constitutional, if it doesn't - the constitutional examination reaches the third and final stage, the consequence stage. At this stage, the Court is required to rule as to the consequences of the constitutional infringement (for the stages of the constitutional examination, see, among many others, the Mizrachi Bank Case, page 428; HCJ 1715/97 The Israel Investment Managers Association v. The Minister of Finance PD 51(4) 367, 383-389 (1997); HCJ 1661/05 Hof Azza Regional Council v. The Israel Knesset, PD 59(2) 481, 544-548 (2005)).

 

24.Each of the constitutional examination stages has an important purpose in the entire constitutional analysis. The first stage of the constitutional examination (the "Infringement Stage") is meant to determine the conceptual scope of the constitutional right. The boundaries of the constitutional right are outlined at this stage, by interpreting the relevant right and balancing it with other rights. The second stage of the constitutional examination (the "Limitation Clause") is meant to determine the degree of protection of the right, and the "boundaries" of the legislator and the restrictions imposed on it when infringing on constitutional rights (see, HCJ 10662/04 Hasan v. The National Insurance Institute, paragraph 24 of President D. Beinisch's judgement (February 28, 2012)). Obviously, there is a reciprocal relation between the two stages. The limits of the constitutional right are not only determined by outlining the conceptual scope of the right but also by outlining the degree of protection they shall be given. However, the distinction between the stages should not be blurred. Each of the stages has its own balances and independent objectives. Therefore, in my opinion, it is better not to skip the first stage of the constitutional examination, even if ruling at this stage is not simple, unless circumstances justify skipping this stage. This is the case, even if the discussion at the second stage will lead to the conclusion that the law satisfies the proportionality criteria (see CrimA 4424/98 Silgado v. The State of Israel, PD 56(5) 529 (2002)). Interpreting the right at the first stage, in order to determine its extent, and ruling whether there is an infringement of the constitutional right, will assist clarifying the scope of the constitutional rights. It will ensure that the Court will not be swamped with motions to examine the constitutionality of each and every law (see the Mizrachi Bank Case, Justice Y. Zamir's position, on pages 470-471; see also my position in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, PD 61(2) 202, 513-514 (2006); hereinafter: the "Adalah Case"). It will prevent debasing and diluting the constitutional rights and weakening the protection they are granted against infringement (regarding the matter of the two stages of the constitutional examination, see HCJ 10203/03 "The National Census" Ltd. v. The Attorney General, PD 62(4) 715 (2008)). Indeed, once two central stages of the constitutional discussion have formed in our system, each of them must be granted its proper place. We will turn then to examining the first stage in the case at hand.

 

Do the Arrangements of the Law Infringe the Right of Freedom?

 

25.With respect to the question whether there is an infringement of the right of freedom, the Respondents distinguished between the two arrangements discussed in this petition. As for the First Arrangement, which cancels the right to a second appeal and transforms it into an appeal by permission only, the Respondents were of the opinion that this arrangement does not infringe on constitutional rights at all, since the First Arrangement does not address the original decision regarding the detention and does not deny the right to appeal the detention decision, but rather only determines that the second appeal will be by permission and not as of right. As for the Second Arrangement, the State agreed that since it constitutes a new statutory provision that authorizes the Court to extend the detention of a person who has been detained until the end of proceedings by 150 additional days, it should be deemed an arrangement that infringes on the right of freedom. The dispute between the parties, thus, relates to the question whether the First Arrangement infringes on the right of freedom.

 

26.As we elaborated above, the first stage in the constitutional examination requires the interpretation of the constitutional right. This interpretation, as President A. Barak said (in a minority opinion), "Does not restrict nor expand. This is an interpretation that reflects the Israeli society's understanding of the substance of human rights, based on their constitutional structure and in accordance with the constitutional measurements that were prescribed in the basic laws, all while considering that which is of value and fundamental and rejecting that which is temporary and passing (the Adalah Case, page 356). Does a constitutional interpretation of the right of freedom lead to the conclusion that the right incorporates the option of filing a second appeal as of right on decisions regarding matters of detention, release, violating terms of bail or a motion for reconsideration (and on decisions of the District Court regrading matters of bail)?

 

27.I believe that there is no dispute that the right of freedom, in general, and the right of freedom from detention, in particular, is a fundamental right in Israel. It is anchored in Section 5 of the Basic Law: Human Dignity and Liberty, which prescribes that: "There shall be no deprivation or restriction of the freedom of a person by imprisonment, detention, extradition or otherwise" "Personal freedom" as Justice Y. Zamir says, "is a constitutional right of first degree, and practically speaking it is also a prerequisite for exercising other basic rights… personal freedom, more than any other right, it is what makes a person free. Therefore, denying personal freedom is an especially severe infringement" (the Tzemach Case, page 261). Detention infringes on a person's freedom in the most basic way. Detention denies the freedom from a person who has not yet been convicted by law and is still presumed innocent. At times, detention denies the freedom of a person who is only suspected of committing an offense, and his detention is necessary solely for interrogation purposes. Therefore, the infringement of freedom, which is the direct consequence of the detention, requires taking cautionary measures prior to instructing that a person be detained (see CrimApp 537/95 Ganimat v. The State of Israel PD 49(3) 355, 405 (Deputy President A. Barak) (1995); hereinafter: the "Ganimat Case").

 

28.The Respondents' position, as mentioned, was that there is no infringement of the right of freedom since the First Arrangement does not address the actual detention decision itself, but rather the possibility of appealing such decision as of right. Indeed, there is no dispute that the detention itself infringes on the right of freedom in the most substantive manner. However, does it follow that only the original decision regarding the detention infringes on the right of freedom? Does an infringement of the procedural frameworks that are meant to realize the right of freedom and protect it, not amount, at least in some cases, to an infringement of the right of freedom itself? In other words, does the right of freedom also encompass the procedural process that accompanies the detention decision? In my opinion, interpreting the right of freedom as applying only to the detention decision is an excessively limiting interpretation of the scope of the right. The importance and centrality of the right of freedom – in and of itself and as a means to promote and realize other rights – requires a broader interpretation of the right, so that it will also apply to procedural protections and procedural arrangements that are directly related to the right and its realization. Interpretation of this spirit was adopted in previous rulings of this Court. For example, it was held that the legitimacy of denying freedom depends of the identity of the entity authorized to deny the freedom and the manner in which freedom is actually denied (see, HCJ 2605/05 The Academic Center for Law and Business (Registered Amuta) v. The Minister of Finance, paragraphs 29-30 of President D. Beinisch’s judgment (November 19, 2009)). It was further held that maintaining a fair detention process is a constitutional principle that derives from the protection of the rights to freedom and dignity (CrimApp 8823/07 Anonymous v. The State of Israel, paragraph 19 of Deputy President E. Rivlin's judgment (February 11, 2010); hereinafter: the "Anonymous Case"). Indeed, this interpretation of the right of freedom, as a right that also applies to procedural protections directly and tightly related to the protection of the right, also coincides with the customary principle in our system that constitutional rights are to be interpreted from a "broad perspective" (see the words of Deputy President S. Agranat in FH 13/60 The Attorney General v. Matana, PD 16 430, 442 (1962); HCJ 428/86 Barzilay v. The Government of Israel, PD 40(3) 505, 595 (1986); see also President A. Barak's words that the "Constitutional interpretation is not pedantic, not legalistic… indeed, constitutional interpretation is from a 'broad perspective'… but the constitutional interpretation is a legal interpretation; it is part of our interpretation theory" HCJ 4128/02 Adam, Teva V’din - Israel Union for Environmental Defense v. The Prime Minister of Israel, PD 58(3) 503, 518 (2004)).

 

29.In the matter at hand, the question is whether the option to file a second appeal as of right and not by permission is one of those procedural protections directly and tightly related to the right of freedom, such that denying it constitutes an infringement of the right itself (although it is important to note that the right to appeal, in and of itself, is considered a provision of substantive law as opposed to procedural law (see HCJ 87/85 Arjub v. IDF Forces Command, PD 42(1) 353, 361 (1988); hereinafter: the "Arjub Case")). In my opinion the answer is no. Without setting hard rules regarding the procedural protections that will fall under the rubric of the right of freedom – a matter which should be examined on the merits of each case – it cannot be said that the scope of the constitutional right of freedom expands as far as granting the option of a second appeal on detention decisions as of right. This conclusion can be inferred, inter alia, from a review of the scope of the right to appeal in our legal system.

 

30.Section 17 of the Basic Law: The Judiciary provides the fundamental rule that "A judgement of a court of first instance, other than a Supreme Court judgment, can be appealed as of right". In a series of judgments this Court has discussed the nature of the right to appeal (see the Arjub Case, on pages 360-363; CrimA 111/99 Schwartz v. The State of Israel, PD 54(2) 241, 271-272 (2000) and the references appearing therein; LCrimA 3268/02 Kozali v. The State of Israel, paragraph 6 of the decision (March 5, 2003)). Although the importance of the right to appeal has been recognized in case law, the question of its constitutional status in not sufficiently clear (see, for example, Shlomo Levin, "Basic Law: Human Dignity and Liberty and Civil Procedure" Hapraklit 42 451, 462-463 (5755-5756); but see the positions of Registrar Y. Mersel in LCivA 9041/05 "Imrei Chaim" Registered Amuta v. Aharon Wisel (January 30, 2006) that since the right of appeal was anchored in the Basic Law: The Judiciary, it is customary to view it as a right that has a constitutional status. See also: Asher Grunis, Tel Sela "The Courts and Procedural Arrangements" The Shlomo Levin Book 59, 64-67 (2013). In any event, it has been held that even if the right to appeal is deemed a constitutional right, then as all the other rights, it also is a restricted and not absolute right, and it is weighed against organizational principles of stability and finality (See CApp 3931/97 Efraim v. Migdal Insurance Company Ltd. (August 5, 1997)).

 

31.The central rule in our system, pursuant to Section 17 of the Basic Law: The Judiciary, grants a litigating party the right that its matter be heard in only two instances. A hearing in a third instance will only be held, as a rule, by permission. The said Section 17 applies regardless of whether it is a criminal, civil or administrative matter, but it does not relate to interim decisions – with respect to which there is a distinction between the criminal, civil and administrative fields. In the criminal field, other than special cases, there is no right to question interim decisions. In the civil field, there is no right to appeal interim decisions, but it is possible to request permission from the appellant instance to appeal (Sections 41(b) and 52(b) of the Courts [Consolidated Version] Law, 5744-1984; see also the Courts (Types of Decisions for which Permission to Appeal will not be Granted) Order, 5769-2009; LCivA 3783/13 I.D.B. Development Company Ltd. v. Shamia (June 5, 2013)). In the administrative field, permission to appeal may only be requested with respect to certain interim decisions (see, Section 12 of the Administrative Courts Law, 5760-2000). In addition, Section 41(b) of the Courts Law provides that a District Court judgment in an appeal can be appealed to the Supreme Court if permission was granted by the Supreme Court or by the District Court in its appeal judgment (for a review of the appeal arrangements customary in our legal system, see CrimA 4793/05 Navon v. Atzmon (February 6, 2007); hereinafter: the "Navon Case").

 

32.It emerges from this review that a litigant has a vested right that its matter be heard only before two instances, the trial instance and the appellate instance. A hearing in a third instance is subject to receive permission from the authorized instance. This scope of the right to appeal is based on a number of foundations. First, it has been held in previous rulings of this court that the existence of a right to appeal strengthens the fairness and reasonableness elements of the judicial process and allows an additional opening to discovering errors. However, it was held that this reason alone should not enable multiple "appeals on appeals", and that "there must be a limited format that distinguishes between an appeal as of right and an appeal by permission" (the Arjub Case, on page 372). Secondly, it has been held that interpretation leads to the conclusion that a litigating party must request permission to appeal is not equivalent to denying the right to appeal (see CivApp 4936/06 Aroch v. Clal Finances Management Ltd. (September 25, 2006)). Thirdly, it has been found that "doing justice does not necessitate such a comprehensive examination of every matter" (ALA 103/82 Haifa Parking Ltd. v. Matzat Or Ltd., PD 36(3) 123, 125 (1982); original emphasis), and that limiting the right to appeal allows to define the discussion in a manner that promotes the principle of finality of the process. An additional reason that underlies this approach is the issue of the courts’ workload. It is clear that if every matter were to be brought before three instances, this would impose a heavy workload on the court system. The meaning of such overload is an infringement on the right of litigants that legal processes conclude within reasonable time. Therefore, the customary case law here is that a litigating party has one right to appeal, and that the authorized court will concede to the motion for permission to appeal in extraordinary cases only, in which there is legal or public importance that a certain matter be examined by a third instance (ibid, on pages 125-126).

 

33.It could be argued that in detention procedures it is necessary to deviate from the ordinary customary rules regarding the right to appeal. Thus, it would be argued that in detention procedures a different approach, which is more lenient with the detainee, is required, in light of the possible infringement of a person's freedom. Therefore, while the right to appeal, in general, includes only one appeal as of right, the right to appeal in detention matters, as a right that is protected in the framework of the right of freedom, also encompasses the option to file a second appeal as of right. I do not accept this argument. While I do not dispute the need – which is expressed in the legislation and in the rulings of this Court – to recognize the special status of detention procedures (see, for example, CrimApp 3357/03 Kaabiya v. The State of Israel (May 1, 2006); Anonymous Case, paragraphs 19-21 of Deputy President E. Rivlin's judgment; CrimApp 3899/95 The State of Israel v. Jamal PD 49(3) 164, 167 (1995)), this special status does not necessitate recognizing that the right of freedom includes a right that two different instances be required to examine a detention decision (for criticism on the right to a second appeal in detention decisions, see CrimApp 45/10 Masarwa v. The State of Israel (January 8, 2010)). In fact, accepting this position would lead to an anomaly not only between the detention laws and the other legal fields, but also within the detention laws themselves. Take for example a case in which a person was detained until the end of proceedings. Section 21 of the Detention Law grants the court to which an indictment was filed authority to order the detention of the defendant until the end of proceedings. Where an indictment was filed to the Magistrate Court, and the Court decided to detain the defendant until the end of proceedings, the detainee will be able to appeal the decision to the District Court as of right, and today, following the First Arrangement, it will be able to request permission from the Supreme Court to appeal. In comparison, a defendant against whom an indictment was filed to the District Court and the Court decided to detain him until the end of proceedings, will be able to appeal to the Supreme Court as of right, but he will not have the option to request permission from an additional instance to appeal. Will we say that the latter's right of freedom was infringed because he is not able to bring his matter before three instances? Can we not assume that the infringement of his freedom could be more severe, since in most cases detainment until the end of proceedings for an indictment filed to the District Court might continue for a more extended period of time than detainment until the end of proceedings for an indictment filed to the Magistrate Court?!

 

34.It follows that it cannot be said that in order to realize and protect the right of freedom, it is necessary that three instances review a detention decision. The meaning is that regardless of whether we classify the detention decision as a judgment or as an interim decision (see, for example, regarding the definition of a "judgment", CA 165/50 Epstein v. Zilberstein PD 6 1201, 1210 (1952); see also LCrimA 7487/07 Yakimov v. The State of Israel – The Head Military Prosecutor (April 16, 2008)), the fact that the detainee is not a-priori entitled as of right to have his matter heard by three instances, will not change. Furthermore, the fact that different decisions were adopted in each of the instances does not impact the scope of the right to appeal, and consequently, the right of freedom. Thus, there is no significance to the fact that a Magistrate Court chose to release a detainee while the District Court reversed that decision. The fact that conflicting decisions were given does not, in and of itself, lead to the conclusion that the detainee has a right that his matter be heard before a third instance (see the Navon Case, paragraph 7 of my judgment). The fact that different decisions were given in each of the instances is certainly a circumstance, among various circumstances, that the Supreme Court will consider when deciding if it is appropriate to concede to the motion for permission to appeal. This fact in and of itself does not create an automatic entitlement to an additional appeal as of right.

 

35.It is important to note that the injury that might be caused to the detainee, which is severe in and of itself, cannot justify a holding that he is entitled to be heard in three instances. There are many other situations in which a significant infringement of rights can occur, but this is not sufficient to impact the scope of the right to appeal. Suffice it to mention that there is no right of appeal at all on petitions to the High Court of Justice – the decisions of which could have a significant impact on the individual – (but rather only a petition for a further hearing, the causes for which are narrow and limited); and that there is only one right of appeal on criminal or civil judgments. Indeed, there is no dispute that the infringement of a person's freedom as a result of detention is severe, and therefore, it constitutes an important circumstance when examining the detainee's matter, including in the decision whether to grant permission to appeal to the Supreme Court. However, this is not an exclusive circumstance in the sense that that right to a second appeal is a part of the protections that fall under the rubric of the constitutional right of freedom, such that its denial is an infringement of the right itself. We will further note parenthetically that the First Arrangement, which was examined in the Petition, does not only address detention decisions, but also appeals on decisions relating to release, violation of terms of bail, motions for reconsideration and appeals on District Court decisions regarding bail. It is clear that the level of injury in the latter cases is not identical to that of detention and, therefore, the justification to deviate from the ordinary rule of a hearing before two instances, is even weaker in these cases.

 

An examination of the Supreme Court's decisions in motions for permission to appeal on decisions regarding detention, pursuant to the First Arrangement, reveals that the Court indeed takes the infringement of the right of freedom into consideration when ruling whether permission to appeal should be granted. Although the case law is that permission to appeal will be granted when the motion raises a legal question of importance as a principle, which exceeds the matter of the parties to the proceeding, the Court was willing to adopt a broader approach and to also grant motions for permission to appeal when there are special and extraordinary individual circumstances which justify a hearing before a third instance (see, for example, CrimApp 2786/11 Gerris v. The State of Israel, paragraph 7 of the decision (April 17, 2011); CrimApp 4900/12 The State of Israel v. Anonymous, paragraph 8 of the decision and the references there (June 25, 2012); CrimApp 4706/12 Anonymous v. The State of Israel, paragraph 8 of the decision (June 21, 2012); CrimApp 1200/13 Azulay v. The State of Israel, paragraph 9 of the decision (February 24, 2013)).

 

36.The conclusion is that the First Arrangement does not infringe on the right of freedom. It will be noted that the Petitioner did not raise arguments in his petition regarding the potential infringement of the First Arrangement of the right to due process or the right to access courts. Therefore, we did not see it necessary to address the infringement of these rights. As we have not found there to be an infringement of the right of freedom, this ends the constitutional examination of the First Arrangement.

 

Does the Second Arrangement Satisfy the Conditions of the Limitation Clause

 

37.As mentioned, there was no dispute between the parties that the Second Arrangement infringes on the right of freedom. We are therefore left to examine whether this arrangement satisfies the conditions of the limitation clause. For the sake of convenience, we will requote the language of the Second Arrangement:

 

(b) Notwithstanding that which is stated in sub-section (a), if a Supreme Court judge was of the opinion that it will not be possible to conclude the trial proceedings within the period of 90 days stated in sub-section (a), because of the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges, he may order the extension of the detention to a period which shall not exceed 150 days, and may re-order this from time to time, and may order the release of the defendant, with or without bail.

 

38.The first condition of the limitation clause requires that the infringement be by a law or pursuant to a law. There is no dispute that in the case at hand this condition is satisfied, since the Second Arrangement is prescribed in the law amending the Detention Law. The second and third conditions address the purposes of the infringing law. According to the second condition, the infringing law must befit the values of the State of Israel, and according to the third condition it should be demonstrated that the infringing law is intended for a proper purpose. We will now examine both of these conditions.

 

39.The purpose of the Second Arrangement, similar to the purpose of the entire amendment, as it emerges from the explanatory notes to the bill, was "to shift the balance between the principle of finality and the types of matters that should be examined by the Supreme Court and the realization of the substantive rights of detainees and defendants " (Explanatory notes to the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, Government Bills 533). Regarding the Second Arrangement, the legislative memorandum stated that: "Experience shows that in some cases it is clear in advance that the maximum time period for extending the detention prescribed in these sections is not sufficient to exhaust the legal proceedings. This is sometimes the case in cases of complex severe crimes in which the defendants are detained until the end of the proceedings against them, in which there are many witnesses. At times, numerous hearings are required, which significantly extends the duration of the trial, and consequently the period of the defendant's detention (the legislative memorandum was attached to the State's response dated July 7, 2011, and marked Res/1).

 

40.The underlying purpose of the Second Arrangement was to reduce the number of Supreme Court hearings on motions to extend detentions in particularly complex cases in which it is clear that the period of time the legislator allocated (90 days beyond the nine months of detention) will not be sufficient to conclude the trial. That, even when the trial is conducted efficiently and purposefully it cannot be said that this is not a proper purpose. In light of the heavy workload imposed on the Supreme Court and the entire justice system, reducing the number of detention extension hearings – in special circumstances and based on criteria prescribed in the law – is a proper and vital purpose. This purpose will allow the Court to dedicate time to other proceedings before it, including other criminal cases and detention procedures, and reduce the period of time required to rule thereon. In this context, we will mention Section 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides a series of conditions for a fair trial, including the need to conclude legal proceedings within a reasonable time. It cannot be said that this purpose does not befit the values of the State of Israel as a Jewish and democratic state. Reducing the time of handling cases and responding to the needs of those approaching the court system is a purpose that definitely befits the values of the State.

 

41.The main question to be decided with respect to the Second Arrangement is its compliance with the proportionality condition. As is known, it is customary to divide the condition that the infringement is no greater than necessary into three sub-tests. The first sub-test examines whether there is a rational connection between the means selected by the law and the purpose thereof. In the case at hand, it is clear that there is a rational connection between the means – extending detention by 150 days instead of by 90 days – and the purpose of reducing the number of hearings in the Supreme Court. The second sub-test examines whether the selected means is the less harmful means. As stated in the State's response, the means selected balances between the infringement of the detainee's freedom and the need to adjust the options to extend the detention in order to fit complex cases, cases of severe crimes and cases in which it is clear to the Court that a 90 day extension will not be sufficient. One of the main balances outlined in the Law is that the Law did not revoke the option of extending a detention by 90 days (pursuant to Section 62 of the Detention Law), but rather left that as is, and allowed the Court to choose, as a matter of discretion and as an exception to the "standard" detention extension, the option of extending the detention by 150 days. An additional balance is that the authority is vested with a judge of the highest instance. Furthermore, in order to exercise this authority, one of the special conditions listed in the section, which lead to the conclusion that it will not be possible to conclude the examination of the case in a shorter period of time,  must be satisfied, i.e., the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges. These balances indicate that the legislator selected the less harmful means in order to realize the purpose.

 

42.The third sub-test, the proportionality test "in the narrow sense", requires that there be a reasonable relation between the infringement of the constitutional right and the social advantage  derived from it. This test is also satisfied in the case at hand. Prior to the amendment of the Law, there was a problematic situation as motions to extend detentions beyond nine months would be filed to the Supreme Court, and the Court would grant the motions in cases in which it was clear that the trial was not foreseen to conclude within 90 days. And then, upon the lapse of the 90 days, a motion would again be filed to the Supreme Court, and so forth. In one of these decisions, Justice A. Procaccia elaborated on the need to adjust the Detention Law to the reality of "mega-cases" in which a large number of defendants are indicted together and many witnesses testify. In CrimApp 644/07 The State of Israel v. Natser (February 20, 2007), Justice Procaccia stated:

 

"Section 61 of the Detention Law limited the basic time period for detention until the end of proceedings to nine months, without making any distinction between types of criminal proceedings that are to be adjudicated based on the judicial time that is necessary for their examination. He did not draw a distinction between the types of charges with regard to the complexity of the issue to be decided. Similarly, the period of nine months of detention was applied equally to indictments relating to one or a small number of defendants, and to indictments that include a long list of defendants. Additionally, no distinction was made regarding the duration of the detention for trial purposes, between charges in which it is necessary to have a small number of prosecution witnesses testify and those in which it is necessary to have dozens of witnesses testify. Moreover, Section 61 of the Law did not reflect the judicial time actually required for conducting proceedings that involve large criminal organizations, which by their very nature require investment of extensive resources and judicial time. This provision of the Law does not reflect the deep changes that occurred in the nature of crime in the country as a result of the escalation of the development of criminal organizations and the complexity and severity of their activities, which have greatly increased over the last decade, and which clearly impact the judicial time required to rule in criminal proceedings related to them. The procedural needs in managing complex cases which involve multiple defendants, charges and witnesses, do not generally coincide with the Law's uniform and general determination regarding nine months of detention as a basic period in which the criminal proceeding should be concluded" (paragraph 17 of the decision). See also CrimApp 7738/06 The State of Israel v. Sharon Parinian, paragraph 10 of the decision (October 5, 2006).

 

The Second Arrangement attempts to solve this problem, by providing the Supreme Court judge deliberating the motion to extend the detention the option to choose between a "standard" detention extension, up to 90 days, and a "special" detention extension up to 150 days. The Second Arrangement only allows to do this in special cases in which the Court is convinced that the judicial time required to conclude the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses. The Court must be convinced that the proceeding is conducted by the trial court efficiently, and that the detention extension is not requested because of an inefficient conduct of the trial. In my opinion, the combination of these circumstances strikes the proper balance between the infringement of freedom – which no one disputes exists – and the purpose underlying the Second Arrangement.

 

43.The conclusion is that the Second Arrangement complies with the proportionality condition. It follows that the infringement of the right of freedom is proportionate, and the Petitioner's arguments regarding the illegality of the Second Arrangement should be dismissed. In this framework, the indirect attack regarding the legality of the amendment, the arguments for which were presented as part of the hearing regarding the detention extension in CrimApp 4002/11 is also dismissed.

 

Summary

 

44.It emerges from the stated above that both of the arguments presented by the Petitioner in HCJ 2442/11 are to be denied. Procedurally speaking, while we found that the legislative process of the amendments which are the subject of this petition deviated from the provisions of the Knesset By-Laws, the deviation did not constitute a "flaw that goes to the root of the process", which justifies this Court's intervention. On the merits of the amendment, we also rejected the Petitioner's substantive arguments (which are largely identical to the arguments raised in CrimApp 4002/11). We held that the revocation of the right to appeal "in a third instance" while only granting permission to appeal, does not infringe on the right of freedom, although we found that in certain circumstances, which will be determined in each case on its merits, the constitutional right of freedom also extends to the procedural proceedings bound with the exhaustion of the actual right. We further held that the amendment that allows to extend a detention by 150 days infringes on the right of freedom, but this infringement complies with the limitation clause, and is therefore constitutional. The result is that both parts of the petition are denied.

 

45.One methodological note before summation. In the case before us the legislator brought about a change in an existing law. This is not a new law that is meant to address a matter that was not regulated by law. There is no doubt that the amending law discussed in the petition adversely affects, to some degree, the state of suspects and defendants compared to the previous legal situation. However, the mere adverse change does not necessary lead to the conclusion that there is an infringement of a constitutional right or that the amendment does not satisfy the conditions of the limitation clause. We must distinguish between the constitutional threshold and the legal status preceding the amendment to the Law. Indeed, with regard to the two arrangements, the legal status that preceded the amendment set a higher threshold than the constitutional threshold, as suspects and defendants had the right to file a second ("third instance") appeal and the detention extension period was limited to 90 days. However, as emerges from the analyses we presented, the constitutional threshold is lower than the threshold the legislator had set under the arrangement preceding the amendment to the Law. Therefore, the fact that the Law was amended and lowered the legal threshold does not, in and of itself, lead to the conclusion that the constitutional threshold was infringed with the adoption of the amendment to the Law. Graphically speaking, it can be said that when amending the law, the legislator has leeway between the legal threshold prescribed before the amendment (which, as mentioned, was higher than the constitutional threshold) and the constitutional threshold. As long as the amendment to the law did not prescribe a threshold lower than the constitutional threshold, the new arrangement cannot be deemed unconstitutional. In this context we should mention the validity of law clause in the Basic Law: Human Dignity and Liberty (Section 10). This section sets a different threshold: even if the law preceding the Basic Law infringes a constitutional right and does not satisfy the limitation clause, it shall not be deemed invalid (subject to the interpretation of the law the validity of which is preserved under Section 10 of the Basic Law, see the Ganimat Case, pages 375-76, 389-401, 410-417), even if had such law been legislated today, we would have said that the constitutional threshold had been infringed.

 

46.Epilogue. The petition is denied. The constitutional arguments raised in CrimApp 4002/11 are also denied. In the circumstances of the matter – no order for expenses is issued.

 

The President

 

Justice E. Rubinstein

 

a.I agree with the result reached by my colleague the President and with the essence of his legal constitutional analyses, subject to a few remarks. Indeed, this amendment to the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (the Detention Law) is not suited for constitutional judicial review, but in my opinion there is a difference between its two parts. The arrangement amending Section 53 of the Detention Law is an amendment that revokes a most unusual situation compared to other countries and the past in our own country, a situation in which the Supreme Court is required, as of right, to consider a detention as a third instance, as we experienced until recently. In contrast, the arrangement amending Section 62 of the Detention Law is not a simple arrangement, since its implication is an extension of up to 150 days – five months of detention – instead of 90 days, without judicial review, this is not simple at all. Indeed, as my colleague explained (paragraph 42, and as emerges from the explanatory notes to the Criminal Procedure (Enforcement Powers – Detention), Amendment no. 9 (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, following the recommendation of the Criminal Procedure and Evidence Laws Advisory Committee, headed by this Court's Justice (currently Deputy President) Miriam Naor, Government Bills 5770, 1229-1330 and the words of Justice Procaccia in CrimApp 644/07 The State of Israel v. Natser (February 20, 2007)) – the 150 days arrangement does not exceed the constitutional proportionality test; as it was designated for special cases "in which the Court is convinced that the judicial time required to complete the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses.." Legally speaking, I agree with this. However, alongside this I would like to raise a small warning flag and say that I think that in practice, a 150 day extension should certainly be the exception.

 

b.Regarding the matter of extending detentions by a 150 days, I think that it is necessary to distinguish between the authority and its exercise. As mentioned, the authority, in and of itself, is within the boundaries of the constitutional proportionality. See for example Section 5(c) of the Imprisonment of Unlawful Combatants Law, 5762-2002, where judicial review once every six months was prescribed. However, I will admit that when the case at hands relates to the denial of freedom from a person who is presumed innocent, I would tend to allow relatively frequent judicial review, and five months is a long time. Therefore, one must be extremely diligent in complying with all of the conditions of the law as prescribed and the justification in the circumstances, including the conduct in the trial court, in order to grant 150 days. I will add that based on my impression of the decisions handed down by this Court, approximately a half of the motions for 150 days were not granted and 90 days were granted instead, and the vast majority of the remaining ones were by consent. I will not specify so as not to overburden.

 

c.As for the second appeal, that is deliberating the case in a third instance (the amendment of Section 53), it is obviously clear that the right to an appeal in and of itself has a distinguished status (see Section 17 of the Basic Law: The Judiciary, regarding an appeal on a judgment of court in the first instance, which was granted constitutional status; see also Y. Ben Nun and T. Havkin The Civil Appeal (3 ed., 2013) page 35; Y. Mersel "The Right to Appeal or an Appeal as of Right? Section 17 of the Basic Law: The Judiciary and the Essence of an Appeal" The Shlomo Levin Book (2013) 141; the references in my opinion in LCivA 5208/06 Davis v. Malca (June 29, 2006) and in LFamA 8194/08 Anonymous v. Anonymous (December 10, 2008)). However, in the matter of a third instance I will add a few short words from the “field”. The third instance appeal as of right in Section 53 was first legislated in the during the period in which the entire Detention Law was legislated, meaning, a short while after the Basic Law: Human Dignity and Liberty was legislated in 1992 and as part of the effort to give it substance; see the review of the legislative history in the explanatory notes to the bill at hand on pages 1328-1329; as it emerges therefrom, in the far past, even an appeal by permission was not an option; the option to request permission was granted in 1988, and in 1996 it became a right. Amendment no. 8 of the Detention Law transpired in light of the lessons learned by the Criminal Procedure and Evidence Law Advisory Committee, headed by Justice Naor, lessons which all of us at this Court have shared. I will quote from my words in CrimApp 6003/11 Taha v. The State of Israel (August 18, 2011):

 

"The legislator decided that this Court, given the workload it carries, cannot continue with what it has been doing for years, and which clearly has moral value, in light of the presumption of innocence and the essence of the detention – denying freedom, that is - allowing third instance appeals as of right. This, I believe, is unique to this Court compared to fellow courts in democratic states, many of which (see the United States, Britain and Canada) only address appeals by permission. When I have told a Supreme Court judge from these countries of the number of cases we have per year (currently approximately 10,000 cases and a few years ago up to approximately 12,000 cases per year) compared to theirs (80 per year), and that each detention has an appeal as of right to this Court – he became sympathetic or anxious. This does not mean that the door has been locked for cases that should be permitted to appeal to this Court as a third instance, and the legislator left this open to be developed by case law; for a review of current case law see the decision of Justice Amit in CrimApp 5702/11 Tzofi v. The State of Israel (August 8, 2011)."

 

d.It appears that there is no dispute, and it is common sense, with all due sensitivity to the denial of freedom which results from the detention of a person who is presumed innocent, and that it is not feasible in the long term to have the public resources to deliberate this as of right in three judicial levels. Until the amendment "Israel had something that did not exist in any nation, a right to a detention being heard in two appellate instances …" (CrimApp 3932/12 Elafifi v. The State of Israel (June 3, 2012)). Changing this does not contradict the approach that the right to appeal is a constitutional right of some degree or another. Indeed, in practicality, those night and Sabbath eve and afternoon hearings of appeals as of right regarding "detention days" (detention for interrogation purposes), of which we had our share over the years, hardly exist anymore. Permission to appeal in a third instance is granted scarcely. In this sense, the legislator reinstated "reasonable normalcy", taking into consideration that there already is one appeal as of right, as prescribed. Upon review of my colleague Justice Melcer's remarks, with which I agree, I also noticed that the "right of the option to request permission to appeal" which he addresses, can also be found in this Court's customary practice. In contrast, for example, to the United States, where the denial of a motion for permission to appeal, is summarized in the words "cert denied" – in Israel the denial of such a motion is well reasoned and in great detail.

 

e.As said, I concur with my colleague the President.

 

Justice

Justice H. Melcer

 

I agree with the comprehensive and meticulous judgment of my colleague, President A. Grunis, and with the emphases of my colleague, Justice E. Rubinstein.

 

In light of the importance of the distinctions that arose in this case, I allow myself to add two insights:

 

(a)Alongside the right to appeal – the option to request permission to appeal is also a right, however narrower than the former. It follows that the second alternative – requesting permission to appeal – can be seen as a means of review of the decision which is the subject of the request, and this is sufficient after the initial constitutional right to appeal has been exhausted. A similar approach and development can also be found in comparative law - see for example:

 

In the Unites States: Jonathan Sternberg, Deciding Not to Decide: The Judiciary Act of 1925 and the Discretionary Court, 33 J. SUP. CT. HIST 1 (2008).

 

In Canada: R v Gardiner [1982] 2 S.C.R. 368 ;

Bora Laskin, The Role and Functions of Final Appellant Courts: The Supreme Court of Canada, 53 CAN. BAR REV. 469, 471 (1975).

 

In Australia: Smith Kline & French Laboratories (Australia) Ltd. v Commonwealth (1991) 173 CLR 194;

David Solomon, Controlling the High Court’s Agenda, 23 U.W AUSTL. L. REV. 33 (1993);

Sir Anthony Mason, The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal, 15 U. TAS. L. REV. 1 (1996);

Marrie Kennedy, Applications for Special Leave to the High Court 1 High Ct. Q. Rev. 1 (2005);

 

See also: John Anthony Jolowicz, Appeal and Review in Comparative Law: Similarities Differences and Purposes 15 MELB. U. L. REV 618. (1986)

 

In this context,  remember that in contrast to the motion for permission to appeal, in our country's legal system there are certain situations in which even this limited right (to motion for permission to appeal) is denied (even if only during the trial) – see: Sections 41(c)(1) and 52(c)(1) of the Courts (Consolidated Version) Law, 5744-1984. The Courts (Types of Decisions for which Permission to Appeal shall not be Granted) Order, 5769-2009. This is the law with regard to most interim decisions in criminal proceedings. See: the President's decision in LCivA 3783/13 I.D.B Development Company Ltd. v. Shamia (June 5, 2013). The difference in the case at hand requires further consideration.

 

(b)The arrangement amending Section 62 of the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996, that allows a Supreme Court judge to extend detention up to 150 days, in certain given cases – is within the framework of the "statutory leeway" (also referred to as the "boundaries of proportionality"), albeit, in my opinion, it is situated at the "far end" of such boundaries. It follows that constitutional relief should not be granted, since intervention of such nature in such circumstances is reserved only to the most extraordinary cases, and this is not the case here. See: HCJ 1661/05 Hof Azza Regional Council v. The Prime Minister, PD 59(2) 481 (2005); my judgment in HCJ 6784/06 Major Shlitner v. The Director of Pension Payments (January 12, 2011).

 

The appropriate remedy in such cases is judicial restraint in exercising the authority, and this is indeed how we act.

 

                                                                                          Justice

 

It was decided as stated in President A. Grunis' Judgment

 

Given today, 18^th of Tamuz, 5773 (June 26, 2013).

 

 

The President                          Justice                                     Justice

H.C.J  65/51

 

 

JABOTINSKY AND KOOK

v.

WEIZMANN

 

 

 

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

[July 20, 1951]

Before: Smoira P., Dunkelblum J., Cheshin J., Agranat J., and Silberg J.

 

 

 

            Administration of Justice - Limits of judicial power - Failure by President of State to perform statutory duty as to formation of new Government - Not justiciable - Mandamus - Application for order nisi - Intervension by Attorney-General.

           

                The High Court will not issue an order of mandamus against the President of the State directing him as to the method of carrying out his duties under section 9 of the Law of Transition, 1949. Such a matter is not justiciable.

               

                By section 11(d) of the above-mentioned Law "The Government which receives a vote of no-confidence from the Knesset, or which has decided to resign, shall immediately tender its resignation to the President of the State, but it shall continue to exercise its functions pending the constitution of a new Government in accordance with the provisions of this Law." Section 9 provides that "after consultation with representatives of the party groups in the Knesset, the President of the State shall entrust a member of the Knesset with the task of forming a Government." The Government having resigned on February 14, 1951, following upon a vote of no confidence, the President held consultations with the representatives of the parties and entrusted the Prime Minister with the task of forming a new government. When the latter declined to do so, the President notified the Speaker of the Knesset that as a result thereof and of the consultations he had held, he had reached the conclusion that pursuant to section 11(d) of the Law of Transition the Government which had resigned must remain in office until the formation of a new Government after general elections.

 

                The petitioners, members of the Knesset, contended that under section 9 it was the duty of the President, once one member had declined to accept the task of forming a new government, to entrust it to any other of the remaining 119 members of the Knesset, before concluding that it was necessary to hold general elections. They applied for an order of mandamus.

               

                Held: The President although in a sense the highest public officer in the State, is not semble a "public officer" for the purposes of that part of section 7 of the Courts Ordinance, 19401), which empowers the Supreme Court. sitting as a High Court of Justice to give orders to public officers in connection with the execution of their duties. Notwithstanding that the jurisdiction of the High Court under Article 43 of the Palestine Order in Council, 19222), "to hear... matters necessary to be decided for the administration of justice", is wider than that conferred by section 7, it does not extend to the subject of the petition, which raises a matter that is not amenable to judicial determination and decision, but is one affecting the executive and political, and not the ministerial, powers of the President.

 

                Joint Anti-Fascist Committee v. Attorney-General of the United States (71 S. Ct. 673) referred to.

               

                The Attorney-General appeared at the hearing of the petition to object to the issue of the order nisi by virtue of his powers under section 6 of the Law of Procedure (Amendment) Ordinance, 1934, which gives him the right to intervene in any matter pending before "any civil or criminal court" if it appears to him that the rights of the Government of Israel are involved or that it is necessary to do so in the public interest.

               

                Held, overruling an objection to his appearance, that the High Court is a "civil court" within the meaning of section 6, and that rule 4 of the High Court Rules, 1947, which provides that an application for an order nisi will be heard ex parte, does not bind the court to hear the application in the presence of the petitioners alone. The very nature of the petition justified the intervention of the Attorney-General at the present stage in the proceedings.

 

English case referred to:

(1)        The Parlement Belge; (1879-80), 5 P.D. 197.

 

American cases referred to:

(2)        U.S. v. Aaron Burr; (1807), Robertson's Rep., I, 121.

(3)        Bandini Petroleum Co. v. Superior Court; 52 S. Ct. 103.

(4)        Allen-Bradley Local No. 1111 ect. v. Wisconsin E. R. Board; 62 S. Ct. 820.

(5)        Tennessee Pub. Co. v. American National Bank; 57 S.Ct. 85.

(6)   Joint Anti-Fascist Refugee Committee v. Attorney-General of the United States; 71 S. Ct. 673.

(7)        Aetna Life Ins. Co. of Hartford, Conn. v. Haworth; 57 S. Ct. 461.

(8)        David Muskrat v. United States; 1911, 31 S. Ct. 250.

(9)        Mississippi v. Johnson; (1867), 4 Wall. 475, L. ed. 437.

(10)      McCulloch v. Maryland; (1819), 4 Wheat. 316, 4 L. ed. 579.

 

S. Fishelev for the first petitioner.

R. Nohimovsky for the second petitioner.

H. H. Cohn, Attorney-General (with Naomi Salomon) intervening.

 

SMOIRA P., giving the judgment of the court.

 

            This is an application for an order nisi against the President of the State, requiring him to appear and show cause why he should not call upon a member of the First Knesset1) to form a new government and, if he fail, why one member after another should not be called upon until one of them finally succeeds in constituting a government which will enjoy the confidence of the Knesset. The petition is based upon an expression of no-confidence by the Knesset on February 14, 1951, in the government headed by Mr. Ben-Gurion, and upon the submission to the President of the government's resignation on the same day.

            The following facts are set out in the petition.

           

            The Prime Minister submitted the resignation of the government to the President on February 14, 1951, and on February 18 and 19, 1951, the President held consultations with the representatives of the various parties in the Knesset. On February 21, 1951, the Prime Minister visited the President and on February 25, 1951, the President sent a letter to the Prime Minister which concluded as follows:

           

            "...I have decided, before invoking the final remedy - the remedy of elections - to request you to make a further effort to reach a stable and satisfactory solution, within the framework of the present Knesset, and to form a new government which will enjoy the support of the majority of its members.

           

            I know that this will not be easy to achieve in the present situation, but I am convinced that it is my duty to request it of you.

           

            I would ask you to inform the other parties with whom you will consult of my request, and to convey to them my hope that they will cooperate with you so that a stable and satisfactory arrangement may be reached. I pray that you may succeed."

 

            The Prime Minister, in his reply to the President's letter of February 27, 1951, wrote:

           

            "If, Mr. President, you see any prospect of the formation of a government which will enjoy the confidence of a majority of the Knesset, it is for you to approach the representatives of any of the parties which voted against the present government. If any one of them succeed in forming a government, I shall gladly hand over my office to him with my sincere good wishes for success in his task.

           

            If this should not be possible and the majority of Mapam Herut. the United Religious Front, the Communists and the General Zionists1) who voted against the government, are unable to form a government, even for a period of transition, then section 11(d) of the Law of Transition, 1949, will come into operation. This obliges the present government, of which I have the honor to be the head, to remain in office until the formation of a new government, after elections."

 

            On March 5, 1951, the President sent a note to Mr. Yosef Sprinzak, the Speaker of the Knesset, in which he wrote, inter alia : -

           

            "After reading the reply of Mr. Ben-Gurion and as a result of the consultations with representatives of the parties in the Knesset, I have reached the conclusion that the government which resigned should remain in office in accordance with the Law of Transition until the formation of a new government after the elections."

 

            On March 21, 1951, the petitioners requested an interview with the President. They were informed that his state of health did not permit him to receive them and on March 28, 1951, the petitioner, Eri Jabotinsky, sent a letter to the President's private secretary in these terms: -

           

            "We wished to try and convince the President that it is his duty to impose upon one of the members of the Knesset the task of forming a government which would function until the convening of the Second Knesset but which would in the meantime enjoy the confidence of the present Knesset. I do not think there is any point in stating my grounds to the President here. The majority of them are known from the debates in the Knesset and from the press - in particular Ha’aretz. The Law of Transition lays down the President's duty in this matter in clear terms. The letters of the President to Mr. Ben-Gurion and to the Speaker of the Knesset also show clearly that the President has not yet imposed the task of forming a government upon any member of the Knesset and that after his failure with Mr. Ben-Gurion, he discontinued his efforts. These points are all well known. As far as the political arguments which we wished to raise in our conversation with the President are concerned, his state of health will no doubt prevent him from considering them in the period permitted by the present circumstances.

 

            In view of the impossibility of discussing the matter fully with the President I am now considering bringing the case at the beginning of next week before the Supreme Court - the only body which can determine the legality of the position. I would ask you to convey to Dr. Weizmann that, in so doing, I have no intention of offending him personally in any way whatsoever. I have long been of opinion that our Supreme Court should gradually become the final arbiter in constitutional questions affecting the State. The seriousness of the matter now in issue and the need for its legal clarification create the opportunity for the Supreme Court to enter upon this task."

 

            On April 16, 1951, the petitioners lodged this application. They submit that the President of the State had no authority to approach the Knesset directly on a political or legal-constitutional question. Their main contention is that the President has contravened the provisions of section 9 of the Law of Transition, 1949, in that for a lengthy period of more than two months he has failed to discharge his legal and constitutional duty of imposing upon one of the members of the Knesset the task of forming a new government.

 

            The petition also contains the following submissions:

           

            The President infringed the rights of the Knesset when, without first finding out whether the member whom he called upon would accept the task, he charged that member of the Knesset with the task of forming a new government and did not see fit to charge any of the other 119 members of the Knesset with the same task.

           

            In consequence of the failure of the President to fulfill his duty, a situation has been created which is inconsistent with the law of the State. In addition, the government which has resigned - which is in fact continuing to function without enjoying the confidence of the First Knesset - is an illegal government. It is the duty of the President, no matter what the consequences may be, to bring about the formation of a new government which will enjoy the confidence of the Knesset. The present situation destroys parliamentary and democratic rule and violates the principle of the collective responsibility of the government towards the Knesset. If the same government in which the Knesset has no confidence, continue functioning, then the Knesset will he given no opportunity of expressing again its lack of confidence. It has done so once and no new vote will add anything. As a result, the government which has resigned has in fact the full power of doing what it likes, untrammeled by law or the opinion of the Knesset.

           

            The petitioners do not see a remedy for the situation in the fact that July 30, 1951, has been fixed by law as the date for the elections to the Second Knesset. They submit that for a period of approximately five months - until the formation of a new government after the elections and the convening of the Second Knesset - an illegal situation will continue.

           

            The Knesset cannot force the President to discharge his legal and constitutional duty. It is only the Supreme Court, sitting as the High Court of Justice, which can order the President to charge a member of the Knesset with constituting a new government.

           

            This is a summary of the petition.

           

            The Attorney-General, having learned of the presentation of this petition, appeared on the day of the hearing and asked leave, in terms of section 6 of the Law of Procedure (Amendment) Ordinance, 1934, to submit his arguments in the matter since it appeared to him that the rights of the Government of Israel were involved and it might be injurious to the public interest to hear the petition in his absence.

           

            He raised the preliminary point that no petition of any kind against the President of the State could be entertained by this court. Mr. Nohimovsky objected to the appearance of the Attorney-General at this stage - namely, before the issue of an order nisi. He submitted that although the Supreme Court, sitting as the High Court of Justice, is a "civil court" within the meaning of Article 38 of the Palestine Order in Council1), it is not a civil court within the meaning of section 6 above, where the expression is employed in contradistinction to a "criminal court." He further submitted that in terms of rule 4 of the High Court Rule, 1937, a petition for an order nisi is to be heard ex parte.

           

            The court rejects these arguments of Mr. Nohimovsky for two reasons.

           

            (a) Section 6 referred to above speaks of "any civil or criminal court," and there is no reason for excluding the High Court of Justice from the expression "civil court" in the comprehensive sense in which it is used in Article 38 of the Order in Council. In our opinion, the very nature of the petition brought before this court requires that the Attorney-General should be afforded the right of intervention, even at this stage.

           

            (b) It is true that the Rules of 1937 provide that an application for an order nisi should, as a general rule, be made ex parte. They do not, however, bind the court to hear such au application in the presence of the petitioner alone.

           

            The Attorney-General submitted two arguments: -

           

            (1) That this court will not entertain an application against the President of the State;

           

            (2) That this court has no jurisdiction to hear the petition.

           

            The first argument is that the President of the State enjoys general immunity and cannot be brought before the courts. The second argument is that in accordance with the existing law, this court has no jurisdiction to deal with the present petition.

 

(In the course of his argument counsel here referred to the Bible, the Talmud, and the works of Maimonides, but the court, holding that these sources were not relevant in the case, continued:)

 

            In passing to more mundane sources, the Attorney-General compared the position of the King of England and his immunity from all claims before the courts with that of our President. As authority for this proposition he relied upon Blackstone, as quoted in the case of the Parletment Belge (1). We there find statements such as these: "Our king", says Blackstone, "owes no kind of subjection to any other potentate on earth. Hence it is that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him ...authority to try would be vain and idle without an authority to redress, and the sentence of a court would be contemptible unless the court had power to command the execution of it, but who shall command the king?" And in the same judgment Brett L.J., relying upon Blackstone, states that the real principle upon which the immunity is based is that the exercise of such jurisdiction would be incompatible with the king's regal dignity. The Attorney-General also wished to deduce from Article 46 of the Palestine Order in Council that the principle, precluding the bringing of the king before the courts as incompatible with his dignity, also applies to the President of the State of Israel and that this court may not therefore enquire into the actions of the President.

           

            These arguments moved Mr. Fishelev, counsel for the petitioners, to contend that these principles apply to an absolute monarchy and have no place in the democratic regime of the State of Israel.

           

            We too are of the opinion that the writings of Blackstone on the position of the King of England have no relevance here. An apt answer to this approach was given in the year 1807 by Chief Justice Marshall of the United States in his judgment in the case of United States v. Aaron Burr (2). The question that arose in that case was whether it was possible to summon the President of the United States as a witness for the defence and to order that he appear. Marshall C.J. said, inter alia: -

           

            "Although he (the King) may, perhaps, give testimony, it is said to be incompatible with his dignity to appear under the process of the court. Of the many points of difference which exist between the First Magistrate in England and the First Magistrate in the United States, in respect to the personal dignity conferred upon them by the constitutions of their respective nations, the court will only mention two. (1) It is a principle of the English Constitution that the King can do no wrong, that no blame can be imputed to him, that he cannot be named in debate. By the Constitution of the United States the President, as well as every other officer of the government, may be impeached and may be removed from office on high crimes and misdemeanors. (2) By the Constitution of Great Britain the Crown is hereditary and the monarch can never be a subject. By that of the United States, the President is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again. How essentially this difference of circumstances must vary the policy of the laws of the two countries in reference to the personal dignity of the executive chief, will be perceived by every one."

 

            I shall not add any comments of my own to these dicta of the distinguished Chief Justice of the United States. Every one will appreciate that in regard to the question of immunity before the courts, the position in this country is analogous to that in the United States and not to that in England.

           

            Whether the President is to enjoy immunity is not to be gathered by reference to the immunity of a monarch. In view, however, of the decision which we have reached on the question of jurisdiction, we need not decide in this case whether the President enjoys immunity or not.

           

            As I have said, the Attorney-General, in the course of his argument, placed the emphasis upon this court's lack of jurisdiction to deal with the petition and grant a mandamus against the President and it is, in our opinion, the answer to the question whether this court has jurisdiction which determines the fate of this petition.

           

            On this question too, lengthy arguments were addressed to us, and points raised which are irrelevant. It is our first task, therefore, to limit the scope of our consideration. The matter before us is a constitutional one. It is an accepted rule, as laid down also in the United States, that "Constitutional questions are not to be dealt with abstractly", Bandini Petroleum Co. v. Superior Court; (3), at p. 108. "It is a familiar rule that the court will not anticipate the decision of a constitutional question upon a record which does not appropriately present it", Tennessee Pub. Co. v. American National Bank; (5), at p. 87.

           

            In the light of this principle we shall confine our discussion:

           

            (a) to the subject-matter of the case, namely, the alleged contravention of section 9 of the Law of Transition, as argued by the petitioners;

           

            (b) to the prayer, namely, the granting of a writ of mandamus against the President.

           

            The basic provision defining the jurisdiction of this court in the matter before us is section 17 of the Law and Administration Ordinance, 1948, which lays down that: -

           

            "So long as no new law concerning law courts has been enacted, the law courts existing in the territory of the State shall continue to function within the scope of the powers conferred upon them by law."

           

            It follows that, in the absence of a law extending its jurisdiction, the High Court of Justice in the State of Israel has no wider powers than those which were enjoyed by it in the time of the Mandate. Counsel for the petitioners emphasised, in fact, that they do not ask us to assume powers wider than these, but they request that we exercise the jurisdiction conferred upon us by law. Their submission, so they say, is de lege lata.

           

            The law relating to the jurisdiction of this court is to be found in Articles 38 and 43 of the Order in Council of 1922 and section 7 of the Courts Ordinance of 1940. Nothing relevant to the present case can be learned regarding jurisdiction from Article 38, which merely provides that the courts "hereinafter described shall exercise jurisdiction in all matters and over all persons" in the country. This jurisdiction is defined, however, in Article 43 of the Order in Council and in section 7 of the Ordinance.

           

            As I shall explain later there is no necessity for us to determine the extent of our jurisdiction under section 7(b) of the Courts Ordinance. 1940, which confers jurisdiction upon this court to issue orders of mandamus and injunctions against public officers and public bodies. We are in fact of the opinion that the President of the State is not a "public officer" within the meaning of the definition in the Interpretation Ordinance of 1945, though he is, in a wider sense, the highest public officer in the State.

           

            As I have said, however, there is no need for us to determine our jurisdiction under section 7(b) of the Courts Ordinance since this court has decided on numerous occasions that the limits of its jurisdiction under Article 43 of the Order in Council are wider than the limits laid down in section 7 of the Ordinance.

 

            I agree with the submission of counsel for the petitioners that we must decide the question of our jurisdiction de lege lata. With this, however, we put an end to all their submissions based upon the constitutions of other countries. The doctrine of impeachment, in the various forms which it assumes in different countries, has no relevance for us in this case. It is inconceivable that this court would assume to itself a power such as that of impeachment without a specific provision in the law to that effect. Counsel for the petitioners conceded, moreover, that the purpose of impeachment is to remove the head of the State from his office by reason of the commission of an offence such us treason or some other serious offence. This is stated expressly in the constitution of the United States, and this is the interpretation given to the expression "haute trahison" in the French constitution. And the petitioners have stated repeatedly that they do not seek the removal of the President but an order of mandamus.

           

            We return to the only question before us, namely, whether this court has jurisdiction to issue a mandamus against the President of the State in respect of his alleged failure to act in accordance with section 9 of the Law of Transition, 1949. We can decide this question de lege lata only on the basis of Article 43 of the Order in Council. We do not accept the contention that us the President is not mentioned in the Law and Administration Ordinance of 1948, for that reason alone we have no jurisdiction to deal with the petition. The whole force of statute law - which provides for the norm and not for exceptions - lies in its power to create machinery for dealing with situations which do not yet exist when the law is promulgated. Section 11 of the Law and Administration Ordinance, 1948, provides expressly, moreover, that the existing law shall remain in force subject to such modifications as may result from the establishment of the State and its authorities. The fact, therefore, that the high office of President of the State did not actually exist when the Law and Administration Ordinance was enacted does not stand in the way of our applying the law today to the President. Had the petition on its merits fallen within the provisions of Article 43 of the Order in Council of 1922 it would have been possible and necessary to entertain it.

           

            The field of enquiry is narrowed down to this: is the subject-matter of the petition and the prayer among the "matters necessary to be decided for the administration of justice?" Is the present petition a matter which calls for judicial decision? Some assistance in clarifying this problem may be derived from an examination of authorities in the Supreme Court of the United States .

 

            In terms of Title 3 Section 2 of the American Constitution, "cases and controversies" are made amenable to judicial decision, and these expressions - and the limits of judicial power in general - have been defined in a long list of cases. The most recent judgment is that of Justice Frankfurter of April 30, 1951, in the case of Joint Anti-Fascist Refugee Committee v. Attorney-General of the United States (6). Let me cite some extracts from this judgment: -

           

            "...in a case raising delicate constitutional questions it is particularly incumbent first, to satisfy the threshold enquiry whether we have any business to decide the case at all. Is there, in short, a litigant before us who has a claim presented in a form and under conditions 'appropriate for judicial determination’?” Aetna Life Ins. Co. of Hartford , Conn. v. Haworth, (7).

 

            At first sight there is a distinction between the language of the American Constitution which makes "cases and controversies" amenable to judicial determination, and the language of Article 43 which employs the expression "matters." But it has been held in the United States that the expression "cases" is wider than the expression "controversies". See David Muskrat v. United States (8) at p. 954.

           

            "The judicial article of the Constitution mentions cases and controversies. The term "controversies", if distinguishable from "cases", is so in that it is less comprehensive than the latter, and includes only suits of a civil nature."

 

            Mr. Nohimovsky, counsel for the petitioner, emphasised the wide term "matters", from which he sought to derive our jurisdiction. Even if we assume that the term "matters" is wider than "cases and controversies" we have still to enquire what are the matters which are submitted to our jurisdiction. They are only those "matters... necessary to be decided for the administration of justice." By the addition of these words the legislature has set limits to the area of "matters" in the ordinary meaning of that expression. In regard to this it was submitted by counsel for the petitioners that we must interpret the expression "justice" by reference to philosophical, religious and moral sources. We are not prepared to adopt this system of interpretation which is completely unlimited in scope and obscures the limits of judicial power.

           

            Justice Frankfurter said the following in connection with this problem in his judgment referred to above: -

           

            "Limitation on 'the Judicial Power of the United States' is expressed by the requirement that a litigant roust have 'standing to sue', or more comprehensively, that a Federal Court may entertain a controversy only if it is 'justiciable'. Both characterizations mean that a court Grill not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was generally speaking the business of the Colonial Courts and the Courts of Westminster when the Constitution was framed. The jurisdiction of the Federal Courts can be invoked only under circumstances which to the expert feel of lawyers constitute 'a case or controversy'. The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously.''

 

            With all respect to the learned judge, I find in these remarks an excellent definition of the limits of judicial power. The reply to the question what are the matters which are necessary to be decided for the administration of justice cannot be drawn from the wide sea of philosophical, religious and moral relationships. To do w would be to widen those limits so as to include every matter necessary for human progress. On the other hand such limits cannot be defined by a purely geometrical formula. In leaving the matter to be decided by "the expert feel of lawyers" the learned judge readily concedes the intellectual impossibility of an accurate and absolute definition. We, as judges, must find the answer to the question whether the matter, in the language of the United States judgment, is "appropriate for judicial determination" or, in the language of our Article 43, is "necessary to be decided for the administration of justice", by bringing to bear our legal and judicial understanding.

           

            We also attach importance to the words of Justice Frankfurter relating to the "business of the Colonial Courts and the Courts of Westminster". We find in this remark the connecting link between the language of the American Constitution and that of Article 43 of the Order in Council.

           

            The question before us, therefore, is whether the petitioners have placed before the court a matter which is justiciable, a matter which is proper for judicial determination.

           

            The complaint of the petitioners is that the President of the State has failed to comply with section 9 of the Law of Transition or, at the least, that he has not exhausted the possibilities envisaged in that section by making repeated attempts to impose the task of forming a new government upon one of the remaining 119 members of the Knesset after the first member upon whom that task was imposed failed in his attempt. The petitioners ask us to order the President to continue imposing the task of forming a government upon members of the Knesset until one of them who undertakes this mission succeeds in forming a new government which enjoys the confidence of the Knesset.

 

            According to the reasoning which underlies the petition it will be the duty of this court to examine and determine whether, in his first or second or third attempt to do what is requested of him, the President of the State has discharged the duty imposed upon him by section 9 of the Law of Transition, or whether he must continue in his attempts. In order to decide the matter this court will have to consider the effectiveness of the imposition of the task in question upon one or other of the members of the Knesset. It is sufficient to point out the consequences of such a process in order to show that the present petition falls completely outside the limits of judicial determination.

           

            If the "expert feel of lawyers" is to be invoked, it may be said generally that the whole subject of the duty of forming a government in accordance with section 9 of the Law of Transition is non-justiciable and beyond the scope of judicial determination. The relationships involved are in their very nature outside the field of judicial enquiry; they are relationships between the President of the State, the government and the Knesset, that is to say, the executive and parliamentary authorities. If the question of a failure to comply with section 9 should arise, the remedy must be found through parliamentary means, that is to say, in the reaction of the Knesset to a government which, in its opinion, does not even possess the right to exist in transition in accordance with section 11(d) of the Law of Transition. That section provides that the government, after its resignation, shall continue in office until the formation of a new government in accordance with the provisions of that Law.

           

            It is highly significant that counsel for the petitioners did not cite a single authority from other countries in which a court directed the President of the State, in any form whatsoever, to follow a particular course in the discharge of his executive functions.

           

            We have reached the conclusion that the matter before us is not one which is amenable to judicial determination and decision. We point with satisfaction to the accord between our decision and those of the Supreme Court of the United States which, as is well known, has considerable experience in examining the boundaries between the respective functions of the three authorities of the State. Counsel for the petitioners invited us to follow in the footsteps of the Supreme Court of the United States, and strongly relied upon a saying that that court is in fact the Constitution. Just because of that, however, it is desirable to point to the care taken by the American Supreme Court not to overstep the boundary. Here are some examples.

 

            In the case of Mississippi v. Johnson (9), the court was asked to issue an injunction against the President of the United States restraining him from enforcing a law passed by Congress relating to the administration of the State of Mississippi. It was argued by the petitioners that the law in question was ultra vires the Constitution of the United States.

           

            Chief Justice Chase drew a distinction in his judgment between the ministerial and the executive and political duties of the President of the United States, and said:-

           

            "An attempt on the part of the judicial department of the Government to enforce the performance of such (executive and political) duties by the President might be justly characterized, in the language of Chief Justice Marshall, as 'an absurd and excessive extravagance' . . . It was admitted in the argument that the application now made to us is without a precedent and this is of much weight against it . . . The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained."

 

            I may mention incidentally that there is in the last sentence quoted a hint of the conception mentioned by Justice Frankfurter in his recent judgment in which he speaks of the "expert feel of lawyers". In his judgment in the case of M'Culloch v. Maryland (10), Chief Justice Marshall deals with the boundaries between the functions of the legislative authority and the judicial authority, and we may say, following him, that were we to accede to the request of the petitioners in this case, we would exceed the limits of judicial authority and trespass upon the preserves of the political and executive authorities. In the language of Chief Justice Marshall, "this court disclaims all pretensions to such a power. ' '

           

            The question brought before us is one affecting the executive and political powers of the President, and is beyond the scope of judicial authority.

           

            We accordingly dismiss the petition for want of jurisdiction.

           

                                                                                            Petition for order nisi refused.

                                                                                            Judgment given on July 20, 1951.