Supreme Court of Israel

HCJ 129/13

 

Before:            The Honorable President A. Grunis

                        The Honorable Vice President M. Naor

                        The Honorable Justice E. Rubinstein

 

Petitioners:      1. Eli Axelrod

2. Moshe Axelrod

v.

Respondents: 1. Government of Israel 

2. Israeli Knesset

3. Ministry of the Interior

 

Petition to grant an order nisi

 

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

 

On behalf of Petitioners:           Adv. Eli Axelrod

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

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

 

Judgment

 

President A. Grunis and Vice President M. Naor:

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

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

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

 

President, Vice President

 

Justice E. Rubinstein:

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

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

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

 

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

 

Justice

 

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

 

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

 

President                             Vice President                             Justice

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

starting with traffic court, and reaching where he has. His contribution covers all areas of the law, and there is no valley in which he did not stake a claim. The judgment he chose for his retirement day is characteristic of the central field of his judicial legacy, the field of torts, and within it medical negligence. For many future years the mark which Justice Rivlin has made on all branches of tort law, from traffic accident law, regarding which he also wrote a fundamental book, to the complex and sensitive issue decided today, will accompany Israeli adjudication. According to the sages, the existence of fair tort law – relations between man and his fellow (Babylonian Talmud Baba Kama 30a) – is among the foundations of just human society. In his judicial work, Justice Rivlin contributed to that. I wish him, now that he has reached retirement age, that "in old age they still produce fruit; they are always green and full of sap" (Psalms 92:14).

 

 

Decided according to the opinion of the Deputy President E. Rivlin.

 

The result of the judgment – to the extent that it regards the annulment of the cause of action of the infant – shall not apply to pending cases (including cases before us) in which an action was not submitted by the parents. Justice E. Rubinstein was of the opinion that the result of the judgment should not be applied for one year from today, and Justice M. Naor notes that the question of the law regarding a claim on the part of an infant which has not yet been submitted should not be decided in the framework of a transitional provision in the case before us.

 

Given today, 7 Sivan 5772 (28 May 2012).

 

In the Supreme Court

Sitting as a High Court of Justice

 

HCJ 4146/11

 

Before:	Her Honor, Judge E. Arbel
	His Honor, Judge H. Melcer
	His Honor, Judge Y. Danziger
The Petitioners:	Yoav Hess + 116 other Petitioners
v.
The Respondent:	The Chief of General Staff
Petition for the grant of an order nisi
Date of session:	Sivan 4, 5773 (May 13, 2013)
On Behalf of the Petitioners:	Adv. M. Sfard,  Adv. E. Schaeffer
On Behalf of the Respondent:	Adv. Y. Roitman

 

Judgment

 

Judge E. Arbel:

1.In the petition before us, the petitioners petition the Court to order the introduction of a military command prohibiting the use of white phosphorus for any purpose in settled areas and other civilian sites, as well as any use of arms containing white phosphorus in any situation in which there is an alternative weapon that is less dangerous to humans and is capable of achieving an equal or similar military advantage.

2.The need for the petition arose, according to the petitioners, following the extensive and unethical use, according to them, of weapons containing white phosphorus by the IDF during Operation Cast Lead (December 2008 – January 2009). According to them, during the operation many bombs containing phosphorus were dropped, and by the nature of things, because the [Gaza] Strip is densely populated with civilians, the result was extensive injury to civilians, some of whom were injured when the bombs were dropped and some much later, when the incendiary effect of the phosphorus was still active. According to them, the use of phosphorus endangered the lives of civilians, humanitarian employees and medical personnel. The petitioners argue that this is a substance which has potential for serious injuries to those who come into contact with it, and that its harmful effect lasts long after it is launched. The use thereof, it is argued, by its nature does not enable distinction between military and civilian targets, and thus even when it is aimed at legitimate targets, it might ultimately injure civilians. The petitioners’ main legal argument is that the use of white phosphorus constitutes a violation of the international law.

3.The respondent argues that the petition is of a type that the Court does not usually consider, as it deals with the weapons to be used by the IDF. The respondent also claims that there is no impediment under the law of armed conflict to using artillery shells containing white phosphorus for camouflage purposes only, including in urban warfare. The respondent emphasized that on the professional orders of the chief artillery officer, the use made of the “white smoke” shell is for camouflage purposes only. The State’s attorney, in the hearing before us, also gave notice that at this time the IDF has decided, even though it is not legally required, not to use shells containing white phosphorus in a built-up area, subject to two limited exceptions. The exceptions were presented to us in camera.

4.I will note that the petitioners motioned for the filing of expert opinions regarding the repercussions of the use of white phosphorus in a built-up area. The respondent objected to the motion and argued, inter alia, that the expertise of the opinion’s authors in the architecture field is not relevant to deciding  the question of the legality, in principle, of arms containing white phosphorus, from the legal and factual aspects. In light of our decision, as detailed below, we see no reason to allow the motion to file the opinion. Nonetheless, if the issue arises again in the future, there might be room to delve into it, and it will then be possible to consider the disagreement between the parties with regard to the relevancy of the expertise of the opinion’ authors to the questions under discussion.

Discussion

5.The first issue that must be addressed concerns the justiciability of the issue before us. While the respondent argues that this issue is not justiciable and is one that the Court does not usually consider, the petitioners claim that nowadays there is no doubt that the war is subject to laws and that the laws are subject to judicial interpretation. On this I must agree with the petitioners, within the boundaries of the restraint that this Court has imposed on itself of course, especially with regard to quintessential military matters. I will explain.

As is known, the choice of weapons used by the Army is not generally a matter for this Court’s consideration. Nonetheless, it cannot be said that in every case in which issues related to the use of these or other weapons arise the Court will refuse to consider the matter. Clearly, where arguments arise regarding the use of weapons in a manner that contradicts the law of armed conflict, the Court will have to “enter the battlefield” and consider the arguments raised before it. The boundaries of this Court’s intervention in matters of this kind are extremely limited, but it is reserved and occurs in exceptional and special cases where there is concern of injury to established legal norms. This Court intervenes at times in petitions even if they have political or military implications, so long as the dominant aspect considered therein is the legal aspect (see HCJ 3261/06, Physicians for Human Rights vs. The Ministry of Defense (January 31, 2011) (hereinafter: “in re Physicians for Human Rights”); HCJ 769/02, The Public Committee against Torture in Israel vs. The Government of Israel, IsrSC 62 (1) 507, paragraph 52 of the judgment of President Barak (2006)), and in the words of President Barak:

            “ ‘Israel is not a desert island. It is part of the international formation’ … the Army’s warfare operations do not take place in a legal vacuum. There are legal norms – some from the customary international law, some from the international law that is anchored in conventions to which Israel is a party, and some from the basic rules of the Israeli law – that determine rules regarding warfare management” (HCJ 4764/04, Doctors for Human Rights vs. The Commander of the IDF Forces in Gaza, HCJ 58 (5) 385, 391 (2004)).”

President Beinish has also referred to the matter:

            “We have not said and are still not saying that determining the legality of the IDF’s acts vis-à-vis the residents of the area is not at all subject to judicial review, and on various occasions we have rejected the sweeping argument that these acts are not justiciable. Accordingly, this Court has, on many occasions in the past, been required to consider matters that in certain ways touch upon professional-operational aspects, at times related to acts of warfare, where they gave rise to legal questions concerning the Army’s powers during warfare – in accordance with the law of armed conflict – and the limitations imposed on it by the international humanitarian law” (in re Physicians for Human Rights, paragraph 10).”

6.In order to maintain the balance between the restraint required in this Court’s intervention in quintessential military matters and the operational and professional discretion of the Army Command, and the need to protect and safeguard human rights and honor the international law, we believe that a multi-stage review is required in petitions of this kind. First of all, it is necessary to consider whether the petitions, ex facie, raise arguments of a legal nature that allow the Court to consider them, without such consideration amounting to intervention in the quintessential professional discretion of the military entities. A negative answer will result in the petition’s summary dismissal. A positive answer will require another prima facie review of the basis for the petition, and if it justifies, ex facie, a more in-depth review of the violation of the military means or military course of action of the law of armed conflict or the basic principles of Israeli law. At this stage, it is also necessary to consider the practical implications of the petition. There is no room for a more in-depth examination by the Court where the use of the weapons that are the subject of the petition has been ceased on Army orders. If there are still orders permitting the use, and there is a prima facie basis substantiating any legal injury, there is room for the Court to proceed to the third stage, which involves an in-depth review of the arguments raised, and obtaining extensive answers to these arguments on behalf of the State. At this stage, the Court will examine the legal and factual arguments of the petitioners on their merits, and a determination will be made with regard to the legality of the use of the weapons which are the subject of the petition.

7.The petition before us raises, prima facie, serious arguments against the use made by the IDF of shells containing white phosphorus. From the petition it emerges that this is a substance that might cause serious injuries to human beings, and that there are humanitarian, ethical and legal difficulties in its use in a built-up area, since it is not possible to distinguish between military and civil targets in the course of its use. These arguments, ex facie, oblige another in-depth examination. The arguments raised by the petitioners are of a dominant legal nature. Accordingly, these arguments justify proceeding to the second stage of review required by the Court. However, at this stage we believe that we must stop the judicial review, in light of the State’s declarations regarding the binding orders imposed on the Army with regard to the use of white phosphorus in a built-up area at this time. As aforesaid, the State’s attorney declared that it has been decided not to allow the use of shells containing white phosphorus in a built-up area. Although we were presented with two exceptions to this order, we were persuaded that these exceptions are very limited and leave the prohibition of use effective and very wide, such that it is doubtful whether this matter will realistically arise again. In these circumstances, we believe that there is no room to continue reviewing the matter beyond that. Of course, if the Army’s orders change in the future it will be possible to petition this Court again.

8.It should be emphasized that we have not overlooked the position of the petitioners’ attorney that the orders to limit the use do not resolve the matter. Nonetheless, even the petitioners’ attorney stated that the central difficulties in the current state of affairs are that the respondent has not undertaken that the orders are final, and that the nature of the exceptions are unknown to him. With regard to the nature of the exceptions, as has been noted, they were presented to us with the consent of the petitioners’ attorney “in camera,” and we were persuaded that these exceptions make the use of white phosphorus an extreme exception in the most unique circumstances. With regard to the concern regarding a change in the Army’s orders in such regard, I have two comments. Firstly, since the State has not declared before us that the orders are permanent orders that prohibit the use of the substance, in the current circumstances the IDF should engage in a comprehensive and in-depth review of the use of white phosphorus in the Army, and of its risks and harms, and primarily, it should review the possible alternatives for the use of this substance. Such a review will serve either to make the current orders permanent or to substantiate a position justifying a change in the orders. In any event, it would not be suitable to wait to review the matter in an emergency. Secondly, the State should notify the petitioners’ attorney in the event of a change in the orders, so that he may once again raise his arguments before this Court. 

 

Subject to the aforesaid, the petition is dismissed without an order for costs.

Given today, July 9, 2013.

 

___________________	___________________	___________________
Judge	Judge	Judge

 

 

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

 

 

AAA 2469/12

 

 

Before:                                                The Honorable President A. Grunis

                                                The Honorable Deputy President M. Naor

                                                The Honorable Justice E. Rubinstein

 

 

The Appellants:                      1.    Morris Bremer

                                               2.    Eddie Weisbaum

                                               3.    Motty Maoz

                                               4.    David Haimov

                                               5.    Eliyahu Miller

                                               6.    Yitzchak Elkoser

                                               7.    Pinchas Tzelik

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

 

v.

 

The Respondents:                   1.    The Tel Aviv-Jaffa Municipality

                                               2.    A.M.P.M.

                                               3.    Tiv Taam Daily Ltd.

                                               4.    Tiv Taam Reshatot Ltd.

                                               5.    Tiv Taam Hacarmel Holdings Ltd

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

 

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

 

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

 

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

 

On behalf of Appellant 8:                   Adv. David Shub

 

On behalf of Respondent 1:                Adv. Rachel Avid

 

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

 

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

 

 

 

Judgment

 

Deputy President M. Naor:

 

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

 

 

Background

 

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

 

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

 

The Proceedings in the Administrative Affairs Court

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Hence the Appeal before us.

 

The Appellants' Arguments

 

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

 

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

 

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

 

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

 

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

 

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

 

The Respondents' Arguments

 

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

 

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

 

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

 

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

 

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

 

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

 

The Normative Framework

 

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

 

(a)Business Licensing Law

 

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

 

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

 

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

 

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

 

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

 

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

 

(5)     Public health, including proper sanitary conditions;

 

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

 

(7)     Upholding the enactments related to firefighting."

 

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

 

(b)The Municipalities Ordinance and the By-Law

 

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

 

"249. A municipality's authorities are:

 

[…]

      

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

 

27. Section 265 of the Ordinance provides:

 

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

 

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

 

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

 

[…]" (emphases added – M.N.).

 

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

 

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

 

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

 

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

 

2. […]" (emphases added – M.N.)

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(b) In this Order -

 

 

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

           

[…]

First Schedule

[…]

Part B – Tel Aviv – Jaffa

 

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

 

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

 

Discussion and Ruling

 

A.The Business Licensing Law

 

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

 

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

 

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

 

B.The By-Law

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

[…]

 

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

 

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

 

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

 

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

 

From the General to the Specific

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Epilogue

 

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

 

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

 

 

President A. Grunis:

 

I Agree.

 

 

Justice E. Rubinstein:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

 

 

 

                                                                                    AAA 3782/12

 

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

 

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

[24.3.2013]

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

 

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

 

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

 

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

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

 

Held:

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

 

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

 

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

 

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

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

 

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

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

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

 

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

 

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

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

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

 

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

 

Legislation Cited

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

Basic Law: Human Dignity and Liberty

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

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

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

Interpretation Act 5741-1981, s.17

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

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

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

Regulation of Sports: Gambling Act, 5727 – 1967

 

Supreme Court Decisions Cited

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

United States Decisions Cited

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

 

 

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

 

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

 

Judgment

 

Justice N. Sohlberg

 

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

Background

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

The Ruling of the District Court

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

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

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

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

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

Principal Arguments of the Parties

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

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

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

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

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

Discussion and Ruling

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

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

 (a)       Right of Standing

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

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

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

Freedom of Expression

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

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

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

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

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

(c)  Police Authority

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Final Word

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

Note

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

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

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

 

Justice U. Vogelman

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

General

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

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

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

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

Locus Standi of the Public Petitioner

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

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

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

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

The Question of Authority

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

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

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

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

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

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

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

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

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

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

Other Legal Systems

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

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

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

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

Afterword

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

Epilogue

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

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

 

                                                                                                Justice

 

President A. Grunis

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

 

                                                                                                            The President

 

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

 

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

 

 

H.C. 176/54

               

NAHOUM YEHOSHUA

 v.

APPEALS TRIBUNAL UNDER THE INVALIDS (PENSIONS AND REHABILITATION) LAW, 1949, AND OTHERS

 

 

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

[April 6, 1955]

Before Olshan P., Berinson J, and Witkon J.

 

Certiorari - Invalids (Pensions and Rehabilitation) Law, 1949 - Competent Authority - Refusal to recognise right to pension - Appeals Tribunal - Finality of decision - Jurisdiction of High Court of justice to review decision - Precedent - Binding force of - Doctrine of Precedent in English Law.

 

                The petitioner applied to the High Court for an order of certiorari against the Appeals Tribunal set up under the Invalids (Pensions and Rehabilitation) Law, 1949, and prayed to set aside the decision of the Tribunal rejecting his appeal against the refusal of the competent authority to recognise his right to a pension. He alleged that the Tribunal had ignored certain medical evidence.

               

                                Held :    (by Olshan P. and Berenson J., Witkon J. dissenting) :

(1) The High Court has no jurisdiction to review the decision of the Appeals Tribunal, and the application must be refused.

Zeraubavel v. Appeals Tribunal under Fallen Soldiers’ Families Law, 1950; (1953) 7 P.D. 183 followed.

 

(2) The Supreme Court is bound by its own previous judgments, subject to the usual conditions applying to the operation of the doctrine of precedent in English law.

Ramm v. Minister of Finance and Others; (1958) 8 P.D. 494 followed.

 

                Per Witkon J. (dissenting) : Admittedly there was no distinction in principle between the present application and Zeroubavel's case, which laid down that although the jurisdiction of the High Court to control the decisions of administrative tribunals by certiorari is not ousted by a provision in the law that those decisions should be final, it is ousted when that provision is accompanied by an additional provision requiring the tribunal to give reasons for its decision. But Zeroubavel's case was wrongly decided and should not be followed. Despite the fact that in Ramm's case it had been laid down that the Supreme Court is bound by its previous decisions in accordance with the usual conditions of English law, it should be held that the doctrine of the binding nature of precedents is not applicable in Israel, both for reasons of law and for reasons of policy. Since the precedent established in Ramm's case itself cannot, therefore, be binding on the court, it is entitled to, and should, hold that it is not bound to follow Zeroubavel's case, and should grant the petitioner an order nisi and try his case on the merits.

               

                Per Olshan P. : Ramm's case binds the Supreme Court to follow its own decisions. Even a judge who disagrees with the application of the doctrine of precedent should regard himself as bound by Ramm's case, since otherwise the opinion of the majority of the judges of the Supreme Court could be nullified by a minority. The court is therefore bound by Zeroubavefl's case, and the application must be refused.

               

                Per Berinson J. : Even in England, where the court may only issue the traditional prerogative writs, the combined effect of the requirements that a tribunal must give reasons for its decision and that that decision is final, is not sufficient to oust the jurisdiction of the High Court to review the Tribunal's decisions. The more so, then, in Israel, where there is the widest jurisdiction to intervene when justice demands. Hence it would appear that Zeroubavel's case was wrongly decided. Since, however, a previous judgment of the Supreme Court is, as held in Ramm's case, binding upon it on the basis, not of law, but of policy1), the decision in Zeroubavel's case must be accepted as being conclusive. The application should therefore be refused.

 

                Palestine cases referred to:

(1)          L.A. 52/35 - Raji El Issa and Another v. Butros Deeb Khammar; (1937), 4 P.L.R. 21.

(2)          H.C. 21/32 - David Krubi v. District Officer, Jaffa; (1920-1933), 1 P.L.R., 683.

 

Israel cases referred to:

(3)          H.C. 4/53 - Haim and Perla Chilbi v. Pensions Officer under the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 1950: (1953), 7 P.D. 475.

(4)          H.C. 5/53 - Yehezkel Zeroubavel v. Appeals 'Tribunal under the Fallen Soldiers' Families Law, 1950, and Others: (1953), 7 P.D. 182.

(5)          H.C. 66/54 - Haviva Vander v. Pensions Officer, Ministry of Defence and Others: (1954), 8 P.D. 556.

(6)          H.C. 103/54 - Pensions Officer under the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 1950 v. Appeals Tribunal under the said Law for the Tel Aviv District and Others: (1954), 8 P.D. 1391.

(7)          H.C. 104/54 - Tel Aviv District Taxi Service Drivers Association v. Mayor of Tel Aviv and Others: (1955), 9 P.D. 100.

(8)          H.C. 154/54 Avraham Habshosh v. Pensions Officer under the Invalids (Pensions and Rehabilition) Law, 1949 and Others: (1954), 8 P.D. 1590.

(9)          H.C. 164/53 - Ruth Gantz v. Pensions Officer, Ministry of Defense and Others: (1953), 7 P.D. 909.

(10)        H.C. 67/54 - Raoul Frenkel v. Appeals Tribunal under In¬valids (Pensions and Rehabilitation) Law, 1949, and Others: (1954), 16 P.E. 450.

(11)        H.C. 50/54 - Yehouda Shoshan v. Chairman and Members of the Appeals Tribunal under the Invalids (Pensions and Re¬habilitation) Law, 1949, and Pensions Officer; (1954) 8 P.D., 1508.

(12)        H.C. 210/54 - "Lakol" Furniture Centre and Others v. Minister of Commerce and Industry and Others; (1952), 6 P.D. 775 .

(13)        H.C. 287/51; 34/52; 324/52 - Emil Ramm v. Minister of Finance and Others; (1954), 8 P.D. 494.

(14)        C.A. 376/46 - Aharon Rosenbaum v. Yona Miriam Rosenbaum: (1949/50), 2 P.E. 5.

(15)        H.C. 21/50 - Michael Shlomiof v. Chairman and Members of the Appeals Tribunal appointed in accordance with Emergency Regulations (War Damage Repair in Houses), 1949, and Others; (1950), 4 P.D. 98.

(16) H.C. 45/50 - Yosef Sifri v. Acting Registrar, Jerusalem District Court and Others; (1950), 4 P.D. 610.

 

English cases referred to:

(17)        R. v. Manchester Legal Aid Committee. Ex parte Brand & Co. Ltd.; [1952] 1 All E.R. 480.

(18)        R. v. Nat Bell Liquors Ltd.; [1922] 2 A.C. 128.

(19)        R. v. Wandsworth JJ., Ex parte Read; [1942] 1 All E.R. 56.

(20)        R. v. Kingston-Upon-Hull Rent Tribunal. Ex parte Black; [1949] 1 All E.R. 260.

(21)                        Bole v. Horton; (1673), 124 E.R. 1113.

(22)        R. v. Plowright and Others; (1686), 87 E.R. 60.

(23)        R. v. Moreley; (1760) 97 E.R. 696.

(24)        R. v. Jukes; (1800), 101 E.R. 1536.

(25)                        R. (Rooney) v. The Local Government Board for Ireland;                (1920), 2 I.R. 347.

(26)        R. v. Sill; (1852), Dears. C.C. 10; 16 Digest 406, 2525.

 

American case referred to:

(27)        United States ex rel. Trinler v. Carusi; (1948), 166F. 2d 457.

 

French case referred to:

(28)        Lamotte, Conseil d'Etat, 17 février 1950.

 

Louria for the petitioner.

 

WITKON J. On the hearing of this petition, it was decided by a majority that "in view of the judgment in Chilbi v. Pensions Officer (3), Zeroubavel v. Appeals Tribunal (4), Vander v. Pensions Officer (5) and Pensions Officer v. Appeals Tribunal (6), this court cannot intervene". I differed from my learned colleagues, my grounds for so doing:

 

                On the face of it, this case is of no great general importance. It concerns a man who fell seriously ill while serving in the army. He contends that he is entitled to a pension in accordance with the Invalids (Pensions and Rehabilitation) Law, 1949, but the Pensions Officer rejected his claim and the Appeals Tribunal dismissed his appeal. He has, therefore, applied to us for an order of certiorari, and his complaint is this: Before the Tribunal there was an opinion of Dr. Feldman which showed, according to him, that his illness was connected with his service. This opinion was not contradicted in the certificates produced on behalf of the Ministry of Defence. Those certificates did not determine the cause of the illness at all. Nevertheless, the Tribunal decided to dismiss the appeal without hearing Dr. Feldman, and did so in the following terms:

 

                "On the basis of the medical material placed before us, we are not convinced that the illness from which the appellant is suffering in the nervous system of the spinal cord arose out of or was aggravated by his service. Accordingly, we dismiss the appeal."

               

                It is doubtful whether, in those circumstances, the petitioner is entitled to any remedy. It is settled law that this court does not sit as a court of appeal from administrative tribunals and, in particular, will not intervene in questions requiring expert knowledge, such as medical and engineering questions and so on: Association of Taxi Drivers case (7); Habshosh v. Pensions Officer (8). It may be presumed that the two members of the Tribunal who are in fact doctors themselves were of the opinion that the illness from which the applicant is suffering could not be a consequence of his service or, at all events, that it was impossible to determine the causal connection. We do not know what induced the Tribunal to come to the conclusion it reached. But it seems to me that the Tribunal's decision calls for some explanation, and that is reason enough, in the circumstances of the case, for issuing an order nisi calling on the respondents to appear and show cause. It may be that in the present case the petitioner has little prospect of succeeding, but his arguments appear to me to call for some answer.

               

                Nevertheless, I should not have disagreed with my learned colleagues in their decision to dismiss the application or, at all events, I should not have expressed my dissent at length, were it not for the ground briefly expressed in the majority judgment. This ground raises important problems, and I feel obliged to take a stand in relation to it.

               

                My colleagues rely on four judgments of this court, in which it was decided that, save in cases of excess of jurisdiction, orders of certiorari should not issue in connection with hearings under the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 1950. No one denies that for the purposes of the question now before us, there is no difference between that Law and the Law under discussion here, namely, the Invalids (Pensions and Rehabilitation) Law, 1949.

               

 That rule was first established in ZeroubaveI v. Appeals Tribunal (4), which is referred to in Chilbi v. Pensions Officer (3), though in the latter case the order was made absolute, because it was found that the respondents had exceeded their jurisdiction. In Vander v. Pensions Officer (5), the court followed ZeroubaveI's case (4), but added a point on the merits of the case as a ground for dismissing the petition. Finally, in Pensions Officer v. Appeals Tribunal (6), the court re-iterated and re-affirmed the rule as laid down in Zeroubavel's case (4).

 

                What in effect is this rule ? It is well known that the court will not hesitate to grant a remedy by way of an order of certiorari, notwithstanding that in the Law establishing the administrative tribunal it is said that its decision shall be final. It has so been held in England for a considerable time, and we received the rule from there. But in the present case the Law contains two specific provisions, one being that the Appeals Tribunal shall give reasons for its decision, and the other that the decision shall be final (section 25(f) and (h)). The court in Zeroubavel's case (4), deduced from this that the legislature intended to deprive the High Court of Justice of its jurisdiction to interfere with the decisions of the Appeals Tribunal. This was said, more forcibly, in Pensions Officer v. Appeals Tribunal (6): "It has been laid down in connection with the Law now under consideration before us, that this court is not entitled to interfere with the decisions of the Appeals Tribunal, even if it appear that the decision is based upon an error, and even if that error is apparent on the face of the decision, except where the Appeals Tribunal acts without jurisdiction in giving a decision, exceeds the limits set by the legislature." In the same judgment it was also said: "And as for the general argument, based upon orders of certiorari, which this court is in general empowered to issue in the event of a legal error appearing on the face of a decision of an inferior tribunal, the above-mentioned judgments did not lay down any rule to the effect that this court is in general deprived of such jurisdiction, but held that such a jurisdiction does not exist in relation to the Law now under consideration. Their decision was based on an analysis of the provisions of this Law, and we see no reason for differing from the rule laid down in connection with the said Law."

               

                It appears to me that the court has not always followed that decision. I shall quote some examples:

               

(a) Before the decision in Zeroubavel's case (4). it was decided in H.C. 83/52 (unreported) that the Officer and the Tribunal did not err in rejecting the claim on the ground that the petitioner was not "bereaved" within the meaning of the Law. This implies that the court investigated the reasons.

 

(b) In Gantz v. Pensions Officer (9), the application was dismissed on the ground that the petitioner had not been prejudiced in her rights by the fact that she was not given notice of the Pensions Officer's decision. It seems to me that here, too, the court examined the proceedings to see if they were conducted properly or not. Admittedly, the question was examined according to the test of "jurisdiction". It was held that the Officer's notification was not to be regarded as a condition precedent to the Tribunal's jurisdiction.

 

(c) In the case of H.C. 3/54 (unreported), an order nisi was issued on the ground that the Tribunal had confined itself to a consideration of the question whether the accident had occurred while the petitioner was on duty, and had not exercised its jurisdiction to consider and decide whether the accident arose out of his service. Only with difficulty is it possible to regard that question as one of jurisdiction, for the Tribunal did not exceed the limits of its jurisdiction; on the contrary, it did not completely exhaust it.

 

(d) The complaint in Frenkel v. Appeals Tribunal (10), was that the Tribunal had relied upon a document without giving the petitioner the opportunity of seeing it or of commenting upon it. The petition was dismissed, not on the ground that the court was not entitled to issue an order of certiorari, but because it was clear from the respondent's reply that the document had been put in in the presence of both sides.

 

(e) Finally, Shoshan v. Appeals Tribunal (11), where the petitioner argued that the Tribunal had not expressed its opinion on an important piece of evidence, since the evidence had, through the fault of the Officer, not been produced to the Tribunal. The court considered this argument in detail, and laid down a rule that the Tribunal is not obliged to take into account the opinions of outsiders. No reference is made in that judgment to the question of jurisdiction to issue an order of certiorari.

 

                If not all of those decisions, at least some of them, have given rise to a doubt in my mind whether the rule laid down in Zeroubavel's case (4) has become firmly settled. My colleagues are not of this opinion, and have decided to resolve the present case in accordance with the ruling in ZeroubaveI's case (4). I am unable to accept that ruling. With the greatest respect to the judges that decided it, that decision does not seem to me to be a correct one. That being so, I am bound to give reasons for my dissent and to examine whether I am free to question a rule which has been previously established by this court. I shall start by considering the question of our jurisdiction in the matter of the order of certiorari.

 

                The legislator is omnipotent: he can, at will, abrogate our jurisdiction to make an order of certiorari, but it is common knowledge that jurisdiction is not taken away save by express words of ouster. A provision such as this - that the Tribunal's decision shall be final- is insufficient to take away the jurisdiction (see Halsbury, Hailsham edition, Vol. 9, page 861, and the authorities there cited, starting from the seventeenth century). This is one of the achievements that the judiciary has diligently and jealously guarded in its defence of the rights of the citizen. The scope of judicial review of administrative tribunals is narrow enough. An order of certiorari is generally of no assistance in reviewing the decision of a tribunal to see whether it is correct or not as to substance, from the point of view both of the law and of the facts. A fortiori, there is no ground for intervening when the matter under discussion is one of opinion. But this remedy has throughout served as a guarantee to the citizen against decisions that are invalid for want of jurisdiction, because they disregard the principles of justice, because they have been improperly obtained or because of error on the face of the proceedings. It should be borne in mind that not only excess of jurisdiction serves as a ground for an order of certiorari, but also denial of justice and, in particular, a defect in the proceedings. Wherever the law confers a judicial or quasi-judicial capacity on the responsible authority, the citizen is entitled to have the proceedings properly conducted: R. v. Manchester Legal Aid Committee (17), at p. 489; and see "Lakol" v. Minister of Commerce (12), at p. 803. There have been instances where the executive was opposed to the court's jurisdiction to quesition its decisions, and sought its abolition by the legislature. The courts invariably laid down the rule that a provision such as in section 17 of the Invalids (Pensions and Rehabilitation) Law, 1949, that the Tribunal's decision shall be final, does not deprive the court of the jurisdiction to make an order of certiorari.

 

                Now this rule is being called in question and the first steps taken for its reversal. With a stroke of the pen, the court in Zeroubavel's case (4) abrogated the judicial review of Appeals Tribunals, acting under the two Laws referred to, except where they exceed their jurisdiction. I find no consolation in the fact that this relates only to tribunals under those two Laws. How can I be sure that the executive will not follow this uncontrolled path in relation to other tribunals as well, if its appetite should grow and it wish to rid itself of judicial review? True, these tribunals are presided over by a pro¬fessional judge. But how do we know that in other laws tribunals will not be appointed without any member of the legal profession, and with only government officials sitting on them?

               

                And for what reason? How did the court, sitting in Zerubavel's case (4), arrive at such a far-reaching result? The provision that the Tribunal's decision shall be final is insufficient, as we have seen, to exclude the remedy of certiorari. But the court found a basis for its conclusion by combining two provisions of the Law in question, the one stating that the decision shall be final, and the other directing the Tribunal to give reasons for its decision. With the utmost respect to the court that sat in that case, I fail to understand how it reached its conclusion. If we accept that view, it follows that a provision, the sole purpose of which is to strengthen the citizen's rights, will prove to be his undoing and will turn from a blessing into a curse. I should have thought that if a decision is anyway subject to review by way of an order of certiorari, all the more must this be so when there is a reasoned decision. I have discovered no foundation for the idea that the "finality" of a decision excludes an order for certiorari simply because it has to contain reasons. I am convinced that the legislator did not anticipate this result and did not intend it when he ordered the Tribunal to give reasons for its decisions.

               

                As I have already said, I do not know whether the finding in the present petitioner's case was so defective as to justify our intervening in his matter by way of an order of certiorari. His contention was, briefly, that the Tribunal's decision was unsupported by the volume of evidence before it. Moreover, the Tribunal, which purported to decide "on the basis of the medical evidence placed" before it, ignored the opinion of Dr. Feldman, the petitioner's doctor, and could find no authority for its opinion in the medical certificates produced on behalf of the Ministry of Defence. Furthermore, according to the petitioner, the Tribunal did not want to hear Dr. Feldman as a witness, nor was it prepared to pass the question over to the Medical Tribunal for its decision, although both sides were agreeable that that should be done. Those are arguments which, if proved to be correct, may have sufficed to show a denial of justice. I express no opinion either way. Mistakes in the admission or non-admission of evidence do not constitute excess of jurisdiction: R. v. Nat Bell liquors, Ltd. (18), but may sometimes constitute a denial of justice (see R. v. Wandsworth JJ. (19); R. v. Kingston Rent Tribunal (20)). According to the decision in ZeroubaveI's case (4), the door is closed against the citizen who wishes to raise a complaint of this sort, for he is unable to argue that the Tribunal exceeded its jurisdiction. As I have already stated, even the jurisdiction to make an order of certiorari does not enable us to pass in review the Tribunal's decision, in order to test whether it is sound from the legal point of view (apart from the case of error apparent on the face of the decision) and from the point of view of the volume of evidence before it (see Halsbury, Hailsham edition Vol. 9, p. 888). There need be no fear, therefore, lest this court turn into a court of appeal from decisions of the Tribunal. But the citizen is entitled to demand that the hearing before the Tribunal be properly conducted, and a breach by it of the basic rules of evidence may provide a ground for our intervening. To my mind, there was occasion for granting an order nisi to the petitioner and for not sending him away empty-handed for the reason expressed in ZeroubaveI's case (4).

 

                That being so, I am obliged to consider the question whether we are entitled to depart from the decision that was given in Zeroubavel's case (4). My colleagues consider this decision to be binding upon us. To my regret, I am not at one with them even on this question. I agree that if we are to accept the principle that this court is bound by its previous decisions, then there is no way of distinguishing the present case from Zeroubavel's case (4), or of taking it out of the rule therein established. But that is the question: are we bound to accept the binding force of the precedent in all its strictness, or are we entitled to depart from a precedent in those rare cases where an established rule does not seem to us to be at all correct, and none of the various ways known in the doctrine of precedent available to us to strip it of its binding force?

               

                This court, composed of five judges, sat on that problem recently, in Ramm's case (13), and it was there decided that the court is bound by its previous decisions. Several exceptions were listed, but it is clear and beyond all doubt that the court gave its approval to the English rule relating to the binding force of precedent in its absolute form. In the light of this decision, I must indeed seem somewhat bold openly to call in question an opinion expressed by so exalted a forum. It need hardly be emphasized that a judge who does not recognise the binding force of precedent cannot be "bound", in the technical sense of the word, even by a precedent which recognises such binding force. A "binding rule" such as this is no more than begging the question. For all that, I am alive to the fact that it was the Supreme Court that spoke here and laid down basic policy for its action in the future, and it is somewhat difficult to deny so fundamental a principle. I am under no illusions. My voice in this matter is one crying in the wilderness, but I am convinced that the principle of the precedent is not calculated to advance and give form to the law in Israel. I am of the view that in the course of time we shall abandon that principle, and perhaps these remarks of mine may contribute towards bringing that day nearer.

 

                I shall open, first of all, by defining the scope of the discussion. The question of precedent bears two aspects. The court itself is required to be bound by its decisions, and also every other court is subject to the rulings laid down in a higher court. For the purposes of the present case, I shall confine myself to the first question. Secondly, a distinction has to be made between the precedent as a binding authority and its power of persuading and guiding. I know of no legal system which treats a departure from rules laid down in previous cases with anything but diffidence. They are authorities to be respected, and only in rare instances will a judge be bold enough to depart from them. That is the accepted system in most of the countries on the Continent of Europe and in the United States. I have not heard that this system brings about chaos or irresponsibility. A court will always want to follow the path of authority for the sake of consistency in the law and for the sake of efficiency in work. No court will be in a hurry to depart, needlessly, from the rule already laid down. As Professor Winfield wrote:

               

"To say that because a judge tries to keep the law consistent with itself, he is bound to model it on previous decisions, is to confuse judicial consistency with the binding force of judicial decisions." (Chief Sources of Legal History, p. 149).

               

                On the other hand, the English system, which has not, as far as I have been able to discover, been adopted in any country outside the British Commonwealth of Nations, requires the Supreme Court and, accordingly, other courts, to accept a ruling as if it were the law with a divine sanction even in those cases where such a ruling does not seem to the court before whom it is brought to be sound, and even in those cases where it seems to that court to be thoroughly misconceived. But the law is the law, though the heavens fall. Only in special cases, at times very extreme cases, is the court entitled to distinguish or evade the undesirable precedent.

               

                In the case of Ramm v. Minister of Finance (13), the court adopted the English principle subject, indeed, to the same reservations acknowledged in England itself and subject to an additional reserva¬tion, namely, where there is a change in social conditions; but apart from those reservations, adopted it in all its severity and strictness. The court reviewed the situation in the period of the Mandate and found, despite the dissenting opinion of Mr. Justice Manning in the case of El Issa v. Khammar (1), that opinion had crystallized in favour of the English principle. After that, the attitude of the Israel Supreme Court towards precedents of the Supreme Court in the period of the Mandate was examined, and it was found that it did not consider itself bound by those precedents. Finally, the court defined its attitude towards its own precedents and decided that it was bound by them. It is clear from the rationes decidendi - and my colleague Berinson J. confirms this - that this conclusion is not based on any law or authority, but on considerations of legal policy alone. In the opinion of the court, a precedent must be regarded as binding because of the need for certainty in the law. Conflicting judgments are bound to confuse the citizen and prevent his consultants from being able to advise him on how to conduct his affairs. Especially in a young State, in the words of the judgment, it is imperative that principles be crystallized, though here too a moderate note was struck: "What has been said must not be taken to mean that this court will go to extremes and will decide never to re-consider its decisions."

               

                With all due respect, it seems to me that the court did not give due weight to all the doubts and hesitations that have recently arisen with regard to the English doctrine even in England itself. There, a lively debate is being waged over the advantages of the English system and professors and learned men of authority have attacked the principle. It has been shown, first, by T.E. Lewis, in his article, "The History of Judicial Precedent" (46 L.Q.R. 207, 341; 47 L.Q.R. 411; 48 L.Q.R. 230), that the English principle has been in existence only since the beginning of the nineteenth century. It should not be regarded, therefore, as part of the substance of the common law. In each of the generations that precceded the modern period, when judgments began to be published, there arose lawyers of the highest standing who recognised the power of the precedent as an authority, but that is no proof that they regarded it as something binding. "Non exemplis sed rationibus adjudicandum est", as it is said in the Yearbook of the reign of Edward II, like Justinian's rule: "non exemplis sed legibus judicandum est'". There is no unanimity of opinion on the question as to when the approach altered. Holdsworth (50 L.Q.R. 180), in contra-distinction to Lewis (loc. cit.) and Allen ("Law in the Making", second edition p. 150), thought that the binding force of precedent was recognised as early as the seventeenth century. For that view, he relies on the sayings of Bacon, Coke C. J., and Hale. On the other hand, Vaughan C. J., strongly opposed the doctrine of binding precedent, as is apparent from his dicta in Bole v. Horton (21):

               

                "If a Court give judgment judicially, another Court is not bound to give like judgment, unless it think that judgment first given was according to law. For any Court nay err... Therefore, if a judge conceives a judgment given in another Court to be erroneous, he being sworn to judge according to law, that is, on his own conscience ought not to give the like judgment, for that were to wrong every man having a like cause, because another was wrong before."

 

                However, even Coke, who saw in the precedent evidence of a rule of law, made one reservation to this doctrine:

               

                "First, whatever is against the rule of law is inconvenient. Secondly, an argument ab inconvenienti is strong to prove it is against Law... Thirdly, that new inventions .. .are full of inconveniences."

 

                Only in the eighteenth century, particularly as a result of Blackstone's influence, was the doctrine of binding precedent adopted in all its severity, though even he and his contemporaries, in the spirit of their age, would not accept as "law" a rule which ran counter to "natural" justice.

               

                There is no need to multiply illustrations from English history nor to demonstrate that many of the greatest legal philosophers, among them Bentham and Austin, criticised the doctrine of precedent. The material may be found in the places cited above. It is more important, for the purposes of our case, to examine the criticism levelled in our own times against the English principle, in the main by Professor Goodhart in his well-known article in 50 L.Q.R. 40, on "Precedent in English and Continental Law." I do not want to set out here all the reasons with which Professor Goodhart repudiated the view current in England, that the English system is better than the system in force in other countries. In my opinion, Professor Goodhart has succeeded in showing that the doctrine of "the binding precedent" in its strict form not only does not advance the development of the law, but actually impedes it; that it is bound to render legal deduction formalistic; that it does not even possess the advantage of convenience, especially when the publication of judgments is unsatisfactory; that it is unable to preclude personal inclinations on the part of the individual judge; and last but not least, that even for the sake of certainty there is no particular need to endow a precedent with binding effect, as distinct from merely authoritative force. Passing from English to Israeli legal literature, we have before us the enlightening article of Professor Tedeski on the Rule of Precedent in Palestinian law, in his book "Researches into the Law of Our Country", 1953, with its criticism of the English system and its proposal that we should not adopt this system in our State.

               

                Professor Glanville Williams, the editor of Salmond on Jurisprudence, tenth edition, at p. 196, sums the matter up in this way. He distinguishes between two meanings of the doctrine of precedent: between its loose meaning, that is to say, that precedents are published and quoted and it stands to reason that the courts will follow them; and its strict meaning namely, that precedents not only possess great authority, but that the courts are obliged (in certain circumstances) to follow them. The first is the one that prevailed in England until the nineteenth century, and it is still the only sense in which it is accepted on the continent of Europe. The second meaning developed in England during the nineteenth century and was improved upon in the twentieth century. Continuing, Professor Williams says:

               

                "Most of the arguments advanced by supporters of "the doctrine of precedent", such as Holdsworth, will be found to support the doctrine in the loose rather than in the strict meaning, while those who attack it (such as Professor Goodhart) attack it in its strict and never in its loose meaning. Thus the two sides are less at variance than would appear on the surface. The real issue is whether the doctrine of precedent should be maintained in its strict sense or whether we should revert to the loose sense.There is no dissatisfaction with the practice of citing cases and of attaching weight to them; the dissatisfaction is with the present practice of treating precedents as absolutely binding. In favour of the present practice it is said that the practice is necessary to secure the certainty of the law, predictability of decisions being more important than approximation to an ideal; any very unsatisfactory decision can be reversed for the future by statute. To this it may be replied that pressure on Parliamentary time is so great that statutory amendment of the common law on an adequate scale is not to be looked for; also our experience of statutory amendment in the past has not been happy."

 

                Finally, Professor Williams seeks a compromise between the two opinions. He suggests that the binding force of precedent be done away with, to the extent that it has been created by the same court or by another court of the same instance, and to maintain it only in relation to superior courts.

               

                I feel that we, too, in this court would be well advised not to be bound by the doctrine of precedent in its strict sense. As I have said, I am not afraid that chaos and other kinds of disorder will result. The Israel judge can be expected to know how to respect an authority and not to depart from an established rule save in exceptional cases. I am not unaware of the need for certainty in the law, but I am not prepared to purchase certainty at the price of justice. Smoira P., spoke against precedents for the sake of precedent, when he said, in Rosenbaum v. Rosenbaum (14): "If I have to choose between truth and certainty, I prefer truth" - and not only in relation to precedents from the period of the Mandate. The doctrine of the binding force of precedent, which is not followed by the majority of peoples, is a strange importation into Israel. It has been said: "The judge has only what his own eyes see". And it seems to me that in our young State, the points of criticism that I have quoted above apply with greater force. We stand at the threshold of our development as a nation and as a society, and there is still a long road for us to tread before we reach a final form for our jurisprudence, and the shaping of the law in Israel. In such a situation one needs, sometimes, to look afresh at the rules, even if they have been but recently established and even if the conditions of our life cannot be said to have altered in the meantime. Accordingly, the doctrine of precedent, in its strict and uncompromising sense, is not only not essential at this hour, but on the contrary, is likely to hamper our progress. And let us not forget that the system of binding precedent should not be applied without all the technical means which we still lack, such as an improved system of law reporting and the legal reporting of every precedent, thus rendering it easier for the judge and the advocates pleading before him to find all the relevant authorities. As for legislation, which the supporters of the binding precedent rely upon so heavily, it has more than once happened with us that this has been somewhat tardy in amending results which in any reckoning were undesirable, and in the result the litigant was the loser in both events. In the present case, what shall we recommend to the legislator to amend?

 

                My colleague, Berinson J., feels that in matters of policy, the minority is obliged to march with the majority. My answer to that is that in judicial matters the judge has no allegiance save to the law. Since my colleague, too, disagrees with the ruling in Zeroubavel's case (4), I feel that it would have been proper to accede to the applicant's petition.

               

OLSHAN P. It was decided at the time of the hearing, by a majority, to dismiss the petition for an order nisi. This was decided in view of the many judgments in which the rule in the matter under review was established. After reading the reasoned judgment of Witkon J., who was in the minority, I am prompted to make certain remarks.

 

1. The doubt expressed by my learned colleague as to whether in fact the rule in the matter under review was finally established in the judgments mentioned in the majority decision is, with all due respect, unfounded. Since the decision in Zeroubavel's case (4), there has not been a single instance in which an order has been made absolute on the merits of the case, and no instance is to be found in which the court decided on the merits of the case without taking into account the ruling in Zeroubavel's case (4), namely, that the High Court of Justice will interfere with the decision of the Appeals Tribunal only where a question of jurisdiction arises. If at times this court has expressed its opinion on the merits of the case and has given its opinion on the Appeals Tribunal's reasons, that was because this court was saying, "that even on the merits of the case, the petitioner has failed to make out a case". This has happened mainly in those cases in which a discussion might have arisen over the question whether the Appeals Tribunal's decision indirectly involves the contention that the Appeals Tribunal did not have the jurisdiction to decide what it did. It sometimes happens that it is impossible to determine whether a certain question is one of jurisdiction without "looking into the Appeals Tribunal's reasons", and such a case does not prove that the court decided to ignore the aforementioned rule.

 

2. My learned colleague mentions the "opinion" of Dr. Feldman and quotes the Appeals Tribunal's decision. Dr. Feldman, the doctor who examined the petitioner privately, conveyed in his letter the details given him by his patient, and the Appeals Tribunal (two of the members of which were doctors) was entitled to regard Dr. Feldman's diagnosis as based mainly on the information given him by his patient. It is very doubtful, therefore, whether the petitioner would have obtained the order nisi asked for, even were it not for the rule laid down in Zeroubavel's case (4), and the decisions which followed it.

 

3. My learned colleague raises once again in his judgment the old problem with which many lawyers in the world are grappling, namely, whether to accept or reject the principle of the binding force of precedent. There is no doubt that the problem is important, and there are two sides to it. The question is which system is to be preferred. The solution to the problem cannot, in my opinion, be universal and it depends upon the situation and conditions of the State in which this problem arises. Even in Continental countries where, from the theoretical point of view, the principle of the binding force of precedent does not exist - even there, the principle is applied in fact, though its field of application is more restricted. In those countries there is a codification of laws and the need to refer to precedents is in any event more restricted than in those countries where the material law is built on something resembling the common law or the law of equity in England and where there is no codification.

 

                I do not wish to go into any further detail on that subject because, with all due respect to my learned colleague, the weak point in his judgment is his disregard for the judgment handed down by a bench of five judges of the Supreme Court in Ramm's case (13). in which it was decided that the court is bound by its decisions, except in certain cases.

 

                Of course, from the point of view of simple logic, my learned colleague is caught in a "vicious circle" and is forced to the conclusion that that judgment does not bind him either, for if no judgment possesses binding force, by what right is that judgment to be considered as binding? Is it because of the fact that the court was composed of five Supreme Court judges or because of the fact that almost every Supreme Court judge accepts the correctness of the rule laid down there?

               

                It will be noted that my learned colleague does not attempt to bring the case under discussion within the scope of those exceptional cases, such as were laid down in Ramm's case (13), where the court is not bound by precedent. He refuses to follow the rule established in Zeroubavel's case (4), and the judgments that followed it, for the sole reason that in his opinion the rule there established is fundamentally erroneous. Instead of recommending an immediate amendment by the legislature of what he regards as "an injustice", he goes further and sets at nought the decision given in Ramm's case (13), in the matter of the binding force of precedent.

               

                With all due respect, in spite of the fact that, from the point of view of "the vicious circle", this is logical and consistent, it seems to me to be somewhat like imposing a minority opinion on the majority.

               

                A bench of three judges sat in this case. What would have happened if on the merits of the case and also on the question of the binding force of precedent one more judge had joined him, and my learned colleague had not been in the minority but in the majority. Which judgment would have been binding: the judgment in Ramm's case (13) or this latter judgment?

               

                If it be said that neither of them has binding force, in my opinion a chaotic situation would be created; for these two Supreme Court judges would acquire a preferential status, not being bound by precedent, whilst the majority, being in favour of the binding force of precedent, would have to give way to the minority opinion in this matter, for, otherwise, two systems would be in existence in the court, and the fate of cases (in which this problem arose) would be settled according to chance, according to the composition of the court, depending on whether two or three of the remaining judges were sitting.

 

                It may be submitted that such cases, where it is necessary to depart from a ruling established by precedent, are very rare. In principle, and in view of the difficulties that may be caused to advocates and litigating parties - in particular, if the net should be cast wider and courts of other instances should find justification for maintaining my learned colleague's principle (and what is to prevent them?) - it can make no difference whether such cases are rare or common.

               

                The result of accepting the view of my learned colleague would be to create uncertainty, to lengthen the time of hearings and to involve the parties in heavy costs, and who will compensate the citizen for the costs and injury this uncertainty will cause him?

               

                I do not pretend to say that a judge, be he in the smallest of minorities, is bound to keep silent over a legal decision when he thinks that it is "contrary to law", but he is bound to act in accordance with the opinion of the majority. So long as no one judge can be allowed, in a particular matter, to foist upon his colleagues his ideas of justice, that is to say, so long as there exists no way of one judge forcing his colleagues to prefer his ideas of justice to their ideas of justice - otherwise than by way of persuation - because the legislator alone is in a position to determine whose opinion  is preferable, no question of acting contrary to his conscience is involved. Whenever the minority's reasons are not sufficiently persuasive to be acceptable to the majority, there is no other way, in the absence of a decision by the legislator, save to act in accordance with the majority opinion.

               

                Insofar as there are grounds for holding that the principle of the binding force of precedent was introduced into this country through Article 46 of the Order in Council,1) and insofar as this rule was also established in judgments from the time of the Mandate, Ramm's case (13), which confirms that rule, should not be regarded as a judgment serving only as a "signpost"; and so long as the legislator has not yet abolished that principle, there is an obligation to abide by it, and not to ignore it on account of reasons which in any event create an artificial vicious circle.

 

                I would go even further: assuming that in the past the principle  of "the binding force of precedent" had not yet existed in this country and that the problem arose before the Supreme Court now for the first time; and assuming that by a majority of seven against two, a rule (or let us call it even a "signpost") were established in that connection, it seems to me that such a decision ought to bind everyone in the future, so long as the legislator has not intervened in the matter, and has not altered the decision by means of a clear legislative act.

               

BERINSON J. On the hearing of the petition, I shared the learned President's view that we must dismiss it for the simple reason that we are bound by what was decided by this court in Zeroubavel's case (4).

 

                The binding force of the precedents of this court on this court itself - and, it need hardly be said, on all other courts in the State - was established recently after exhaustive consideration in Ramm's case (13), by a bench of five judges, myself among them. Notwithstanding the dissenting and instructive opinion of my learned colleague Witkon J., my belief in the soundness of that decision is unshaken.

 

                Obviously, one must read the judgment in Ramm's case (13) in its entirety. The rule that we are bound by our previous judgments is subject to several important reservations that were mentioned in that judgment, and they are not exhaustive, since they are but "signposts" for the course along which we shall march in the coming years."

               

                However, my learned colleague does not attempt to bring the present case within the scope of one of those exceptions, and does not even attempt to create a pigeon-hole for an additional exception, but rather makes a frontal attack on the very principle of the obligation to follow our previous decisions. Although, for myself, I should not so much fear to follow the road that Witkon J. recommends, I prefer the system of binding precedent for the self-same reasons that were explained in our judgment in Ramm's case (13).

               

                Furthermore, I feel that once such a decision has been reached my learned colleague, too, must harness himself to the yoke of precedent, not only because one must follow the majority, but mainly because membership of this court requires it, for it is clearly out of the question that there should be a majority policy and a minority policy in this court at one and the same time. Fundamentally, we are dealing here not with a controversy on the true interpretation of some point of law, in which each judge may decide to the best of his conscience and legal understanding, but with a question of policy, and in such circumstances I think that, having expressed its independent view, the minority has no choice but to abide by the rule in the future, and go along with the majority.

 

                And now, to the substance of the rule that was laid down in Zeroubavel's case (4). In that case it was decided that there was no jurisdiction in this court to control the activity of inferior tribunals by means of an order of certiorari in matters arising out of appeals to the Appeals Tribunal under the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 1949, because in that Law it was enacted that "the Appeals Tribunal shall give reasons for its decision" and that "the decision of the Appeals Tribunal shall be final."

               

                At the hearing of the petition, I openly expressed my doubts as to the correctness of that ruling and the more I have examined  and considered and probed into the matter since then, the more strongly am I of the same opinion. With all the respect in which I hold my colleagues, the judges that took part in the decision in that case, and all those who have since followed them without further reflection, have, in my opinion, been quick in reaching their conclusion without hearing full argument on the weighty question then under consideration - the question of the control that this court is empowered to exercise over the Appeals Tribunal acting in pursuance of the Law above referred to. Were I to regard myself as free to decide according to my wish and understanding, I should not hesitate to accept the view of my learned colleague, Justice Witkon, on this question - and these are my reasons.

 

                The jurisdiction of the High Court of Justice to give orders to and control the activities of the various public officials and bodies is wide - I would say very wide; but it is not unlimited. The principal limitations are of two kinds, and both are found in Article 43 of the Order in Council from which the court derives its original jurisdiction. The part of that section relevant to the present matter provides as follows:

               

                "The Supreme Court, sitting as a High Court of Justice, shall have jurisdiction to hear and determine such matters as are not causes or trials, but petitions or applications not within the jurisdiction of any other Court and necessary to be decided for the administration of Justice."

               

                The question that comes before the court in each case is, therefore, two-fold: is the court's intervention required at all in the particular case, because the petitioner cannot and his remedy in an other place? And if so, is the intervention required for the administration of justice?

               

                The second question is fundamentally a subjective one, because it depends on the discretion of the court. True, that discretion must be exercised in accordance with law and not be arbitrary or capricious, and over the years the court has itsef made reservations and set limits to its exercise. Nevertheless, the question remains, as before, fundamentally subjective, its exercise one way or the other in each case depending in no small measure on the disposition of the court to extend or limit its control over the activities of the administration, including the various administration bodies and tribunals.

               

                Far be it from me to ignore the limits set to the jurisdiction of this court by the law and by its own past decisions, or to minimise the importance and extent of the practical difficulties standing in the way of the court in exercising efficient control over the detailed actions of those who perform their duties by virtue of the law of the land. I agree with what the learned President said on another occasion, that this court will not usurp the functions of Government. But at the same time, I think that it would be a mistake if this court were disposed to divest itself little by little, as if that were its intention, of the power and jurisdiction that it has taken upon itself till now, on account of some unspecific and general observation in this or that law. The High Court of Justice has, in the course of time, come to be the citizen's main, if not his sole, defence and protection in his relationship with the administration. Let us not rock and shake with our own hands the bough on which we sit and from whose heights we supervise the legality and fairness of the administration's activities, unless there is clear legislative authority to do so.

               

                The legislator is supreme. He can give and he can take away. The jurisdiction that he has bestowed on the court in one law, he can, if he so wishes, abrogate in another law, and we must comply with his wishes. That indeed is the only question that fell to be decided in Zeroubavel's case (4): does the provision in the Fallen Soldiers' Families (Pensions and Rehabilitation) Law concerning finality of the Appeal Tribunal's decision reveal a clear intention on the part of the legislator that such a decision shall no longer, on the merits, be subject to the consideration and review of this court? When I read the many authorities on the matter in Israel and in England, it seems to me that the only conclusion is that no such intention appears.

               

                It has been stressed in the past that the jurisdiction of this court is not identical with the jurisdiction of the High Court in England in controlling the activities of officials and legal and administrative bodies. But if there is no identity, there are certainly parallels to be drawn between the two jurisdictions and though there is a difference in their origin and scope, there is no fundamental distinction in their content and nature. Accordingly, I see no reason why our jurisdiction should be curtailed in a manner different from that of the corresponding jurisdiction of the High Court in England, simply because the one - ours - is derived from written law, and the other - that of the High Court in England - is derived from the common law. It seems to me that the same rule should apply in both cases to the restriction of this jurisdiction by an enactment.

               

                The English rule in this respect has been established and maintained for centuries, and it is that the court's jurisdiction to issue an order of certiorari is not ousted by a written Act, unless there are express words of ouster, and a mere provision in the Act that a tribunal's decision shall be final does not suffice. See Halsbury, Hailsham  edition, Vol. 9, p. 861, section 1455, and the judgments there cited, starting in 1686 and continuing to our own times, for ex¬ample: -

               

                R. v. Plowright, (1686), (22);

                R. v. Morely, (1760), (23);

                R. v. Jukes, (1800), (24);

                R. (Rooney) v. The Local Government Board for Ireland, (25), at page 354.

               

                A Palestine case, Krubi v. District Officer, Jaffa (2), from the period of the Mandate decided that a legislative provision laying down that a tribunal's decision shall be final does not oust this court's jurisdiction under Article 43 of the Order in Council.

               

                This rule is part of the heritage of the courts in England and in Israel - and, as we shall see later on, also of the courts in the United States and, above all and in particular, in France, the cradle of administrative law; and its effect is neither determined nor exhausted except by a clear and express legislative enactment. Only when the legislator reveals his intention in clear and unequivocal language, that it desires to exclude a certain administrative act from the scope of judicial review, will the court respect that intention. But the existence of such an intention is not to be presumed or implied; on the contrary, the usual presumption is that judicial review is desirable, and the legislator is taken not to intend to diminish or put an end to it in any particular matter, except where there is an explicit enactment.

               

                Accordingly, when it is laid down in a law that a certain decision "shall be final and shall not be the subject of legal proceedings in any court whatsoever" (as is set out for example, in section 8(3) of the Registrars Ordinance, 1936), or that "no Court... shall be able to annul or alter an order made by the proper authority..." (as is set out, for example, in Regulation 18 of the Emergency Regulations (Repair of War Damage in Houses), 1949), only in such cases will a court stay its hand and decline to intervene. Even in such cases the court has retained for itself, and rightly so, the power to intervene whenever the official exceeds or the tribunal concerned exceeds the limits of its jurisdiction, or acts without jurisdiction, because a condition precedent to the exercise of jurisdiction has not been fulfilled, or because some fact, which in terms of the law is essential to the exercise of jurisdiction, has not been established (See Shlomiof v. Appeals Tribunal (15), and Sifri v. Acting Registrar, Jerusalem District Court (16)).

 

                That is not all. In its justified concern for the exercise of judicial review of one kind or another of the acts of inferior administrative or legal tribunals, the High Court in England sought and found other means, approximating and similar to the writ of certiorari, whenever the traditional means of the true writ of certiorari according to the common law were taken away from it by a statutory provision. In Halsbury, Hailsham edition, Volume 9, p. 863, the following illustration is given in note (r):

               

                "By Statute (1827), ...it was provided that no indictment for obtaining money under false pretences should be removed by certiorari. By (another statute), power was given to the High Court.... to remove indictments from sessions in London or Middlesex, 'by certiorari or otherwise', into the Central Criminal Court..., and it was held in R. v. Sill, supra, that an indictment for obtaining money under false pretences might be removed, under the lastmentioned Act, into the Central Criminal Court, inasmuch as the procedure authorised by that Act was not, properly speaking, procedure by the writ of certiorari, but by an order in the nature of certiorari."

 

                If such is the case in England, how much more so is it with us, where our hands are not tied to issuing only traditional prerogative writs, and where we possess the widest discretion to intervene in any case where justice so requires. In this respect our position is better than that of the High Court in England. Our jurisdiction is wider, and when occasion demands we are unquestionably entitled to intervene by virtue of Article 43 of the Order in Council and grant an appropriate remedy even where the High Court in England is powerless to do so. A fortiori, we ought to do so in a case where even in England the court, in spite of a general provision in an Act that the decision of a tribunal shall be final, would grant the writ unless there is an express provision in the Act by which the jurisdiction of the court is excluded.

 

                I fail to see in what way the position is altered by the obligation imposed on the Appeals Tribunal to give reasons for its decision. On the contrary, by its giving reasons, the court is enabled more easily to investigate the nature of the decision and to examine its legality and the legality of the proceedings that took place before the Tribunal. I should have said that the requirement to give reasons not only does not derogate from the usual powers of the court, but on the contrary strengthens its hand, and provides a firm foundation for carrying out an efficient judicial review of the Appeals Tribunal's actions and decisions. At all events, I have found no authority for the view that the obligation to give reasons by an administrative tribunal, even when accompanied by a provision that the tribunal's decision shall be final, is sufficient to take away jurisdiction from the court. I have found exactly the opposite. The very basic object of the writ of certiorari is to review judicial decisions, both of administrative tribunals and of inferior courts in the ordinarily under¬stood sense of the word, and it is a well-founded rule written or unwritten - that a court must give reasons for its decision. In England, there is nothing to prevent a case in an inferior court, whose decision contains reasons and is prima facie final, from being brought up for scrutiny in the High Court, by means of a writ of certiorari.

               

                As far as I am aware, the courts in the United States, and even more so, those in France, adopt the same method, as is explained in Schwarz' book, "French Administrative Law and the Common Law World"; see in particular pp. 155, 157, where two typical instances are cited, inter alia, one from the United States and one from France, and I think it right to mention them briefly here, in order to demonstrate the approach of the courts in those countries to the problems confronting us.

               

                In the case of U.S. ex. rel. Trinler v. Carusi (27), the person authorised under the United States Immigration Act 1917, issued a deportation order against the petitioner Trinler. It was provided in that Act that such a decision shall be final, 'but when the matter was brought before the court on a petition of habeas corpus, the majority of judges said, at p. 461:

               

                "While it night look as though judicial review were precluded by the giving to the deportation order the air of finality, in practice such finality never existed because of the availability of habeas corpus."

 

                In France, the Conseil d'Etat, which is the supreme authority in administrative matters, adopted a similar and much more stringent attitude. In the case in question. Lamotte (28), it was laid down by law that the authority's decision to grant licences "shall not be the subject of administrative or legal proceedings". Nevertheless, the Consail d'Etat decided that that did not suffice to exclude its jurisdiction to examine the matter anew. The learned author adds a comment of his own, saying (ibid., p. 157):

               

                "'Thus, even in a system based on the absolute sovereignty of the written law, the dangers inherent in administrative conclusiveness have led the Courts to refuse to give literal effect to provisions precluding review."

               

                In the light of all that has been said above it seemed to me that in the case before us, the petitioner's road to this court was still open. Were it not for the previous decisions of the court, which I regard as binding upon me, I should have said that the petitioner ought to be granted the order nisi he asks for.

               

                I shall add but one word more, and it seems to me obvious. In my opinion, the decision in Zeroubavel's case (4) is binding only in relation to the law under consideration there, and to any other law of a similar nature in every way. I emphasize the words "in every way", and not only in the sense that it contains a provision concerning the finality of a decision and the requirement of giving reasons. I imagine that the court that sat in that case could not do otherwise than attach special signfficance to a number of specific features in that law which - so I presume - influenced, consciously or unconsciously, the attitude adopted there, such as the first that the proceedings do not end with the findings of a tribunal of first instance, and that an Appeals Tribunal exists, presided over by a professional judge. It may be that in the absence of an Appellate Tribunal and with a different composition of the tribunal of first instance, the court might well have reached the opposite conclusion.

               

                Application refused.

                Judgment given on April 6, 1955,

 

 

 

 

 

 

 

 

 

 

 

 

Petition denied.

20 Adar II 5765.

31 March 2005.

 

 

 

 

 

 

Justice E. Mazza

I agree to accepting the appeal, as proposed in the opinion of my colleague Justice Or.  The approach of my colleague, as to definition of the protected value at the foundation of the prohibitions on “sedition” according to its meaning in section 136(4) of the Penal Code, is consistent with the approach I expressed, in a minority opinion, in the judgment under appeal (see CrimA 6696/96 Kahane v. State of Israel [1] at p. 566 and on); and I also accept the reasons of my colleague on this matter.  On the other hand, I cannot agree to some of the positions of my colleagues, the President and Justice Or, that the realization of the offenses of sedition is conditioned on the existence of a circumstantial element.  In my opinion in CrimA 2831/95 Elba  v. State of Israel [9] I explained at length (at pp. 266-268, 275-276) why the offense of incitement to racism according to section 144B of the Penal Code, does not require proving probability of the occurrence of a harmful consequence to any degree.  For those same reasons I again determined, in the judgment under appeal before us (see: Ibid. at pp. 564-566), that the offenses of sedition also do not include an element of potential consequence, whose existence is to be determined using one probability test or another.  For the reasons stated in the two said judgments, and for the reasons of my colleague, Justice Dorner, in her opinion in the further hearing before us, I am of the opinion, that offenses of sedition do not include a probability element.

 

It was decided by a majority of opinions as per the opinion of Justice Or.

 

29 Kislev 5761

November 27, 2000

 

Editor’s notes: 1.  The Hebrew verb lehasit has been translated as ‘to incite seditious acts’.

2.  Following the judgment in HCJ 8613/98 and the Court’s determination that section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 applies only to sedition by a terrorist organization and does not apply to sedition by individuals, the Ordinance was amended such that section 4(a) of the Ordinance was nullified and in its stead an offense of sedition to violence or terror was established in the Penal Code.

 

CrimFH 8613/96

 

State of Israel

v.

Jabarin

 

The Supreme Court Sitting as the Court of Criminal Appeals

[November 27, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, Y. Kedmi, D. Dorner J. Türkel

 

Petition to the Supreme Court sitting as the High Court of Justice

 

A further hearing on the judgment of the Supreme Court (Justices E. Goldberg, E. Mazza, and Y. Kedmi) in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel on October 20, 1996.

 

Facts: A further hearing on the judgment of the Supreme Court in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel in which the appellant was convicted of an offense under section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 for an article he had published.  This further hearing addresses the question whether the construction of section 4(a) of the Prevention of Terrorism Ordinance requires a causal connection   between the publication of the words of praise, sympathy, or encouragement and the risk of the occurrence of acts of violence pursuant to the publication, for a conviction.  The court further addresses the question whether section 4(a) of the Prevention of Terrorism Ordinance relates only to “acts of violence” of a terrorist organization or to any “acts of violence”.

 

Held: The Court held in an opinion by Justice T. Or that section 4(a) relates to acts of violence of a terrorist organizations and the words of praise and encouragement relate to acts of violence of a terrorist organization.  Justice Or further held that the words and praise and encouragement in the publication which was the subject of the conviction do not constitute acts of violence of a terrorist organization.  Therefore, the Court held that the defendant was to be acquitted of the offense under section 4(a) of the Ordinance.

Justice Y. Kedmi in a separate opinion was of the view that the further hearing should have been denied.  Justice Kedmi agreed with the construction given to section 4(a) in the Elba case [2], as it was adopted by the Justices in the panel in the first hearing of this matter.  Justice Kedmi was therefore of the opinion that the appellant’s conviction should have been upheld.  Justice Kedmi further stated that even according to the narrower construction of section 4(a), the appellant’s conviction should have been upheld as the actions for which the appellant showed support, also meet the requirements of section 4(a) when narrowly construed.   

Vice-President S. Levin in a separate opinion stated his general agreement with Justice Or and disagreed that section 4(a) is to be interpreted as referring to “acts of violence” of a terrorist organization alone, but rather should include the type of violent activity that characterizes terrorist organizations.  In his view the appellant’s article satisfied this definition and therefore the conviction should have been upheld.

Justice E. Mazza in a separate opinion was of the view that the appellant’s conviction should have been upheld and referenced his judgments in CrimA 2831/95 Elba v. State of Israel and in CrimA 4147/95 Jabarin v. State of Israel which was the subject of the further hearing.

 

 

For the petitioner—Dan Yakir

For the respondents —Talya Sasson, Eyal Yannon

 

Legislation cited:

Prevention of Terrorism Ordinance 5798-1948, ss. 1, 2, 3, 4, 4(a), 4(b), 4(c), 4(d), 4(e), 4(f), 4(g).

Penal Law 5737-1977, ss. 136(c), 144B(a), ch. H, sections A, A1.

 

Regulations cited:

Emergency Regulations for Prevention of Terrorism 5708-1948

 

Israeli Supreme Court cases cited:

1. CrimA 4147/95 Jabarin v. State of Israel (not yet reported).
2. CrimA 2831/95 Elba v. State of Israel IsrSC 50(5) 221.
3. HCJ 58/68 Shalit v. Minister of Interior IsrSC 23(2) 477.
4. CrimA 317/63 Tzur v. Attorney General IsrSC 18(1) 85.
5. CrimA 697/98 Susskin v. State of Israel IsrSC 52(3) 289.
6. CA 2000/97 Lindorn v. Karnit, Fund for Compensation of those Injured in Traffic Accidents IsrSC 55(1)12.
7. CrFH 1789/98 State of Israel v. Benyamin Kahane (not yet reported).
8. CrimA 6696/96 Kahane v. State of Israel IsrSC 52 (1) 535.
9. CrimA 401/79 Lamdan v. State of Israel IsrSC 34(4) 46.

 

Israeli books cited:

1. Barak, Interpretation in Law, Vol. 2, Statutory Construction (1993)

 

Foreign books cited:

1. D.E. Long The Anatomy of Terrorism (New-York, 1990).

 

Jewish law sources cited:

1.  Ecclesiastes 8, 8.

 

 

JUDGMENT

Justice T. Or

A  further hearing on the judgment of the Supreme Court (Justices E. Goldberg, E. Mazza, and Y. Kedmi) from October 20, 1996 in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel [1] (hereinafter: “the Jabarin case [1]”).  In the judgment the appellant (hereinafter: “Jabarin”) was convicted of the offense established in section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 (hereinafter: “Prevention of Terrorism Ordinance” or “the Ordinance”) of support of a terrorist organization.  This further hearing revolves around the question of the construction of this offense.  The special importance of the issue stems from its ramifications for freedom of expression, as this freedom retreats within the borders of the deployment of this offense.

The Facts and the Processes

1.  Over the course of the years 1990-1991, Jabarin, a reporter from Umm El Fahm published three articles.  In the third article which, as we shall clarify below, was the only article that remained relevant to our matter, Jabarin wrote, among other things:“Truth be told, I will tell you my friend, that whenever I said: ‘hurray’, ‘hurray’ and threw a stone I was overwhelmed by the feeling that victory was calling us: ‘continue to throw, increase the patience, contribute and insist more, and the dawn will come which you have been awaiting for so long’ I will not deny my friend, that whenever I shouted: ‘hurray, hurray’ and threw a Molotov cocktail I feel that I am adorned in majesty and splendor, I feel that I have found my identity and that I am taking part in defending that identity and that I am a person worthy of leading a respectable life.  This feeling awakens within me beautiful feelings.”Consequent to the publication of the three articles Jabarin was charged with support of a terrorist organization, an offense under section 4(a) of the Prevention of Terrorism Ordinance.  This offense establishes:

“4. A person who:

(a)  Publishes either in writing or orally praise of, sympathy for, or encouragement of acts of violence that may cause the death of a person or his bodily injury, or of threats of such acts of violence;

. . .

will be prosecuted and if found guilty will be liable for imprisonment of up to three years, or a fine of 1000 Israeli lira, or both.”

The Magistrate’s court convicted Jabarin of the offense attributed to him.  Jabarin appealed to the District Court.  His appeal was denied.  The applicant filed leave to appeal to this court and was granted leave as requested.  In the framework of consideration of the appeal, the respondent informed the court that it agrees to the acquittal of the applicant for his conviction as far as it relates to the first two articles he published, however, it supports his conviction as to the third article.  In reliance on the case law decided in CrimA  2831/95 Rabbi Ido Elba  v. State of Israel  [2] (hereinafter: “the Elba  Case”) as relates to the construction of section 4(a) of the Prevention of Terrorism Ordinance, the Court denied Jabarin’s appeal of his conviction for publication of the third article.

Jabarin filed an application for a further hearing on the judgment.  In his decision the President determined that it would be proper to grant the application and hold a further hearing on the question:

“whether the interpretation of section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 requires that there exist a causal connection   -- and if so what is it – between the publication of the words of praise, sympathy, or encouragement and the risk of the occurrence of acts of violence pursuant to the publication.”

On February 16, 2000 we asked the parties to relate, by way of written summations, to an additional question and that is: whether section 4(a) of the Prevention of Terrorism Ordinance   relates to any “acts of violence” or only to “acts of violence” of a terrorist organization.   As far as I have been able to ascertain, this question has not yet arisen and has not been considered until the proceedings in this case.

The Positions of the Judges as to the Construction of Section 4(a) in the Elba [2] and Jabarin [1] Judgments

2.  The further hearing before us in fact focuses on the Jabarin case [1], however, its foundations are anchored in the case law regarding section 4(a) of the Prevention of Terrorism Ordinance   in the Elba judgment [2].  The Elba judgment [2] was handed down by a special panel of seven judges.  The core of the discussion in the Elba case [2] surrounded the offense of incitement to racism established in section 144B (a) of the Penal Law 5737-1977, however it included reference by some of the Justices to the offense we are dealing with.

In the Elba case [2] Justice Mazza determined that the prohibition specified in section 4(a) includes among its elements, a probability potential for risk.  In his view, the phrase “may” that is in the section relates to “acts of violence” and not to the published words.  The expression “the death of a person or his bodily injury” which appears after the phrase “may” was intended only to describe the type of acts of violence.  Justice Mazza determined further that the prohibition specified in section 4(a) is derived from the character of the violent activity and not from its attribution to a terrorist organization.

“For the realization of the offense according to section 4(a) it is sufficient that the words of praise, sympathy, or encouragement relate to the type of activity which characterizes a terrorist organization, meaning ‘acts of violence that may cause the death of a person or his bodily injury, or of threats of such acts of violence.’  However, it is reasonable  to think that not every publication of a word of praise or encouragement for an act of violence which may, by its nature, cause the death of a person,  can constitute an offense according to section 4(a) of the Ordinance (while it is possible it will  constitute another offense).  From the purpose of the Ordinance it ostensibly necessarily arises that only publications which praise or encourage acts of violence of the type that characterize terrorist activity will be included in the framework of said prohibition.  Nevertheless, it is clear that the prohibition also applies to the publication of words of praise, sympathy or encouragement for violent activity of this type, even if the activity is by an individual, or a group that is not identified as a member of a terrorist organization.  Meaning: the prohibition on publication is derivative of the terrorist character of the violent activity, and not from its attribution to a terrorist organization, or from its doers belonging to such an organization.” (para. 44 Ibid. emphasis in the original.)

In conclusion Justice Mazza determines that:

“. . .  the risk that pursuant to the publication defined as prohibited, violent activity will actually take place is not of the elements of the offense.  The presumption inherent in the prohibition is that the very publication of words of support of activity which characterizes a terrorist organization can endanger the peace and security of the public.  We find that the prosecution meets its obligation by proving the publication and that it supports (via words of praise, sympathy or encouragement) the types of activities that are characteristic of a terrorist organization; and it does not have to prove that the publication itself may (at a certain level of probability)  cause violent action” (para. 45 of his opinion).

Justice Goldberg supported the view of Justice Mazza both relating to the attribution of the phrase “may” to “acts of violence” and to the absence of a probability test.

President Barak agreed with the view of Justice Mazza according to which the phrase “may cause the death of a person or his bodily injury” relates to the “acts of violence” and not to the words of praise.  From hence, that even in his view the section does not include within it an element of potential risk of the occurrence of acts of violence pursuant to the publication.  However, and in contrast to Justice Mazza, the President was of the view that the section includes within it, in the framework of the circumstantial element, a probability test.  This test relates to the character of the actions described and its function is to examine whether acts of the type described may cause death or severe injury. The judgment in the Jabarin judgment [1] was handed down about five months after the Elba judgment [2].  Justice Mazza referred to that case and adopted the interpretation given there to section 4(a) of the Prevention of Terrorism Ordinance.  Justices E. Goldberg and Y. Kedmi shared his view.

The Position of the Parties in the Further Hearing 

3.  Counsel for Jabarin claims that the construction the court adopted in the matter of section 4(a) of the Prevention of Terrorism Ordinance is an overly broad construction that does severe and unjustified harm to the foundational principles of our legal system.  According to his claim, the status of freedom of expression, which constitutes a “supra” value in our law, necessitates narrowing the area of deployment of the offense, in order not to harm it more than is necessary.  It is justified to harm this freedom only when there is a probability that a danger is posed from the expression.  As to the degree of probability of the danger, in his view the test of near certainty is to be adopted, a test that was adopted in Israeli case law as the balancing formula that is to be preferred when freedom of expression on the one hand and public peace on the other are placed on the scales.  The respondent, for its part, seeks to adhere to the construction given to section 4(a) of the Prevention of Terrorism Ordinance in the Elba judgment [2] and the Jabarin judgment [1].  Although it makes a point of emphasizing that it is not oblivious to the importance of freedom of expression, nonetheless, in its view, this principle does not have ramifications for the question of the existence of a probability test in the framework of section 4(a) of the Prevention of Terrorism Ordinance and does not constitute grounds for narrowing the limits of the prohibition beyond that which is established in it.  In the balance between the system of values the section protects and freedom of expression, the first prevails.  The State also claims that applying a probability test that analyzes the influence of the words of praise on an audience exposed to it will place an unreasonable, if not impossible, burden of proof on the prosecution.

As for the Court’s question whether section 4(a) is to be interpreted as relating to “acts of violence” of a terrorist organization only, the position of Jabarin’s  counsel is that such construction is indeed consistent with the foundational principles of the system and with the purpose of the Ordinance.  On the other hand, the respondent is of the opinion that giving a narrow definition of the expression “acts of violence” in the section such that it relates to terrorist organizations only, is not consistent with the purpose of the provision in the section and therefore objects to it.

I will preface and say that I reached the conclusion that Jabarin is to be acquitted of the offense according to section 4(a) of the Ordinance.  In my view section 4(a) relates to acts of violence of a “terrorist organization” according to its meaning in the Ordinance (hereinafter: “terrorist organization”) and the words of praise and encouragement for acts of violence that were described in said publication do not satisfy this requirement.  I will preface and explain my rationale for limiting the range of deployment of section 4(a) of the Prevention of Terrorism Ordinance to words of praise, sympathy or encouragement for acts of violence of a terrorist organization.  Following that, I will examine whether the words of praise and encouragement in said publication constitute acts of violence of a terrorist organization.  As said, my answer to this is in the negative.

Attributing the Provision in Section 4(a) to Acts of Violence of a Terrorist Organization

4.  Section 4(a) deals with the prohibition of a publication which relates to “acts of violence that may cause the death of a person or his bodily injury, or of threats of such acts of violence.”   From a textual standpoint, when one reads section 4(a) on its own, the section does not include a limitation according to which the acts of violence mentioned in it include only acts of violence of a terrorist organization or acts which are characteristic of a terrorist organization.  However, my colleague Justice Mazza was of the opinion, as quoted above, that the section is not to be interpreted in such a broad manner, and that according to the purpose of the Ordinance the acts mention in section 4(a) are to be limited to actions and activities which characterize terrorist activity, even if they are done by an individual who is not connected to a terrorist organization.

I accept my colleague’s view that the deployment of section 4(a) is not to be broadened to include any acts of violence which may cause a person’s death or injury.  But, in my opinion, the application of the clause is to be limited further, such that it will apply only to acts of violence of a terrorist organization.  While my colleague is of the opinion that the section deals with terrorist activity, in my opinion it deals with the activity of terrorist organizations.   I will detail my reasoning below.

5.  In construction of a section in a statute it is not sufficient to examine a given statutory provision detached from the overall statute in which it appears.  It is not a “lonely island” which stands on its own detached from its surroundings.  The law is “a creature living within its environment” (Justice Sussman in HCJ 58/68 Shalit v. Minister of Interior [3] at 513).  The proximate environment of the statutory sections is the overall statute within which they are found.  Such a  statute radiates and affects the manner of construction of each of the sections which make it up:

“. . .  the interpreter must review the legislation in its entirety.  The words of Justice Frankfurter are well known that there are three laws to statutory construction: “read the law, read the law, read the law.”  Indeed, the organic unit which the judge interprets directly was not legislated on its own.  It was legislated as part of a broader unit – the entire piece of legislation.  Just as one is not to interpret a section in a literary or musical composition without looking at the entire composition, so too one is not to interpret a provision in the law without reviewing the law in its entirety.”  (A. Barak, Interpretation in Law, Vol. 2, Statutory Construction (1993) [10] at p. 308)

When examining the Prevention of Terrorism Ordinance in its entirety it is immediately apparent that the phrase “terrorist organization” is scattered throughout it.  All the offenses established in the Ordinance, including section 4, apart from subsection (a) in it, relate directly to terrorist organizations.  The Ordinance does not make do with dealing with the direct doers of the acts of violence who act on behalf of terrorist organizations.  The prohibitions established in it are directed at the broad foundation of these organizations; it also covers members of terrorist organizations who are not direct partners of the acts of violence and their supporters and accomplices from without.  Reading the Ordinance as one unit reveals a clear and unified picture as to its purpose.  This purpose is dealing with terrorist organizations with the goal of eliminating them.

The purpose of the Ordinance also radiates on identification of the purpose of section 4(a).  Indeed, section 4(a) according to its text, when it is examined on its own, does not associate the words of praise and encouragement to the acts of violence of a terrorist organization specifically.   However, when section 4(a) is read as one unit with the rest of the provisions of the Ordinance, it becomes apparent that the offense specified in it is to be related to the context of terrorist organizations.

6.  This conclusion is supported by the language of the margin headings of the sections of the Ordinance.  Most of the margin headings, including the margin heading of section 4, include the phrase “terrorist organization”.  For example, the margin heading of section 2 is “Activity in a Terrorist Organization”; the margin heading of section 3 is “Membership in a Terrorist Organization”; the margin heading of section 4 is “Support of a Terrorist Organization” and the like.  As to the role of margin notes in the framework of statutory construction, it has already been said:

“. . .although it is true that neither chapter headings nor margin headings add or detract as compared with the clear and unequivocal language of the law’s provision itself. .  .  where it arises from the statutory provision itself the possibility of a limiting interpretation which is consistent with the goal that was expressed in the heading of the chapter or the margin heading it is my view that it is proper to interpret the statute narrowly as aforesaid, in particular when it is a matter of criminal law” (my emphasis T.O) (CrimA 317/63 Tzur v. Attorney General [4] at 95 and see A. Barak, supra at pp. 316-321 and references there).

Indeed, the weight of margin headings in legal interpretation is not substantial, but it certainly may shed light on the purpose of legislation (Ibid.).  In our matter the consistent use of the phrase “terrorist organization” in the margin headings of the sections of the Ordinance, strengthens the construction according to which the Ordinance overall deals with overcoming terrorist organizations.

7.  Even the analysis of section 4, including all of its alternatives, supports this conclusion.  As said, the margin heading of this section is “Support of a Terrorist Organization”.  Indeed, all of its subsections, apart from subsection (a), deal with a type of support of a terrorist organization.  It prohibits support of a terrorist organization by way of publication of words of praise, sympathy or encouragement of its acts of violence.  The section does not deal with publication of words of praise, encouragement or sympathy for acts of violence which are not attributed to such an organization.  In short, the protected value in section 4 is the prevention of support of a terrorist organization, and this as part of the overall layout of the Ordinance, whose purpose is elimination of the foundation of these organizations.

It should be noted in this context that even in the text of section 4(a) there is a hint to the fact that the publication of the words of praise, sympathy or encouragement dealt with within it relate to acts of violence of a terrorist organization.  The section deals with publication of words of praise, encouragement or sympathy for “acts of violence which may cause the death of a person or his bodily injury”.  The definition of terrorist organization in section 1 of the Ordinance is “a group of people that in its operations makes use of ‘acts of violence which may cause the death of a person or his bodily injury’”.  Section 4(a) uses the very same words which constitute the backbone of the definition of “terrorist organization” in section 1.  This rationale also provides support for the argument that the legislator specifically directed section 4(a) of the law at words of praise, sympathy or encouragement for violent activity of a terrorist organization.

8.  The conclusion that the provision of section 4(a) relates to encouragement of acts of violence of a terrorist organization is only strengthened when one examines the historical background and the legislative history of the Ordinance.  The Prevention of Terrorism Ordinance was legislated under the dark shadow of the murder of Count Bernadotte, representative of the United Nations Assembly and his aide Colonel Serot in Jerusalem on September 17, 1948.  This murder hastened the legislation of the Ordinance, but its legislation had a broader background which was the attempt of the provisional government, after the government was established, to bring about the disbandment of the Jewish underground.  Several days after the murder, on September 20, 1948, the Emergency Regulations for Prevention of Terrorism 5708-1948 were passed.  On September 23, 1948, members of the Provisional Council of State gathered for their 19th meeting, in the framework of which said regulations were repealed and replaced with the Prevention of Terrorism Ordinance.  The meeting was opened with the notice of the then-Prime Minister, David Ben-Gurion, as to the murder and a sharp condemnation of the act (see: Minutes of the Meeting of the Provisional Council of State of September 23, 1948, The  Council of the Nation and the Provisional Council of State, Minutes of Discussions, Volume A at p. 31).  From this notice, detailed below we learn of the purpose for which the Prevention of Terrorism Ordinance was passed:

“After consulting with several members of the government – those members that I could reach on Friday evening and Saturday morning – I approached the Ministry of Justice, to immediately prepare emergency regulations against terrorist organizations, according to which it would be possible to punish not only those who commit acts of terrorism – for this the existing laws suffice – but also members of the terrorist organization, even if they themselves do not participate in the terrorist act, and their helpers, and those encouraging them with money, propaganda or other assistance.

On Saturday night the government convened at the Ministry of Defense, heard a detailed report from me as to these activities and decided to proceed with them with full vigor, until the criminals will be caught and brought to justice and the terrorist organizations uprooted.  The government dealt that evening with the proposed Emergency Regulations against Terrorist Organizations, prepared by the Ministry of Justice, ratified it in principle, and assigned a committee of three ministers to draft a final draft for publication in the Official Register as an emergency regulation.  The government weighed whether to delay the publication until the meeting of the Council of State and reached the conclusion – that delay would be wrong and that immediate action was necessary, and it was to publish the regulations within the authority it had, as emergency regulations, however, with the convening of the Council of State the government submits the regulations for the Council’s approval so that the regulations will be made into an ordinance on behalf of the Council of State.” (Emphases mine-- T.O.).

From these words it arises that the Prevention of Terrorism Ordinance was legislated in order to combat the phenomenon of terrorist organizations.  This historical background strengthens the conclusion I reached according to what is said in the Prevention of Terrorism Ordinance overall, that the Ordinance deals exclusively with offenses which relate to terrorist organizations.

9.  The conclusion I reached clarifies and provides a satisfactory explanation for the severity of the criminal prohibition established in section 4(a), a prohibition that contains an infringement on freedom of expression.  When this section is examined detached from its legislative environment and from its historical and legislative background, the impression is created that the infringement on freedom of expression is severe and disproportionate in its degree.  However, this first impression changes, when the section is examined against the background of its context the purpose is understood and the borders of its deployment are clarified.  The prohibition specified in section 4(a), as the rest of the prohibitions in the Ordinance, was intended to defeat the foundation of terrorist organizations.  Against the background of the special severity of this risk, the legislator was of the view that it would be proper to go even further and to also consider publication of praise for violent acts of a terrorist organization as an offense, even if they were done in the past, and even if the publisher of the words of praise is not a member of such an organization himself and does not pose a danger himself.  Moreover, and this is to be emphasized, the section does not require the existence of potential for the realization of any harm as a result of the publication.  One can become accustomed to such a prohibition in a democratic society, although it contains a significant infringement on freedom of expression, when we are dealing with terrorist organizations, with the great and unique risk they embody.

10.  The respondent is aware of the historical background for legislating the Ordinance, but according to its claim, the language of section 4(a) enables its interpretation in a manner that does not limit the prohibition established in it to the description of violent acts of a terrorist organization, and in its view, such an interpretation is more desirable.

As for the language of the article, it is the claim of the respondent, that from review of section 4 one can reach a conclusion opposite to the one reached above.  First, as opposed to each of its subsections, in subsection (a) it is not explicitly noted that the prohibition specified in it refers to a terrorist organization.  From this it can be concluded that there was no intention to limit what was said in it to acts of a terrorist organization.  Moreover, the respondent also claims that limiting the scope of section 4(a) to describing acts of violence of a terrorist organization, will in fact make superfluous the prohibition found in it as this prohibition is covered by other alternatives in section 4.  For example, section 4(b) establishes that a person will be charged with an offense who:

“publishes, in writing or orally, words of praise, sympathy or calls for help or support of a terrorist organization.”

It is the claim of the respondent, that words of praise, sympathy or encouragement for undertaking acts of violence by a terrorist organization are included within this general prohibition of publication of words of praise and encouragement of a terrorist organization.  This act is in its view also covered by section 4(g) of the Ordinance which establishes that a person will be charged with an offense who:

“commits an act that contains an expression of identification with a terrorist organization or sympathy for it, by waving a flag, presenting a symbol or a slogan or voicing an anthem or slogan, or any similar expressive act which clearly reveals such identification or sympathy, and all this in a public place or in a manner that people who are in a public place can see or hear this expression of identification or sympathy.”

Such arguments are to be rejected.  First, the argument according to which the interpretation which bounds the definition of section 4(a) to a terrorist organization, makes the prohibition established in it superfluous, is not to be accepted.  The distinction between the prohibitions established in the various alternatives of section 4 is clear.  The prohibition specified in subsection (b) prohibits publication which contains words of praise, sympathy or calls for help or support of a terrorist organization.  On the other hand, subsection (a) relates to a publication which contains words of praise, sympathy or encouragement of violent acts of a terrorist organization.  The emphasis is on acts of violence of a terrorist organization, and not the terrorist organization itself.

Second, as to section 4(g), from review of the case based description of the type of activities it applies to it is apparent that the section deals with expressions of support and identification via symbolic means, such as anthem, flag waving, slogan and the like (see on this issue CrimA 697/98 Tatiana Susskin v. State of Israel [5] at para. 35). It does not deal with a publication that contains direct literal support of acts of violence of a terrorist organization.

Third, indeed the language of section 4(a) itself can also be interpreted as applying to the type of violent activity that defines terrorist organizations, or even to any violent activity and not necessarily the violent activity of terrorist organizations.  As I noted in the beginning of my words, from a textual standpoint, this possibility is not to be ruled out.  However, as explained above, this interpretation is not consistent with the purpose of the Ordinance, its margin headings, its historical and legislative background and the alternatives of section 4.

11.  According to the respondent’s claim, it is desirable to dismiss the interpretation that limits section 4(a) to publication of words of praise for terrorist acts of a terrorist organization alone also for the reason that it leads, in its view, to an unwanted result.  The respondent brings as an example in support of this argument the fact that the publisher, for example, of words of praise for the massacre at the Cave of Mahpelah or the murder of Prime Minister Yitzhak Rabin, could not be charged with an offense according to section 4(a) of the Prevention of Terrorism Ordinance, and this because these terrorist acts were not carried out by agents of a terrorist organization but by individuals.  In this context, the respondent emphasizes that the reality in Israel proves that the threat that is posed from individuals is no less tangible than the threat posed by organized groups.  In its view, the special importance of section 4(a) of the Ordinance is to be understood in light of this reality.  The prohibition on publishing publications which incite to severe acts of violence on an ideological background, established in section 4(a) of the Ordinance, constitutes a central tool in the effort to prevent terrorist acts in general and those by individuals in particular.  Its importance stems from the fact that its task is to prohibit these seditious publications and thereby prevent an atmosphere which grants the lone damaging person the necessary support to carry out the terrorist act.  In the view of the respondent, accepting the proposed interpretation will leave the prosecution without the tools to cope with the phenomenon of incitement by individuals to commit severe acts of violence with terrorist characteristics.

The respondent proposes to adopt the view of Justice Mazza, which was expressed in the Elba judgment [2] and the Jabarin judgment [1], according to which within the framework of the prohibition in section 4(a) will be included publications which praise or encourage acts of violence of the type that characterizes terrorist activity.  The respondent even suggests a number of central components which make such activity unique in its view, and which distinguish it from “regular” acts of violence.

12.  As I have shown above, the Ordinance was legislated in order to fight against terrorist organizations.  However, the law is that a statute is to be given an updated meaning, in accordance with the changing reality (see A.Barak in his book supra, at p. 264; and see also, for example, CA 2000/97 Lindorn Nicole v. Karnit, Fund for Compensation of those Injured in Traffic Accidents [6] at paragraph 17).  If this is the case, is it not desirable, in the face of the argued change in the character of terrorist activity over time, to walk in the pathway the respondent suggests and broaden the boundaries of the deployment of the prohibition specified in section 4(a) beyond the boundaries originally delineated?  My view is that we are not to do so.  The Ordinance deals with organized terror, and not with acts of violence undertaken by individuals.  It deals with the risk entailed in the joining together of a band of people who undertake in their activities acts of violence which endanger human life.  Organizations of this type, to the extent that they are not cut off at their core, may spread like a cancer in the body of society, and endanger its foundations, and possibly even sabotage the foundations of the regime.  In light of the severity of this risk, primarily during a period of emergency, the use of the severe means utilized by the Ordinance to eliminate this blight is understandable.  I have clarified above, that the special severity of the means utilized  are to be understood against this background, as this is also reflected in the essence of the prohibition established in section 4(a).  Broadening the scope of 4(a) to additional circumstances, which it did not purport to deal with, may destroy the balance established in it, which enables severe infringement on freedom of expression, but only for the purpose of dealing with the extreme phenomenon of terrorist organizations.

13.  As stated, the respondent expresses concern, that accepting the proposed construction will leave the prosecution without the tools to cope with the phenomenon of incitement to commit severe acts of violence with terrorist characteristics, when these are not connected to a terrorist organization.  This claim, to the extent that it reflects the face of reality, indeed is not to be belittled.  However, it cannot change the purpose of section 4(a) which was intended, along with the other offenses established in the Ordinance, to serve as a weapon in the fight against terrorist organizations.  This purpose has not lost its force.  Unfortunately, such organizations have not yet left this world.  Indeed, at the time the Ordinance was legislated it was intended to deal with organizations of a different identity than those we are familiar with today.  A change in times has also brought about a change in the identity of terrorist organizations which constitute a risk to the State.  However, the risk rooted in terrorist organization has remained, and therefore the original meaning of section 4(a) as described above has not faded.

It will be noted, that in existing legislation there exist a number of provisions which may serve the state in its war against the phenomenon of incitement, as the offense of sedition found in Title A of Chapter H of the Penal Law 5737-1977, and the offense of Incitement to Racism established in Title A1 in it.  According to the claims of the respondent the existing arsenal is not sufficient to battle the phenomenon of sedition.  If that is the case, this is a matter for the legislator to address and regulate the prohibition of incitement, in its various aspects.

Based on what has been said above, my conclusion is that the Ordinance only applies to situations in which terrorist organizations are involved.  It does not relate to violent activity, of any type, which has no connection to these organizations.  Therefore, section 4(a) is not deployed over publications which contain words of praise, sympathy or identification with violent acts which were committed by people who are not associated with a terrorist organization.  Limiting the scope of section 4(a) in such a manner, preserves the balance established in it between freedom of expression and the value protected within it.  This prohibition eliminates the concern of a disproportionate infringement on freedom of expression; the infringement is proportional in consideration of the special risk rooted in terrorist organizations.

The Question of the Association of the Described Acts of Violence with a Terrorist Organization

15.  In our matter, Jabarin published, during the Intifada, an article which expresses support, encouragement and sympathy for the throwing of stones and throwing of Molotov cocktails.  Did Jabarin commit an offense according to section 4(a) of the Prevention of Terrorism Ordinance   with this publication?  My answer to this is in the negative.

In order to establish whether a publication is included within the prohibition established in section 4(a), one is to examine whether the acts of violence described in it, which it praises, encourages or sympathizes, are the acts of violence of a terrorist organization.  Section 1 of the Ordinance defines a “terrorist organization”:

“‘a terrorist organization’ is a group of people that uses in its operations acts of violence which may cause the death of a person or his bodily injury or threats of such acts of violence”

There is no doubt that throwing stones and throwing Molotov cocktails are activities which can endanger human life.  But the question is, does Jabarin’s article, which praises and encourages acts of violence, relate to the acts of violence of a terrorist organization?

The acts of violence of the type described in said article were undertaken, during the course of the Intifada, both by individuals and by organized groups that fall under the definition of “terrorist organization”.  Stones and Molotov cocktails were thrown in a disorganized manner, by individuals including children, who acted independently.  However, these activities were also undertaken by groups with an organized foundation that undertook acts of violence to achieve their goals.  I clarified above, that in order to apply section 4(a) of the Ordinance, it is not sufficient that the acts described in the publication are of the type that characterize terrorist activity, but it is necessary that they be the acts of such an organization.  Does section 4(a) apply to a publication of the type we are dealing with, a publication which praises and encourages acts of violence undertaken both by individuals and by terrorist organizations, and which in itself contains no indication, explicit or implicit, of whose activities it wishes to encourage and praise, and when the emphasis in it is on the acts of violence themselves without any connection to the characteristics of those undertaking them?

16.  It is my view that section 4(a) does not apply to said publication.  The reason for this is found in the purpose of section 4(a).  I clarified above, that its purpose is not to prohibit a publication which encourages, praises or sympathizes with acts of violence of the type which characterize terrorist activity.  It is intended, as are the rest of the alternatives of section 4, to prevent support of terrorist organizations, and this as part of an overall system in the Ordinance whose purpose is to eliminate the foundation of such organizations.  In order for a publication to be included in the framework of section 4(a), it is necessary, in my opinion, for it to be understood from it that it supports acts of violence of a terrorist organization.  Indeed, it is not necessary that the publication contain explicit reference to such an organization.  It is sufficient that it be implied from it that it supports violent activities undertaken by it.  For example, a publication which praises acts of violence without relating to those undertaking it, when it is known to all that a terrorist organization is behind the act, will fall within the framework of section 4(a) of the Ordinance.  However, a publication which praises and encourages acts of violence, from the content of which it is not to be understood that it is intended to support a terrorist organization, but the emphasis in it is on the acts of violence itself, without connection to the characteristics of those undertaking them, does not fall within the prohibition established in section 4(a).

In our matter, the publication includes words of praise and sympathy for acts of violence of the type of throwing of stones and Molotov cocktails.  As said, it contains no indication that it was intended to praise an act of violence of a terrorist organization.  My impression from reading the article is that the emphasis in it is on acts of violence, when the characteristics of those undertaking them do not add or detract.  Moreover, in the major portion of the article, as can also be seen from the section quoted in paragraph 1 above, Jabarin relates to acts of violence that he himself undertakes, or seeks to undertake.  The respondent is not claiming that Jabarin himself is a member of a terrorist organization.  Therefore, words of praise for his actions, or encouragement to act like him, are not included within the framework of words of praise or encouragement for acts of violence of a terrorist organization.

17.  In light of this, my conclusion is that the article does not support a terrorist organization, by means of sounding words of praise and encouragement for acts of violence undertaken by it.  From hence that the publication we are dealing with does not include the required elements for formation of the offense of support of a terrorist organization established in section 4(a) of the Ordinance.

18.  Based on the above, I will propose to my colleagues that the petitioner’s appeal be allowed and that he be acquitted of the charge he was convicted of.

 

President A. Barak

I agree

 

Justice D. Dorner

I agree

 

Justice J. Türkel

1.  I concluded my opinion in CrimA 2831/95 Rabbi Ido Elba  v. State of Israel [2] with the words: “it is said in the book of Kohelet that  “no man controls the spirit—to trap the spirit” [Ecclesiastes 8,8] Let us not hold back man’s spirit.” (Ibid. at 337)

In the view of the respondent’s counsel in the briefs they submitted “there are expressions, and the petitioner’s expression is included among these, that even if perhaps they express man’s spirit it is appropriate to place limitations on this spirit as the entire purpose and goal of that spirit is to incite harm to the spirit and body of other people.”

2.  I go in my way, as in the Elba case [2] and as in CrFH 1789/98 State of Israel v. Benyamin Kahane [7] the decision on which is to be given alongside the decision here.  In my opinion it is proper to narrow, by way of construction, the scope of deployment of the criminal law provisions which infringe on freedom of expression.  As I said in the Elba  judgment “according to my perspective, across the standard at one end of which is absolute freedom of expression and at the other end of which – its prohibition, the balancing point is to be set very close to the first edge.” (Ibid. at p. 331).

Indeed the words that the petitioner wrote in the article that was published, for which he was convicted in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel [1] are deserving of serious condemnation; however, such things are not to be prevented nor is their sting to be dulled, using the authority of section 4(a) of the Prevention of Terrorism Ordinance 5708-1948 (hereinafter:  “the section”).  In the battle for freedom of expression we should not lower our gaze to the close range of the throwing of a stone or hurling of a Molotov cocktail but rather raise our eyes to the horizon of Jewish and Democratic Israel, for which freedom of expression is one of its foundation stones.  Protection of the petitioner’s right to speak his words is not protection of his defamatory words, but it is protection of the right of the person holding another opinion to speak his mind.  Protection of the right of the petitioner is protection of my right to speak my words, to sound the poetry of the poets that speak from my heart, and to cry out my cry of truth.

3.  The construction of my colleague, Justice T. Or, narrows the range of deployment of the section and is favorable in my eyes.  I agree with his view.

 

Justice Y. Kedmi

I read through the opinion of my colleague Justice Or, and unfortunately I cannot agree with his view.  According to my approach, as it will be presented below, the construction that was given to section 4(a) of the Prevention of Terrorism Ordinance in the Elba  case (CrimA 2831/95)[2] – by Justice Mazza – is the proper construction; and I have not found any justification to change it or deviate from it. Two topics are up for discussion in the case before us as to the construction of said section 4(a).  The one, which is the issue for which the further hearing was granted – deals with the question, whether a “causal connection” is needed between the publication of words of praise, sympathy or encouragement of acts of violence, and the occurrence of acts of violence in fact.  And the second -- deals with the question, whether section 4(a) speaks only of publication of words of praise for acts of violence that were committed by a terrorist organization; or whether in its framework are also included words of praise for acts of violence that were committed by private persons not on behalf of a terrorist organization when they satisfy the characteristics of the acts detailed in the body of the article.

As to the causal connection , I accept, in principle, the approach that states: that lacking an explicit statement, noting a prohibited “character mark” of a circumstance – in this case the publication – is not sufficient to convey a requirement for the presence of any particular level of probability of the actualization of that “character mark”; and that there is to be seen in noting the prohibited character mark a requirement which relates to an inherent trait of the circumstance as opposed to its potential to occur.  On this matter see the words of my colleague, Justice Mazza in CrimA 6696/96 [8] in connection with section 136(c) of the Penal Law: “the phrase ‘of a seditious nature’ is directed at the content of the publication and not the degree of probability that the publication will cause rebellion.”

However, when it has become clear that there is no debate that the requirement that the acts of violence which the petitioner’s article deals with, are acts of violence “which may cause the death of a person or his bodily injury” as in their meaning in said section 4(a), I do not find it appropriate to expand on this issue here; and in my view it remains “open for further discussion”.

As to limiting the application of the prohibition established in said section 4(a) to words of praise and encouragement of acts of a terrorist  organization only, I agree with the position that was presented by Justice Mazza in the Elba  case, according to which: this section relates to the publication of words of praise and encouragement for violence of the type that characterizes terrorist activity; and it is of no consequence whether these are committed by a terrorist organization or a private individual not on behalf of such an organization.

From a textual perspective, there are two rationales at the basis of my approach.  The first – the language of said section 4(a) does not include a requirement that the acts which are the subject of the encouragement and praise will be such that they are committed by a terrorist organization in particular; as opposed to all the other subsections of section 4, which speak specifically of terrorist organizations.  And the second – in describing the acts subject to the prohibition established in said section 4(a) – “that may cause the death of a person or his bodily injury, or of threats of such acts of violence”—the legislator repeated, with vigorous precision, the acts which characterize a terrorist organization, as per the definition in section 1 of the Ordinance; when the reference in that definition to a “band of people” as the doers of the actions, was dropped from section 4(a).  This situation teaches, in my approach, that the legislator intended to establish in said section 4(a) a general prohibition on words of praise and encouragement for acts which characterize a terrorist organization; and this – and Justice Or has described this at length – as an exception within its environment, which overall, speaks of the activity of a terrorist organization explicitly.

The language of section 4(a) is not suffering from a textual “failure” which must be healed by way of construction, as is necessitated by the approach of my colleague.  “Omission” of the requirement according to which it is a matter of praise and encouragement for acts “of” a terrorist organization, repeats itself twice:  first in the very absence of the mention of the terrorist organization; and later, in copying the definition of the acts which characterize a terrorist organization without mentioning the doer.  The language of section 4(a) is clear, and deliberately does not include the requirement that the doer of the actions the subject of the encouragement and praise will be a terrorist organization.  Adding the requirement which narrows the prohibition established in said section 4(a) as suggested by my colleague Justice Or, constitutes in the present case, “judicial legislation” as opposed to “construction”.

The result I have reached is not necessitated just from the textual aspect of the version of the provision, as detailed above, but also fits in -- in my approach – with the legislative purpose and the framework in which it is found.  Indeed, as is apparent from the legislative history of the Ordinance, the factor that led to its legislation was the need to create a tool to combat terrorist organizations; and apparently the conclusion is necessitated that section 4(a) is also directed to serve this tool.  However, at the end of the day, the struggle is not with an “organization” as such, but the “activity” for which the organization was set up and which it carries out; and it is not surprising, to see the “intertwining” of a provision which is directed at deterring from “activity” which characterizes the organization, even when this is not carried out by a member of the organization, in its name or on its behalf.  When the final result of the struggle is prevention of “terrorist activity”, we do not see an absence of logic– requiring repair -- in that among the rest of the prohibitions there has also been established a prohibition which speaks directly to preventing “activity” of the type that a terrorist organization carries out.  Prohibition of the publication of words of praise for “activity of a terrorist nature” that was carried out by one who was not a member of a terrorist organization, does not constitute, according to this approach, a “foreign seed” – lacking in logic – in the Ordinance – which is directed at blocking the activity of terrorist organizations.

Aside from and in addition to what is said above – and beyond what is needed – I feel it appropriate to add the following comment.  Even if the language of the provision were to leave room for a restricting definition, I would reject such construction due to the “change of circumstances” since the legislation of the Ordinance; and this by authority of the rule which denies reliance on historical construction which was good in its day and which ignores the development which has occurred in reality.

“legislative history must not control us ‘from the graves’; but we also must not build our legislative structure without roots.  The proper balance between past and future, between knowledge of what was, and knowledge of what should be, is what stands at the foundation of proper use of legislative history in establishing the purpose of the legislation.”  (A. Barak, Interpretation in Law, Volume 2, Legislative Construction, 1993 [13] at p.  351).

The phenomenon of terror has undergone many changes over the years.  In the past, including at the time of legislation of the Ordinance, the phenomenon was focused on activity carried out by terrorist organizations; and the phenomenon of private terrorists – “freelancers” – was in its infancy.  However, today the phenomenon of terrorism has ceased to be the exclusive activity of terrorist organizations; and the role of individuals, who mimic the members of the organizations but act on their own accord, has reached significant proportions.  It is not without reason then, that the definition acceptable to the United States Government for terrorism also specifically includes within it reference to terrorism by individuals.

““Terrorism is the threat or use of violence for polotical [sic] purposes by individuals or groups, whether acting for or in opposition to established governmental authority, when such actions are intended to shock, stun, or intimidate a target group wider than the immediate victims.”  (D. E. Long, The Anatomy of Terrorism (1990) [11] at p. 3; emphasis added Y.K.).

Our State has recently witnessed the harsh dangers embedded in acts of terrorism of individuals – who do not act on behalf of an organization –with the murder of the prime minister Yitzhak Rabin (may his memory be a blessing), in the actions with a terrorist character by someone who was not acting on behalf of a terrorist organization.  The danger embedded within those “unorganized” terrorists is continually increasing and its strength has lately surpassed that embedded in terrorist organizations; experience has shown that the task of foiling the activities of those individual terrorists is particularly difficult given their seclusion.

In such a situation, there is no justification for the distinction between words of praise for violent acts of members of an organization and words of praise for actions of the same type that were committed by those who are not members of any organization; as the purpose of the prohibition is to prevent the existence of activity of a terrorist nature; whoever those carrying it out may be.

And finally, I am not oblivious to the fact that my position as to the construction of the provision of said section 4(a) clashes with the basic right of freedom of expression.  Indeed, such is the face of things.  However, said right is not an absolute right but a relative one; where the legislator gnaws away at it from the authority of the right to life and security while preserving the necessary “proportionality” we must honor its provision.  Said section 4(a) establishes such a provision.

Conclusion

According to my approach, the construction given to section 4(a) in the Elba case [2] is to be left standing as it was adopted by the Justices in the panel in first discussion in the matter before us; and it is not appropriate to intervene in the conviction of the appellant.

As an aside I would like to add that even if the opinion of my colleague Justice Or is accepted, according to which section 4(a) speaks only of words of praise for violent actions “of a terrorist organization” the appeal is still to be denied; and this, as the actions for which the appellant showed support, meet, at the end of the day, this requirement as well.  It is well known that throwing stones and Molotov cocktails during the intifada, was committed first and foremost by members of Palestinian terrorist organizations on behalf of their organizations; when individuals, who are not members of organizations, were dragged in after them.  The possibility and even the fact – that these acts were committed also by individuals who are not members of a terrorist organization, does not remove the words of praise the appellant published from the purview of said section 4(a) even according to the “restricting” formula proposed by my colleague.  Review of the appellant’s article shows, that it speaks of sweeping support of all acts of throwing stones and Molotov cocktails without distinction as to those committed by members of terrorist organizations and those committed by individuals that are not such; from hence that the support also  refers to activities of terrorist organizations.

 

Vice-President S. Levin

1.  I agree with my hon. colleague Justice T. Or that the language of section 4(a) of the Prevention of Terrorism Ordinance, on its own, can also encompass violent activity of the type that characterizes terrorist organizations, or even violent activity of any type, however, in my view, it must be so interpreted.  I do not agree with him that the said paragraph is to be interpreted as referring only to “acts of violence” of a terrorist organization.

The thesis which bases the acquittal on a narrow interpretation of section 4(a) relies on the purpose of the Prevention of Terrorism Ordinance, the margin heading of section 4 and other sections of the Ordinance, the similarity between the language of section 4(a) and the definition of “terrorist organization” in section 1 of the Ordinance, the historical background of the Ordinance and the need to interpret said statute as much as possible in a manner that does not infringe on freedom of expression.  I do not accept this position, for the purposes of the petition before us.

As to the purpose of the Prevention of Terrorism Ordinance said thesis creates circuitous reasoning (inextricabilis circulus):   if you start with the assumption that the purpose of the Ordinance is only war with terrorist organizations, then the thesis is well based; if you start from the conclusion that the Ordinance has an additional purposes which is also to fight against the actions of individuals who publish words of praise, sympathy or encouragement for acts of violence which may cause a person’s death or injury then the thesis is not well based and it assumes the desired result as the basis of its rationale.  Moreover, a similar question came before us in CrFH 1789/98 [7] and the court determined there that a broad construction was to be given to the offense of sedition although it was also possible there to interpret the wording “to incite to seditious acts” as referring to an act that that causes harm to the structure of the regime alone, and I do not see a significant difference in the means of interpretation of the two statutes.

2.  The value of a margin heading in the construction of section 4(a) of the Ordinance is minimal and it is given sufficient weight in the approach of Justice Mazza in CrimA 2831/95 [2], that section 4(a) speaks of types of activity that are characteristic of a terrorist organization and not violent activity when it stands on its own; even in the similarity between the grounds of paragraph (a) of section 4 and the definition of “terrorist organization” in section 1 of the Ordinance there is not in my view support of the acquitting result and vice versa; the fact that in section 4(b)(c)(d)(e)(f) of the Ordinance a “terrorist organization” is mentioned, as opposed to in paragraph (a), can teach, by way of evidence from the contrary, that paragraph 4(a) does not refer specifically to a “terrorist organization”; the examples from the legislative history which led to the legislation of the Ordinance are in my view of little weight, if they did not find expression in the wording of the Ordinance, that with its legislation became a living thing that carries its own weight.  Absent sufficient indication in the wording of section 4 of the Ordinance that the protected value in this section is only the struggle with a terrorist organization, it appears to me that text is to remain within its literal meaning and the protected interest in paragraph (a) is also the struggle with one who commits the types of activities that are characteristic of a terrorist organization.

3.  The central question in this further hearing is whether proper construction of section 4(a) of the Ordinance requires limiting the scope of deployment of the section only to activity of a terrorist organization although this was not said in paragraph (a) and that is – in order to defend freedom of expression.  The topic we are dealing with is the normative construction of a primary statute and not its application to a concrete instance, as in our matter it is possible that it will be necessary to utilize stringent criteria of probability in order to prevent infringement of freedom of expression.  All agree that the deployment of the principle of freedom of expression can be pushed back in the presence of restrictions and limitations which relate to considerations which may narrow the scope of its deployment.  Accepting the position of the petitioner in the normative sphere means closing off options for a conviction based on clear text for offenses of severe incitement to acts of violence characteristic of a terrorist organization, when, apparently there is no other statutory source to rely on in order to convict one who commits the act.  Under these circumstances I am not of the view that the interpreter has the option of applying a general norm of freedom of expression that can limit the statute’s words resulting in the release of the accused from criminal liability.  Just as it is true that the law is a “a “creature living within its environment” for the purpose of restricting the scope of its deployment  in the appropriate case in the face of the application of general principles, so too is it a “a creature living within its environment” for the purpose of applying its exacting words, if it turns out – in the appropriate case – that a restrictive construction of the section will harm the interest which the law comes to protect; compare: the judgment of Justice Landau in CrimA 401/79 Lamdan v. State of Israel [9] at p. 56 near the letter “a”.  Such, in my view, is the situation in the present case.

4.  Were my opinion to be heard we would therefore decide that section 4(a) of the Prevention of Terrorism Ordinance also applies to those who commit acts of terror which characterize terrorist organizations and I have no doubt that the content of the article meets this definition.  Therefore, in theory I should have expressed my view also as to the question for which the further hearing was granted which relates to the existence of a causal connection between the publication of the words of praise, sympathy or encouragement to the risk of the occurrence of acts of violence as a consequence of the publication; and the degree of its strength; as my honorable colleague, Justice Kedmi, I have been satisfied that the content of the articles also meets the more stringent test of “clear and present danger”.  Therefore I do not see a need to express an opinion as to the first question brought before us for determination.

I have therefore reached the conclusion that the judgment of the Supreme Court in the first hearing is to be upheld and the conviction of the petitioner is to be left as is.

 

Justice E. Mazza

I cannot agree with the opinion of my colleague Justice Or.  I have expressed my stance relative to the construction of section 4(a) of the Prevention of Terrorism Ordinance  5708-1948 in my judgment in CrimA 2831/95 Elba  v. State of Israel [2] at pp. 282-286, and in my judgment in the appeal which is the subject of the further hearing before us (CrimA 4147/95 Jabarin v. State of Israel [1])  The reasoning of my colleagues, the Vice-President and Justice Kedmi, only strengthened me as to the correctness of the position I expressed in these judgments.  If our views were to be heard, this appeal would be denied.

 

It has been decided by a majority of opinions as per the judgment of Justice T. Or.

 

29 Kislev 5760

November 27, 2000

 

Editor’s note:  Following this judgment and the Court’s determination that section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 applies only to sedition by a terrorist organization and does not apply to sedition by individuals, the Ordinance was amended such that section 4(a) of the Ordinance was nullified and in its stead an offense of sedition to violence or terror was established in the Penal Code.

CA 6024/97

 

Fredrika Shavit

v.

Rishon Lezion Jewish Burial Society

 

The Supreme Court sitting as the Court of Civil Appeals

[July 6, 1999]

Before Court President A. Barak, Justices M. Cheshin, I. Englard.

 

Facts: Petitioner challenged the refusal of a Jewish burial society to allow an inscription on her mother's tombstone recording the dates of birth and death according to the Gregorian, as well as the Hebrew, calendar. The district court held that the recently-passed Alternative Burial Law permitted Jews to bury their loved ones in civilian cemeteries, not according to Jewish religious law, had the effect of overturning previous court rulings requiring Jewish burial societies to permit non-Hebrew characters and dates on tombstones. Sites have yet to be established for alternative burial.

 

Held:  Jewish burial societies have a public, as well as a private, character, and as such are subject to public law. The Alternative Burial Law did not have the effect of overruling previous holdings requiring Jewish burial societies to permit non-Hebrew lettering. This is particularly true because the statute has yet to be implemented. Barring family members from recording the names of their deceased loved ones in the language of their choice harms the sensibilities of the relatives and the human dignity of the deceased. It outweighs the potential harm to the sensibilities of religious visitors to the cemetery who may be offended by the non-Hebrew lettering, particularly considering that the Jewish law prohibition against inscribing non-Hebrew calendar dates and letters is not sweeping and comprehensive. Furthermore, the weight accorded to the sensibilities of religious people offended by practices that violate religious law decreases in the public domain, like a cemetery, as compared to the weight such harm is accorded in the private domain, like the home.

Basic Laws cited:

Basic Law: Human Dignity and Liberty, ss.1a, 8.

 

Legislation cited:

Right to Alternative Civil Burial Law, 1996 – ss. 2, 3, 4, 4A, 5, 6.

Standard Contracts Law, 1964 s.14.

Standard Contracts Law, 1982.

Contracts Law (General Section), 1973, s.30.

King’s Order in Council on the Land of Israel (Holy Places), 1924.

 

Regulations cited:

Right to Alternative Civilian Burial Regulations (Licensing Burial Cooperatives and Establishing Burial Procedures) 1998.

 

Bills cited:

Right to Alternative Civilian Burial Bill.

.

Israeli Supreme Court cases cited:

[1]   CA 280/71 Gideon v. Jewish Burial Society, IsrSC 27(1) 10.

[2]   HCJ 532/74 Ben-Ze’ev v. Public Council for the Memorialization of the Soldier, IsrSC 30(1) 305.

[3]   CA 492/79 Moses v. Jerusalem Community Jewish Burial Society, IsrSC 35 (4) 157.

[4]   HCJ 556/83 Best v. Defense Minister, 38(1) 177.

[5]   HCJ 1438/91 Ginossar v. Defense Minister, 45(2) 807.

[6]   CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, 46(2) 464.

[7]   HCJ 5688/92 Wechselbaum v. Defense Minister, 47(2) 812.

[8]   HCJFH 3299/93 Wechselbaum v. Defense Minister, 49(2) 195.

[9]   HCJ 3807/96 Bargur v. Defense Minister, (not reported).

[10] HCJ 5843/97 Bargur v. Defense Minister, 52(2) 462.

[11] CA 1795/93 Egged Members’ Pension Fund v. Ya’acov, 51(5) 433.

[12] LCA 5768/94 ASHIR Import, Manufacture and Distribution v. Forum Accessories and Consumables, 52(4) 289.

[13] CA 6821/93 United Mizrachi Bank v. Migdal Agricultural Cooperative, 49(4) 221.

[14] HCJ 337/81 Miterani v. Minister of Transportation, IsrSC 37 (3) 337.

[15] HCJ 5016/96 Horev v. Minister of  Transportation, IsrSC 51(4) 1 {[1997] IsrL 149}..

[16] HCJ 3648/97 Stemaka v. Minister of the Interior, IsrSC 53(2) 728.

[17] CA 3414/93 On v. Diamond Exchange Industries (1965), IsrSC 49(3) 196.

[18] HCJ 2481/93   Dayan v. Jerusalem District Commander, IsrSC 48(2) 456.

[19] HCJ 3872/93   Meatrael v. The Prime Minister and Minister of Religious Affairs, IsrSC 47(5) 485.

[20] HCJFH 7015/94 Attorney General v. Anonymous, IsrSC 50(1) 48.

[21] HCJ 3261/93 Manning v. Minister of Justice, IsrSC 47(3) 282.

[22] EA 1/65                 Yardor v. Chairman of the Central Election Committee for the Sixth Knesset, IsrSC 19(3) 365.

[23] EA 2/84 Neiman v. Chairman of the Central Election Committee for the Eleventh Knesset, IsrSC 39(2) 225.

[24] HCJ 73/53          Kol Ha’Am v. Minister of the Interior, IsrSC 7 871.

[25] HCJ 148/79      Sa’ar  v. Minister of the Interior and of Police, IsrSC 34(2) 169.

[26] CA 105/92         Re’em Engineers v. The Municipality  of Upper Nazareth, IsrSC 47(5)189.

[27] HCJ 351/72      Keinan v. The Film and Play Review Board, IsrSC 26(2) 811.

[28]HCJ 806/88        Universal City Studios v. The Film and Play Review Board, IsrSC 43(2) 22.

[29] CrimA 217/68  Izramax Ltd. v. State of Israel, IsrSC 22(2) 343.

[30] HCJ 7128/96 Temple Mount Faithful Movement v. The Government of Israel, IsrSC 51(2) 509.

[31] HCJ 292/83      Temple Mount Faithful Association v. Jerusalem District Police Commander, IsrSC 38(2) 449.

[32] HCJ 257/89Hoffman v. Appointee over the Western Wall, IsrSC 48(2) 265.

[33] HCJ 243/81      Yeki Yosha v. The Film and Play Review Board, IsrSC 35(3) 421.

[34] CA 214/89 Avneri v. Sharipa, IsrSC 43(3) 840.

[35] HCJ 465/89 Ruskin v. Jerusalem Religious Council, IsrSC 44(2) 673.

[36] HCJ 47/82 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC 43(2) 661.

[37] HCJ 3944/92 Marbek Slaughterhouses v. Chief Rabbinate of Netanya, IsrSC 49(1) 278.

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

[39] HCJ 6163/92   Eizenberg v. Minister of Construction and Housing, IsrSC 47(2) 229.

[40] HCJ 935/89      Ganor v. Attorney-General, IsrSC 44(2) 485.

[41] HCJFH 4601/95 Sarrousy v. National Labor Court, IsrSC 52(4) 817.

 

Israeli District Court Cases Cited:

[42] HM (TA) 752/94 Burgman v. Rishon Lezion Jewish Burial Society (unpublished).

[43] HM (TA) 1275/93 Kagan v. Rishon Lezion Jewish Burial Society (unpublished).

[44] HM (TA) 200585/98 Sasson v. Herzliya Jewish Burial Society (unpublished).

 

Israeli Books Cited:

[45] 1 Menachem Elon, Jewish Law (3d ed. 1987).

[46] See 3 A. Barak, Parshanut Bimishpat [Interpretation in Law] Parshanut Chukatit [Constitutiona]

[47] Aharon Barak, Judicial Discretion (1986).

 

Israeli Articles Cited:

[48] E. Benvenisti, Tchulat Hamishpat Haminhali al Gufim Pratiim [Administrative Law, Private Bodies] Mishpat U'Mimshal 2 (1994-95) 11.

[49] A. Dayan-Orbach, Hamodel Hademocrati shel Chofesh Habitoi [Freedom of Expression], Iyunei Mishpat 20 (1996-97) 377.

 

Jewish Law Sources Cited:

[50] Babylonian Talmud, Tractate Baba Metzia, 30B.

[51] Babylonian Talmud, Tractate Yoma, 9B.

[52] Etz Yosef, Ein Ya’akov, Tractate Baba Metzia 30.

[53] Rabbi Shmuel Eliezer Edels (Maharsha), Baba Metzia, 30.

[54] Shulchan Aruch, Choshen Hamishpat, 12B.

[55] Rabbi Moshe Isserlis (Rama), Shulchan Aruch, Choshen Hamishpat, 12B.

[56] Babylonian Talmud, Tractate Sanhedrin 74A-B.

[57] Rabbi Moshe ben Maimon (Maimonides), Basic Laws of the Torah, ch.5, laws 2-4.

[58] Responsa Tzitz Eliezer, part 9, 14, ch. 100B.

[59] Responsa Yabia Omer, part 7, Yoreh Deah, 32, ch. 100B.

 

Appeal of the decision of the Tel Aviv/Jaffa District Court (Judge. Y. Zeft) from 22.7.1997 in DC 657/97. The appeal was granted by majority opinion, with Justice I. Englard dissenting.

 

Gali Bar-El, Uri Regev – for the appellant;

Yair Shilo – for the respondent.

 

 

JUDGMENT

Justice M. Cheshin

1. Regarding gravestones, what should be inscribed upon them? What should an epitaph record? Who should decide these things? After all, it is only family and friends who will visit the grave. They are the ones who will remember the deceased; it is they who will come to cry and grieve. But are they the ones who should decide how the deceased should be memorialized on his or her gravestone, or is that the role of another party, for example, the Jewish burial society? Perhaps it should be decided by the municipal rabbi – each rabbi for his own municipality? Or perhaps another authority should make this decision?

The courts have dealt with these questions several times regarding both civilian and military cemeteries. The first time was in CA 280/71 Gideon v. Jewish Burial Society (hereinafter – Gideon [1]), followed by HCJ 532/74 Ben-Ze’ev v. Public Council for the Memorialization of the Soldier [2], CA 492/79 Moses v. Jerusalem Community Jewish Burial Society [3], HCJ 556/83 Best v. Defense Minister [4], and HCJ 1438/91 Ginossar v. Defense Minister [5].  After these, came CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum (hereinafter – Kestenbaum [6]) which was followed by Wechselbaum; first in the High Court of Justice (HCJ 5688/92 Wechselbaum v. Defense Minister [7]) and then in a further hearing (HCJFH 3299/93 Wechselbaum v. Defense Minister [8]). After Wechselbaum [7] [8] came Bargur, which was also heard twice (HCJ 3807/96 Bargur v. Defense Minister [9] and HCJ 5843/97 Bargur v. Defense Minister [10]). The district courts have also addressed this question more than once (in addition to those cases that came before the Supreme Court on appeal). See e.g. HM (TA) 752/94 Burgman v. Rishon Lezion Jewish Burial Society (the Burgman case) [42]); HM (TA) 1275/93 Kagan v. Rishon Lezion Jewish Burial Society [43]; HM (TA) 200585/98 Sasson v. Herzliya Jewish Burial Society [44] and others. To all these, add the Right to Alternative Civil Burial Law, 1996, and the regulations pursuant to the law, as well as HC 619/97 MK Tzuker v. Minister of Religious Affairs (currently pending before the Court).

I would be surprised if there is another nation or language that occupies itself so passionately and intensively with the issue of what should be inscribed on gravestones; occupies itself continuously, and yet cannot settle on a standard.

The Facts

2. On December 7 1996 (Kislev 26 5757), Mrs. Rosa Greitel passed away. The deceased’s family wished to bury her, as is customary, in her home town – the city of Rishon Lezion. The Rishon Lezion Jewish Burial Society responded to their request, and she was interred in the cemetery under its management, which is the only one in the city. Thereafter, the family requested that the deceased’s name be inscribed on her gravestone in both Hebrew and Latin characters, and that her birth date and death date be recorded according to the standard Gregorian calendar, as well as the Hebrew calendar. The Jewish burial society initially refused both these requests – the inscription in foreign lettering and the Gregorian dates. Later, after the Rishon Lezion Jewish Burial Society’s chief rabbi, Rabbi Breuer, gave a dispensation, it allowed the deceased’s first name (Rosa) to be inscribed in Latin characters. However, the burial society stood firm and refused to grant the family’s wish regarding the Gregorian birth and death dates.

In refusing to grant the family’s wishes, the Jewish burial society relied on the ruling of its chief rabbi, and when the family applied to Rabbi Breuer directly for a dispensation – they encountered an absolute refusal. The family pointed out that the very same cemetery already contained gravestones bearing Gregorian dates. Rabbi Breuer’s answer was that, although it had been permitted in the past, since his appointment as rabbi of the local Jewish burial society, he had not allowed Gregorian dates of birth and death to be inscribed on gravestones. The family then appealed to Rabbi Wolfa, the chief rabbi of Rishon Lezion, and to the Jewish burial society rabbi in charge of the Jerusalem district, but to no avail. The rabbis responded by referring the family back to Rabbi Breuer, who stood by his ruling. Since all other avenues were closed, the deceased’s daughter – Dr. Fredrika Shavit – applied to the Tel Aviv-Jaffa District Court, requesting that it uphold and formally acknowledge her right to engrave Gregorian dates of birth and death on her mother’s gravestone.

In the district court, Judge J. Zeft rejected Dr. Shavit’s request, and that rejection is the subject of this appeal.

Legal Background – Gideon [1] and Kestenbaum [6]

3. It seems I was naïve in believing that the courts must follow in the footsteps of previous rulings. First there was Gideon [1], in which the Court – in a majority opinion – ruled that everyone has the right to carve standard Gregorian dates of birth and death on a gravestone (in that case, on a father’s grave). The judgment of Justice Etzioni – which Justice Berenson joined – gives us a clear and explicit ruling, in precise and unambiguous language, and those who study it will understand it perfectly. Judge Etzioni wrote, for example:

No one in the world disputes the right of people to honor the memories of their loved ones who have departed from this world in the way that they see fit, in line with their way of life and traditions, providing they do not harm the legitimate sensibilities and interests of others. It is also clear that a cemetery is a place not only for burying the dead but also for expressing the love and respect the living continue to feel for the departed.

Gideon [1] at 23.

 

He continued:

This is simply an arbitrary negation of the right to use the standard calendar to record the dates of birth and death of a person whose life revolved around this calendar!

Id.

What more is there to add? The Court has established its ruling on the matter, that the prohibition on carving Gregorian birth and death dates is a “restrictive condition” that is discriminatory under section 14 of the Standard Contracts Law, 1964.

4. After the Gideon [1] judgment was handed down in 1972, there was an 18-year respite on this issue – until Kestenbaum [6]. In that case, Mr. Kestenbaum asked the district court to allow him to inscribe on his late wife’s gravestone her name in Latin characters and her birth and death dates according to the Gregorian calendar. The district court ruled in favor of the plaintiff, and the Supreme Court rejected the appeal of the Jewish burial society by majority opinion. The judgment took up 62 closely-typed pages, and I can’t think of even one aspect that the Court did not consider and thoroughly delve into. The common denominator in the reasoning of the majority on the panel was their different interpretations of “public policy,” in the broad sense of the concept. President Shamgar emphasized in his remarks that the principles of public law necessitate a ruling in favor of the petitioner. He added that such a conclusion is also required by the provisions of the Standard Contracts Law, 1982, and also by public policy as elucidated in section 30 of the Contracts Law (General Section), 1973.

Justice Barak also found that the need to favor the petitioner flowed from principles of public law and provisions of the Standard Contracts Law, but in his view, the real flaw in the Jewish burial society’s decision was that it violated public policy. Thus Justice Barak said “… the main point of the legal problem before us is not the actions of the Jewish burial society in areas of public law, and not even in its overstepping the bounds of the Standard Contracts Law. The heart of the problem is really the application of the principles of public law – values such as the Hebrew language, human dignity and tolerance – in the areas of private law.” Kestenbaum [6] at 529. In his subsequent remarks, Justice Barak pointed to the framework-principles of private law – such as principles of good faith and public policy – and ruled that these comprise the basic principles of law and the fundamental social outlook upon which the legal system is founded. His conclusion was that the Jewish burial society’s decision that the name of the deceased could be inscribed in Hebrew letters only violates public policy in that it is a mortal blow to human dignity – the dignity of both the living and the dead: “The source of the blow to human dignity is the negation of the freedom to inscribe on the gravestone whatever the deceased (in his or her lifetime) and his or her family (after his or her death) wish to be inscribed.” Id. at 523. The value of human dignity supersedes all other values with which it may come into conflict.

We wished to mention several more things that the Court ruled in Kestenbaum, but since the judgment is overflowing with words of wisdom and ethics, and out of fear that asserting one ethical stance might denigrate others, we decided not to cite them here. We refer the reader therefore to Kestenbaum [6], and each can draw his or her own conclusions.

5. I accept the words of my colleagues and their opinions in both cases. The truth is that the essence of all three reasons for the ruling in Kestenbaum [6] comes from the same source. I raised a similar idea in CA 1795/93 Egged Members’ Pension Fund v. Ya’acov [11]. In that matter, the regulations of a cooperative society were at issue, and the question was whether it was right and fitting to invalidate a particular regulation as illegal. My colleague, Justice Englard, believed that it was appropriate to void that regulation because it was a discriminatory condition under the provisions the Standard Contracts Law. Unlike my colleague, Justice Englard, my colleague, Justice Turkel, felt that the Standard Contracts Law did not apply to regulations of a cooperative, yet his conclusion was also that a regulation must be voided when it clashes with public policy under section 30 of the Contracts Law (General Section). When I read the words of my colleagues on that occasion, I was at a loss to understand the need for such hair-splitting arguments, since the conclusions were almost identical.

I wrote there that public policy “is the wellspring and the source from which the tributaries of norms flow out to all corners of the law.” CA 1795/93 Egged Members’ Pension Fund v. Ya’acov [11] at 467. I continued:

“Public policy” dwells in the royal capital of the kingdom of contracts, and it sends its envoys to all the principalities of contracts. One of these is the principality of Standard Contracts. When settling down in the principality of Standard Contracts, the envoy of public policy seeks to assimilate into the local people and merit a local title of its own, a title that will make it feel at home. It receives the ironic title of “the discriminatory condition.” In coming to the principality of Standard Contracts, public policy metamorphoses into “the discriminatory condition.” The concept of the discriminatory condition consists of the re-crystallization of public policy in the principality of Standard Contracts. In other words, in the relationship between the “supplier” and the “customer” – the two parties involved the Standard Contracts Law – public policy is represented by the discriminatory condition, and the discriminatory condition is public policy.

Id. at 467-68.

 

As it was in that case, so it is here. The Court arrived at the same conclusion in both Gideon [1] and Kestenbaum [6]. This was no coincidence. The same fundamental principles embedded deep in our hearts – human dignity, tolerance, the social need to contribute and not just to take, the rights of the individual, freedom of conscience and expression, freedom of thought and action as befits a free society – are what guided Justice Etzioni’s pen as he wrote his decision, and what cleared the path for President Shamgar and Justice Barak to say what they said. Thus the Court emphasized further – both in Gideon [1] and Kestenbaum [6] – that the rights of an individual can be stopped in their tracks, can be limited, where they are hurtling toward a severe head-on collision with the equally-ranked rights of another. Thus, for example, we will not allow substantial harm to the sensibilities of another. If someone wishes to inscribe on the grave of his father or mother – in a Jewish cemetery – a Christian cross, I assume that the Court would not fault a decision of the Jewish burial society to forbid it. It was not so in the cases of Gideon [1] and Kestenbaum [6], which dealt only with carving names in foreign characters (as well as Hebrew writing) and inscribing Gregorian dates of birth and death.

6. Those were the rulings in Gideon [1] and Kestenbaum [6]. At issue in those hearing was what was permitted in gravestone inscriptions, and the Court delved into and solved every aspect of the problem. It addressed all differences of opinion, weighed in on every question, and handed down its ruling. The decisions are clear, and there are no ambiguities or doubts in them. In my naiveté, I thought that these rulings established everything needed to make a decision in the case before us. How is it, therefore, that the lower court refused to follow these rulings?  Why and wherefore did the lower court see a need to carve out a new path for itself and refuse to take the path which had already been well-signposted? It is understood that the district court relied primarily on a law passed after the Gideon [1] and Kestenbaum [6] rulings, that is, the Right to Alternative Civil Burial Law, 1996 (hereinafter – the Alternative Burial Law). In the lower court’s opinion, this law overturned the Gideon-Kestenbaum ruling.

We all agree, of course, that a later law can supersede a law or ruling that precedes it, so the question is whether this particular law indeed irreconcilably contradicted the rulings that preceded it. This, put simply, is the doctrine of “implied negation.” Therefore we will briefly review the Alternative Burial Law, and afterward address its relationship to the Gideon-Kestenbaum ruling.

The Alternative Burial Law

7. The Alternative Burial Law – a brief and concise law – is known by the full name of the Right to Alternative Civilian Burial Law. In the words of section 2 of the law: “Everyone has the right to a burial which accords with one’s ideology in an alternative civilian cemetery if one so chooses…” The law further established (section 3) that “burial is conducted while preserving the dignity of the dead.”  The law originated with a bill proposed by Members of Knesset David Zucker and Binyamin Temkin, who explained their aims as follows:

Everyone who dies in Israel has the right to be buried in a dignified manner (section 3) appropriate to their ideology. Therefore it is proposed not to impose upon the burial process to religious practices which are sometimes foreign to the ideology of the deceased.

Right to Alternative Civilian Burial Bill, 1996 at 600.

 

The bill continues:

It is proposed to solve the problem of the burial of Jews who do not identify themselves with Judaism or any other recognized religion and who wish for a burial in line with the principles and ideology by which they lived their lives.

It is also proposed to solve the problem of the burial of those without a recognized religious affiliation.

Under the legislation, the Minister of Religious Affairs will designate places to be used as alternative civilian cemeteries, which will be located in the different regions of the country at reasonable distances from each other. Sec. 4. The alternative civilian cemeteries are supposed to be administered by burial cooperatives. Sec. 5. The Minister of Religious Affairs is authorized to create regulations for the implementation of the law, including regulations for licensing burial cooperatives and acceptable burial practices. Sec. 6.

Our opinion is that the law – as its name suggests – refers to alternative civilian burial, In other words: the norm is burial in a regular cemetery, but one has the right to an alternative if one expresses this desire. Section 2, as we have seen, sets down the right of a person to choose to be buried in an alternative civilian cemetery, and the same section further states that “the choice can be expressed in his legal will or in any other way.” Therefore, one who wishes – when the time comes – to be given an alternative civilian burial bears the burden of making sure this desire is expressed. It can be assumed that if close family members say that this was indeed the will of the deceased, those wishes should be respected.

The Alternative Burial Law is a framework law: a law that acknowledges fundamental rights and outlines the principles of their implementation in the future by the individual appointed to the task. That is its charm. That is also its hindrance.

8. The authorities did not hasten to implement the law. Thus, for example, even though the law was passed on March 21, 1996, no regulations were instated for two and a half years until the Right to Alternative Civilian Burial Regulations (Licensing Burial Cooperatives and Establishing Burial Procedures) was published on December 17, 1998, to be implemented 30 days later. It is clear that these regulations were only instated following a petition brought before the High Court of Justice discussed below.

This was the course of events: the Minister of Religious Affairs dragged his feet in creating regulations for the implementation of the Alternative Burial Law, and since he did not designate – as was his obligation under section 4(a) of the law – sites for alternative civilian cemeteries, MKs David Zucker and Binyamin Temkin – the initiators of the law – and with them Mr. Erez Epstein, petitioned the High Court of Justice, requesting that it order the Minister of Religious Affairs to fulfill the tasks assigned to him by the law. This petition (HCJ 619/97) was brought before the Court on January 27, 1997 – some ten months after the law went into effect – and it is still pending today. Almost two years after the petition was filed, the Minister of Religious Affairs established those regulations mentioned above, and in doing so, one of the requests of the petitioners was addressed. Their other request – regarding the designation of sites for alternative burial – is yet to be addressed, despite certain actions taken towards the implementation of the law.

9. The situation is that the Alternative Burial Law – at this time – is nothing more than the “dry bones” of a law: it is not fleshed out, and there is no life in it. The petition which seeks to force the authorities to carry out the tasks entrusted to them is still pending before this court.

Here we conclude the initial sections dealing with the issue of the Alternative Burial Law, and now we will move to the judgment of the lower court.

Why did the district court deviate from the ruling of Gideon-Kestenbaum?

10. Initially, the judgment of the lower court cites the ruling of Kestenbaum [6] – upon which the appellant relies – and continues by ruling that since the judgment was handed down, circumstances have changed, due to the legislating of the Alternative Burial Law. This law, the court ruled, “frees anyone who desires a different sort of burial from burial according to religious precepts and rites.” Therefore, the implication of the law, that is “the flip side of the coin,” is that the Jewish burial society acquires every right to insist on the burial rites it considers acceptable. As the court put it:

Since the judgment in CA 294/91 [Kestenbaum [6] – M.Ch.], circumstances have changed. On March 21, 1996, the Right to Alternative Civilian Burial Law, 1996 was published …

This law frees anyone who desires a different sort of burial from burial according to religious precepts and rites, providing cemeteries designated for this purpose in different regions of the country, spaced apart at reasonable distances, and managed by burial cooperatives. The “flip side” of this law, that which we deduce from it, is that Jewish burial societies acquire the option of insisting that burials carried in cemeteries under their management be done according to the Jewish laws and rites accepted in their community.

Even though CA 294/91 [6] established that the laws of tolerance and respect for individual liberty oblige the Jewish burial society to allow deviation from what it considers appropriate for a Jewish cemetery in the State of Israel, the legislature had a different view:

One who wishes to have a burial in accordance with one’s personal ideology will be interred in a civilian cemetery. There, one can realize one’s right to be buried according to one’s views and wishes, and not in the cemeteries belonging to the Jewish burial societies. This law nullifies the basis of the ruling in CA 294/91 [6], according to which a cemetery with a religious character must respect the wishes of the individual even if they do not coincide with the rites and precepts considered appropriate by the management and owners. In its place, the legislature established the principle of separation between cemeteries where burials take place according to religious precepts and rites and cemeteries where burials reflect the particular ideology of the deceased, as expressed in his legal will or through other means.

In other words, the Alternative Burial Law sets new obligations and also voids existing obligations. In terms of the new obligations, we learn that alternative civilian cemeteries must be established. In terms of voided obligations, we learn of the nullification (through an “overturning effect” or the “flip side of the coin” as the lower court put it) of the principle established in Kestenbaum [6] (and in Gideon [1]) regarding respecting the wishes of an individual. In as much as the new law gave the individual the option of being buried according to his personal wishes in an alternative civilian cemetery, there is no longer any reason to force Jewish burial societies to accede to the wishes of individuals.

The court agrees, that indeed, the Alternative Burial Law has yet to be implemented, since alternative civilian cemeteries have not yet been established, but in its opinion this fact does not “justify coercing the respondent [the Jewish burial society – M.Ch.], in the interim period (until the alternative civilian cemeteries are established), to deviate from the standards it considers acceptable based on the ruling of the local rabbi, according to the law and custom of the community.” The court further ruled that the Alternative Burial Law does not have any transitional provisions and that “the rights established by it, like the principle of separation of religious burial sites and alternative burial sites,” have “immediate application” (The court was referring both to the provisions of the statute themselves as well as "the flip side of the coin"). The Jewish burial society “has no … influence on the pace of activity of the Minister … and is not responsible for his actions or omissions. The request for a right based on the law must be addressed to the Minister, and not to the respondent.”

The lower court additionally ruled that there are cemeteries in the vicinity of Rishon Lezion (the Holon Cemetery and the Yarkon Cemetery) run by Jewish burial societies that allow the inscription of Gregorian dates of birth and death on gravestones. Thus, as the court said, “The right to a gravestone to the taste and personal philosophy of the deceased can be realized at a reasonable distance from Rishon Lezion, and it is therefore unjust to force the respondent to overturn the municipal rabbi’s ruling regarding burial practices appropriate in a Jewish cemetery in Israel.”

The appellant has rejected these claims one by one, and below we will address these arguments.

Regarding the “Overturning Effect” of the Alternative Burial Law

11. There is no argument that the Alternative Burial Law introduced a significant change to the laws of burial in Israel. Before it existed, the Jewish burial societies in this country held a kind of monopoly on the burial of Jews. The law is meant to pave the way for burial corporations other than Jewish burial societies and the establishment of alternative civilian cemeteries in which people may be buried, if they so choose, in ways other than according to the Orthodox Jewish tradition. The question is if the law has an “overturning effect” which negates Gideon-Kestenbaum and frees the Jewish burial society from the yoke of these rulings. The lower court ruled thus – that the Alternative Burial Law does indeed overturn Gideon-Kestenbaum – but we find it difficult to accept this stance.

12. First of all, it must be said – though this is not main point – that the stance of the lower court troubles us deeply, and not only because the Alternative Burial Law is currently a mere “skeleton” of a law. The statement that “a person has the right to be buried according to his ideology in an alternative civilian cemetery if he so chooses” – as per section 2 of the law – is at present just empty words far from the reality. Alternative civilian cemeteries have not been established – it has not even been announced when they will be established – and I have difficulty accepting that the mere existence of a law is capable of overturning a court ruling.

“Alternative relief” must fulfill two conditions to be considered in effect: First, there must be relief, and second, this relief must be current, effective, and available to those who seek it. In this case, the appellant does not currently have access to relief and there is certainly no effective relief. In other words: in the present situation, alternative burial does not exist. In light of this, we have trouble understanding how the Rishon Lezion Jewish Burial Society can shed its obligations to the general public – to the residents of the city that it is supposed to serve – which it has borne at least since Gideon-Kestenbaum. It makes a mockery of a person's dignity to tell the appellant that she must go to the Minister and complain about the delay in the implementation of the law. Can one postpone the day of one’s death until the alternative cemeteries are ready? However, we will not rest with this reason alone. We will now discuss the law as though the alternative civilian cemeteries had been established, thus reaching the heart of the matter.

13. The whole truth is that every statutory arrangement has an “overturning effect,” that is the “flip side of the coin,” as the lower court put it. We commented on this in LCA 5768/94 ASHIR Import, Manufacturing and Distribution v. Forum Accessories and Consumables (hereinafter – ASHIR [12]):

Just as there is no person without a shadow, thus – in principle – there is no statutory arrangement without an overturning effect following in its wake. Just as a shadow follows its owner wherever he goes, the overturning effect follows the statutory arrangement. The shadow cast by the overturning effect may be small or large, however there will always be an overturning effect of some sort.

Id. at 402-03.

 

And what is this overturning effect?

…the overturning effect that is evident from the structure of a law – and which surrounds the law on all sides – is an implied expression of the exclusiveness of the law in certain areas and is similar to the negating of a law (or ruling) by a subsequent law.

Id. at 393-94.

 

The overturning effect – the shadow of a law – accompanies the law, and there is no such thing as a shadow that is its own master. The overturning effect will be guided by the provisions of the law that are on the surface as well as the law’s very foundations, and an overturning effect cannot exist independently. In our case, we could say the overturning effect that envelopes the Alternative Burial Law is that after the law goes into effect, there will be no dispensation to perform “alternative” burials except according to the provisions of the law. However we did not say that this is in fact the real overturning effect of the law. All we are saying is that the overturning effect is likely to be guided by the express provisions of the law.

We find it hard to understand how it is possible, from the law’s provisions, to extrapolate – as something self-evident – the “principle of segregation” to which the lower court refers. Under the district court’s interpretation, after the law goes into effect, there are two kinds of burials: “religious burial” – each place according to its own custom – and “alternative burial.” Apparently, the mere existence of the alternative burial option makes the Jewish burial society master of its domain, free of the yokes of public law, public policy, and the Standard Contracts Law – everything that guided the Gideon-Kestenbaum ruling. The lower court assigned the Alternative Burial Law a shadow that is much longer and broader than the Alternative Burial Law is capable of bearing, a shadow that would only be appropriate were it accompanied by an explicit and broad statutory arrangement for areas relating to the Alternative Burial Law, at least in its present framework.

14. Moreover, the original intention of the Alternative Burial Law, in principle, was to add an alternative to the accepted way to burial – for those who desire a burial in line with their personal ideology as opposed to the common practices in our community. The law was intended to create an alternative, not to diminish the existing option, and the addition does not detract from the obligations borne by the Jewish burial society – every Jewish burial society – in its area. To say that the establishment of the Right to Alternative Burial intended – through an overturning effect – to negate the right to non-Hebrew writing and Gregorian dates on a gravestone is a non-sequitur. Establishing the right of a person to an alternative burial according to his or her ideology does not mean that the right of this same person to non-Hebrew writing on a gravestone in a regular cemetery is negated, even though this right was established before alternative burial existed. We have not found in the Alternative Burial Law any suggestion that, after it goes into effect, the Jewish burial societies acquire the right to impose demands that ex hypothesi – according to the Gideon-Kestenbaum ruling – violate human dignity, violate public policy, subvert the principles of public law, and are prohibited under the Standard Contracts Law.

15. The subject of the overturning effect is inextricably bound up with the subject of implied rescission. See our remarks in CA 6821/93 United Mizrachi Bank. v. Migdal Agricultural Cooperative [13] at 554-57, and ASHIR [12], supra, at 393-403. The lower court effectively held that the Alternative Burial Law implied the rescission of the ruling of Gideon-Kestenbaum. We cannot agree with this conclusion. A ruling made by the Supreme Court bases itself on basic principles of the legal system in Israel – human dignity, public policy, the principles of public law – and it is so sturdy and strong, that we find it difficult to accept that it was rescinded by implication, allegedly, simply due to the passing of the Alternative Burial Law; that the wind that the Alternative Burial Law blew in through its passage whisked away the Gideon-Kestenbaum ruling, until it disappeared, as though it had never existed.  In order to overturn a ruling such as Gideon-Kestenbaum – a ruling that anchors itself in basic human rights – we would expect to find an explicit provision in the new law. We have not found such a provision.

In other words, the ruling gave the appellant the right to inscribe the Gregorian birth and death dates on her mother’s gravestone, and we haven’t found anything in the provisions of the Alternative Burial Law – neither in the express provisions nor in the implied provisions – to negate this right as if it never existed. This was so even before the establishment of the Basic Laws. Compare with HCJ 337/81 Miterani v. Minister of Transportation [14] at 358-59. The point is that to negate fundamental rights – or to limit the scope of their application – clear and explicit legislation is necessary. We cannot settle for an overturning effect. If this was the case before the Basic Laws, it is true all the more so after their passage, because now the Basic Law: Human Dignity and Liberty directly protects human dignity, and it is based on the same unshakable foundation as the Gideon-Kestenbaum ruling.

16. Furthermore, the introduction of the Basic Law reinforced a principle that was accepted previously. This was the intention of the limitation clause of Basic Law: Human Dignity and Liberty (section 8), according to which – whether directly or by association – a legal provision may violate basic rights only if it meets the following basic conditions: it befits the values of the State of Israel; it was enacted for a proper purpose; and it causes harm to an extent no greater than is necessary. On this last condition, see President Barak’s opinion in HCJ 5016/96 Horev v. Minister of Transportation (hereinafter – Bar-Ilan Street [15]) at 53-54 and the precedents cited above, including HCJ 3648/97 Stemaka v. Minister of the Interior [16] at 776 and others.

In Kestenbaum [6], Justice Barak said the following:

Human dignity in Israel is not a metaphor. It is the reality, and we draw operative conclusions from it. In the matter before us, the necessary conclusion is that a government agency’s general mandate to carry out certain activities – for example, the management of a cemetery – should not be interpreted to mean that this same government agency is licensed to cause serious and severe harm to the human dignity of those involved in this case. A government authority that seeks to infringe on human dignity must have explicit and clear authorization from the legislature, and since the legislation of the Basic Law: Human Dignity and Liberty, this agreement needs to be anchored in a law “that befits the values of the State of Israel, was enacted for a proper purpose, and [causes harm] to an extent no greater than is necessary” (sec. 8). This basic concept – the need for an explicit statutory provision that allows for harm to human dignity – is not new to us. We have always accepted that a government agency is not entitled to infringe upon basic rights without explicit authorization to do so … today another requirement was added to the essence of this law.

Id. at 524.

 

Thus we have difficulty – very great difficulty – in accepting an interpretation of the Alternative Burial Law which effectively sweeps by the wayside a right that the Gideon-Kestenbaum ruling views as extrapolated from human dignity, public policy, and the very core of public law. We reject this interpretation outright.

Additionally, if indeed the Jewish burial society has a “dual character” – as ruled in Kestenbaum [6] – then it is subject to public law. See Kestenbaum [6] at 484-85, 490-92, 517-19. See also CA 3414/93 On v. Diamond Exchange Industries (1965) (hereinafter – On [17]); E. Benvenisti, Tchulat Hamishpat Haminhali al Gufim Pratiim [Administrative Law, Private Bodies] [48]. We also note that the Jewish burial society is subject to public law, because it fulfills a public and social duty by law. Human dignity and public policy lead us directly to the obligation of the Jewish burial society to act in accordance with the Gideon-Kestenbaum ruling. Taking all this into account, I am frankly stunned that the Jewish burial society can shed its obligations with no more justification than an implied rescission and a conceptual overturning effect. The nullification of the Gideon-Kestenbaum ruling requires far greater force than that which an overturning effect and implied rescission can provide.

The Claim of the Jewish Burial Society That It Is a Private Non-profit Organization

17. The Jewish burial society claims that the Gideon-Kestenbaum ruling does not apply to it for the following reason: unlike the Jewish burial societies involved in Gideon [1] and Kestenbaum [6], it is a private non-profit organization. It is entirely unaffiliated with the Rishon Lezion Religious Council, and the land of the cemetery is under its ownership, it having purchased the land for full value. In light of this, the respondent claims, it follows that the Jewish burial society may act as it sees fit and is allowed to impose its will on the appellant regarding inscriptions on gravestones. This claim is not acceptable to us in the present case. No doubt this is also the respondent’s position on the application of the Standard Contracts Law to the relations between the Jewish burial society and the appellant. This is also its position on the application of public law and, of course, public policy.

The cornerstone of the Gideon-Kestenbaum ruling was as follows: Jewish burial societies were formally born into the family of private law. However, due to the nature of their work, they have transformed into dual-character bodies, subject to private law and also to principles of public law. President Shamgar said in Kestenbaum [6] (at 484) that the role of the Jewish burial society is “… essentially public, both formally and as part of its character …” The nature of the activities of the Jewish burial society has not changed; its religious character is an intrinsic part of its essence, and it brought us to the Gideon-Kestenbaum ruling.

Indeed, the fact that certain land is owned by a private body does not in itself exempt that body – always and under all circumstances – from principles of public law. Private property may have a public character due to the nature of its use, and this character in itself brings principles of public law to bear on the [owner – ed.], obligating it. See, e.g. On [17] supra. See also HCJ 2481/93 Dayan v. Jerusalem District Commander [18]; A. Dayan-Orbach, Hamodel Hademocrati shel Chofesh Habitoi [Freedom of Expression] [49] at 422. Certainly, these issues apply to the Jewish burial society we now address, which is a community Jewish burial society. In fact, it is the one and only Jewish burial society in Rishon Lezion.

The Jewish burial society before us will be judged in the same way as other Jewish burial societies, and laws that relate to other Jewish burial societies also relate to this one.

The Ruling of the Rabbi of the Jewish Burial Society; Human Dignity; the Private Domain and the Public Domain

18. The Jewish burial society also claims that it must bow to the Jewish legal ruling of its chief rabbi and to the orders of the chief rabbi of Rishon Lezion, and that these rulings forbid it to carve foreign letters and Gregorian dates of birth and death. This claim is not acceptable to us either.

First of all, this notion was already discussed in Gideon [1] and Kestenbaum [6], and despite the Jewish legal opinions that were presented, the Court ruled against the Jewish burial society – not once but twice. We note in particular the words of Deputy President Justice Elon in Kestenbaum [6] (at 488-89, 499-503). Even though the Deputy President was in the minority in the final judgment, on this issue, he  wrote about the opinion of the panel.

Secondly, it is known that there is no sweeping and comprehensive Jewish law that prohibits the carving of foreign characters or Gregorian birth and death dates on a gravestone. In many cemeteries in Israel, there is no such prohibition. See e.g. President Shamgar’s opinion in Kestenbaum [6] supra, at 483, and Justice Etzioni’s opinion in Gideon [1], supra, at 19. The Jewish burial societies in those places allow families, if they so desire, to inscribe the names of the deceased in foreign lettering and the dates of birth and death according to the Gregorian calendar.

Furthermore, even in the Rishon Lezion cemetery there are gravestones bearing non-Hebrew script and Gregorian dates, but according to the rabbi of the Jewish burial society they date from before his appointment to his post, and since he arrived he has forbidden the practice. This claim [of the rabbi – ed.] means that the rabbi of each Jewish burial society – or each local rabbi – is allowed to permit or prohibit at will, and the whole community must obey him. In the cemetery of the Jewish burial society of Tel Aviv, there is no such prohibition – neither from the rabbi of the Jewish burial society nor the local rabbi – on inscribing foreign characters or Gregorian dates. Nevertheless, if at some future date, a new rabbi suddenly popped up in Tel Aviv and decided to get strict, then, according to the claim of the Jewish burial society, his prohibition would be binding.

This ruling giving the local rabbi the last word in his area – the concept of the “local rabbinic authority” – is only binding among the religiously observant public or through an express law of the state. In former days, and in Jewish communities that were dispersed among the nations in many lands, this was Jewish Law, and there was no other. This is still Jewish Law in Jewish communities in the Diaspora in the present day. See 1 Menachem Elon, Jewish Law [45] at 547.

The case is different here in Israel, as we have been gathered back to our homeland. I can find no good reason – in terms of the laws of state – to impose the ruling of the local rabbinic authority on all – on those who are religiously observant and those who are non-religious – as if it were the law of the state. Thus, we can in no way accept the behavior of the rabbi of the Jewish burial society, who tried to impose his decision on the entire community, on the religiously observant and on the non-religious. The more we contemplate such an imposition, the more we are shocked.

Take Rehovot and Ness Ziona, Tel Aviv and Jaffa, Ramat Gan and Givatayim, Holon and Bat Yam, Haifa and its bayside suburbs – gravestones erected in all of these localities may be inscribed with the Gregorian birth and death dates; it’s OK in all those places, but in Rishon Lezion, it is strictly forbidden. Since we know that the city limits of these places are set by the state and not by Jewish Law, as are the geographical areas of authority of their local rabbis, we must ask: what is the difference between Minsk and Pinsk [as the saying goes – trans.], such that in one city something is permissible, and in another, it is forbidden?

Some may answer that the Jewish burial society may impose the decision of the local rabbinic authority on the residents of Rishon Lezion simply because that is how Jewish Law works.  However, we find it neither legal nor just to force citizens to abide by prohibitions of the local rabbinic authority. The Gideon-Kestenbaum ruling lives on, as far as we are concerned, and has lost none of its force – neither its legal nor moral power.

Before me lies Talmud Tractate Yevamot, a large and weighty tome which commands respect. This edition was published by Rabbi Nachman Avraham Goldenberg in the year 5622 – “in Berlin, 1863.” Next to it is Tractate Nedarim which was published by the Widow and Brothers Ram Press, and its publication date – as printed on the front’s piece: 5657-1897. Similar is the Mishna Torah, the monumental work of the “great eagle, the illustrious rabbi, our teacher Moshe son of Maimon, blessed be the memory of the righteous.” This enormous and heavy volume “was meticulously proofread and brought to print” by Rabbi Nachman Avraham Goldenberg, and its year of publication is marked as 5622, “Berlin, 1862.” Also on my table, in its permanent place, is a Bible published by the Rabbi Kook Institute (proofread by Mordechai Breuer), and it dates to the year 1989. The Mishna with commentary by Rabbi Pinchas Kehati is from 1991; Volume 1 of the Talmudic Encyclopedia was printed in 5712-1951; the Rinat Yisrael prayer book edited by Shlomo Tal (fourth edition) is from 1983; and the eighth printing of the Complete Writings and Sayings of Moshe Sabar, published by the Rabbi Kook Institute, is from “5747 (1987).”

It would seem, therefore, that the prohibition against using the Gregorian calendar is not sweeping and comprehensive. In these circumstances, the Gideon-Kestenbaum ruling applies in every sense.

In the future, we might encounter a case of someone who wishes to carve a symbol of a cross on a gravestone, for example, but this is a different case and there is no need to elaborate on it further. The stringent ruling that we examine in the case at bar has already been addressed in Gideon [1] and Kestenbaum [6], and there is no need to repeat what has already been said.

19. The Jewish burial society made itself the “guardian” of the deceased who are buried in the Rishon Lezion cemetery – of them and their relatives – and it claims that the dignity of the dead and the sensibilities of their family members will be offended if there are gravestones inscribed with non-Hebrew letters and Gregorian dates in the cemetery. This claim is extremely surprising, all the more so because in other cemeteries in Israel, this prohibition has not been adopted. Are the people of Rishon Lezion different from other people in Israel? What singles them out from their compatriots? Is the sensitivity of the people of Rishon Lezion to non-Hebrew letters and Gregorian dates more acute than that of the rest of the population of Israel? There is no difference between the residents of Rishon Lezion and the residents of Greater Tel Aviv (for example), at least in the present matter. The only difference is the ruling of the rabbi of the Jewish burial society. But the ruling of the rabbi of the Jewish burial society does not obligate the entire public. On the other hand, the Gideon-Kestenbaum ruling is binding; it obligates even the rabbi of the Rishon Lezion Jewish burial society.

Additionally, as we have said, the Jewish burial society made itself the guardian of those buried in Rishon Lezion – of them, their relatives, and the feelings of these parties. However, the Court has not heard from the relatives of the deceased, and no complaint from their lips has reached us. The Jewish burial society’s claims have not left the realm of conjecture, and conjecture, of course, is limitless. We add, however, that even if someone did come before us with a complaint, it is doubtful that we would hear them. However, since no complaint was issued, there is certainly no need to bother with such never-ending conjecture.

20. This claim of harm to the dignity of the dead and the feelings of the families is not new to us. It came up in Kestenbaum [6], and the Court dealt with it comprehensively. Thus, for example, said President Shamgar:

A gravestone is not a public structure, but rather, first and foremost, a sign of the personal connection between the living, who keep the memory of the departed alive in their hearts, and those who have passed on; it is a memorial that is erected by those who will come to visit, that is intended, first and foremost, for them, and those concerned with it must be protected and distinguished.

…

One who erects a gravestone and another who comes to visit a different grave in the cemetery do not stand on the same plane. The general model needs to be that one who enters the space of his neighbor may not interfere needlessly with his life and sensibilities. Everyone must allow others the right and the freedom to do as they please, according to their own feelings and sensibilities, and tolerance is mandatory. People should not meddle in others’ business which is not relevant to them, though of course this does not refer to conditions that a reasonable person cannot accept.

Id.at 482.

 

My colleague Justice Barak expounded on the subject of human dignity, but we should pay particular attention to his comments on the dignity of the dead; in Kestenbaum [6], Justice Barak wrote the following about inscriptions on gravestones:

Insisting on exclusively Hebrew writing on the gravestone of a Jew, against his or her will, causes serious and severe harm to that person. This is not the hyper-sensitivity of an extremist Jew. This is an ‘ordinary person,’ who has no extraordinary sensitivities, and who is seriously harmed if he or she is powerless to choose an inscription in the language which he or she deem most appropriate to memorialize himself or herself or a loved one. Human dignity does not just refer to the dignity of living people. It includes dignity after death as well. It is also the dignity of those dear to the deceased, who keep his or her memory alive in their hearts. This dignity is expressed, among other ways, in the erection of a gravestone, in visits to the cemetery on annual memorial days, in public ceremonies, and the upkeep of the grave. This is the connection – sometimes rational and sometimes irrational – between the living and the dead, that crystallizes the humanity within us and gives expression to our souls' longed-for wishes. This is the ‘hand of memory’ that the living extend to the dead. This is the external expression that reflects the internal connection between the generations. Recognition of human dignity mandates giving people the freedom to inscribe gravestones in the way they see fit. The negation of this freedom and the imposition of exclusively Hebrew writing constitute a severe and serious violation of the fundamental value of human dignity. More precisely, a violation of human dignity occurs when someone is denied the liberty to carve an epitaph as the deceased (in his or her lifetime) and the family (after the death) wish to carve it.

Id. at 523.

 

21. In HCJ 3872/93 Meatrael v. The Prime Minister and Minister of Religious Affairs (hereinafter – Meatrael [19]) I discussed freedom of religion and freedom from religion, and, in the course of discussing these principles, I spoke about the private domain, the public domain, and what lies in between. Among other things, I wrote the following:

Allow me perhaps to pinpoint the principle that guides relations between religion and state with a saying (drawn from a very different context, and polished clean of its unwanted and irrelevant associations): Be a human being in the street and a Jew in the home. The public domain is the city street, and the private domain is one’s home. The state and its representatives – be they the government, the administration, or the courts – will safeguard and protect the freedom of religion of a person in his or her home, but when one leaves one’s home and comes into the public domain, or into the private domain of another, one cannot force one’s will and opinion on another. The private domain belongs to the individual – it is the individual’s alone, and his or her authority reigns there – and the public domain belongs to everyone. The dignity of a Jew is a private matter, and the state will protect the individual’s right to behave as he or she chooses in the home (while still providing protection for others and maintaining public order) whether the person is religiously observant or non-observant. Not so in the public domain, where the need to maintain public order, acceptable behavior, and public peace is essential. As the saying goes, Torah goes well with decent behavior – Torah in a Jewish home and decent behavior to all Jewish people (including those at home) …

The observant population’s interests are quite weighty, perhaps even determinative, within the privacy of their own homes.  However, the further one travels from one’s home, and the closer one is to entering the public domain – or another’s private domain – or when one’s request involves one’s fellows’ rights, so too will the strength of his or her interests be weakened, because they will be balanced against the interests of his or her neighbor, in the latter’s public or private domain.

Id. at 507-08.

 

In Bar-Ilan Street [15], I also referred to the private domain and the public domain, and I said, inter alia:

As a general rule, the private domain belongs to the individual and the public domain to the public. A person’s home belongs to him or her and to his or her family; city streets belong to the entire community. This is also the case in relations between religion and state. Every person has the right to freedom of religion and freedom from religion in the private domain. The state and its emissaries must safeguard and protect this freedom, using all means available to them. This is the case with respect to the private domain, and it is equally the case regarding the public domain. In the private domain and in the public domain, the state will protect the individual’s right to freedom of religion and freedom from religion. This right of a person means that he or she cannot be coerced on issues of religion, in either direction. In the private domain, the state will preserve freedom of religion and freedom from religion because it is the private domain, and in the public domain, the state will preserve freedom of religion and freedom from religion, because it is the public domain. All this will be said and will be fulfilled, provided that order and public peace is preserved. See e.g. the Meatrael case at 507-09.

Our concern is with these two sets of pairs: individuals and the collective, the private domain and the public domain. Both these pairs relate to each other in certain ways. We can be sure of the following, subject to statute and constitution: neither an individual nor the collective can impose on another in the latter's private domain. Similarly, in the public domain, an individual will not be allowed to impose his or her will on another or on the collective. Our case raises a question with regard to the connection between the individual and the collective in the public domain. Is the public entitled to force its religious customs on the individual who finds himself or herself in the public domain, in its midst, and thus negate that individual’s right to freedom in the public domain? The Court touched on this issue in Meatrael [6] [as cited above – trans.].  

…

All this is to say that the collective bears a heavy burden whenever it seeks to deny the freedom of an individual situated in the public domain; to force practices that are religious in nature on that individual.

The private domain is distinct from the public domain. What is the private domain and what is the public domain with respect to freedom of religion and freedom from religion? All agree that a person’s home forms part of the private domain. Nevertheless, I believe that it is possible – and indeed proper – to expand that which is considered the private domain even beyond the four walls of one’s house and yard – though with great care. Take, for example, an observant neighborhood of alleys and narrow side streets upon which no stranger ever treads. It would not be an exaggeration to say that, regarding the public desecration of the Sabbath, even those alleys between houses should be deemed to be the observant residents’ private domain.

Id. at 142-43 {314-15}.

 

I made further remarks along the same lines.

22. A person’s grave and the monument that is upon it are both the private domain and the public domain simultaneously. Each dead person has his or her private domain, where he or she and the family do as they will. For example, in the home – while the deceased was still among the living – he or she may have talked with his or her family in a foreign language (Russian, German, English, Amharic), wrote in a non-Hebrew script (Russian, German, English, Amharic), and run his or her life – as most of us do – by the Gregorian calendar. A person and his or her language – the language of speech, the language of writing, the language of the calendar – are one.

Close family members may have related to the deceased only in that language and through the Gregorian calendar. That’s how they chatted among themselves, that’s how they wrote to each other, and now they wish to remember him or her as he or she was. They wish to continue to talk to their loved one in his or her language. They wish to imagine him or her as he or her was. They wish to read his or her name on the grave as they know is and see his or her birth date as he himself or she herself used to write it. Writing the name of the deceased only in Hebrew and recording the dates of birth and death only according to the Hebrew calendar create a psychological barrier between the family and the deceased, distancing the deceased from his or her loved ones.

This is an emotional matter – could it be irrational? Of course. But visiting graves is also an emotional matter. Yet this doesn’t prevent a mother who has lost her son from embracing the cold, dumb gravestone. It is nothing but arrogant and paternalistic coercion to tell that grieving mother that she must learn Hebrew – doesn’t she realize that she is in the Hebrew homeland now? – and that if she does as she is told, she will be able to read her son’s name in her (new) language and his birth and death dates by the Hebrew calendar.

This is the private domain.

Yet a cemetery is also the public domain, because gravestones are exposed for all to see, row after row, each one right beside the next, and people must walk among them to get to the one they seek. In a certain sense, a cemetery is like a shared house – or a common courtyard shared by adjacent houses – with one important difference: living neighbors will always part eventually, while neighbors in a cemetery will be neighbors forever (or until the resurrection of the dead, if you will).

A neighbor should always be careful to be a good neighbor, one who does not do things that will harm his or her neighbor. Thus, for example, a cross should not be carved on a Jewish grave, since a cross can harm – to an intolerable degree – the dignity of the dead neighbor and the feelings of his or her family. Just as a good neighbor does not make too much noise or create bad smells, the same principle should hold true in a cemetery. I am at a loss, however, to understand how the writing of a name in foreign letters – the letters the deceased lived by – will harm his or her neighbor. Didn’t that neighbor see foreign writing in his or her lifetime? Why would it harm him or her after death?

The case is the same with Gregorian dates of birth and death. Did that same neighbor not also live his or her life according to the Gregorian calendar? And if the neighbor did not run his or her own life that way, didn’t he or she have relatives, friends, and people all around who used that calendar? The deceased and the family and the deceased “neighbor” and family all have legitimate interests, but there is no equating the dignity of the deceased which we address in this case and that of her relatives with the dignity of some hypothetical deceased neighbor and his relatives. The dignity of the deceased we address – her dignity and that of her family – must be the determinative factor. The prohibition imposed by the Jewish burial society on the appellant transgresses – significantly – all acceptable bounds.

23. The Jewish burial society drew our attention to HM (TA) 752/94 Burgman v. Rishon Lezion Jewish Burial Society (hereinafter –Burgman [42]) heard in the district court before Judge Dr. G. Kling. Also in that case, the Jewish burial society (the very same one that is before us now) refused to all allow non-Hebrew writing or non-Hebrew dates on a gravestone. In that case, family members claimed that they ran their lives “… according to the Gregorian years, we are accustomed to using them. We are not familiar with nor do we understand the Hebrew calendar at all, and a significant portion of our family does not read or speak Hebrew ...” Moreover, the widower of the deceased in the case claimed: “I know and understand the wishes of my late wife and she would have preferred that her name be recorded on her gravestone in her mother tongue and that her birth and death dates be inscribed according to the standard calendar, in addition, of course, to Hebrew writing.” The widower further claimed: “I emphasize that I am not denigrating the Hebrew script – all that I ask for is the option to inscribe, in addition, the dates of birth and death of my late wife according to the standard calendar, and also her name in Cyrillic letters.”

Despite Kestenbaum [6], the court did not grant the plaintiffs their request, and it upheld the Jewish burial society’s refusal. The court explained that it must differ from Kestenbaum [6], and its opinion cited several reasons. The main one was that in Kestenbaum [6], the Jewish burial society held a monopoly. But as far as the present respondent (the Rishon Lezion Jewish burial society) was concerned, the deceased’s family had the option of turning to other Jewish burial societies in cities close to Rishon Lezion. Thus: “Since the plaintiffs have a choice, one that was not open to the appellants in the Kestenbaum case, and since the respondent does not enjoy the same exclusive standing it held in Kestenbaum, in our case there is no obligation to follow what was said there.”

While it is true that President Shamgar noted in Kestenbaum [6] (supra, at 477, 484) that the Jewish burial society in that case looked after more than fifty percent of those buried in Jerusalem, that comment was made only in relation to the applicability of the Standard Contracts Law (and even so it was only one of three reasons he brought). Meanwhile, Deputy President Elon, in his ruling, explicitly differentiated Kestenbaum [6] from Gideon [1], saying that in the former, an alternative burial option did exist, and there was no monopoly. Kestenbaum [6], supra, at 490, 496, 503-04, 507, 510.

In any case, nothing in any of these statements detracts from the other reasons that formed the basis of the final judgment: not from the issue of public policy and not from the applicability of principles of public law. Additionally, the Court’s judgment in Kestenbaum [6] bases itself – first and foremost – on public policy and the applicability of public law on dual-character bodies. To reduce the ruling to a case of monopoly is simply unacceptable.

We might also ask, why isn’t the Jewish burial society of Rishon Lezion considered to hold a monopoly on burial in that city? Where does it get the legal and ethical right to send the people of Rishon Lezion to bury their dead in other cities? The Court could have used that to resolve the issue in Kestenbaum [6]. That is, it could have sent the appellant to bury his wife in a different cemetery (or a different section of the same cemetery which is managed by a different Jewish burial society).

The court in Burgman [42] ruled that in Kestenbaum [6], the majority of the justices saw fit “… under the circumstances, to prefer … the right of the appellants, who wanted a gravestone that would speak to their hearts in a language they understand and a date they understand.” On this, the court said:

It is not my place to ponder the opinion of the majority of justices in the Kestenbaum matter. But I will say that I doubt that a person who lives in Israel should be heard when he or she claims not to know anything of the Hebrew calendar or how to read Hebrew. A significant part of the lives of all who live in Israel is related to the Hebrew calendar, according to which we mark the Jewish festivals and Israel’s Independence Day. These festivals are public holidays under section 18a of the Jurisdictional Areas and Authority Ordinance, 1948, and many legal norms and even punishments derive from the Hebrew calendar. A person should not be heard when he or she claims that because of his or her faith, or lack of faith, he or she does not know when these festivals fall, that he or she is a stranger to the Hebrew calendar. It cannot be doubted that the Hebrew calendar has importance and ramifications for all aspects of life in the state, and it is one of the characteristics of the state as a Jewish state.

All who live in Israel, or who come to visit here, accept the inevitability of their encounter with the Hebrew language. In many countries, the names of streets and traffic signs are written only in the local language. It is the way of the world that each and every country has its own language and script, and one who enters its borders must adapt to this situation. If they can deal with traffic and streets signs, why would it be any extra burden on those relatives of the deceased, who come from overseas to grieve at her graveside, not to find Cyrillic writing there. If they do come to visit the grave of the deceased, relatives from Israel can help them, if they can’t find the grave. Thus, in my opinion, the harm caused to the relatives of the deceased, if the gravestone is inscribed in Hebrew only, is not as serious and severe as that caused to the relatives of the other deceased, who live by their religious faith and are dismayed to see foreign writing when they visit the graves of their relatives.

I cited these words in full, and I must say that I have great difficulty agreeing with them. My response to the court lies my remarks above.

Side Comment (unrelated yet related)

24. When my time comes, and a monument is erected on my grave, I request that my birth and death dates be inscribed upon it according to the Hebrew calendar. That is how I was born, that is how I will go, and that’s how I will be remembered. This is my will, and this is how I will instruct my children. However, I would not dare to presume to stand in the way of another who wishes to inscribe on his father’s grave the dates of birth and death according to the standard calendar. Just as I ask that they respect my wishes, thus I have learnt to respect the wishes of others.

Conclusion

25. For reasons that I clarified and explained at length, I recommend to my colleagues that we grant the appeal, reverse the judgment of the district court, and declare that the appellant has the right to inscribe the dates of birth and death according to the standard (Gregorian) calendar on her late mother’s gravestone. I also recommend to my colleagues that we order the respondent to bear any expenses that the appellant will incur due to the lateness of the additional inscription. In a case of disagreement, the lower court will decide these costs. In addition, the respondent will bear the appellant’s costs and attorney’s fees at a total sum of NIS 50,000.

Later

26. I took pleasure in reading the opinion of my colleague, Justice Englard, but I must vehemently disagree with him. My response to my colleague lies in what I have already written, but now I wish to add several remarks.

My colleague says that the disagreement between the litigants is basically an ideological dispute and that we, the judges, are dragged into it against our will. I have two things to say about that: First of all, from the perspective of the appellant, at least, I have not found the dispute to be an ideological one. The opposite is true. The dispute is of a most personal nature – the Hebrew calendar is not meaningful to the relatives of the deceased – and when the relatives come to the cemetery, they seek to commune with the person as they knew her.

Secondly, even if this were an ideological dispute between the litigants, it would still be our job to settle it, since that is why we were appointed to the bench. The legislature instructs us: say what you will say, only say it. See e.g. HCJFH 7015/94 Attorney General v. Anonymous [20] at 88.

A second matter: The dispute between the litigants is, in fact, about the desires and dignity of an individual – the appellant before us – versus the ruling of the local rabbinic authority that guides the Jewish burial society. However, this kind of ruling is only binding among the religiously observant population or when accompanied by statutory enforcement. We must keep in mind that the State of Israel is not run according to Jewish Law. It is a state run by law. Israel is a democracy, and the law rules within her borders. Meatrael [19] at 500. Our considerations revolve around the individual, the human being, his or her wishes, interests, well-being, and welfare –all according to law of the state. On principle, we say that our judicial processes are anthropocentric and not Theocentric. The disputes over which we preside are between individual and individual, not individual and Jewish Law. On these disputes, we must pass judgment.

Third: It is imprecise to say that we want to force the Jewish burial society to do something which it is forbidden to do. The Jewish burial society is seeking to coerce the appellant, and this coercion, we forbid.

And last: the Alternative Burial Law could change burial practices in Israel, including burial practices in the cemeteries of the various Jewish burial societies. It may cause change, and it may not. Time will tell, and we cannot prophecy what the future will hold. However, even if a change in the custom does come about – and a real change, if it does come, would take years – the vast majority of people will still make use of the Jewish burial societies. They will continue to look after the dead and bring them to Jewish graves in the cemeteries under their control. All that will change is that the Alternative Burial Law will allow for another option, that is an “alternative civilian burial.” The standard way of burial will be in a regular cemetery under the auspices of a Jewish burial society, but other cemeteries will exist, “alternative civilian cemeteries.” All the dead are equal, but burial in an “alternative” cemetery is not “regular” burial; rather it is “alternative” burial. Furthermore, one who wishes to be buried in an alternative cemetery bears the responsibility of expressing this desire. If he does not make such a request, he will be interred, as is standard, in a cemetery belonging to a Jewish burial society.

There are those who will ask to be buried in an “alternative civilian” manner. However, I believe I am not mistaken when I say that this will be only a minority of the population. At least in our time, most citizens will not change their custom and ask to be buried in an alternative civilian cemetery. Their wish (implicitly) will be to be laid to eternal rest among their parents, grandparents, and relatives; just as they were together in life, they will wish to be together after death.

So the question must be asked: in light of all these things, what right has the Jewish burial society – what legal right, ethical right, any kind of right – to force a local rabbinic ruling on the whole of the Jewish people? During a person’s lifetime, his local rabbi has no authority over him or her, unless the person seeks his counsel. Why do we empower this rabbi to decide the manner of the burial for this same person after death?

One who takes on a public duty must know that it is forbidden to force his or her will onto the public except within the bounds of the law, and even the law itself will bow its head before a Basic Law. A Jewish burial society is regulated, to a limited degree, in the same way as a public agency. The local rabbi’s opinion – by itself – does not bind any pubic agency, and he is not authorized to force it on the public, if it violates basic rights.

 

Justice I. Englard

1. The Talmudic Sages knew the reason for tragedy: “Jerusalem was destroyed only because … they based their judgments [strictly] upon the Biblical law and did not go beyond the letter of the law.” Tractate Baba Metzia, 30B [50]; [… trans.] “Why was the Second Temple destroyed, seeing that in its time they were occupying themselves with Torah, [observance of] precepts, and the practice of charity? Because therein prevailed groundless hatred.” Yoma 9B [51]. As it is explained: “Going beyond the letter of the law means compromise and since there was groundless hatred among them the litigants did not want to compromise.” Etz Yosef, Ein Ya’acov, Tractate Baba Metzia 30 [52]. The obligation to go beyond the letter of the law is the ethical duty of the individual. As Rabbi Shmuel Eliezer Edels interprets the source [53]: “Tell the litigants that each one of them must allow themselves to be placated beyond the letter of the law and that the matter is dependent on them because the judge cannot go beyond the letter of the law.” Shulchan Aruch, Hoshen Hamishpat 12b [54], with commentary by Rabbi Moshe Isserlis [55] and the standard commentators. The Court has often begged litigants to reach a compromise, but if they do not, the judge must follow the letter of the law. Similarly, in the matter before us, which is not a new dispute, the courts have in the past asked litigants to behave with tolerance.

2. Unfortunately, on this occasion, the problem is much bigger. As opposed to our Sages, today we can’t agree on the letter of the law, let alone what lies beyond the letter of the law. Of course, all agree that we must behave with tolerance in order to reach compromises – but this is always the duty of the other litigant, because he or she is the one who is being stubborn about every little detail and making unreasonable demands. But me? I am facing a mortal blow to fundamental principles, basic rights, principles of public law, human dignity, public policy, feelings and sensibilities, freedom of choice, the private domain. But you! You are just shameless. Your actions are arrogant and coercive paternalism; and your feelings are those of an extremist and abnormal Jew.

3. These are the kinds of things that have been said in the context of this case. Why is this dispute so bitter? Is it really all for the sake of the dates of birth and death inscribed on the gravestone of a dead person who lies in the cemetery, but who cannot rest in peace? The judges have been dragged into this dispute, which at root is a purely ideological clash.  It is known that a legal ruling has no power to solve the ongoing ideological conflict regarding the Jewish character of Israel and the relationship between religion and state in this Jewish democratic country. The carving of dates is only one aspect of this dispute. Thus, my colleague, Justice M. Cheshin, need not be surprised that our nation involves itself continuously on the subject of inscriptions on gravestones and cannot set a standard – because in these sorts of disputes, there is no standard, there is no clear ruling, and there is no golden path to follow.  New aspects of this dispute are continuously arising.

4. As I will show in the course of my remarks, in the past, this court has decided these sorts of disputes by “balancing” the basic principles, in the attempt to apply a test of reason to gauge the respective sensibilities of the litigants. I believe that where beliefs and opinions are concerned, there is no possibility of measuring sensibilities objectively. We face an ideological clash focused on symbols, and their importance to different people cannot be measured by any external yardstick of reason. Any ruling on the logical weight of a symbol will certainly be an expression of subjective values. Furthermore, the standing of a certain symbol in society is not fixed for any length of time. It can change according to social and political factors, which are ever dynamic. Often, zealousness in guarding a certain symbol is simply a reaction to the zealousness of others who seek to destroy it. Take, for example, the Torah commandment of sanctifying God’s name.  The principle is: “If in every law of the Torah a man is commanded: ‘transgress or die,’ he must transgress and not suffer death, excepting idolatry, sexual immorality, and murder.”  But the Talmud continues, “This was taught only if there is not a royal decree but if there is a royal decree, one must incur martyrdom rather than transgress a minor precept … Even without a royal decree, it was permitted only in private, but in public one must be martyred even for a minor precept rather than violate it. What is meant by a ‘minor precept’? Rava, son of Rabbi Yitzhak, said in Rav’s name: Even to change one’s sandal strap.” Tractate Sanhedrin, 74A-B [56]; see Maimonides Basic Laws of the Torah, 85, laws B-D [57].

It is possible that even the date carved on a gravestone can turn into the strap of a sandal, for the sake of which a Jew would give up his life …

5. First, I will examine the path this court took in a dispute over carving dates on gravestones in Jewish cemeteries. In CA 280/71 (Gideon [1]), heard more than a quarter of a century ago, Justice Etzioni called the matter a “Jewish war,” whose cause, in his opinion, was the “stubborn refusal” of the Jewish burial society to allow the only son of the deceased to inscribe Gregorian birth and death dates alongside the Hebrew dates. In his ruling, which Justice Berenson joined, Justice Etzioni wrote the following regarding the stance of the Jewish burial society:

This decree is a serious breach of the natural, elementary and acknowledged right of everyone in Israel to run his or her life according to the standard calendar, the very same calendar according to which our legal rights are set. The Interpretation Ordinance (New Version) clearly establishes that “a year” and “a month” are calculated according to the Gregorian calendar, and the fiscal year consists of twelve months ending on March 31 every year (sec. 1). A person lives his or her whole life within the framework of this calendar: on birth and death certificates the standard date is always listed in addition to the Hebrew date; official identity cards record the standard birth date; in every kind of transaction, whether in the realm of private or public law, the relevant documents always bear the standard date, not to mention statutes and ordinances. As has been noted, even the official documents of the rabbinate do not lack a space for the standard date. Is this not a case of discrimination? It is the arbitrary negation of a person’s right to use the standard calendar to record his or her dates of birth and death, though all the events of his or her life were marked by this calendar!

Gideon [1] at 23.

 

Of course, in that case, the Jewish burial society relied on the ruling of Rabbi Ovadia Yosef, who wrote that:

It is absolutely forbidden to erect a gravestone with a non-Hebrew date because there is a Biblical prohibition that says: “Make no mention of the name of other gods”, and the Gregorian calendar recalls the number of years since the Christian birth.

Id.at 19.

 

To this Justice Etzioni responded that “it is difficult … to treat this opinion as the final word on the matter” for the following reason:

As has been proven, standard dates appear in many cemeteries which are managed by Jewish burial societies. Suffice to mention the cemetery on Trumpeldor Street in Tel Aviv and the Haifa and Tzfat cemeteries. Additionally, the leaders of the Torah world and the nation who are buried in the Diaspora were buried in cemeteries where it was acceptable practice to erect gravestones carved with standard birth and death dates. If this is not enough, the visitor to the Mount Herzl cemetery in Jerusalem, where the great soldiers and luminaries of Israel are interred, will see with his or her own eyes that birth and death dates are carved according to the standard calendar. Among them: the graves of the family of the visionary of the state, Theodor Herzl, and the graves of the Zionist leaders Wolfson, Sokolow and others.

Id.

 

This was Justice Etzioni’s conclusion:

It is clear, therefore, that the claim that recording of standard dates in Jewish cemeteries would cause a transgression of Jewish Law or harm to the religious sensibilities of Jews is without basis and utterly unfounded.

Id.

 

6. Cited above are Justice Etzioni’s remarks regarding what he saw as “the letter of the law,” and below are his words regarding what lies “beyond the letter of the law”:

It would have been nice, had the respondent granted the appellant’s request and foregone this entirely unjust restriction. Indeed, I believe this “Jewish war” is absolutely unnecessary. Unfortunately such wars often come before the Court, and their source is the opposing ideologies regarding the ideal structure and content of our national life. Of course we cannot forbid these wars, as long as they are related to matters of substance, and are not just petty issues, mostly secondary to a primary principle. We are not the only ones in the world in this situation; similar arguments are fought elsewhere. See Basil Mitchell, Law, Morality and Religion in a Secular Society at 134. But obviously, it is always appropriate to differentiate between the main principle and that which is secondary, between the heart of the matter and the peripheral trivialities. It seems to me that if we wish to safeguard our uniqueness and unity as a nation, there is no fleeing from mutual compromise, at least when it does not affect fundamentals. The war that the respondent is fighting is not a war over fundamentals but rather over secondary issues which are needlessly propagating strife and contention in the country.

Id. at 24.

 

7. As mentioned, Justice Witkon held the minority opinion in Gideon [1]. Disagreeing with the above approach, he said:

It seems to me that when faced with the respondent, the appellant has nothing to say. The Jewish burial society runs its affairs in the spirit of its ideology and sets the rules for gravestones as it sees fit in cemeteries under its management. It is immaterial if we agree or disagree with its views. It is not our place to argue if they are well-anchored in law or in Jewish Law or the spirit of the Jewish religion in our times. It is true that the ban on the standard calendar is not one of the 613 commandments of the Torah, and it is possible that the respondent is being too rigid. It is also true that even the document bearing the ruling of the honorable Chief Rabbi, Rabbi Ovadia Yosef, upon which the respondent relies, displays the Gregorian date. Not only are these dates used on every official and ceremonial document issued in the State of Israel, but they are often found even on documents issued by the Rabbinate. Similarly, it has been determined that in the past, Jewish burial societies allowed Gregorian dates on gravestones, and it seems that they did not then consider it an affront to the sensibilities of religious Jews. Today, we consider testimony offered on the respondent’s behalf, that in the public domain of which it is in charge – and we are referring to a public domain and not a private domain (see HM 545/67 (Jer) Arnon v. Israel Lands Administration, IsrDC 67 284) – there must be one standard custom, and that is to carve birth and death dates on gravestones according to the Hebrew calendar only. In this sensitive issue, who can tell us if one approach is ‘reasonable’ or not?

Id. at 15-16.

 

8. In CA 294/91 (Kestenbaum [6]), the issue arose again, again the justices’ opinions were divided, and again the dispute was to a large extent ideological. The central questions are: What are the sensibilities that need to be defended? Who has the burden of being tolerant? And who must give in? Of course, for the sake of finding a solution to the problem, the Court uses legal principles and conceptual tools through which it can adjudicate the opposing demands of the litigants. Here, briefly, is a list of those tools: public law that overrules the general Contracts Law; a discriminatory condition in a standard contract; human dignity and freedom; and public policy. But these conceptual tools cannot succeed in getting to the root of this ideological dispute.

9. President Shamgar aspires to be objective, and he says it beautifully in his judgment in Kestenbaum [6]: 

As long as the issue is the essential nature of the harm, which would make it a legitimate reason to limit personal liberty, its extent will be measured from the viewpoint of the average rational person, that is using objective criteria and not subjective sensibilities and reactions.

Id. at 482.

 

President Shamgar goes on to apply his “objective” test in the following way:

We can’t conclude from what has been said above that someone who erects a gravestone should be allowed to do whatever he or she likes. Supervision is necessary so that the character of the cemetery and the sensibilities of others will not be harmed. Nevertheless, as mentioned above in a general way, when evaluating the harm to others, the appropriate path is to establish criteria based on logic and tolerance and not extremism. The right of the individual to erect a monument which will allow him to commune with his loved one, and record upon it whatever is significant in his eyes or, in his opinion, the eyes of deceased, must retreat before the sensibilities of another only if it is clearly inevitable that the inscription will arouse the strong and justified opposition of a reasonable person. One who erects a gravestone and another who comes to visit a different grave in the cemetery do not occupy the same position. The general model needs to be that one who enters the space of a neighbor may not interfere needlessly with the neighbor’s life and sensibilities. Everyone must allow others the right and the freedom to do as they please, according to their own feelings and sensibilities, and tolerance is mandatory. People should not meddle in others’ business which does not pertain to them, though of course this does not refer to terms that a reasonable person could not accept … This raises a question in our case: Is what the appellant is requesting so extreme and unusual that it has the ability to harm the sensibilities of others in an essential way? My answer to that question is no.

Id.

 

10. In the same spirit, my colleague, Justice Barak, also balanced the opposing interests, deciding that at the center of the Jewish burial society’s concern was the social value of the exclusivity of the Hebrew language. To his thinking, the test case in the “balance of sensibilities” should not be the sensibilities of an unusual and exceptional person, but rather – as per the definition of Justice Etzioni in Gideon [1] – “the opinions and sensibilities of the majority or significant portion of the public and not the polarized views of people who make up an extremist minority.’” Supra [6] at 502. My colleague, Justice Barak, concluded, regarding Kestenbaum [6]:

Permitting non-Hebrew writing (alongside the Hebrew writing) does not constitute a serious violation of the human dignity of those who object to this writing. This sense of violation is the product of unusual and extraordinary sensitivity. On the other hand, insisting on the exclusive use of Hebrew writing causes a serious violation of the human dignity of those who object. This sense of violation is the product of natural and normal feelings in a person who is sensitive to human dignity (his or her own dignity or that of another person.

Id. at 523.

 

11. Is this comparison of sensibilities based on an objective test, or perhaps, does it simply express a subjective worldview? Deputy President Elon, in his minority opinion in Kestenbaum [6], addressed this question:

“It is not at all clear to me what in the prohibition of non-Hebrew writing constitutes serious and severe harm to the principle of human dignity. And as to the differentiation my colleagues make between those whose sensibilities are natural and normal and those whose sensibilities are abnormal and extraordinary, if I were to adopt this kind of test, my conclusion would be different from that of my colleagues. It is also difficult for me to accept that the myriads who have only Hebrew writing on their gravestones and who are interred in cemeteries where there is no non-Hebrew writing, and who followed this path knowingly and with the knowledge of their families, believing this to be dignified for both the dead and the living – that all these people are not “regular people” but rather “abnormally and extraordinarily sensitive” people.

Id. at 513.

 

Deputy President Elon concludes his opinion as follows:

The Jewish burial society considers Hebrew inscriptions one of its basic principles, and an essential value to the thousands of deceased who have found their eternal rest in the cemetery for over fifty years. It espoused this principle in the past and continues to stand by it today. It has been weighed on the scales of public norms which bind the Jewish burial society, and it is valid according to the principles of private law through the contract signed by the Jewish burial society and the appellant.  That is how the heads of the Jewish burial society and the cemetery’s board see the matter, and that is how it should be viewed from legal, social, Jewish and democratic standpoints. Perhaps the appellant, the husband of the deceased, who has no doubt as to the rightness of his cause, will reconsider, and give up his request for the sake of the dignity of all those who have found eternal rest in this burial place, secure in the knowledge that Hebrew is the only script found on the gravestones located there, and for the dignity of the cemetery, which must be managed with caution so as to not open a new era in which the gravestones located there will display all the foreign scripts that the dead brought home from the lands of the Diaspora in their lifetimes – Latin, Cyrillic, Chinese, Amharic, Japanese letters – lest the cemetery become a Tower of Babel of languages and scripts. It is fitting and desirable that this superior valuation of the Hebrew language, acceptable to all those buried in this cemetery, will continue to unite all those who have found and will find dignified rest there. Like the dignity of the dead, the dignity of the living and the dignity of Israel, as well as the dignity of his late wife, also obligate the appellant to willingly take upon himself this “burden” of the language of the Jewish state.

Id. at 515-16.

 

This is what is meant by “the letter of the law” and “beyond the letter of the law,” and it is completely different from the opinion of Justice Etzioni.

12. Since this is an ideological dispute, is it really surprising that district court judges have also failed to reach consensus? For example, Judge Dr. G. Kling in Burgman [42] maintains the following:

From the outset, the harm done to the relatives of the deceased whose gravestone will be carved in Hebrew only is not as serious and severe as that done to those other people who live by their religion and who, when they visit the graves of their loved ones, will have to encounter foreign writing.

On the other hand, Judge Goren in HM (TA) 1275/93 Kagan v. Rishon Lezion Jewish Burial Society [43] reaches the conclusion that:

With all due respect to the rabbis of the city of Rishon Lezion, and I say that with sincerity and humility, it seems to me that the plea of the plaintiffs does not diverge from that which is acceptable in other cemeteries in the country, where the rabbis are not as strict as the rabbis [of the Jewish burial society of Rishon Lezion – I.E.].

Before making these remarks, Judge Goren noted that he had been very impressed by Rabbi Tarovitz’s testimony, offered by the Jewish burial society, that he had no doubt that his words reflected real pain that would be caused, and yet still the Court granted the request.

13. Everyone agrees that there is a threshold of sensitivity among the religiously observant public that should not be crossed. Even my colleague, Justice M. Cheshin, recognized such a threshold when he noted that “in the future, we might encounter a case of someone who wishes to carve on a gravestone a symbol of a cross, for example,” and he continues, “a cross should not be carved on a Jewish grave, since a cross can harm – to intolerable degree – the dignity of the dead neighbor and the feelings of his family.” I question if it is the role of the Court to establish the “legitimate” boundaries of the sensibilities of believers in general, and of the religiously observant public in particular. In addition, the definition of the boundaries of “reasonable” sensitivity is based largely on subjective views, as illustrated by the differences of opinions among the judges themselves.

14. I will return to the judgment of this court. In both Gideon [1] and Kestenbaum [6], the assumption was that carving standard dates is not against Jewish Law. Justice Etzioni did not hesitate to conclude this through his own interpretation of Jewish Law, as part of his rejection of the ruling of Rabbi Ovadia Yosef that it is forbidden by the Bible. The conclusion that it is permissible according to Jewish Law also guided the Court in Kestenbaum [6]. This assumption arose even Deputy President Elon’s opinion:

Regarding the aforementioned ruling on the use of non-Hebrew dates, and the reasons it is allowed, see Responsa Yabia Omer (by Rabbi Ovadia Yosef), part three, Yoreh Deah, 9, and Responsa Tzitz Eliezer (by Rabbi Eliezer Veldinberg) part nine – two of the most important Jewish legal authorities of our time.

Kestenbaum [6] at 489 (emphasis mine – I.E.).

 

However, he obviously did not examine the matter very thoroughly, since he failed differentiate between the use of Christian dates on everyday letters and business correspondence and their inscription on gravestones. In Responsa Tzitz Eliezer, part nine, chapter 100B [58], on which Justice Elon supposedly relied, the writer rules explicitly that, regarding gravestones, “… this borders on a desecration of God’s name.” Despite the assumption that guided this Court in Gideon and Kestenbaum, no dispensation to carve Christian dates on gravestones is found in Jewish legal literature. All the authorities who were asked forbade the inscribing of Christian dates, as the rabbi of Rishon Lezion ruled in the case at bar.

15. In order to clarify the Jewish legal problem, I will cite in full the response of the Chief Rabbi, Rabbi Ovadia Yosef, in Responsa Yabia Omer, part seven, Yoreh Deah, 32 ch. 100B [59]:

Regarding the question of the permissibility of carving on a gravestone the name of the deceased in foreign letters and the date of death, Rabbi Moshe Shick (Choshen Hamishpat, ch. 56) was asked about this in a case where someone went against the local custom and erected a gravestone for a family member on which he carved the name of the deceased in the Hungarian script. Rabbi Shick condemned this act for several reasons. Firstly, a cemetery has the legal status of a ‘shared courtyard’, and even in the most mundane matter one of the partners is not allowed to change anything without the agreement of all those who share the courtyard, as was established for us in Choshen Hamishpat (ch. 154). This is all the more true regarding a custom that our forebears have followed from time immemorial. In such a case, not even the management of the Jewish burial society is licensed to make a change without the agreement of the local rabbi and the majority of the community. Even if the custom is changed for sake of the dignity of one particular deceased person, that person may end up causing disgrace and harm to the dignity of other deceased … The rule is that the customs of Israel are like Biblical laws, and it is forbidden to change them in any way.

Secondly, a cemetery is a holy and pure place, as it is written in Elia Raba (ch. 581) in the name of Rabbi Yaakov Molin. We need to treat a cemetery with respect, as it is written in Yoreh Deah (ch. 368) that it is forbidden to engage in frivolous behavior there, that one may not eat or drink there, or stroll there for leisure. Even the group that looks after the dead is called the hevra kadisha [Jewish burial society, lit: the holy brotherhood – trans.], because the world of the dead is the world of truth, and it is called the world of clarity where the righteous are exalted and the wicked cast down, as it is written in Tractate Baba Batra (10). Therefore, the custom in the Diaspora is that gravestones are inscribed only in the Holy Tongue, the language with which the world was created, in which the Torah and all the Holy Writings were given and in which God spoke to all the prophets of Israel. An inscription on a grave in another language causes disgrace to the dead, and indicates that he belongs to the world of falsehood.

There is also a concern lest the law against acting like non-Jews be transgressed, and thus the Jewish burial society must be on guard not to allow any change in the holy customs of the Jews. Responsa Shaare Tzedek (Yoreh Deah ch. 199) was asked about this and answered that it is simple and clear that there is a serious prohibition against changing the ancient Jewish custom of carving the name and the epitaph on a gravestone in the Holy Tongue alone. One who changes this custom and carves in non-Jewish writing transgresses the law ‘you shall not erect for yourselves a stone pillar [modern Hebrew: gravestone – trans.] which the Lord, your God, hates.” Such a gravestone is hateful in God’s eyes, it falls into the category of accoutrements of the non-Jews, and it is an abomination.

It is a Jewish custom to pray at the graves of the dead on behalf of the living, as is written in Tractate Ta’anit (16) and in the Shulchan Aruch (ch. 591). Also, as it says in the Holy Zohar (Parshat Shmot), were it not for the prayers of the dead on behalf of the living, the living could not continue to exist even half a day. If this important prohibition regarding gravestones is transgressed, how will the dead stand up to pray for the living who brought about this disgrace to the Holy Tongue in which the Bible was given? Thus there is no doubt that there is a very important and serious prohibition against doing so, and in no case should gravestone inscriptions in languages other than the Holy Tongue be allowed. I have seen that the illustrious Rabbi Shlomo Kluger forbade this, and this is an eternal prohibition. The same conclusion was reached in Responsa Pri Hasadeh part one (ch. 3) and in that author’s book Dudai Hasadeh (ch. 19).

Also, Rabbi Moshe Shick (Yoreh Deah ch. 171), after he wrote a prohibition of substituting the Holy Tongue with a foreign language, also prohibited recording the year according to foreign calculations. This is a far greater transgression, and in my opinion, the Bible itself prohibits it, as it says “Make no mention of the name of other gods.” The use of their calendar is a transgression of this prohibition because the calendar brings to mind the birth of Jesus. Thus, if it were possible to get rid of this kind of gravestone completely, it would be best, but if that is impossible, at the very least clay or plaster should be smeared over the writing and dates so that no hint of the foreign writing and dates remains.

The Rabbi Moshe ben Haviv in Gat Pashut (ch. 127, subsection 130) cautions against using the Christian date even on everyday letters, saying you should use only the date commemorating the creation of the world, and not as some people behave, people who lived in foreign lands who dated their letters with Christian years and names of the months. It is improper to do so. Responsa Pri Hasadeh part one (end of ch. 3) quotes the book Imrei Yosher by the illustrious Rabbi Meir Arik, may his name be as a righteous person, who wrote a response on this issue, and mentioned in his conclusion that you should only inscribe a gravestone in the Holy Tongue and record the year from the creation of the world, and this should be changed in no way. This is written very concisely in Responsa Dudai Hasadeh (ch. 19).

Despite this, in my book Yabia Omer part 3 (Yoreh Deah ch. 9), I tried to be lenient about writing the year according to their calendar on everyday letters, because in truth, the calendar does not accurately count from the birth of Jesus, as Rabbi Shimon ben Tzemach proved in his book Keshet U’Magen (p. 11), showing that the calculations of the Christians do not fit the real birth of Jesus. See also the book Kol Bo of Rabbi Greenwald part 2 at 147. When the Chatam Sofer [Rabbi Moshe Schreiber] cautioned against this in Torat Moshe it was only because he thought at the time that this date was connected to the birth of Jesus, while in truth, it has no connection whatsoever, as it is written in Otzer Yisrael. Later, he also retracted his ruling, and wrote his responsa using their dates several times. This was also the position of Rabbi Yosef Yozpa and the illustrious Rabbi Akiva Eiger.

This was also the position of the illustrious and righteous Rabbi Joshua Freund in Responsa Meor Joshua. He quoted the words of Rabbi Shick, who was insistent in this matter, and he disputed that position on several grounds, including because it nullifies all business and banking transactions in our time, since all banknotes and checks are dated according to their calendar, and almost no one refrains from doing so. It was brought down thus in the book Az Nidberu (part 12, ch. 38). One rabbi did dispute my abovementioned response in Yabia Omer, and my brother rabbi, the illustrious Rabbi Eliezer Veldinberg in Responsa Tzitz Eliezer part 9 (ch. 14, subsection 3), correctly refuted his words. Later, I saw that Responsa Be’er Moshe part 8 (ch. 18) also criticizes our position. However his comments are not at all clear. 

In any case I acknowledge that when it comes to gravestones in cemeteries, we must be stringent, and carve only the year calculated from the creation of the world. There is absolutely no changing the custom followed by all the dispersed of Israel. A gravestone is a testimony to the remains of the soul, as it is written by Rabbi Shmuel Vital in Sha’ar Hamitzvot (Parshat Veyehi) and in Responsa Hayim Sheal part 1 ( ch. 71 subsection 6). The soul is recognized only by the true date, and the true expression is fitting for the world of truth. Responsa Tzitz Eliezer part 9 (ch. 14 subsection 2) also differentiates between dating everyday letters and the carving on gravestones in a cemetery.  Thus, the Jewish burial society must steel itself in order to stand its guard and not change the custom of Israel from time immemorial, and so God should be with them to overcome all encroachments, to magnify the Torah and make it exalted (emphasis mine – I.E.).

16. Certainly, it not this court’s place to draw a conclusion on a matter of Jewish Law that is different from the ruling of the Chief Rabbi of Israel and the local rabbi of Rishon Lezion. The question here is different in one central point from that which this court adjudicated in earlier cases.  This time, we must decide whether to force the Jewish burial society to permit inscriptions on gravestones that have been prohibited by the ruling of the local rabbinic authority, whose rulings the Jewish burial society must follow to qualify for its license. This problem did not come before the Court in previous cases, since the Court then made the (erroneous) assumption that the prohibition is not based in Jewish Law. Now we find that the clash is between the appellant and the religiously observant who abide by Jewish legal rulings. The Court noted the fact that other Jewish burial societies behave differently and that in printed matter, old and new, and also on letters, the standard date appears – these facts are irrelevant. The important principle in Jewish Law is that the public is bound by the rulings of the local rabbinic authority, in this case the rabbi of Rishon Lezion. This principle is set out in explicitly in the license of the Jewish burial society. Since it is based in religious sources, this Jewish legal ruling cannot simply be dismissed.

17. It is not up to the Court to gauge feelings that are impossible to measure objectively. My colleague, Justice M. Cheshin, complains that the Jewish burial society has made itself “caretaker” of those buried in Rishon Lezion, without hearing from the relatives of those dead people it claims to represent.  Do my colleagues really have any doubt that they could find many fine God-fearing Jews who wish with all their hearts for the Jewish burial society to follow the orders of the rabbi of the city, and who believe that there are grounds to a religious prohibition originating in the ruling of the chief rabbi of Israel?! Is it “never-ending conjecture” to assume this? I wonder!

18. The major question at issue now is the relationship between the basic freedom of religion of the Jewish burial society and the religiously observant relatives of the dead, on one hand, and, on the other hand, the basic freedom of other relatives of the dead to behave according to their ideology. All these must be addressed within the bounds of the definition of a cemetery, which all agree is a sacred place under Jewish law (if only in the framework of King’s Order in Council on the Land of Israel (Holy Places), 1924). Far be it from me to belittle the values and feelings of either group. To my mind, we have no right to measure the emotional or essential weight of the opposing demands, using a hierarchy of values that is personal in nature. To a religiously observant Jew, transgressing a religious prohibition can be as serious as carving a real cross, while the prohibition of standard dates is, for the appellant, a grave violation of her fundamental values. The real struggle is outside the boundaries of the cemetery; behind this dispute, forces are warring for the character of Judaism and the State of Israel. This is the real issue that stands before this Court, and there is no ignoring it.

19. I have said that a judicial ruling cannot, and even should not pretend to be able to decide an ideological dispute. It would be nice if the litigants could come to a mutual compromise and prevent this clash from further splintering this already divided society. It would be nice if those Jews buried beneath the ground could rest in peace together in a Jewish state that is not afflicted with strife and contention among the living. But this is not the situation. The Alternative Burial Law shows the future path chosen by the legislature: the dead will be separated from each other; everyone will be buried according to the ideology that he or she espoused in his or her lifetime. The new arrangement brings a solution to the problem for individuals, but I fear that it will create new problems for society.

20. What, therefore, is the legal solution to the case we discuss? The two principles mentioned – the freedom of religion of the Jewish burial society and the freedom of the relatives of the dead – are both important. The problem is that when the litigants can’t reach an agreement, one principle must be overruled. This is the problem of true justice: in a situation where, unfortunately, it is impossible to safeguard all the legitimate interests, there is a need give preference to one over the other. It is great in theory to talk about balancing opposing interests. I am not convinced that this metaphor accurately describes the judicial process under which we are bound, at the end of the day, to reject the right of one in favor of the right of another.

Be that as it may, I am of the opinion that in the matter at hand, the right of the relatives of the deceased to carve the gravestones as they like must retreat in the face of the right of the Jewish burial society to act in accordance with the local rabbinic authority’s ruling. Why is this so? The Jewish burial society is, as its name reveals, holy. It is an institution performing a religious function that is known in the Jewish tradition as “the true kindness.” The Jewish burial society must act according to Jewish law as ruled by the local rabbinic authority; this takes precedence. This is laid down in the terms of its license, this was the expectation of many of the deceased of the city, and this is demanded many of the relatives of the deceased.

21. In my opinion, this court is not authorized to force a religious body – be it public or private – to act in contravention of religious law. This coercion seriously violates freedom of religion. Such a violation is allowed only by the express order of the legislature, as in cases where the religious body transgresses the penal code or where the legislature forbids the body to act according to religious precepts for important reasons. In the absence of an express order, a person cannot be forced to transgress a religious precept, be it minor or serious.

Furthermore, this Court is not authorized to question the legitimacy of the Jewish legal ruling of an authorized institution. The Court is not a Jewish legal authority, and the personal view of a justice on the worth of the religion as a whole and a religious ruling in particular is irrelevant, as was justly noted by Justice Witkon in Gideon [1]. If a Jewish legal ruling infringes on the ideology of people who need the services of a religious body, it is appropriate to find a solution that satisfies all parties. But forcing the body to transgress religious law cannot be the correct solution in a democratic country that respects freedom of religion. The solution of coercion is especially problematic when the Court assumes the task of evaluating the importance of a certain religious precept and the degree of damage that its transgression will cause to the sensibilities of the religious public.

Thus, if my opinion were heard, this Court would refrain from forcing the Jewish burial society to transgress the ruling of the authorized local rabbi. Therefore, the appeal must be denied.

 

President A. Barak

I concur in the opinion of my colleague, Justice M. Cheshin. His reasoning and conclusion are acceptable to me. I wish to add several comments.

1. Under the district court’s rationale, the precedent of CA 294/91 (Kestenbaum [6]) is no longer applicable in light of the Alternative Burial Law. As my colleague, Justice M. Cheshin, noted, nothing in this law detracts from the rationale of Kestenbaum [6]. The obligations of the Jewish burial society – as a “dual-character body” – did not change with the passage of the Alternative Burial Law. This law did not create a new balance between the conflicting considerations and values. Therefore, I do not find a need to decide whether, in constitutional terms, the Alternative Burial Law changes the balance between the Hebrew language as a value and the values of human dignity, freedom of conscience, thought and expression, and tolerance. That is to say, we have no need to decide this question. All we can say is that it is an open question, and we leave it at that. In any case, on the interpretative plane – a plane on which we seek, to the extent possible, to avoid an interpretation that risks rendering a provision illegal – the conclusion at which my colleague, Justice M. Cheshin, arrived is a necessary conclusion. That conclusion is that the appropriate balance between the Hebrew language as a public value and human dignity (of the deceased and his relatives), as was ruled in Kestenbaum [6], remains unchanged.

            2. My colleague Justice Englard introduced the value (and liberty) of freedom of religion into the pool of values requiring attention. Kestenbaum [6] did not address this issue. The assumption in that case was that “the ruling of the Jerusalem Community Jewish Burial Society not to allow foreign writing was not done for reasons of a Jewish legal prohibition.” See Deputy President Elon’s comments in Kestenbaum [6] at 499. My colleague, Justice Englard, noted that the prohibition against writing in foreign letters has a Jewish legal basis of which Deputy President Elon was unaware. This basis is the issue of the religious obligation of the Jewish burial society and the God-fearing people of Rishon Lezion to follow the rulings of the local rabbinic authority. No arguments on this matter submitted in this case. I assume, for the purposes of this judgment, that the ruling of the local rabbinic authority creates a religious obligation to be borne by the members of the Jewish burial society and the religious community alone. What influence does this new factor have?

3. In Kestenbaum [6], we ruled that a Jewish burial society – every Jewish burial society – is a body of “dual character.” In addition to its private law obligations, it bears the burden of public law. Given this framework, the Jewish burial society must act fairly and reasonably. It must act as the faithful servant of the public. It may not take external considerations into account. It may not discriminate. It must realize the sense of purpose that lies at the foundation of public status. This sense includes, among other things, the principle that it must carry out its role for the good of the whole community, and not just for the good of the religious populace. When the values and principles of these two groups clash, it must act in a way that realizes its purpose and reflects an appropriate balance. What are these values and principles, and how do we evaluate the clash between them?

4. In Kestenbaum [6], the Court ruled – and this aspect of the ruling was acceptable to all the justices of the panel – that the values and principles coming into conflict were these: on one hand, the Hebrew language as a value; on the other hand, human dignity as a value. The Court weighed these opposing values and principles. It ruled, by majority opinion, that human dignity takes precedence. I wrote there:

A government authority in Israel is not licensed to deal a serious and severe blow to human dignity in order to advance the value of the Hebrew language. In this clash between considerations of the Hebrew language and human dignity, human dignity has the upper hand. Of course, a government agency in Israel which provides burial services to Jews is authorized to consider the need to safeguard and promote the Hebrew language. It has this authority even if doing so will cause serious and severe harm to individuals of abnormal and extreme sensitivity. It is not authorized to cause serious and severe harm to the human dignity of an “ordinary” and “average” individual in Israel. This conclusion is drawn from the central importance the value of human dignity holds in Israel.

Kestenbaum [6] at 523-24.

 

Yet now my colleague Justice Englard comes and enlightens us that in the case at bar, we must consider an additional factor: the ruling of the local rabbinic authority of Rishon Lezion. How does the picture change with the introduction of this “factor”?

5. The ruling of the local rabbinic authority obviously adds complexity to a situation that was never simple. My colleague, Justice Englard, holds that to the overall picture, we must add the “…basic freedom of religion of the Jewish burial society and the religiously observant among the relatives of the dead …” Para. 18. But I doubt that the harm done is to freedom of religion. No one is forcing the members of the Jewish burial society to carve foreign writing on a gravestone. They personally will not act contrary to the order of the local rabbinic authority. The inscriptions will be done by professionals and not members of the Jewish burial society. Similarly, no one is saying that foreign writing will be inscribed on the gravestone of a religiously observant person, against his will or that of his family. A non-Hebrew inscription will be made only on the gravestone of a person who requests it (in his or her lifetime) or if his or her relatives request it (after his or her death). Thus, it seems to me that freedom of religion is not violated.

Nevertheless, I accept that even if there is violation of freedom of religion, harm is done to the religious sensibilities of the members of the Jewish burial society and to religiously observant relatives of the dead. I made this differentiation in HCJ 5016/96 (Bar-Ilan Street [15]), at 58 {212}, when I said:

The desecration of the Sabbath on Bar-Ilan Street is offensive [to the religious population residing close to Bar-Ilan Street] and infringes on their observant lifestyle. Indeed, from their perspective, the offense is both bitter and severe. This is the interest in question on one side of the issue. This having been said, let it be emphasized that I am not convinced that Sabbath traffic on Bar-Ilan Street violates the freedom of religion of the residents. These residents are free to observe the religious commandments. Sabbath traffic does not serve to deny them this freedom … Even so, traffic on the Sabbath does harm the residents’ religious sensibilities and their observant lifestyle.

One can obviously claim that the order of the local rabbinic authority is to remove all non-Hebrew writing. In this case, preventing a religiously observant person – who sees himself or herself as bound by the rulings of the local rabbinic authority – from removing the writing would violate that person’s religious freedom. This is the way my colleague, Justice Englard, views the case at bar. He asks, if we “force the Jewish burial society to permit inscriptions on gravestones that have been prohibited by the ruling of the local rabbinic authority …” Para. 16. As I noted, this issue was not raised in this case at all. However, I will assume that we are indeed concerned with the value (and liberty) of freedom of religion, in the context of the non-fulfillment of the order of the local rabbinic authority.

6. In Kestenbaum [6], on one side of the scales of justice, weighed the value of safeguarding the Hebrew language, and on the other side weighed the value (and liberty) of human dignity. Now we must add to one side, the value of safeguarding the Hebrew language, and the value (and liberty) of freedom of religion, which to my mind is really an aspect of human dignity (see HCJ 3261/93 Manning v. Minister of Justice [21] at 286). Simultaneously we must add, on the other side, an additional aspect of harm to human dignity, specifically the harm which occurs when human dignity is violated for religious reasons. Actually, in my view, freedom from religion is also an aspect of human dignity. Therefore, one person enjoys freedom of religion, but another has the freedom to act according to the autonomy of his personal desires. This is the freedom of an individual not to be bound by a religious prohibition in which he or she does not believe. This is the freedom of the individual to choose his or her own path – in life and in death – according to his or her ideology.  Indeed, just as the considerations in favor of exclusively Hebrew writing include language and freedom of religion, so the opposing considerations include free will and preventing religious coercion. Yet my colleague, Justice Englard, completely abandoned the consideration of the Hebrew language in his judgment. This is how he describes the dilemma in the instant case:

The major question at issue now is the relationship between the basic freedom of religion of the Jewish burial society and the religiously observant relatives of the dead, on one hand, and, on the other hand, the basic freedom of other relatives of the dead to behave according to their ideology.

            This framework assigns consideration of the Hebrew language no role. Indeed, if the case against non-Hebrew writing is religious, then anyone who seeks to engrave this writing and is forcibly prevented from doing so is a victim of religious coercion. Therefore, we face a case of conflicting values. Freedom of religion is clashing with freedom from religion. Human dignity provides the conceptual bounds for this clash. How can the Court resolve the conflict?

            7. The answer that has been given to this question since the founding of the State is that the Court must weigh the opposing considerations on the scales of justice. It must balance the conflicting values and principles. It must reach a balance according to the weight of the opposing considerations at the point of decision. This is how the Court has behaved from its inception until this very day. This is “the balancing doctrine as practiced in our public law.” Bar-Ilan Street [15] at 37 {187}. To the best of my knowledge, only once did this Court refuse (in a majority opinion) practice the “balancing doctrine.” This was when the state’s very existence was placed on the scales. EA 1/65 Yardor v. the Chairman of the Central Elections Committee of the Sixth Knesset [22]. When we were asked to apply this approach to the democratic character of the state, we refused to do so. See EA 2/84 Neiman v. the Chairman of the Central Elections Committee of the Eleventh Knesset [23]. Thus, since the founding of the State, the Court has engaged in balancing opposing values and interests. This is “… a process of placing competing values on the scales and deciding, under the circumstance, which one to prefer.” See Justice Agranat's opinion in HCJ 73/53 Kol Ha’am v. Minister of the Interior [24] at 879. The common denominator throughout our constitutional jurisprudential theory is that:

In the organized life of society there is no “all or nothing.” There is “give and take” and balancing different interests.

HCJ 148/79 Sa’ar v. Minister of the Interior and the Police [25] at 178.

 

            At the basis of this view stands the recognition that values and principles – and the liberties that are derived from them – are not absolute in nature. Values, principles and liberties have no “absolute” weight. Their weight is always relative. Their status is determined in relation to other values, principles and freedoms with which they conflict. CA 105/92 Re’em Engineers v. Municipality of Upper Nazereth [26] at 205.

            8. This court applies the balancing doctrine where one of the values or principles is linked to freedom of religion or religious sensibilities. See Bar-Ilan Street [15] at 38. Thus, for example, in every case where religious sensibilities clashed with freedom of expression, we balanced the conflicting values. HCJ 351/72 Keinan v. Film and Play Review Board [27]; HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [28]. Similarly, when religious sensibilities (regarding the Sabbath) clashed with the public interest (the supply of gas or freedom of movement), we balanced these conflicting values. CrimA 217/68 Izramax Ltd. v. The State of Israel [29] at 364; Bar-Ilan Street [15].

            Religious sensibilities and freedom of religion are, of course, values and liberties of great importance but they are not absolute. We must always attempt to balance them with any conflicting values and liberties. Bar-Ilan Street [15] at 38. Justice Zamir established this principle:

Religious sensibilities do not enjoy absolute protection. There is no law that provides absolute protection to any right or value. All rights and values, whatever they may be, are relative. Necessarily, the protection they are offered is also relative. This applies equally to the protection extended to religious sensibilities …

 

HCJ 7128/96 Temple Mount Faithful Movement v. The Government of Israel [30] at 521.

 

Freedom of conscience, beliefs, religion, and religious rituals, as much as they flow from belief to action, are not absolute liberties … Freedom of conscience, faith, religion, and religious ritual are relative liberties. They must be balanced with other rights and interests which are also worthy of protection…

HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander [31] at 455.

 

            This approach was adopted by Deputy President Elon when he balanced the conflicting demands for the prayer arrangements at the Western Wall plaza. HCJ 257/89 Hoffman v. Western Wall Superintendent [32] at 274. Justice Tal adopted a similar approach in Bar-Ilan Street [15].

            9. Against this background, we must decide the appropriate balance in the case before us. Regarding the balance between the Hebrew language as a value and human dignity as a value, I can only refer to what was said in Kestenbaum [6]. All that is left for me to do is to decide if that conclusion is altered in light of the new values and principles introduced into the equation by my colleague Justice Englard. From one point of view I assume that the value (or liberty) of freedom of religion is an aspect of human dignity; from the other point of view there is the value (or liberty) of freedom from religion, which is also an aspect of human dignity. How will the balance be struck in this case? Is it possible to find a balance between conflicting values and principles that are within the boundaries of the same liberty? The answer is in the affirmative.

            This is not the first time we have weighed different aspects of the same liberty. We did so, for example, when freedom of expression clashed with religious sensibilities – both of which are protected under the right to human dignity, in my view. See HCJ 243/81 Yeki Yosha v. The Film and Play Review Board [33]; HCJ 806/88 supra [28] at 38. Similarly, we sought a balance when freedom of expression clashed with freedom of movement within the country – both of which are aspects of human dignity in my view as well. See HCJ 148/79 supra [25]. In this example, the conflict was, at root, between two aspects of freedom of expression. Thus we also behaved when the right to one's good name (which is part of human dignity) clashed with the right to freedom of expression (which, in my view, is another aspect of human dignity). Cf. CA 214/89 Avner v. Shapira [34].

            Thus, in cases of clashing values and principles that fall within the bounds of the same liberty – just as in cases of clashes between different liberties – the way to solve the problem is not the “all or nothing” approach, but rather by finding a balance between the conflicting values and principles. Therefore, we cannot say that, in a conflict between freedom of religion and freedom from religion, one always has the upper hand. If we said that, we would be undermining the constitutional standing of one of these freedoms.

            The appropriate practice is to balance conflicting values and principles that fall within the bounds of the same liberty. In the framework of this balancing, we must aim to preserve the “core” of each of these liberties so that any damage will only affect the “shell.” Compare clause 19(2) of the German constitution which establishes that “the essence of a basic right should never be violated." We must contemplate the seriousness of the violation and its essence. The decision itself needs to be made from considerations of reasonableness, fairness and tolerance.

            10. We will return, therefore, to the case before us. On one side of the scales rests the human dignity of the deceased and her family, who seek to inscribe Latin lettering on her gravestone. This liberty protects them from harm to their sensibilities. It protects them from religious coercion. This liberty is damaged in a serious, severe and essential way if they are not allowed to carve the deceased’s name or birth date in the writing they choose. I took this view in Kestenbaum [6], when I said:

The “ordinary person,” who does not have special sensibilities is seriously harmed if he or she has no power to engrave a loved one’s gravestone with the language that he or she decides memorializes the deceased in an appropriate way … The negation of this freedom and the insistence on the exclusive use of Hebrew writing is a serious and severe violation of the fundamental value of human dignity.

Id. at 523; see also HCJ 5688/92 supra [7] at 827.

 

This violation is exacerbated when the restrictions are perceived as religious coercion.

            11. On the other side of the scales, we find the freedom of religion of the members of the Jewish burial society to follow the ruling of the local rabbinic authority. Also weighing on this side is the dignity of the dead and the feelings of their relatives, which are harmed by the presence of foreign languages on gravestones in the cemetery – even though not on the gravestones of their loved ones. This harm must also be taken into account. It is a part of the human dignity of the deceased and their relatives.

            12. How do we balance these conflicting considerations? It seems to me that in the present circumstances, the deceased and her relatives who wish to carve Latin lettering on the gravestone must be given the upper hand. The reasons for my approach are twofold: First, the harm to the deceased and the relatives – who are prevented from having writing in the language they choose – is direct and serious. On the other hand, the harm to the other deceased and their relatives when others are allowed non-Hebrew writing is indirect and not serious. The latter are not harmed by writing on the gravestones of their loved ones. They are harmed by writing that is on the gravestone of others – writing that has existed in this cemetery for many years. The harm to the first group is certainly not the same as the harm to the second group, if we weigh these violations on the scales of tolerance. President Shamgar ruled thus in Kestenbaum [6], where he remarked:

One who erects a gravestone and another who comes to visit a different grave in the cemetery do not stand on the same plane. The general model needs to be that one who enters the space of his neighbor may not interfere needlessly with his life and sensibilities. Everyone must allow others the right and the freedom to do as they please, according to their own feelings and sensibilities, and tolerance is mandatory. People should not meddle in others’ business which is not relevant to them, though of course this does not refer to conditions that a reasonable person cannot accept.

Id. at 482

 

My colleague, Justice M. Cheshin, made the same ruling when he differentiated between the “private domain” of the gravestone of the deceased and the “public domain” of the other graves. Para. 22 of his opinion.

            13. Second, the prohibition against foreign writing for religious reasons – to differentiate from the prohibition for the sake of the Hebrew language – constitutes religious coercion. It violates the free will of the deceased and her relatives. It violates their autonomy of personal choice on one of the most sensitive points – the relationship with a loved one who has passed away. It damages the bond connecting the living with the dead. This violation is serious and severe. It is exacerbated by the fact that the cause is religious coercion. On the other hand, the harm to the religiously observant populace – harm which I acknowledge and take into consideration – in that they are not able to fulfill the ruling of the local rabbinic authority is not as serious or severe.

            We should recall that the issue here is “local” Jewish Law, as every local rabbinic authority makes its own rulings. We have been presented with the fact – and my colleague, Justice M. Cheshin, developed this extensively – that many other cemeteries in Israel allow foreign writing on gravestones. The local rabbinic authorities of these cemeteries do not see fit to ban this writing. Even in the Rishon Lezion cemetery – the cemetery at issue here – there are many gravestones inscribed with foreign writing. The local rabbinic authority of that time did not see fit to prevent it. These same members of the Jewish burial society, who in the past did not object to the writing, have suddenly changed their minds because of the change in identity of the local rabbinic authority. Furthermore, they are not being required to actively do anything – such as make an inscription that goes against the ruling of the local rabbinic authority. All that is asked of them is to refrain from actively doing anything – such as the erasing of inscriptions – as the local rabbinic authority demands.

            In the final analysis, it seems to me that the issue of Hebrew writing on gravestones, with all its importance from the Jewish legal aspect, is not at the “core” of Jewish Law but on its margins. It is assumed that, on core issues, all local rabbinic authorities rule in a similar fashion. The plethora of opinions on this issue indicates that it is a “local” matter, not one of the central tenets of Judaism. In any case, we have not gotten to the bottom of this claim, because it was not raised in the instant case. Cf. HCJ 465/89 Ruskin v. Jerusalem Religious Council [35]; CrimA 217/68 supra [29] at 356 (raising similar evaluations). 

            14. I have therefore reached the conclusion that in the clash between freedom of religion – of the members of the Jewish burial society, the dead, and their relatives who seek exclusively Hebrew writing on the gravestones of others as per the ruling of the local rabbinic authority – and the freedom from religion of the dead and their relatives who seek to carve a foreign script on the gravestones of their loved ones – the latter's freedom is to be preferred. If we add this to the decision in Kestenbaum [6], in which the court arrived at a similar conclusion regarding a clash between the Hebrew language as a value and human dignity as a value, the final conclusion is that non-Hebrew writing must be allowed on gravestones in the Rishon Lezion Cemetery.

            15. Some may claim that the viewpoint which gives preference to values and principles allowing foreign writing on gravestones is a secular viewpoint. They may claim that if we conducted the balancing from a religious viewpoint, the outcome would differ. I cannot accept this claim. Balancing is neither secular nor religious. It weighs the conflict between values and principles from the appropriate perspective of the state’s general values as a democratic and Jewish state. This is an integrative viewpoint, based on a synthesis between Jewish and democratic values. The Court is neither secular nor religious. The Court considers the feelings of everyone; the Court takes into the account the liberties of everyone; the Court expresses the values of everyone – Jewish values and democratic values. To the best of its ability, it balances the conflicting feelings, liberties and values.

            16. One might claim, of course, that the balance that I have conducted reached the wrong conclusion. It could be maintained – as Deputy President Elon ruled in Kestenbaum [6] – that in the appropriate balance, the ruling of the local rabbinic authority is to be preferred. This is a legitimate position, and it finds expression in many judgments of this court, with which the majority opinion agrees. Note that in this appeal, my colleague Justice Englard adopts a completely different stance. In his view, even if it wields public authority, a religious body that operates according to the norms of Jewish Law must be allowed – based on its freedom of religion – to follow religious directives. My colleague writes:

As a matter of principle, this court is not authorized to force a religious body – be it public or private – to act in violation of the religious law which it believes in. Such coercion seriously violates the principle of freedom of religion. Such violation is permitted only by express order of the legislature ... In the absence of an express order, the body cannot be forced to transgress a religious precept, be it minor or serious.

Para. 21.

 

            In my colleague’s view, the “balancing doctrine” does not apply to a case where the liberty in question is freedom of religion. In my colleague’s opinion, “in the matter at hand, the right of the relatives of the deceased to carve the gravestones as they like must retreat in the face of the right of the Jewish burial society to act in accordance with the local rabbinic authority’s ruling.” Para. 20. At the basis of my colleague’s stance lies the view that the balancing doctrine does not necessarily apply in a case when the dispute is “to a large extent ideological.” Para. 8. My colleague writes:

The central questions are: What are the sensibilities that need to be defended? Who has the burden of being tolerant? And who must give in? Of course, for the sake of finding a solution to the problem, the Court uses legal principles and conceptual tools through which it can adjudicate the opposing demands of the litigants … But these conceptual tools cannot succeed in getting to the root of this ideological dispute.

Para.8.

 

In my colleague’s view, comparisons between feelings are inappropriate, since they are not based on an objective test. Subjective points of view differ from judge to judge. My colleague writes:

I question if it is the role of the Court to establish the 'legitimate' boundaries of the sensibilities of believers in general, and of the religiously observant public in particular. In addition, the definition of the boundaries of “reasonable” sensitivity is based largely on subjective views, as illustrated by the differences of opinions among the judges themselves.

Para. 13.

 

He adds:

It is not up to the Court to gauge feelings that are impossible to measure objectively…

… we have no right to measure the emotional or essential weight of the opposing demands, using a hierarchy of values that is personal in nature …

… a judicial ruling cannot, and even should not, pretend to be able to decide an ideological dispute.

Paras. 17, 18, and 19.

 

I cannot agree with this approach. It constitutes a grave violation of the liberties of individuals in general, and freedom of religion and freedom from religion in particular.

            17. My colleague, Justice Englard, holds that in cases such as this, when we are dealing with a religious body or a religious law, the Court has no authority – in the absence of an express order of the legislature – to enforce behavior that contravenes any religious precept, be it serious or minor. This approach is worth considering in a case where the religious body imposes its religious authority on a group of believers who accept its instructions. Yet even in that situation we must take into consideration – as Kestenbaum [6] teaches us – general principles, such as public policy and good faith. 

            This approach is certainly not acceptable – and becomes religious coercion – when we find that a religious body imposes its public authority on a group of the population that does not subscribe to its beliefs but is subject to the body’s authority only because it has no other choice. In a long line of rulings we have made regarding such bodies, including the rabbinate, the religious councils, and the rabbinical courts, which all have statutory authority, the scope of the applicability of religious law depends on the purpose of each individual statute. This purpose is decided through the appropriate balance of the values and principles related to the case. See e.g. HCJ 465/89 supra [35]; HCJ 47/82 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs [36]; HCJ 3944/92 Marbek Slaughterhouses v. Chief Rabbinate of Netanya [37]; HCJ 1000/92 Bavli v. The Great Rabbinical Court [38].

            This case concerns the Jewish burial society, so our point of departure is not that the Jewish burial society is a private body that may impose its authority with the consent (explicit and implicit) of the religiously observant. Our point of departure – as was ruled in Kestenbaum [6] – is that the Jewish burial society is a public body that operates in the realm of public law. The obligations of public law are incumbent upon it.

            18. The approach of this court, since the day of its inception, has been based on the need to balance conflicting values and principles. This has been true in cases of clashes between values and principles in general (see paragraph 7); and particularly in clashes between values and principles concerning freedom of religion and freedom from religion (see paragraph 8). This balancing is rooted in the values of the State of Israel as a Jewish and democratic state. See Para. 1a of the Basic Law: Human Dignity and Liberty. Only this balancing can allow our country – which is not run by Jewish Law – to fulfill the values of the State of Israel as a Jewish and democratic state.

            19. Negating the power of the Court to set appropriate boundaries to protect religious sensibilities will ultimately lead us – in a State of Israel that is not a theocracy (HCJ 3872/93 supra [19] at 506) – to fail to consider these sensibilities. The end result will be damage to freedom of religion itself. Thus, it is actually the need to protect religious sensibilities and freedom of religion that necessitates balancing different values and principles.

            These balances – which are based on the relative weight of the principles and values – entail assessing the varying degrees of harm to sensibilities. This assessment is also necessary to ensure tolerance. Only through tolerance can we maintain communal life. A healthy society is based, in essence, on mutual compromise and tolerance. CA 105/92 supra [26] at 211. Tolerance is essentially the rejection of the “all or nothing” approach, and the promotion of mutual compromise by assessing varying degrees of harm to sensibilities. See HCJ 257/89, supra [32] at 354; HCJ 806/88, supra [28] at 30. Indeed, a democratic society that seeks to recognize and protect the human rights of all its citizens must acknowledge people’s sensibilities and balance them by considering degrees of harm to sensibilities. Only harm that crosses the “threshold of tolerance” will warrant protection. I remarked on this in an earlier case:

[It is] our duty to recognize a certain “threshold of tolerance” regarding harm to sensibilities, which every member of a democratic society accepts as part of the social contract upon which democracy is predicated.  This being the case, only when an offense exceeds this “threshold of tolerance” will restricting human rights in a democratic society be justified.

…

Clearly, the “threshold of tolerance” is not uniform, but rather a function of the right and infringement in question

…

It is possible to infringe on human rights for the purpose of protecting feelings – particularly religious sensibilities and lifestyle – in a society with democratic values, provided that the harm exceeds the “threshold of tolerance” accepted in that society.

Bar-Ilan Street [15] at 47-48 {200-201}.

 

A different approach will not only fail to safeguard the freedom of religion that my colleague Justice Englard bases himself on, but it will also seriously damage it.

            20. Granted, the balancing doctrine is not simple to implement. We have no “scientific instruments” to do so. The expressions “balancing” and “weighing” are no more than metaphors. Behind them lies the perception that the values, principles and liberties do not have absolute significance. See 3 A. Barak, Parshanut Bimishpat [Interpretation in Law] Parshanut Chukatit [Constitutiona] [46] at 215. Establishing the relative societal significance of values and principles is a complex process. See HCJ 6163/92 Eisenberg v. Minister of Construction and Housing [39]. However, it is wrong to draw the conclusion that, because of the difficulties, we should abstain from this process. There are many legal principles that are based on the need for balancing. It would never occur to us to abstain from them on account of the difficulties that they carry. Take principles like reasonableness, fairness, good faith, proportionality, and public policy. All these and many other principles reflect the balance between conflicting values and principles. See HCJ 935/89 Ganor v. Attorney-General [40] at 513-14. Should we abstain from working with these principles simply because of the difficulties they entail?

21. My colleague, Justice Englard, complained that using balancing to measure the degree of harm to sensibilities is subjective for every judge. He dismisses the consideration and evaluation of the different sensibilities because of their personal and subjective nature and because the dispute at hand is a matter of “personal ideology.” I do not argue with the conclusion that, at a certain stage, subjective perspectives become considerations. See Aharon Barak, Judicial Discretion [47] at 124-25. I do not ignore the personal nature of the decision. Nevertheless, it is important to remember that only a small proportion of the considerations are subjective. The principle work of a judge is dictated by a stratified system of objective considerations. These are required by the foundation documents; these were used in previous judgments; these are shared by each and every judge.

In truth, a ruling is always value-based, but this does not mean that it is subjective. Most value-based judgments are objective, and they are mandated by the values of the system. A competent judge is able to implement this system by differentiating between objective considerations and his or her personal, subjective views.  That is how it has always been done.

            The many difficulties bound up with the personal perspective versus the occasional need for a subjective decision do not diminish the standing of legal values and principles and the need to balance them at the point of friction. We do not want to regress to a jurisprudence of concepts (Begriffsjurisprudenz) in which the conclusion supposedly arises, as if on its own, from objective considerations. We prefer the jurisprudence of interests (Interessenjurisprudenz) and the jurisprudence of values (Wertungsjuerisprudenze) in which an “ideological” decision is required. See HCJFH 4601/95 Saroussy v. National Labor Court [41]. We prefer substance over form. All these allow us to arrive at an objective decision, which is not personal to each and every judge, even if it is based in “ideology.” In any case, this needs to be the model, while at the same time we acknowledge that sometimes there is no avoiding a subjective ruling. This is the “price” – it is worthwhile to pay it in order to ensure justice.

22. At the beginning of his opinion, my colleague lamented that the litigants in the instant appeal – and the litigants in similar petitions that have been brought in the past – could not reach an agreement. I share my colleague's sense of regret. Everything must be done to broker understandings and agreements based on give and take, on compromise and tolerance. Even we, in the framework of this hearing, have proposed different suggestions to the sides, in order to promote a mutually acceptable solution. Unfortunately, our efforts have failed. We have no choice, then, but to issue a court ruling. It is appropriate that the legal ruling should reflect, as much as possible, the spirit of compromise and tolerance, since only through these principles can the unity of society be preserved. Indeed, in a societal framework like ours, in which a significant sector of the public does not hold by the rulings of the local rabbinic authority, there is no escaping a standard framework based on tolerance and compromise.

            In a legal reality such as ours, in which people who are not religious sometimes need religious services provided for the most part by religious people, there is no avoiding the search for criteria which are not just “all or nothing” and which draw distinctions between major laws and minor ones. Indeed, the balancing doctrine, which relates to all aspects of law, is especially applicable to the relationship between religion and state, between the values of Israel as a Jewish state and its values as a democratic state. Only the attempt to find a synthesis between the conflicting values will allow society to function. Emphasizing the conflicts and the differences will divide and sunder our society. Therefore, a rigid ruling that leaves no room for compromise, which allows the members of the Jewish burial society to act according to the ruling of the local rabbinic authority in minor matters as in major ones, regardless of the sensibilities of the non-religious, is a recipe for societal division and disintegration. Those who seek compromise and understanding need to continue to try and find balances between conflicting values and principles.

            23. For these reasons, I cannot agree with the position of my colleague, Justice Englard. These are not subjective reasons. These are objective reasons. They are drawn from our legal system, from its Jewish and democratic values, from many years of this court's rulings and from the need to ensure mutual patience and tolerance. For these reasons, I concur in the judgment of my colleague Justice M. Cheshin.

            It is decided, by the majority opinion of President Barak and Justice M. Cheshin, with Justice Englard dissenting, to accept the appeal, as per the judgment of Justice M. Cheshin.

July 6, 1999.